review from the Iowa Court of Appeals.
from the Iowa District Court for Crawford County, Steven J.
seeks further review from a court of appeals decision
awarding him credit against a corrected prison sentence only
for time spent on probation in an alternate jail facility or
a community correctional residential treatment facility.
Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey &
Daane, Sioux City, for appellant.
J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, Roger Sailer, County Attorney, and Ian
McConeghey, Assistant County Attorney, for appellee.
criminal defendant was convicted of two counts of sexual
abuse in the third degree. Although one count constituted a
forcible felony, the district court suspended the
defendant's prison sentence and instead ordered a
five-year term of probation. After the defendant served four
years, four months, and four days of probation, the district
court vacated the suspended sentence for illegality and
resentenced the defendant to two concurrent ten-year terms of
incarceration. The court declined to credit the time spent on
probation against the new term of imprisonment.
review of a decision by the court of appeals, we find the
failure to award credit for time spent on probation pursuant
to the initial sentence violates the Double Jeopardy Clause
of the Fifth Amendment to the United States Constitution.
Double jeopardy prohibits imposing multiple punishments for
the same offense. When an initial sentence is voided for
illegality, any punishments already endured must be credited
against the corrected sentence. We hold that all time spent
on probation pursuant to a voided sentence must be fully
credited against a corrected sentence of incarceration.
Factual Background and Proceedings.
August 24, 2011, following a jury trial, Christopher Jepsen
was convicted of one count of sexual abuse in the third
degree, in violation of Iowa Code section
709.4(2)(c) (2009), and one count of sexual abuse in
the third degree, in violation of Iowa Code section
709.4(2)(b). The victim of the crime described in
the second count was thirteen years old, which made the crime
a forcible felony under section 702.11. On September 23,
2011, the district court sentenced Jepsen to two ten-year
periods of incarceration, but suspended the sentences and
placed him on probation for five years. The conditions of
probation included completing a cognitive empathy course,
maintaining consistent employment, and participating in any
rehabilitative programs that his probation officer deemed
necessary, such as placement in a residential treatment
October 28, 2014, the State applied to revoke Jepsen's
probation. It argued Jepsen violated the terms and conditions
of his probation, based on his admission to his probation
officer that he had been viewing pornographic images of
children. Yet, the application to revoke Jepsen's
probation never came before the court for a hearing. Instead,
further investigation into Jepsen's probation violation
revealed a potential illegality in his initial suspended
December 21, 2015, the State filed a motion to correct
Jepsen's illegal sentence pursuant to Iowa Court Rule
2.24(5). The State argued Jepsen was convicted of a forcible
felony and was therefore ineligible for a suspended sentence
under Iowa Code section 907.3. Jepsen's counsel raised a
number of arguments, including that if the court imposed a
new sentence, Jepsen should be awarded "credit
for his time served on probation from 9/26/11 through the
January 29, 2016, the district court concluded it had lacked
authority to suspend Jepsen's prison sentence in 2011.
Accordingly, it found the sentence was illegal and vacated
it. The court then conducted a new sentencing hearing and
sentenced Jepsen to two concurrent ten-year periods of
incarceration. The district court did not suspend either
sentence and only awarded credit for time served in the
county jail pursuant to Iowa Code section 903A.5. The court
determined credit for probation was not applicable to a new
sentence of incarceration. As of the date of resentencing,
Jepsen had served four years, four months, and four days of
his five-year probation sentence.
appealed the new sentence. He claimed his counsel was
ineffective for failing to argue that the Double Jeopardy
Clause of the Fifth Amendment to the United States
Constitution required the time Jepsen spent on probation be
credited against his corrected sentence. We transferred the
case to the court of appeals.
court of the appeals addressed the issue by considering
whether the total punishment imposed exceeded the punishment
intended by the legislature. It found the legislature only
intended to award credit for days on probation spent in an
alternate jail or community correctional residential
treatment facility. Consequently, the court remanded the case
to the district court to determine whether Jepsen spent any
time in an alternate jail or residential treatment facility
and, if so, instructed the district court to credit such days
against his new prison sentence. Jepsen sought, and we
granted, further review.
Standard of Review.
raises a double jeopardy challenge to his corrected sentence
through an ineffective-assistance-of-counsel claim. We review
double jeopardy claims de novo. State v. Stewart,
858 N.W.2d 17, 19 (Iowa 2015). An illegal sentence may be
corrected at any time. Iowa R. Crim. P. 2.24(5)(a).
Therefore, if Jepsen's corrected sentence violates double
jeopardy, we will not review counsel's effectiveness.
Double Jeopardy Prohibits Multiple Punishments.
The Fifth Amendment to the United States Constitution
guarantees no person shall "be twice put in jeopardy of
life or limb" for the same offense. U.S. Const. amend.
V. The principle is enforceable against the states through
the Fourteenth Amendment. Benton v. Maryland, 395
U.S. 784, 794, 89 S.Ct. 2056, 2062 (1969).
jeopardy's protections have ancient roots. During the
sixth century, the Digest of Justinian instructed that
"the governor should not permit the same person to be
again accused of a crime of which he had been
acquitted." Jay A. Sigler, A History of Double
Jeopardy, 7 Am. J. Legal Hist. 283, 283 (1963) (quoting
Digest of Justinian, Book 48, Title 2, Note 7, as translated
in Scott, The Civil Law (1932), XVII). William
Blackstone wrote in his seminal Commentaries that
the plea of auterfoits acquit, or a former
acquittal, is grounded on this universal maxim of the common
law of England, that no man is to be brought into jeopardy of
his life, more than once, for the same offence.
4 William Blackstone, Commentaries on the Laws of
England 329 (Legal Classics Library ed. 1983). Indeed,
in 1641, the Massachusetts Body of Liberties-the first legal
code in the New World-ensured, "No man shall be twise
sentenced by Civill Justice for one and the same Crime,
offence, or Trespasse." The Body of Liberties of
1641 ¶ 42, in A Bibliographical Sketch of the
Laws of the Massachusetts Colony from 1630 to 1686
(William H. Whitmore ed. 1890).
jeopardy, as developed by the United States Supreme Court,
encompasses three primary guarantees: "It protects
against a second prosecution for the same offense after
acquittal. It protects against a second prosecution for the
same offense after conviction. And it protects against
multiple punishments for the same offense." North
Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072,
2076 (1969) (footnotes omitted), overruled on other
grounds by Alabama v. Smith, 490 U.S. 794, 798, 109
S.Ct. 2201, 2204 (1989). Double jeopardy, therefore,
restrains prosecutors from continuously trying defendants
until the right theory or jury produces a conviction, as well
as restrains the judiciary from exceeding the bounds of its
authority and imposing greater punishments than intended by
Supreme Court in Ex Parte Lange first recognized
that double jeopardy prohibits courts from imposing a second
punishment "in the same court, on the same facts, for
the same statutory offence." 85 U.S. (18 Wall.) 163, 168
(1873). In Lange, the defendant was convicted of
stealing government mailbags, an offense punishable by one
year in prison or a $200 fine. Id. at 164.
However, the trial court erroneously sentenced the defendant
to one year in prison and a $200 fine. Id.
After the defendant had paid the fine in full and served five
days in prison, the court recognized its error and vacated
the original sentence. Id. At resentencing, it
ordered the defendant to serve one year in prison.
Id. The Supreme Court reversed, finding the
corrected sentence violated double jeopardy. Id. at
deciding the case, the Court observed the constitutional
principle of double jeopardy "was designed as much to
prevent the criminal from being twice punished for the same
offence as from being twice tried for it." Id.
at 173. "For of what avail is the constitutional
protection against more than one trial if there can be any
number of sentences pronounced on the same verdict?"
Id. Thus, once the fine was paid as required under
the first sentence, the defendant had served one of the two
permissible statutory sentencing options. As a result, the
second sentence would serve to punish him twice if imposed.
The Court emphasized that the Double Jeopardy Clause was not
animated by the threat of being twice found guilty, but
rather the threat of being twice punished for the same act.
Id. Furthermore, double jeopardy's protections
were not curtailed in any way by the intention of the
sentencing court in both sentences to impose the statutory
alternative of imprisonment.
Pearce, the Court again examined the boundaries of
imposing multiple punishments for the same underlying
criminal act. The Court reviewed the sentence of William
Rice, who was convicted of burglary and served two and a half
years in prison before his conviction was overturned. 395
U.S. at 714, 89 S.Ct. at 2075. Rice was retried, convicted
again, and resentenced to twenty-five years in prison with no
credit for the two and a half years he served under the
initial sentence. Id. The Court reversed the new
sentence, holding the Fifth Amendment "absolutely
requires that punishment already exacted must be fully
'credited' in imposing sentence upon a new conviction
for the same offense." Id. at 718-19, 89 S.Ct.
at 2077 (footnote omitted). The Court aptly noted that
[i]f, upon a new trial, the defendant is acquitted, there is
no way the years he spent in prison can be returned to him.
But if he is reconvicted, those years can and must be
returned-by subtracting them from whatever new sentence is
Id. at 719, 89 S.Ct. at 2077. Thus, the Double
Jeopardy Clause was applied, as in Lange, to give
the defendant credit for the sentence served against the ...