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State v. Davis

Court of Appeals of Iowa

November 7, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
THOMAS RAY DAVIS, Defendant-Appellant.

          Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.

         The district court treated the defendant's second motion to correct an illegal sentence as an appeal.

          Angela L. Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Potterfield, P.J., and Bower and McDonald, JJ.

          POTTERFIELD, Presiding Judge.

         In August 2006, Thomas Davis was convicted of four counts of sexual abuse in the third degree. Each of the four counts was enhanced pursuant to Iowa Code section 901A.2(3) (2005) because of Davis's prior conviction for another sexually predatory offense. The district court sentenced Davis to four twenty-five-year terms of incarceration and ordered Davis to serve them concurrently. Originally, the court also imposed the special sentence of lifetime parole. See Iowa Code § 903B.1.

         In 2017, Davis filed a motion to correct an illegal sentence, in which he argued that the application of the special sentence violated the ex post facto clause, as the special-sentence statute was not enacted until July 1, 2005 and the jury instructions at his trial advised the jury the acts were to have occurred between March 1 and September 15, 2005. The State filed a response conceding that Davis was correct, as there was "no way to determine whether the jury based its verdict on conduct that occurred before or after the effective date of the law." State v. Lathrop, 781 N.W.2d 288, 297 (Iowa 2010).

         Davis was resentenced on August 17, 2017; the court again imposed four twenty-five-year terms, to be served concurrently.

         On September 21, Davis mailed to the district court another motion to correct an illegal sentence. In it, Davis argued his sentence was illegal because he was never arraigned on nor received the amended trial information, which first contained the notice from the State that it was seeking application of the enhanced sentencing provision of section 901A.2(3)-changing the applicable sentence for each charge from ten years to twenty-five years. He maintained he knew at the time of his trial that the State would be "using his prior conviction as evidence" but was not made aware of the ramifications of stipulating to the prior offense.

         The district court issued an order in response, stating it "deem[ed] the present motion to be a de facto motion of appeal of the sentence imposed."[1] The appeal was ultimately transferred to this court.

         After reviewing the record, we disagree with the district court's treatment of Davis's second motion as an appeal, as the second motion to correct an illegal sentence raised a new, different issue than his first motion. Moreover, Davis was successful on his first motion-which the State did not contest-and he was resentenced accordingly; it is unclear what he would have appealed regarding the ruling on his first motion. We reverse and remand to the district court for ruling on the second motion. We do not retain jurisdiction.

         REVERSED ...


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