State v. Lathrop

Decision Date23 April 2010
Docket NumberNo. 07-0793.,07-0793.
Citation781 N.W.2d 288
PartiesSTATE of Iowa, Appellee, v. Ritchie Lee LATHROP, Appellant.
CourtIowa Supreme Court

781 N.W.2d 288

STATE of Iowa, Appellee,
v.
Ritchie Lee LATHROP, Appellant.

No. 07-0793.

Supreme Court of Iowa.

April 23, 2010.


781 N.W.2d 289

COPYRIGHT MATERIAL OMITTED

781 N.W.2d 290

Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Michael W. Mahaffey, County Attorney, and Rebecca L. Petig, Assistant County Attorney, for appellee.

781 N.W.2d 291

TERNUS, Chief Justice.

The defendant, Ritchie Lathrop, appeals from his conviction and sentence for third-degree sexual abuse. His appeal was transferred to the court of appeals, where his conviction was affirmed and several claims for postconviction relief were preserved. We granted the defendant's application for further review to consider two issues: (1) whether his sentence to lifetime parole under Iowa Code section 903B.1 (2007) violated the constitutional prohibition against ex post facto laws, and (2) whether the sentencing court abused its discretion by ordering him to have no contact with anyone under the age of eighteen without the permission of his probation officer. Upon consideration of the record and controlling authorities, we vacate that part of the defendant's sentence placing him on lifetime parole, as well as the condition of probation prohibiting all contact with anyone under the age of eighteen. We remand to the trial court for the opportunity to impose a less restrictive condition on the defendant's probation.

I. Background Facts and Proceedings.

The evidence at trial would support a finding that the defendant had sexual relations with Jane Doe at various times during 2005. The defendant was twenty-seven when the relationship began; the victim was fifteen until her birthday in October 2005.

In December 2006, the State charged Lathrop with third-degree sexual abuse. See Iowa Code § 709.4(2)(c)(4) (prohibiting sex act between persons not husband and wife if one person is fourteen or fifteen and other person is four or more years older). A jury convicted Lathrop of this charge, and the court sentenced him to an indeterminate sentence not to exceed ten years. The court suspended the sentence and placed the defendant on probation for three years. In addition to other conditions of his probation, he was ordered to "have no contact with anyone under the age of 18 without the permission of his supervising officer." Finally, the court determined the lifetime-parole sentence under section 903B.11 was applicable and therefore "committed the defendant to the custody of the director of the Iowa Department of Corrections for the rest of his life . . . with eligibility for parole as provided in chapter 906."

The defendant appealed, and we transferred the case to the court of appeals. That court affirmed his conviction and sentence, and preserved several claims for postconviction relief. We granted further review to address the defendant's challenge to his sentencing under section 903B.1 and to the no-contact condition of his probation.2 The State claims error was not preserved on either claim because the

781 N.W.2d 292
defendant did not object in the district court to the portions of his sentence that he now challenges on appeal. We address the error-preservation issue first

II. Error Preservation.

A. General Principles. Iowa Rule of Criminal Procedure 2.24(1) states: "Permissible motions after trial include motions for new trial, motions in arrest of judgment, and motions to correct a sentence." Iowa R.Crim. P. 2.24(1).3 Only subpart (5) of rule 2.24 addresses motions to correct a sentence, and it simply provides that "the court may correct an illegal sentence at any time." Iowa R.Crim. P. 2.24(5)(a). We have narrowly interpreted this rule, as a brief historical review illustrates.

In State v. Wilson, 294 N.W.2d 824 (Iowa 1980), this court had an opportunity to interpret rule 23(5)(a) (later renumbered rule 2.24(5)(a)) when the State contended the defendant had not preserved his claim that the trial court had failed to state reasons for its sentence as the defendant had not raised this error in the district court. 294 N.W.2d at 825. In considering whether the defendant should have filed a motion under rule 23(5)(a), we decided that because this rule provided no time limit for filing a motion to correct a sentence, the rule was meant to apply only to illegal sentences. Id. (noting that expansion of the rule to apply to procedural defects in sentencing "would open up a virtual Pandora's box of complaints with no statutorily prescribed procedures for their disposition nor any time limits for their implementation"). Nonetheless, relying on basic fairness, we held the defendant was not required to raise his objection to the sentencing defect prior to appeal:

In the case at hand, there is no procedure under our existing rules for a defendant to raise the issue at the trial court level. He may not be held to have waived his objection by failing to raise it at the sentencing because he had no way to know then that the judge would leave it out of the subsequent judgment. He has no way to raise the defect after judgment because, as we have discussed, a motion to "correct" an illegal sentence under rule 23(5)(a) is the only rule which could be a basis for relief in the trial court, and it is inapplicable here. A defendant without a procedure for raising an issue in the trial court obviously cannot be held to have waived his right to appeal.

Id. at 826 (citation omitted); accord State v. Marti, 290 N.W.2d 570, 589 (Iowa 1980).

Since our decision in Wilson, Iowa appellate courts have held in a variety of circumstances that errors in sentencing need not be first challenged in the district court. See, e.g., State v. Ayers, 590 N.W.2d 25, 27 (Iowa 1999) (claim that district court failed to exercise its discretion in sentencing defendant); State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998) (claim that district court improperly exercised its sentencing discretion by requiring defendant to choose between two proffered sentences); State v. Young, 292 N.W.2d 432, 435 (Iowa 1980) (claim that the district court considered an improper factor in determining proper sentence); State v. Thomas, 520 N.W.2d 311, 312-13 (Iowa Ct.App.1994) (claim that district court improperly considered department of corrections' parole policies in choosing appropriate sentence). In Cooley, this court observed that it would be "exceedingly unfair to urge that a defendant, on

781 N.W.2d 293
the threshold of being sentenced, must question the court's exercise of discretion or forever waive the right to assign the error on appeal." 587 N.W.2d at 754

Error-preservation principles applicable to illegal sentences are even broader. As rule 2.24(5)(a) provides, illegal sentences may be corrected at any time. Iowa R.Crim. P. 2.24(5)(a) ("The court may correct an illegal sentence at any time."); see also Young, 292 N.W.2d at 435 (holding even with respect to illegal sentences encompassed in rule 23(5)(a), now rule 2.24(5)(a), a motion to correct a sentence is not a prerequisite to a postjudgment challenge to the sentence). "An illegal sentence is void" and, for this reason, is "`not subject to the usual concepts of waiver, whether from a failure to seek review or other omissions of error preservation.'" State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000) (quoting State v. Ohnmacht, 342 N.W.2d 838, 842, 843 (Iowa 1983)). Thus, when "the claim is that the sentence itself is inherently illegal, whether based on constitution or statute," the claim may be asserted at any time. State v. Bruegger, 773 N.W.2d 862, 872 (Iowa 2009); accord Ohnmacht, 342 N.W.2d at 843 (holding "an illegal sentence is subject to correction regardless of whether or not it was timely appealed"). The breadth of this rule was recently illustrated when this court held that even expiration of the statute of limitations for postconviction-relief actions will not bar a challenge to an illegal sentence. See Veal v. State, 779 N.W.2d 63, 65 (Iowa 2010).

In summary, errors in sentencing may be challenged on direct appeal even in the absence of an objection in the district court. Illegal sentences may be challenged at any time, notwithstanding that the illegality was not raised in the trial court or on appeal.

B. Preservation of Ex Post Facto Claim. We first consider whether the defendant's argument that imposition of lifetime parole violates the ex post facto clause is a claim that the sentence is illegal. A challenge to an illegal sentence "includes claims that the court lacked the power to impose the sentence or that the sentence itself is somehow inherently legally flawed, including claims that the sentence is outside the statutory bounds or that the sentence itself is unconstitutional." Bruegger, 773 N.W.2d at 871.

Here, the defendant contends application of section 903B.1 to conduct that occurred before the statute's effective date would violate the ex post facto clause. For this reason, he argues it cannot be constitutionally applied to him. We think this claim, like the one in Bruegger, is a claim that the sentence is inherently illegal. Therefore, the defendant's claim may be urged on appeal notwithstanding trial counsel's failure to object to imposition of the sentence of lifetime parole. Accordingly, we will consider the defendant's ex post facto challenge to this aspect of his sentence directly and not under an ineffective-assistance-of-counsel framework.

C. Preservation of Challenge to Condition of Probation. The defendant does not challenge the sentencing court's authority to impose conditions on his probation. Rather, he claims the condition of his probation ordering him to have no contact with anyone under the age of eighteen without the permission of his probation officer is unreasonable because its scope is excessive. We think this claim is indistinguishable from the...

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