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Brown v. Iowa District Court For Polk County

Court of Appeals of Iowa

February 21, 2018

HERBERT HENRY BROWN, Plaintiff,
v.
IOWA DISTRICT COURT FOR POLK COUNTY, Defendant.

         Certiorari to the Iowa District Court for Polk County, Rebecca Goodgame Ebinger, Judge.

         Herbert Brown challenges the legality of his sentence.

          John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.

          DANILSON, Chief Judge.

         Herbert Brown was convicted of possession of a controlled substance with intent to deliver (heroin) as an habitual offender and as a second or subsequent offender. See State v. Brown, No. 12-0016, 2013 WL 1452965, at *1 (Iowa Ct. App. Apr. 10, 2013). On direct appeal, we affirmed his conviction and sentences, rejecting Brown's contention the court had failed to give adequate reasons for the imposition of consecutive sentences. Id. at *3-4.

         Brown later challenged his sentence, contending it was illegally enhanced. The district court rejected his claim, and Brown now appeals.

         Because there is no appeal as a matter of right from the denial of a motion to correct an illegal sentence, see State v. Propps, 897 N.W.2d 91, 96 (Iowa 2017), the supreme court treated Brown's notice of appeal as a petition for writ of certiorari, see id. at 97, granted the writ, and transferred the matter to this court.

         Brown was convicted of violating Iowa Code section 124.401(1)(c)(1) (2011), which makes it illegal, in relevant part, to possess less than one hundred grams of heroin with the intent to deliver. This is a class "C" felony. See Iowa Code § 124.401(1)(c). As an habitual offender, see id. § 902.8, Brown faced an indefinite term not to exceed fifteen years, see id. § 902.9(1)(c). However, because Brown had a prior felony drug conviction in Minnesota, the penalty for the current offense was tripled pursuant to Iowa Code section 124.411(1) and (2), resulting in a forty-five-year sentence. Brown asserts the tripling of his fifteen-year sentence is illegal as a matter of law.

         Section 124.411provides:

(1)Any person convicted of a second or subsequent offense under this chapter [controlled substances], may be punished by imprisonment for a period not to exceed three times the term otherwise authorized, or fined not more than three times the amount otherwise authorized, or punished by both such imprisonment and fine.
(2)For purposes of this section, an offense is considered a second or subsequent offense, if, prior to the person's having been convicted of the offense, the offender has ever been convicted under this chapter or under any state or federal statute relating to narcotic drugs or ...

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