from the Iowa District Court for Story County, James A.
McGlynn (plea), James C. Ellefson (sentencing), and Adria
Kester (nunc pro tunc order), Judges.
Jackson appeals his guilty-plea convictions of three crimes
and a post-judgment nunc pro tunc order.
Christopher A. Clausen of Clausen Law Office, Ames, for
J. Miller, Attorney General, and Linda J. Hines, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
Jackson appeals his guilty-plea convictions of second-degree
burglary, domestic-abuse assault, and stalking, contending
the court erred in accepting his pleas because they were not
made knowingly and voluntarily. Jackson acknowledges his
claim was not preserved for our review, as he was advised of
the requirement to file a motion in arrest of judgment to
challenge the pleas for any reason but failed to do
See Iowa R. Crim. P. 2.24(3)(a). He alternatively
claims his attorney was ineffective in failing to file a
motion in arrest of judgment on voluntariness grounds
because, during the plea proceedings, "[t]here were a
number of breaks . . . and a number of times where [he] had
to speak with his attorney before answering the court's
questions." Upon our de novo review, we find
Jackson's pleas were entered knowingly and intelligently,
and therefore voluntarily; consequently, we find
counsel's failure to file a motion in arrest of judgment
was neither a breach of an essential duty or prejudice
resulting. See State v. Harrison, 914 N.W.2d 178,
188 (Iowa 2018).
time of the oral pronouncement of Jackson's sentence for
the domestic-abuse-assault conviction, the district court did
not order him to participate in a batterers' treatment
program as required by Iowa Code section 708.2A(10) (2017).
Nor was the requirement contained in the court's written
sentencing order. Three months after Jackson filed his notice
of appeal, the State electronically filed an application for
a nunc pro tunc order noting the court "failed to
include the requirement that the defendant complete the
batterers' education program." The application was
accompanied by a proposed order adding the requirement to
Jackson's sentence, which the court approved within
minutes. Jackson challenges the order as inconsistent with
the oral sentence. The State argues we do not have
jurisdiction to consider the propriety of its ex parte
communication and the resulting order, which sought to modify
the judgment and sentence which Jackson had already appealed.
reject the jurisdiction argument, as the nunc pro tunc order
was not a ruling on a collateral or independent matter, thus
requiring Jackson to perfect a separate appeal as to such
order. See State v. Formaro, 638 N.W.2d 720, 727
(Iowa 2002). Instead, it was an order purporting to
"show now what was actually done then." See
Wirtanen v. Provin, 293 N.W.2d 252, 255 (Iowa 1980)
(quoting McVay v. Kenneth E. Montz Implement Co.,
287 N.W.2d 149, 150-51 (Iowa 1980)). Likewise, the nunc pro
tunc order "amended" the sentencing order, from
which Jackson had already perfected an appeal. "The
function of a nunc pro tunc order is not to modify or correct
a judgment but to make the record show truthfully what
judgment was actually rendered-not to make an order now for
then, but to enter now for then an order previously
made." Headley v. Headley, 172 N.W.2d 104, 108
(Iowa 1969) (quoting General Mills, Inc. v. Prall,
56 N.W.2d 596, 600 (Iowa 1953)). The problem with the
State's position is that what happened "then"
was a sentence that failed to order the batterers'
treatment program. That resulted in an illegal sentence,
which the court may correct at any time. Iowa R. Crim. P.
2.24(5)(a); Veal v. State, 779 N.W.2d 63, 64 (Iowa
2010). A nunc pro tunc order can only be used to correct an
order to show what really happened, not to correct a legal
error or a mistake. Where, as here, the original sentence is
illegal, the proper procedure is to vacate the original
sentence and enter a new one. See State v. Suchanek,
326 N.W.2d 263, 266 (Iowa 1982).
district court's original sentence was an illegal one. As
a matter of law, the nunc pro tunc order had no effect on the
illegal sentence. We therefore vacate that portion of the
sentence imposed by the nunc pro tunc order. Under the unique
circumstances of this case-where Jackson's written guilty
plea recited "I will also be required to complete the
Iowa Domestic Abuse Education Program," at the plea
hearing the prosecutor recited the same requirement when
informing the court of the plea agreement, the plea-taking
court informed Jackson of the batterers' treatment
requirement, and the court had no discretion whether to order
the statutorily mandated batterers' treatment program but
failed to do so at the time of sentencing-we will not require
the court to convene a new sentencing hearing. See State
v. Tenny, 493 N.W.2d 824, 826 (Iowa 1992) (requiring
sentencing courts "to order all defendants convicted of
domestic abuse assault to participate in a batterers'
treatment program"). Instead, we remand for entry of a
corrected sentencing order, which adds the requirement that
Jackson participate in a batterers' treatment program as
part of his sentence for his conviction of domestic-abuse
assault, and otherwise includes all provisions in the
original sentencing order.
AFFIRMED; NUNC PRO TUNC ORDER VACATED; AND REMANDED FOR ENTRY
OF A CORRECTED SENTENCING ORDER.
 Jackson did file a motion in arrest of
judgment but subsequently withdrew ...