Opinion
No. 3-889 / 02-2096.
Filed January 14, 2004.
Appeal from the Iowa District Court for Johnson County, Sylvia A. Lewis, District Associate Judge.
Jermaine Roberts appeals his sentence following a guilty plea to operating while intoxicated, first offense, in violation of Iowa Code section 321J.2 (1999). AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, J. Patrick White, County Attorney, and David Tiffany, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Jermaine Roberts appeals his sentence following a guilty plea to operating while intoxicated, first-offense, in violation of Iowa Code section 321J.2 (1999). Roberts alleges counsel was ineffective and should have urged the district court to rule on the issue of the validity of a previous nunc pro tunc order. We affirm.
Background Facts and Proceedings. On January 21, 1999, Roberts was charged by trial information with: Count I, operating while intoxicated, first-offense, in violation of Iowa Code section 321J.2; Count II, interference with official acts, in violation of section 719.1; and Count III, possession of a schedule I controlled substance, in violation of sections 124.401(5) and 124.204(4)(m).
Roberts submitted a written guilty plea on February 8, 1999, which read in part:
PLEA AGREEMENT: State and Defendant agree to 2 days/$500 on Ct. I.
State to dismiss Cts. II III, and all simple misdemeanors, at Defendant's costs.
Defendant requests time to pay fines; court costs, surcharge, fees. Mittimus to issue: immediately.
Defendant to receive credit for time previously served.
At the end of the written plea, the following waiver appears:
WAIVER OF PRESENCE AT SENTENCING:
I hereby know, understand, and waive my right to appear in person for sentencing, my right to address the Court personally, my right to a fifteen (15) day delay before the pronouncement of judgment and sentence, and my right to file a Motion in Arrest of Judgment if the sentencing is scheduled sooner than five (5) days from the day this guilty plea is entered.
REQUEST FOR A DEFERRED JUDGMENT
? Not requested.
[X] I respectfully request the privilege of a Deferred Judgment, and this waiver of my presence at the sentencing hearing is only valid if the Court does grant a Deferred Judgment herein without a sentencing hearing.
With the foregoing statement as support, I request the Court to accept this Written Plea of Guilty.
On February 9, 1999, the district court entered a judgment and sentence which followed the plea agreement completely. However, the sentencing order incorrectly stated the offense of interference with official acts instead of operating while intoxicated, first-offense, for Count I. The matter was brought to the court's attention, and a nunc pro tunc order was entered on February 16, 1999. The sentencing order was "corrected to reflect that the Defendant pled guilty to Operating While Intoxicated (First-Offense) in violation of Iowa Code section 321J.2, rather than Interference with Official Acts in violation of Iowa Code section 719.1, as was previously ordered." Roberts did not contest the fact he was not present at sentencing and did not contest the entry of the nunc pro tunc order in either the district court or through an appeal.
This matter lay dormant and unchallenged for the next three and one half years. It was finally challenged in October 2002 in Roberts's subsequent trial for operating while intoxicated, third-offense, in Johnson County case No. OWCR062438. The prosecution intended to use prior convictions in Johnson County case Nos. OWCR050373 and OWCR050436 (the instant case) to support the charge of operating while intoxicated, third-offense. Roberts then filed a notice of intent to challenge the prior conviction in the instant case. The notice was based on a challenge to the nunc pro tunc order as being improper and in violation of the double jeopardy provision of the Fifth Amendment to the United States Constitution. The district court in case No. OWCR062438 overruled the challenge, and Roberts was found guilty of operating while intoxicated, third-offense, by a jury on October 22, 2002.
Thereafter, on November 1, 2002, Roberts filed a motion in the instant case seeking to correct an illegal sentence pursuant to Iowa Rule of Criminal Procedure 2.24(5)( a). Roberts motion was based, once again, on his argument that the use of the nunc pro tunc order was improper. In addition, he raised for the first time the argument that he had not been present at either the original sentencing or at the time of the issuance of the nunc pro order. The State resisted the motion on the grounds the previous ruling by the judge in case No. OWCR062438 was res judicata. A hearing was held on November 20, 2002, and Roberts's attorney agreed the matter was res judicata and stated on the record that it would be appropriate for the court to defer to this previous decision. Roberts's counsel then requested that the issue in the instant case be consolidated with the ruling in the operating while intoxicated, third offense, case for purposes of appeal.
Ineffective Assistance of Counsel. We review ineffective assistance of counsel claims de novo. State v. Ledezma, 626 N.W.2d 134, 141 (Iowa 2001). We will resolve ineffective assistance of counsel claims on direct appeal when the record is adequate to decide the issue. State v. Arne, 579 N.W.2d 326, 329 (Iowa 1998). We conclude the record does provide a sufficient basis for determining this issue.
To prevail on his claim, Roberts must show (1) his counsel failed to perform an essential duty and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). The reviewing court may first consider either prong of an ineffective assistance of counsel claim. State v. Oetken, 613 N.W.2d 679, 684 (Iowa 2000).
Roberts's ineffective assistance of counsel claim contends that counsel failed to request, at the hearing held on November 20, 2002, the district court to issue a ruling on the validity of the previous nunc pro tunc order. We conclude this claim of ineffective assistance of counsel must fail for several reasons. First of all, the district court has the right to correct a clerical error in a judgment entry through the issuance of an order nunc pro tunc. Iowa R. Crim. P. 2.23(3)( g); State v. Hess, 553 N.W.2d 525, 527 (Iowa 1995); State v. Suchanek, 326 N.W.2d 263, 265-66 (Iowa 1982). "It is not the purpose of a nunc pro tunc order to correct the errors of litigants, judicial thinking, or a mistake at law; the function is to make the record show truthfully what judgment was actually rendered." Suchanek, 326 N.W.2d at 265-66.
Secondly, it is clear the nunc pro tunc order in this case simply corrected a clerical mistake in the judgment. The district court had mistakenly recorded the offense Roberts pled guilty to as interference with official acts instead of operating while intoxicated, first-offense. We note the district court's sentencing order correctly stated that the court was imposing judgment on Count I of the trial information. Count I was operating while intoxicated, first-offense. The district court also made reference to Roberts's earlier guilty plea and the plea agreement of the parties. That plea agreement was very clear and agreed to by both the State and Roberts. In addition, the district court dismissed both Counts II and III, which had been agreed to by the parties. We also note the district court entered the mandatory minimum sentence for operating while intoxicated, first-offense.
Finally, Iowa Rule of Criminal Procedure 2.23(3)( g) does not give a defendant a right to a hearing prior to the issuance of such an order and does not give a defendant a right to be present at the issuance of the order. Roberts's claim to the contrary is without merit.
We conclude the entry of the nunc pro tunc order was proper and counsel was not ineffective for failing to secure a ruling at the hearing held on November 20, 2002. See State v. Owens, 635 N.W.2d 478, 482 (Iowa 2001) (holding ineffective assistance of counsel may not be premised on failure to raise an issue having no merit).
Roberts also alleges that his sentence entered in February 1999 was illegal in that he was not present and had only conditionally waived his presence. Roberts raises this argument through a claim of ineffective assistance of counsel. He argues counsel was ineffective in failing to secure a ruling on this contention in the hearing held on November 20, 2002. We conclude this claim of ineffective assistance of counsel must also fail.
We have carefully reviewed the record and, notwithstanding the checked box on the waiver form, fail to find any independent credible evidence to support Roberts's allegation he was either seeking a deferred judgment or requesting to be present at the sentencing in 1999. There was a detailed plea agreement approved by the State and Roberts. In the agreement, Roberts stated he did not "anticipate the imposition of a sentence more favorable." Indeed, Roberts received the full benefit of his agreement. In addition, he did not contest the imposition of sentence either in district court or on appeal. The sentencing order went unchallenged for three and one half years until the time of his trial on the charge of operating while intoxicated, third-offense.
Even assuming Roberts requested a deferred judgment, his ineffective assistance of counsel claim must fail. The lack of Roberts's presence at his sentencing in February 1999 does not make his sentence illegal. An illegal sentence is one not authorized by statute. Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001). The entry of Roberts's sentence without his presence would only amount to a procedural deficiency that could have been corrected at that time through the use of an appeal. Roberts did not pursue such a remedy. It is now too late. This sentence is not subject to the provisions of Iowa Rule of Criminal Procedure 2.24(5)( a). Roberts's claim of ineffective assistance must fail.