State v. Freeman

Decision Date23 September 2005
Docket NumberNo. 04-0781.,04-0781.
Citation705 N.W.2d 286
PartiesSTATE of Iowa, Appellee, v. Blaine FREEMAN, Appellant.
CourtIowa Supreme Court

Linda Del Gallo, State Appellate Defender, and Tricia A. Johnston and Greta

Truman, Assistant State Appellate Defenders, for appellant.

Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.

WIGGINS, Justice.

On October 12, 2003, the police found marijuana in Blaine Freeman's pocket during a search incident to arrest. The State charged him with possession of marijuana, third offense, a class "D" felony in violation of Iowa Code section 124.401(5) (2003).1 He pled guilty to the charges on April 1, 2004. The district court sentenced him to up to five years in prison and imposed a suspended fine.

On appeal, Freeman contends the sentence is illegal. He notes his first drug conviction for possession of cocaine occurred on April 21, 1992, which was seven months after September 21, 1991, the date he had committed his second drug offense. His conviction for the second offense for delivery of marijuana occurred on May 4, 1992, less than two weeks after entry of the first. The sentencing judges in each case ordered Freeman to serve the sentences for these prior convictions concurrently.

In the present case, Freeman asserts that his first and second convictions should count as only one conviction for purposes of the enhancement portion of the statute. The court of appeals agreed, vacated the sentence, and remanded for resentencing. We granted the State's application for further review. On further review, we affirm the court of appeals decision and vacate the sentence of the district court.

I. Scope of Review.

We review the district court's sentence for correction of errors at law. State v. Kapell, 510 N.W.2d 878, 879 (Iowa 1994); Iowa R.App. P. 6.4. A sentence is void if the statute does not authorize the district court's sentence. Overton v. State, 493 N.W.2d 857, 859 (Iowa 1992). "Therefore, we examine the sentences imposed by the district court to determine whether they comply with the relevant statutes." Kapell, 510 N.W.2d at 879.

II. Analysis.

Freeman contends the district court can only sentence him as a second offender because of the timing of his prior convictions. A second offender is guilty of an aggravated misdemeanor, while a third offender is guilty of a class "D" felony. Iowa Code § 124.401(5). The factual basis for Freeman's argument is that the conviction and sentencing by the court for his possession of cocaine on April 21, 1992 occurred after the commission of his offense for delivery of marijuana (September 21, 1991), but before his conviction for that offense (May 4, 1992).

We must construe Iowa Code section 124.401(5) to determine whether the district court can use Freeman's two previous convictions to enhance his sentence for the present offense. Iowa Code section 124.401(5) provides in relevant part:

It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this chapter. Any person who violates this subsection is guilty of a serious misdemeanor for a first offense. A person who commits a violation of this subsection and who has previously been convicted of violating this chapter or chapter 124A, 124B, or 453B is guilty of an aggravated misdemeanor. 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 453B is guilty of a class "D" felony.

Id. (emphasis added). "The goal of statutory construction is to determine legislative intent." Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). Legislative intent is determined "from the words chosen by the legislature, not what it should or might have said." Id.

A review of our case law in this area reveals the considerations that will guide our decision-making process to determine the validity of Freeman's position. In 1974, we first discussed this issue in connection with a statute that punished recidivism. State v. Conley, 222 N.W.2d 501, 501-02 (Iowa 1974). In Conley, the defendant appealed his sentence after the district court determined he was a habitual offender. Id. at 501. The habitual offender statute at the time provided in part: "Whoever has been twice convicted of crime, sentenced, and committed to prison ... shall, upon conviction of a felony committed in this state after the taking effect of this section, be deemed to be a habitual criminal...." Iowa Code § 747.5 (1973).

Conley committed his first offense on January 15, 1969 and his second offense on April 28, 1969 while he was out on bail awaiting trial for the first offense. Conley, 222 N.W.2d at 502. Conviction and sentence for the first offense occurred July 16, 1969, while conviction and sentence for the second offense occurred May 5, 1970. Id. Therefore, Conley committed both offenses before the district court convicted or sentenced him for either. When the district court sentenced him for the first and second offenses, the court ordered him to serve the sentences concurrently. Id.

After his third conviction on June 28, 1973, the district court sentenced Conley as a habitual offender. Id. He appealed; we reversed, and remanded for resentencing. Id. at 501, 503. In deciding Conley, we relied on the principle of statutory construction providing that we strictly construe penal statutes with doubts resolved in favor of the accused. Id. at 502. We then determined the purpose of the recidivism statute was to "deter and punish incorrigible offenders," and the legislature's intent was to have it "apply to persistent violators who have not responded to the restraining influence of conviction and punishment." Id. at 503. Even though the statute was silent on the matter, we 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." Id. This sequence was not present in Conley. Id.

We reaffirmed our decision in Conley in a case decided six months later. State v. Tillman, 228 N.W.2d 38, 41-42 (Iowa 1975). There we further explained our holding in Conley and stated that "[o]ur statute dictates that each offense must have been complete as to conviction, sentence and commitment to prison before the commission of the next in order that it qualify for application of the enlarged punishment of [section] 747.5." Id. at 41; accord State v. Robinson, 262 N.W.2d 270, 271-72 (Iowa 1978) (reaffirming Conley).

Subsequent to our decisions in Conley and Tillman, the legislature amended the habitual offender statute to provide in relevant part: "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...." Iowa Code § 902.8 (1981). We were then confronted with the question of whether the habitual offender statute, as amended, applied when the two prior convictions occurred on the same day. State v. Hollins, 310 N.W.2d 216, 216 (Iowa 1981). In Hollins, the defendant was not convicted of the first offense before he committed the second because he pled guilty to both of the first two offenses on the same day. Id. at 217. Despite the change in language in the statute, we reaffirmed our holding in Conley to follow the general rule that 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. Id. at 217-18.

Within the last few years, we reaffirmed Conley and Hollins. State v. Woody, 613 N.W.2d 215, 218 (Iowa 2000). There we restated our adherence to the general rule that recidivism statutes only apply when the commission of the current offense follows the previous convictions. Id. We determined Woody's sentence was illegal because the proper sequence between the current offense and previous convictions did not exist; therefore, we remanded the case for resentencing. Id.

We also have interpreted a statute that allows the State to suspend the driver's license of a person found to be a habitual offender. State v. Thomas, 275 N.W.2d 422, 422-23 (Iowa 1979). At issue in that case was our habitual traffic offender statute, which provided in relevant part:

As used in this division, "habitual offender" means any person who has accumulated convictions for separate and distinct offenses described in subsections 1, 2, or 3 ... as follows:

1. Three or more convictions within a six-year period....

Iowa Code § 321.555(1) (1977). Proceedings brought under section 321.555(1) are civil actions. Iowa Dep't of Transp. v. Iowa Dist. Ct., 530 N.W.2d 725, 727 (Iowa 1995). In Thomas, the State alleged the defendant was a habitual traffic offender under section 321.555(1). 275 N.W.2d at 422. Although Thomas's record contained convictions for three violations within a six-year period, she argued the last two offenses were "not `separate and distinct' offenses because they arose out of the same events." Id. at 422-23. The issue before us was whether the last two convictions, having arisen out of the same acts, constituted only one offense. If they did, then Thomas had only two, instead of the required three, convictions.

We concluded, "the legislature intended three convictions within six years to be grounds for suspension without the added condition that each must occur at a different time." Id. at 423. In our analysis, we noted, "there is a significant difference in the philosophy behind habitual criminal statutes ... and those dealing with driving violations." Id. We distingui...

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