from the Iowa District Court for Scott County, Stuart P.
defendant convicted of burglary and theft challenges his
sentences as illegal. SENTENCE VACATED IN PART AND REMANDED
C. Smith, State Appellate Defender, for appellant.
J. Miller, Attorney General, and Kevin Cmelik, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
summer of 2016, Richard Yates III broke into a construction
trailer and stole equipment valued between $1000 and $10,
000. He also exercised control over stolen property valued
between $500 and $1000. After being charged for these acts,
he pleaded guilty to two class "D"
felonies-burglary in the third degree and theft in the second
degree-both as an habitual offender. In a separate case, he
pleaded guilty to theft in the third degree, an aggravated
misdemeanor. See Iowa Code § 714.2(3) (2016).
appeal Yates claims he received illegal sentences. For the
two habitual-offender felonies, Yates contends the district
court acted without statutory authority in imposing the law
enforcement initiative (LEI) surcharge of $125 on each count.
See id. § 911.3. For the aggravated-misdemeanor
theft, he claims the court illegally sentenced him to a
determinate term of 730 days in the county jail. The State
concedes resentencing is required for the
aggravated-misdemeanor offense but defends imposition of the
LEI surcharges on the felonies. Because confinement of more
than one year must be an indeterminate term, we agree a
remand for resentencing is in order on the
aggravated-misdemeanor sentence. See id. §
903.1(2). For the reasons discussed below, we find the
court's imposition of the LEI surcharges was authorized
correct an illegal sentence at any time. See Iowa R.
Crim. P. 2.24(5)(a). When a defendant challenges a sentence
as being outside the court's statutory authority, we
review for errors at law. See State v. Morris, 416
N.W.2d 688, 689 (Iowa 1987). If the sentence is not permitted
by statute, it is illegal and void. State v. Ross,
729 N.W.2d 806, 809 (Iowa 2007).
to the parties' dispute over the LEI surcharge, an
obligation arising under Iowa Code section 911.3. Yates
points to the general sentencing statute for felons-Iowa Code
section 902.9. That section sets out penalties for class
"D" felons, who are not habitual offenders, as no
more than five years in prison and a fine of at least $750
but not more than $7500. See Iowa Code §
902.9(1)(e). But habitual offenders face confinement for not
more than fifteen years with no fine. See id. §
902.9(1)(c). Section 902.9 also provides that the section
911.3 surcharge "shall be added to a fine imposed on a
class 'C' or class 'D' felon, as provided by
those sections, and [is] not part of or subject to the
maximums set in this section." Id. §
at section 902.9(2), Yates asserts the legislature intended
the surcharges be added to the sentences of class
"C" and class "D" felons but not to the
sentences for habitual offenders. In Yates's view, had
lawmakers meant for surcharges to be added to
habitual-offender sentences, "they could have said so.
They did not." Yates contends his interpretation is
"buttressed" by the wording of Iowa Code section
911.3, which provides:
1. In addition to any other surcharge, the court or clerk of
the district court shall assess a law enforcement initiative
surcharge of one hundred twenty-five dollars if an
adjudication of guilt or a deferred judgment has been entered
for a criminal violation under any of the following:
a. Chapter 124, 155A, 453B, 713, 714, 715A, ...