from the Iowa District Court for Crawford County, Steven J.
defendant challenges his sentence of incarceration, claiming
a double jeopardy violation. SENTENCE CONDITIONALLY AFFIRMED,
REMANDED WITH INSTRUCTIONS.
Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey &
Daane, Sioux City, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J. and Doyle and Tabor, JJ.
more than four years, Christopher Jepsen was mistakenly
allowed to serve probation following his conviction for a
forcible felony. In 2016, on the State's motion, the
district court corrected the illegally lenient sentence and
ordered Jepsen to serve a prison term not to exceed ten
years. In this appeal, Jepsen contends the court's
failure to credit his corrected sentence for the time he
served on probation violated double jeopardy.
the multiple-punishment protection under the Double Jeopardy
Clause turns on legislative intent, we must examine whether
Jepsen was entitled to a sentencing credit under Iowa Rule of
Criminal Procedure 2.24(5)(b).Finding our examination hindered
by a limited record, we conditionally affirm the corrected
sentence and remand with directions for the district court to
determine whether Jepsen served any of his probationary
sentence in a residential treatment facility or an
alternative jail facility. Under rule 2.24(5)(b), Jepsen is
entitled to "full credit" for any time spent in
"custody" in those facilities, but he is not
entitled to credit for time otherwise spent under supervised
Facts and Prior Proceedings
August 24, 2011, a jury convicted twenty-five-year-old Jepsen
on two counts of third-degree sexual abuse, class
"C" felonies. On count I, the jury found Jepsen
performed a sex act in 2010 with E.G., who was fourteen or
fifteen years old at the time. See Iowa Code §
709.4(2)(c) (2009). On count II, the jury decided Jepsen
performed a sex act in 2010 with H.B., who was thirteen years
old. See id. § 709.4(2)(b). On September 11,
2011, the court entered judgment and sentenced Jepsen to
indeterminate terms not to exceed ten years on each count, to
run consecutively for an indeterminate twenty-year term.
Under section 907.3(3), the court then suspended the prison
sentences, placing Jepsen on probation for five years to the
Third District Department of Correctional Services upon the
terms and conditions required by his probation officer. Among
those conditions, the sentencing order recognized Jepsen
could be placed in a residential treatment facility at the
probation officer's discretion.
October 2014, the State filed an application to revoke
Jepsen's probation due to his admitted use of the
internet to obtain pornographic images of children. While
investigating the probation violation, the State noticed the
illegality of Jepsen's original sentence on count II.
Specifically, because H.B. was thirteen years old, this
conviction was a forcible felony, and a person convicted of a
forcible felony was not eligible for a suspended sentence.
See id. § 702.11. In December 2015, the State
filed a motion to correct the illegal sentence. The court
ordered an updated presentence investigation (PSI) report.
Jepsen resisted the motion, arguing double jeopardy should
prevent the court from correcting his sentence at such a late
date and also requesting "credit for his time served on
probation from 9/26/11 through the present"-but trial
counsel did not link the double-jeopardy argument to the
credit request as Jepsen now does on appeal.
hearing on the State's motion, the court found the
original sentence on count II was illegal and void because
the sentencing court did not have the authority to suspend
the sentence and order probation. The court then told the
parties it "would stand by the general rule that double
jeopardy arguments generally cannot be applied when the
sentence is void."
court conducted a full resentencing hearing, noting it had
all sentencing options available to it. The court referenced
the updated PSI report and the materials filed by the State
for an anticipated revocation hearing. The court's
January 29, 2016 corrected judgment and sentencing order
voided the conflicting portions of the original sentence and
imposed indeterminate ten-year terms of incarceration on each
count, to run concurrently. The court gave Jepsen credit for
time served in the county jail, but it did not grant his
request for credit for time served on probation under section
907.3(3) and Anderson v. State, 801 N.W.2d 1, 4
(Iowa 2011). The court explained: "[F]rom a procedural
standpoint, this is a new sentence. Mr. Jepsen is not being
sent to prison based upon a revocation of that probation
under section 907.3[(3)], which was applied by the
Anderson case. That is where the credit is received
following a revocation of probation." Based on the new
sentence, the court dismissed the State's application for
probation revocation as moot on February 1, 2016.
now appeals, claiming his trial attorney rendered ineffective
assistance "because she failed to argue the Double
Jeopardy Clause . . . requires that Jepsen receive credit
against his corrected sentence of incarceration for all of
the nearly ...