from the Iowa District Court for Dubuque County, Thomas A.
Lemon appeals following a remand and resentencing.
C. Smith, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., Potterfield, J., and Scott, S.J.
the second appeal concerning Lemon's sentences, following
his guilty pleas for burglary in the third degree, in
violation of Iowa Code section 713A.6A(1), and assault with
intent to commit sexual abuse, in violation of Iowa Code
section 709.11(3) (2016). Initially, the district court
rejected the parties' sentencing recommendation of
suspended concurrent sentences with probation and placement
at a residential correctional facility and sentenced Lemon to
"a five-year term and a two-year term of incarceration
on the convictions and ordered the sentences to run
consecutively." State v. Lemon, No. 16-1807,
2017 WL 2461753, at *1 (Iowa Ct. App. June 7, 2017). Lemon
appealed the sentence, claiming the district court (1) abused
its discretion by imposing, rather than suspending, the
prison term and (2) did not provide reasons for running the
sentences consecutively. We affirmed the convictions, but
vacated the sentencing order in part "and remand[ed] for
resentencing on the issue of whether the sentences should run
concurrently or consecutively." Id. at *2.
resentencing hearing, Lemon, himself, asked the court for a
deferred judgment. Lemon's counsel followed by asking the
court to consider following the plea agreement or imposing
concurrent, rather than consecutive, sentences. The district
court ultimately concluded:
. . . So I've considered the PSI recommendation, I've
considered his criminal history, which is pretty substantial,
especially for his age, I've considered the fact that he
was on probation, and I've considered the fact that while
on probation, he committed two serious criminal offenses, two
separate dates, two completely separate incidents with
different-different sets of facts, different victims, and all
of those things are the reason that I imposed a prison
sentence instead of probation, all of those things are the
reason why I believe the sentence should run consecutive
instead of concurrent.
now appeals arguing his counsel was ineffective for failing
to object during the State's argument at the resentencing
hearing. Lemon contends the State deviated from the plea
agreement. We review the post-remand actions of the district
court in carrying out a mandate of an appellate court for
legal error. Winnebago Indus. v. Smith, 548 N.W.2d
582, 584 (Iowa 1996). To the extent Lemon alleges ineffective
assistance of counsel, a constitutional claim, our review is
de novo. See Ennenga v. State, 812 N.W.2d 696, 701
trial court has no authority on remand to do anything except
to proceed in accordance with directions given to it by an
appellate court. In re Marriage of Davis, 608 N.W.2d
766, 769 (Iowa 2000). "Any action contrary to or beyond
the scope of the mandate is null and void." State v.
O'Shea, 634 N.W.2d 150, 158 (Iowa Ct. App. 2001).
Here, the remand to the district court for partial
resentencing was for the sole and limited purpose of
determining whether the sentences should run concurrently or
consecutively. While the parties dove into some of the
original sentencing options, the district court understood it
was entirely without authority to consider issues that were
outside the scope of the remand. The district court
reiterated why it imposed the original sentence and then
followed the remand order by explaining why the sentences
were to run consecutively. Lemon's counsel had no duty to
object to stray arguments when the district court followed
its directive on remand. Accordingly, we affirm Lemon's
sentences without further opinion pursuant to Iowa Court Rule
21.26(1)(a), (c), and (e).