State v. Kress

• Decision Date: 15 November 2001
• Docket Number: No. 00-1173.,00-1173.
• Citation: 636 N.W.2d 12
• Parties: STATE of Iowa, Appellee, v. Sherry Kay KRESS, Appellant.
• Court: Iowa Supreme Court

636 N.W.2d 12

STATE of Iowa, Appellee, v. Sherry Kay KRESS, Appellant.

No. 00-1173.

Supreme Court of Iowa.

November 15, 2001.

Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Richard R. Phillips, County Attorney, and Dana Christensen, Assistant County Attorney, for appellee.

LAVORATO, Chief Justice.

The defendant, Sherry Kay Kress, appeals from her conviction and sentence upon her guilty plea to procurement of a prescription drug by forgery. She contends that her counsel was ineffective in permitting her to enter a guilty plea and failing to file a motion in arrest of judgment because the district court misinformed her concerning the application of Iowa Code section 124.413 (1999) (minimum sentence provision). She also asserts the district court erred in imposing the one-third mandatory minimum sentence under section 124.413. We find no error in the court's ruling on section 124.413 imposing the mandatory minimum sentence. However, because we conclude Kress has established her ineffective-assistance-of-counsel claim, we vacate her conviction and sentence and remand for further proceedings.

I. Background Facts and Proceedings.

On February 16, 2000, Kress presented a prescription for two drugs—Precose and Ritalin—to a pharmacist at Drug Town Pharmacy in Muscatine, Iowa. Ritalin is a schedule II controlled substance. See Iowa Code § 124.206(4)(d). The pharmacist noticed that the prescription appeared altered. He checked with the office of the physician whose name appeared on the prescription. In doing so, the pharmacist discovered that the physician had not signed the prescription and that Kress had only been prescribed Precose. A licensed physician's assistant in the physician's office had actually written the prescription for the drug Precose. The physician's assistant was not legally authorized to prescribe Ritalin.

The pharmacist gave Kress a bottle with only two Ritalin pills (even though the prescription was for ninety) and called the police, who investigated the incident. As a result of the investigation, the State charged Kress with procurement of a prescription drug by forgery. See Iowa Code § 155A.23(1)(b) (providing that a person shall not "[o]btain or attempt to obtain a prescription drug ... by ... [f]orgery or alteration of a prescription or any written order"), (4) (providing that a person shall not "[m]ake or utter any false or forged prescription or written order"). The State also charged that on April 1, 1997, Kress had been convicted of possession of a controlled substance with intent to deliver, a class "C" felony.

On May 26, District Judge James R. Havercamp took Kress's plea of guilty. The judge told Kress that she would have to serve a minimum period of confinement equal to one-third of the maximum indeterminate sentence prescribed by the Iowa Code, unless the sentencing court waived the one-third requirement. In addition, the judge told Kress that, because of her prior conviction, the sentencing court would also have the discretion to impose up to three times the maximum sentence. The judge made clear that he was not telling Kress what her sentence would be, but rather what her sentence could be. After the attorneys advised the court that there was no plea agreement, the judge told Kress that the sentencing judge could impose any punishment authorized by law.

Neither Kress nor her attorney objected to or otherwise questioned the judge's explanation of the possible punishments. After acknowledging she understood these possibilities, Kress pleaded guilty. She admitted that she had someone alter the prescription by adding the drug, Ritalin. She also admitted the prior drug conviction.

Dr. James Yeltatzie, one of Kress's treating doctors, wrote a letter to Kress's attorney two months before the plea proceedings. The letter helps explain the circumstances surrounding the incident. Dr. Yeltatzie wrote that Kress had been taking Ritalin, but that he had discontinued Ritalin and changed her medication to Adderal. The doctor explained that Adderal is actually stronger than Ritalin in controlling attention difficulties and problems with concentration. He further explained that Kress was not aware of this and began to panic because she did not have any Ritalin. The doctor concluded his letter, stating that he

would hope that the courts would be able to take into consideration her mental status, her sense of panic and the fact that I already [had] written for a stronger medication for her to receive, yet she could only focus on the fact that she did not have any Ritalin and this was very bothersome to her.

The record shows that Kress is afflicted with a number of health problems and is on numerous medications. Ironically, following the incident giving rise to the criminal charges, Kress's doctor decided that Adderal was not effective and once again prescribed Ritalin.

On July 7, District Judge David E. Schoenthaler sentenced Kress. The judge refused to enhance the sentence because of the prior conviction, waived any mandatory minimum requirements applicable to the sentence, and imposed an indeterminate ten-year sentence. The judge also assessed a $1000 fine and suspended Kress's driver's license for 180 days.

Minutes later, Judge Schoenthaler reopened the record. The judge explained that he had no discretion to waive the one-third mandatory minimum sentence and deleted that provision from his sentencing order. Neither Kress nor her attorney objected. Nor did either file a motion in arrest of judgment challenging the validity of the plea.

II. Issues.

On appeal, Kress contends that her trial counsel was ineffective on two grounds. First, he failed to object during the plea proceedings after the district court improperly informed Kress of the range of possible punishments. Second, he failed to file a motion in arrest of judgment to challenge the plea or otherwise object to the correction of the sentence once the court discovered its sentencing error. She asserts that her counsel's failures were prejudicial because they resulted in a plea that was neither knowingly made nor voluntary. She asks us to set aside her conviction and sentence and remand the case for further proceedings.

In the alternative, Kress contends the district court incorrectly concluded that the mandatory minimum applied in this case. She asks us to vacate her sentence and remand the case for resentencing. We address the latter claim first.

III. One-third Mandatory Minimum Claim.

A. Error preservation and scope of review. As mentioned, Kress contends she was not subject to the one-third mandatory minimum sentence found in Iowa Code section 124.413. If she is correct, the sentence is illegal. An illegal sentence

is one that is not permitted by statute. An illegal sentence is void and "not subject to the usual concepts of waiver, whether from a failure to seek review or other omissions of error preservation." Because an illegal sentence is void, it can be corrected at any time.

State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000) (quoting State v. Ohnmacht, 342 N.W.2d 838, 842, 843 (Iowa 1983)) (citations omitted).

Because Kress's contention raises a question of statutory interpretation, our review is for correction of errors at law. State v. Ceron, 573 N.W.2d 587, 589 (Iowa 1997).

B. Analysis. Iowa Code section 155A.23(1)(b) provides:

A person shall not ... [o]btain or attempt to obtain a prescription drug or procure or attempt to procure the administration of a prescription drug by... [f]orgery or alteration of a prescription or of any written order.

Iowa Code section 155A.23(4) provides:

A person shall not ... [m]ake or utter any false or forged prescription or written order.

If the prescription drug is a controlled substance, Iowa Code sections 124.401(1) and 124.411 control the punishment of those who violate section 155A.23. See Iowa Code § 155A.24. As mentioned, the prescription drug here was Ritalin, also known as Methylphenidate, a schedule II controlled substance. See Iowa Code § 124.206(4)(d).

A violation of section 124.401(1) (prohibiting manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance) is a class "C" felony, punishable by up to ten years imprisonment and a fine of up to $50,000. See Iowa Code §§ 124.401(1)(c)(8), 902.9(3).

Section 124.411(1) provides additional penalties for second or subsequent offenses:

Any person convicted of a second or subsequent offense under this chapter, may be punished by imprisonment for a period not to exceed three times the term otherwise authorized, or fined not more than three times the amount otherwise authorized, or punished by both such imprisonment and fine.

Iowa Code § 124.411(1).

Section 124.413 provides the following mandatory minimum sentence for certain offenders:

A person sentenced pursuant to section 124.401, subsection 1, paragraph "a ", "b ", "c ", "e ", or "f " , shall not be eligible for parole until the person has served a minimum period of confinement of one-third of the maximum indeterminate sentence prescribed by law.

Iowa Code § 124.413. We have held that this provision means what it says: A person subject to section 124.413 is not eligible for parole until that person has served the minimum period of confinement specified. Luter v. State, 343 N.W.2d 490, 492 (Iowa 1984); State v. Morehouse, 316 N.W.2d 884, 886 (Iowa 1982).

After this court decided Luter and Morehouse, the legislature passed legislation providing that the application of section 124.413 is not mandatory in all cases. 1985 Iowa Acts ch. 41, § 1 (codified at Iowa Code § 901.10 (1999)) (providing that when sentencing for a first conviction under section 124.413, court has discretion to impose a sentence less than provided by statute if mitigating circumstances exist and are stated on...