Petition for writ of certiorari from the Iowa District Court
for Muscatine County, Gary P. Strausser, District Associate
plaintiff files a petition for writ of certiorari claiming
his sentence is illegal. WRIT SUSTAINED.
Hurd of Glazebrook & Hurd, LLP, Des Moines, for
J. Miller, Attorney General, Darrel Mullins, Assistant
Attorney General, and Alan Ostergren, County Attorney, for
district court sentenced the certiorari plaintiff as a
habitual offender for operating while intoxicated (OWI),
third offense. The plaintiff filed a motion to correct an
illegal sentence, claiming his sentence was illegal because
the statutory scheme did not allow him to be sentenced as a
habitual offender. The district court denied the
plaintiff's motion. The plaintiff filed a notice of
appeal and a brief. Under Iowa Rule of Appellate Procedure
6.108, we convert his appeal to a petition for writ of
certiorari and grant the petition.
merits, we find Iowa Code section 321J.2(5)
(2011)prescribes the maximum and minimum sentence
for OWI, third and subsequent offenses. Thus, the habitual
offender provisions in sections 902.8 and 902.9 do not apply
to OWI, third and subsequent offenses. Therefore, we sustain
the writ of certiorari, vacate Noll's sentence, and
remand for resentencing.
Background Facts and Proceedings.
April 14, 2011, the state charged Richard Eugene Noll with
OWI, third offense, in violation of Iowa Code section
321J.2(1)(a), and as a habitual offender under
section 902.8. In a bifurcated trial, the jury found Noll
guilty of OWI. Noll then stipulated that he had two prior OWI
convictions and two prior felony OWI, third offense,
January 6, 2012, the court adjudged Noll guilty of OWI, third
offense, and as a habitual offender, in violation of sections
321J.2(1)(a) and 902.8, respectively. The court
sentenced Noll to an indeterminate term of incarceration not
to exceed fifteen years with a three-year mandatory minimum
term of confinement. Noll was also ordered to pay a $5000
fine, a 35% surcharge, court costs, attorney fees, and a $10
January 23, 2017, Noll filed a "Motion to Correct
Illegal Sentence." He argued he received an illegal
sentence "as Iowa law no longer authorizes the State to
impose habitual offender enhancements on an OWI 3rd."
The state filed a resistance. The district court denied
Noll's motion. Noll appealed by filing a notice of
filed a notice of appeal after the district court found his
sentence was not an illegal sentence. The way to challenge
the denial of a motion to correct an illegal sentence is by
writ of certiorari. State v. Propps, 897 N.W.2d 91,
97 (Iowa 2017) (citing Iowa R. App. P. 6.107). When a party
starts an appeal by filing a notice of appeal but another
form of appellate review is proper, our rules allow us to
proceed with the appeal as though the appellant requested the
proper form of appeal. Iowa R. App. P. 6.108. Under this
rule, we choose to exercise our discretion and treat the
notice of appeal and accompanying brief as a petition for
writ of certiorari, grant the writ, and proceed to the merits
of the petition for writ of certiorari.
the court must vacate Noll's sentence because Iowa Code
section 321J.2 prescribes a specific, fixed punishment for
OWI, third offense and sentencing him as a habitual offender
under Iowa Code sections 902.8 and 902.9 was illegal.
Standard of Review.
claims his sentence is illegal because the sentencing court
incorrectly interpreted the statutes under which it sentenced
him. Because he does not allege a constitutional violation,
we review his illegal-sentence challenge for correction of
errors at law. State v. Lyle, 854 N.W.2d 378, 382
(Iowa 2014). Likewise, "[o]ur standard of review for
questions of statutory interpretation is for correction of
errors at law." Vance v. Iowa Dist. Ct., 907
N.W.2d 473, 476 (Iowa 2018). "We also review an original
certiorari action for the correction of errors at law.
'Illegality exists when the court's findings lack
substantial evidentiary support, or ...