from the Iowa District Court for Tama County, Patrick R.
Lopez appeals his conviction of possession of a controlled
substance, third or subsequent offense, and the sentence
Wallace L. Taylor of Law Offices of Wallace L. Taylor, Cedar
Rapids, for appellant.
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
Considered by Doyle, P.J., and Mullins and Bower, JJ.
Lopez committed the crime of possession of a controlled
substance in October 2014. He was convicted and sentenced in
November. He committed the crime again in December 2015. He
was convicted and sentenced in July 2016. The second sentence
included sixty days in jail, which was suspended, and one
year of probation. Lopez was subsequently charged by trial
information with possession of a controlled substance, third
or subsequent offense, in violation of Iowa Code section
124.401(5) (2016) in relation to acts occurring in December
2016. Lopez waived his right to a jury trial and stipulated
to a trial on the minutes of evidence and exhibits. The court
found Lopez guilty as charged. Lopez filed a combined motion
for a new trial and in arrest of judgment in which he argued,
among other things, that because he "was on probation
with a suspended sentence for one of the two predicate
offenses," the court could not consider it as a prior
offense because the "sentence was not complete."
The court denied the motion and sentenced Lopez to a term of
incarceration not to exceed five years, suspended the
sentence, and placed Lopez on probation for three years.
appeals. He argues "the district court erred in
enhancing [his] sentence with a conviction for which he had
not completed his sentence." Lopez cites the supreme
court's ruling in State v. Freeman, 705 N.W.2d
286 (Iowa 2005), to support his specific argument that
"in order for a sentence to be enhanced by a prior
offense, the prior offense must be complete as to
conviction and sentence before commission of the
subsequent offense" and his "prior sentence was not
complete because he was still on probation for that
offense." (Emphasis added.)
Code section 124.401(5) provides: "A person who commits
a violation of this subsection and has previously been
convicted two or more times of violating this chapter or
chapter 124A, 124B, or 435B is guilty of a class 'D'
felony." In construing this statutory language, the
Freeman court reviewed its prior holdings relating
to recidivism statutes. See generally 705 N.W.2d at
288-91. First, in State v. Conley, the court
considered a habitual-criminal statute that provided:
"Whoever has been twice convicted of crime, sentenced,
and committed to prison . . . for terms of not less than
three years each shall, upon conviction of a felony . . . be
deemed to be a habitual criminal . . . ." 222 N.W.2d
501, 501-02 (Iowa 1974) (quoting Iowa Code § 747.5
(1971)). The Conley court noted recidivism requires
"conviction of crime and imposition of penalty."
Id. at 502-03. The court reasoned, "Recidivist
statutes are enacted in an effort to deter and punish
incorrigible offenders. They are intended to apply to
persistent violators who have not responded to the
restraining influence of conviction and punishment."
Id. at 503 (citations omitted). Following the
general rule, the court held "the first conviction and
imposition of sentence must precede the second offense, and
that both of the prior convictions and impositions of
sentence must precede the third conviction."
habitual-criminal statute was considered again in State
v. Tillman, 228 N.W.2d 38 (1975). There, the court
reaffirmed its holding in Conley, but it noted,
"When we talked of 'imposition of sentence,' in
Conley, we meant 'commitment to
prison.'" Tillman, 228 N.W.2d at 42.
However, as noted, section 747.5 expressly required the
predicate offenses to have resulted in "prison . . . for
terms of not less than three years each" in order for
the statute to apply. See id.
legislature amended the habitual-offender statute in 1976 to
provide: "An habitual offender is any person convicted
of a class C or a class D felony who has twice before been
convicted of any felony . . . ." 1976 Iowa Acts ch.
1245, ch. 3, § 208 (codified at Iowa Code § 902.8).
Despite the change in language and sole requirement of two
prior felony convictions, the court reaffirmed the teachings
of Conley and Tillman as to the new
statute, holding "each offense must be complete as to a
conviction and sentencing before commission of the
next in order to qualify for the enhancement of penalty under
a habitual offender statute." Freeman, 705
N.W.2d at 289 (emphasis added) (discussing State v.
Hollins, 310 N.W.2d 216, 217-18 (Iowa 1981)).
on language contained in Tillman, Lopez appears to
argue mere imposition of sentence is not enough to trigger a
prior offense as applicable under section 124.401(5) (2016).
He maintains the sentence imposed in relation to the prior
conviction "must be complete prior to the commission of
the subsequent offense" in order for it to be considered
a prior conviction under section 124.401(5).
disagree. The Freeman court considered the
habitual-offender statutes after repeal of Iowa Code section
747.5 as considered by Tillman and Conley,
and held "the general rule that each offense must have
been complete as to a conviction and sentencing
before the commission of the next in order that it qualifies
for the enhancement of penalty under a recidivism
statute" applies to enhancement under section
124.401(5). Id. at 291 (emphasis added). The
requirement of "commitment to prison" or
"completion of sentence" that derived from section
747.5 is no longer required. "Conviction and
sentencing" are all that are now required. Lopez's
argument that "the prior offense must be complete as to
conviction and sentence" is incorrect.
general rule, as stated in Conley and again
reaffirmed in Freeman, is that "the first
conviction and imposition of sentence must precede the second
offense, and that both of the prior convictions and
impositions of sentence must precede the third
conviction." Conley, 222 N.W.2d at 203; see
also Freeman, 705 N.W.2d at 291. That ...