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State v. Jepsen

Court of Appeals of Iowa

April 5, 2017

STATE OF IOWA, Plaintiff-Appellee,
CHRISTOPHER JEPSEN, Defendant-Appellant.

         Appeal from the Iowa District Court for Crawford County, Steven J. Andreasen, Judge.

         A 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.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J. and Doyle and Tabor, JJ.

          TABOR, Judge.

         For 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.

         Because 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).[1]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 probation.

         I. Facts and Prior Proceedings

         On 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.

         In 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.

         At the 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."

         The 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.

         Jepsen 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 ...

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