from the Iowa District Court for Webster County, Thomas J.
defendant seeks a writ of certiorari challenging the district
court's denial of his motion to correct an illegal
sentence and denial of his application for court-appointed
C. Smith, State Appellate Defender, and Mary K. Conroy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., McDonald, J., and Blane, S.J.
Ferry seeks a writ of certiorari challenging the district
court's order that denied his application for appointment
of counsel and motion to correct an illegal sentence pursuant
to Iowa Rule of Criminal Procedure 2.24(5)(a). Ferry contends
the district court erred in summarily overruling his motion
to correct an illegal sentence, which raised the issue of a
constitutional violation of the prohibition of cruel and
unusual punishment imposed by Iowa Code section 903B.1 (2009)
(lifetime parole special sentence), without conducting a
hearing to allow presentation of facts on a
gross-disproportionality challenge. Because we find a hearing
should have been held, we sustain the writ in part and remand
for an evidentiary hearing. We annul the writ as to the
denial of Ferry's application for appointment of counsel.
September 22, 2010, the State charged Ferry with sexual abuse
in the third degree, a class "C" felony, in
violation of Iowa Code sections 709.1(1), 709.4(1), and
709.4(3); and incest, a class "D" felony, in
violation of Iowa Code section 726.2. The basis for the
charges was that Ferry sexually assaulted a twenty-year-old
family member while she was incapacitated from alcohol and
Xanax by inserting his fingers into her vagina. On January 7,
2011, pursuant to a plea agreement, Ferry entered a guilty
plea to count I, sexual abuse in the third degree, with count
II being dismissed. Following his guilty plea, Ferry waived
his rights and requested immediate sentencing.
district court sentenced Ferry to a term of incarceration not
to exceed ten years. The court also imposed a lifetime
special sentence pursuant to Iowa Code section 903B.1. Ferry
completed the Sex Offender Treatment Program while
incarcerated. He discharged his ten-year sentence in April of
2015 and began his Iowa Code chapter 903B special sentence.
Ferry subsequently returned to prison for violating his
January 20, 2017, Ferry filed a motion to correct an illegal
sentence and an application for appointment of counsel. The
State did not resist or file any document concerning
Ferry's motions. On January 30, the district court,
without holding a hearing, summarily denied Ferry's
motion to correct an illegal sentence, finding his arguments
were "without merit" and noting that if "Iowa
Code [s]ection 903B is to be ruled 'unconstitutional,
' that should best be left to the appropriate appellate
court to do so." The court also denied Ferry's
application for appointment of counsel.
timely filed a notice of appeal. After the notice was filed,
the Iowa Supreme Court determined there is no right of appeal
pursuant to Iowa Code section 814.6 from a ruling denying a
motion to correct an illegal sentence because it is not a
"final judgment of sentence." See State v.
Propps,897 N.W.2d 91, 96-97 (Iowa 2017). On July 14,
2017, the clerk of the supreme court entered an order
requiring Ferry to file a statement why the notice of appeal
should be treated as a petition for writ of certiorari and
review granted. On October 10, Ferry filed his statement. On
November 9, the supreme court entered an ...