Opinion
No. 3-256 / 02-1772.
Filed May 29, 2003.
Appeal from the Iowa District Court for Woodbury County, JAMES D. SCOTT, Judge.
The defendant appeals a district court ruling denying his motion to correct illegal sentence. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant Appellate Defender, for appellant.
Douglas Kurtz, Clarinda, pro se, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, Thomas Mullin, County Attorney, and Brigit Barnes, Assistant County Attorney, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
Douglas Kurtz pled guilty to possession of marijuana with intent to deliver, after affirming there was a factual basis for the plea. See Iowa Code §§ 124.401(1)(d), 124.411 (1995). He was sentenced to a five-year indeterminate prison term. Kurtz then filed but withdrew a notice of appeal and filed but withdrew a motion to correct illegal sentence.
Approximately five years after judgment was entered, Kurtz filed a second "motion to correct illegal sentence." He claimed the amount of marijuana at issue was less than an ounce, entitling him to a six-month jail term rather than the five-year prison term he received. See Iowa Code § 124.401(5). The district court denied the motion. Kurtz then filed a motion to vacate the ruling, which the court denied. This appeal followed.
On appeal, the State argues error was not preserved. We agree. A defendant challenging the legality of a sentence need not adhere to our error preservation rules. State v. Walker, 610 N.W.2d 524, 526 (Iowa 2000); State v. Luckett, 387 N.W.2d 298, 301 (Iowa 1986). In contrast, a defendant challenging the factual basis for a plea must generally preserve error by filing a motion in arrest of judgment. State v. Gant, 597 N.W.2d 501, 503-04 (Iowa 1999).
Although Kurtz styled his challenge as a "motion to correct illegal sentence," he expressed concern only with the factual basis supporting the plea. Compare State v. Tindell, 629 N.W.2d 357, 359 (Iowa 2001) (stating a sentence is illegal if it is beyond the power of the court to impose) with State v. Keene, 630 N.W.2d 579, 581 (Iowa 2001) (stating a factual basis exists if the record as a whole discloses facts to satisfy the elements of the crime). Therefore, he was required to preserve error to raise his challenge on appeal.
Kurtz did not do so. At the plea proceeding, the district court advised him of his right to file a motion in arrest of judgment to challenge his plea. Kurtz agreed to waive his right to file such a motion and he further agreed that, by doing so, he would give up his right to challenge the plea proceeding on appeal. These concessions are dispositive. By waiving his right to file a motion in arrest of judgment, Kurtz also waived his right to subsequently challenge the factual basis for his plea. Accordingly, we decline to reach the merits.
Following submission of his appeal, Kurtz filed a motion to expand the record. We deny the motion.