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State v. Dunham

Court of Appeals of Iowa

May 3, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
DAVID WINSLOW DUNHAM, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.

         The defendant appeals the denial of his pro se motion to correct an illegal sentence for his conviction of possession of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(b)(7) (2012). AFFIRMED.

          John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Kristin Guddall, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., Tabor, J., and Scott, S.J. [*]

          POTTERFIELD, Presiding Judge.

         David Winslow Dunham appeals the denial of his motion to correct an illegal sentence for his conviction of possession of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(b)(7) (2012). The district court sentenced Dunham after a jury trial to an indeterminate thirty-year term of incarceration based on Dunham's stipulations that he was a second or subsequent offender, in violation of Iowa Code section 124.411, and that he was an habitual offender in violation of section 902.8. Dunham's conviction was affirmed by this court in 2015. See State v. Dunham, 13-0220, 2015 WL 3613312 (Iowa Ct. App. June 10, 2015). He then requested relief in the district court challenging the sentence imposed and raising other matters. The district court denied his motion. We affirm.

         I. Background Facts and Proceedings.

         Dunham was charged by trial information with possession of methamphetamine with intent to deliver in violation of Iowa Code section 124.401(1)(b)(7). The trial information indicated Dunham was a second or subsequent offender and habitual offender pursuant to Iowa Code sections 124.411 and 902.8, respectively. Pursuant to the second or subsequent offender and habitual offender provisions, and according to the trial information, Dunham was convicted in the United States District Court for the Southern District of Iowa on June 10, 1998, of conspiracy/distribution of a controlled substance, a drug related felony. The trial information also listed March 23, 1983 felony convictions of burglary, theft, and terroristic threats in Leavenworth County, Kansas.

         On or around November 26, 2012, the trial information was amended, reducing the charge from a class "B" felony under section 124.401(b)(7) to a class "C" felony under section 124.401(1)(c)(6), as the lab results revealed the seized methamphetamine was fewer than five grams. During an exchange between Dunham, his counsel, and the court, Dunham confirmed that he discussed the second or subsequent offender and habitual offender provisions with counsel:

THE COURT: The county attorney filed an amended trial information which the Court approved yesterday, November 26, 2012. The amended trial information alleges that the defendant is a second or subsequent offender as well as a habitual offender. Ms. Summers, have you discussed this with your client, Mr. Dunham?
DEFENSE COUNSEL: Yes, Your Honor, I have. I've talked to David about this, and Mr. Dunham indicates that he would stipulate that he has been convicted of two prior felonies which would enable this to be the habitual offender provision to be enabled and also that this is his second or subsequent drug offense. Is that correct, David?
DUNHAM: Yes.

         Dunham also confirmed he was the individual convicted in the 1998 felony conviction, and an attorney represented him during the proceedings:

THE COURT: [I]t's alleged in the amended trial information that you are the same David W. Dunham who on June 10, 1998 . . . in the United States District Court for the Southern District of Iowa, case number 4:97CR00111, was convicted of conspiracy/distribution of a controlled substance, which was a felony. Do you understand that's what's alleged
DUNHAM: Yes.
THE COURT: And are you willing at this time, then to answer the Court's questions with respect to this?
DUNHAM: Yes.
THE COURT: Are you the same David W. Dunham who was convicted as ...

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