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State v. Ferry

Court of Appeals of Iowa

June 6, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
GREGORY ALLEN FERRY, Defendant-Appellant.

          Appeal from the Iowa District Court for Webster County, Thomas J. Bice, Judge.

         The 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 counsel.

          Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

          Considered by Doyle, P.J., McDonald, J., and Blane, S.J. [*]

          BLANE, SENIOR JUDGE.

         Gregory 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.

         I. Factual Background.

         On 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.

         The 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 parole.

         II. Procedural History.

         On 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.

         Ferry 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 ...


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