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State v. Jepsen

Supreme Court of Iowa

February 16, 2018

STATE OF IOWA, Appellee,

         On review from the Iowa Court of Appeals.

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

         Appellant 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.

          Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant Attorney General, Roger Sailer, County Attorney, and Ian McConeghey, Assistant County Attorney, for appellee.

          CADY, Chief Justice.

         A 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.

         On our 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.

         I. Factual Background and Proceedings.

         On 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 facility.

         On 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 sentence.

         On 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 present."

         On 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.

         Jepsen 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.

         The 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.

         II. Standard of Review.

         Jepsen 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.

         III. Analysis.

         A. 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).

         Double 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).

         Double 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 the legislature.

         The 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 175.

         In 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.

         In 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 imposed.

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 ...

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