IN THE COURT OF APPEALS OF IOWA
No. 13-0660
Filed April 30, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TERRY DALE KRAMBECK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Marlita A.
Greve, Judge.
A defendant appeals from a denial of his motion to correct an illegal
sentence. AFFIRMED.
Philip B. Mears of Mears Law Office, Iowa City, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, Alan Ostergren, County Attorney, and Korie Shippee, Assistant County
Attorney, for appellee.
Considered by Doyle, P.J., Bower, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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GOODHUE, S.J.
Terry Krambeck appeals from a denial of his motion to correct an illegal
sentence.
I. Background Facts and Proceedings
On April 9, 2008, Krambeck was accused of the crime of sex abuse third
by a trial information stating, “in that the defendant on the day of , 2005
in the city of Muscatine did commit the act of sexual abuse in the third
degree . . . .” The trial information further stated, “In 2005 Krambeck on multiple
occasions did perform sexual acts on the victim, who was then fourteen years of
age.” There was no other reference in the charging portion of the document that
made further specification to the date of the offense.
On July 23, 2008, Krambeck entered a plea of guilty to the charge levied.
The trial information to which he pleaded guilty further stated “in 2005 Krambeck
on multiple occasions did perform sexual acts” on the victim who was then
fourteen years old. The minutes attached to the trial information stated the victim
had reported that the last instance of sexual abuse by Krambeck had occurred
“during Christmastime in 2005.” The minutes also stated the victim was in eighth
grade at the time the abuse ended.
In 2005 there was a legislative change, which became effective for
offenses that took place after July 1, 2005. See 2005 Iowa Acts ch. 158. The
legislation provided that a person convicted of a class “C” felony or greater under
Iowa Code chapter 709 was to be sentenced in addition to any other sentence to
a special sentence, which included commitment to the Iowa Department of
Corrections for supervision as if on parole for the rest of the person’s life. Iowa
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Code § 903B.1 (Supp. 2005). No mention of lifetime probation or the exact date
the sexual abuse took place was made in the colloquy when Krambeck entered
his plea. He did admit it took place in the year 2005 as stated in the trial
information. He also admitted the victim was between fourteen and fifteen when
the offense occurred. The presentence investigation reported Krambeck was
subject to the “Life special Sentence.” The record at sentencing does not reflect
any discussion about the ramification of the date of the offense.
The lifetime provision provided by section 903B.1 was specifically included
as a part of the sentence announced at the sentencing hearing and was made a
part of the official sentencing order. Krambeck did not file a motion in arrest of
judgment or object to the inclusion of the lifetime sentence, but on February 26,
2012, he filed the instant motion to correct an illegal sentence as provided by
Iowa Rule Criminal Procedure 2.24(5)(a). Krambeck, at the hearing on his
motion, introduced into evidence the victim’s report card showing she was in
eighth grade in 2004 through May 2005. He further asserts the victim’s
statement that the abuse ended at Christmastime 2005 was an obvious error,
since the victim would have been in ninth grade and not eighth grade at
Christmastime 2005. He concludes the last abuse must have ended at
Christmastime in 2004 and before 903B.1 became effective. He contends the
lifetime probation provision in his sentence is being applied ex post facto and is
therefore void.
II. Standard of Review
A claim that an illegal sentence has been entered is reviewed for errors of
law. State v. Liddell, 672 N.W.2d 805, 815 (Iowa 2003). Krambeck also
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contends the sentencing court applied the punishment provided by section
903B.1 to a crime perpetrated before its effective date, and that as such it is a
violation of the United States Constitution and the Iowa Constitution’s prohibition
of an ex post facto law. See U.S. Const. art I, § 10; Iowa Const. art I, § 21. If a
constitutional issue is involved, the review becomes de novo. State v. Oliver,
812 N.W.2d 636, 639 (Iowa 2012).
III. Preservation of Error
If Krambeck’s claim is correctly labeled as a motion to correct an illegal
sentence, it may be corrected at any time. Iowa R. Crim. P. 2.24(5)(a). The
normal error preservation rules do not apply to an illegal or void sentence. State
v. Thomas, 520 N.W.2d 311, 313 (Iowa 1994). However, if this is in reality a
challenge to the factual basis of the plea, as the State contends, then a motion in
arrest of judgment would generally be considered necessary to preserve error.
State v. Gant, 597 N.W.2d 501, 503 (Iowa 1999).
IV. Discussion
How to properly classify this proceeding is pivotal in determining whether
error has been preserved, as well as the final disposition of the matter.
Krambeck primarily relies on State v. Lathrop, 781 N.W.2d 288, 291 (Iowa 2010),
in which a jury convicted Lathrop of third-degree sexual assault. The jury had
been instructed that to find the defendant guilty they must find, among other
things, that “[d]uring the months of June through September 2005, the defendant
performed a sex act with [the victim].” Lathrop, 781 N.W.2d at 297. The
sentencing court imposed the lifetime probation requirement of 903B.1, which
became law on July 1, 2005. Id. at 291. Given the lack of specificity contained in
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the jury verdict as to whether any offense had occurred after July 1, 2005, it was
determined the defendant should be given the benefit of the doubt as to when the
offense took place. Id. at 297. Under that scenario our supreme court
determined there was no finding that the offense had taken place after July 1,
2005. Id. at 298. Accordingly, the application of lifetime probation was an invalid
ex post facto sentence and, as such, an illegal sentence. Id.
This is a much different case than Lathrop. Krambeck entered a plea of
guilty. A plea of guilty “waives all defenses and irregularities except that the
information or indictment charges no offense and the right to challenge the plea
itself.” State v. McGee, 211 N.W.2d 267, 268 (Iowa 1973). Krambeck raises
some question as to whether he knew about the existence of the new statute
providing for lifetime probation. Its existence was noted in the presentence
investigation report, and the court orally announced it as a part of the sentence.
Krambeck filed no motion in arrest of judgment and raised no objection to its
inclusion in the sentence. He might not have known about its existence at the
time of the entry of the plea, but he certainly knew about it at the time of
sentencing. As the trial court who heard the motion to correct illegal sentence
noted, “Defendant and his counsel clearly reviewed the presentence investigation
report because defendant offered a rather extensive lists of corrections to the
report.”
Furthermore, when a collateral attack is made on a plea of guilty because
the court sentencing the defendant erred in failing to advise him of all the
consequences of his plea, the burden is on the defendant to show not only the
omission, but also that the appropriate disclosure would have changed his plea.
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State v. Finney, 834 N.W.2d 46, 53 (Iowa 2013) (citing United States v.
Timmreck, 441 U.S., 780 (1979)). Krambeck does not contend that he did not
know of the lifetime probation at the time of sentencing or that if he had known of
it at the time of the plea, such knowledge would have had any effect on the plea
he entered. He fails to claim he was prejudiced by his lack of knowledge of the
lifetime probation when he entered the plea. He does not claim his plea was not
made voluntarily.
It is appropriate to consider whether a factual basis for imposing lifetime
probation existed as a part of the plea before considering the claim that it was an
ex post facto application of the statute. The record as a whole, including an
inquiry of the defendant and the minutes of evidence, may be considered in
determining whether the factual basis for entry of a plea exists. State v. Ortiz,
789 N.W.2d 761, 768 (Iowa 2010). The State contends this matter can be
disposed of by looking at the minutes of the trial information and the entry of the
plea itself.
The minutes attached to the trial information explicitly state that the last
incident of sexual abuse took place around Christmastime 2005 and provide a
1991 birthdate for the victim, making her fourteen at that time. Christmastime in
2005 would have been after the effective date of section 709B.1. Krambeck, in
the plea colloquy, admitted the abuse had taken place when the victim was
between fourteen and fifteen, and admitted it took place in 2005. Both of those
admissions were consistent with the trial information and the plea he entered.
The minutes attached to the trial information also stated the abuse ended when
the victim was in the eighth grade. At the time the plea was entered, there was
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no inconsistency between the victim’s grade level and the Christmastime 2005
allegation as the ending of the abuse. The State argues that the existence of the
factual basis at the time of the plea is dispositive. Krambeck asserts the factual
basis developed at the time of the plea is inaccurate and inconsistent, and
contrary to the true facts. Krambeck does not appear to deny that a factual basis
existed for his plea of guilty including a basis for lifetime probation when the plea
was entered. Nor can he logically do so. His effort is to collaterally attack the
plea by contending it was an illegal sentence and therefore void.
Krambeck provided new evidence at the hearing on his motion. He
established that the victim graduated from the eighth grade in May 2005. If that
were the case, then the last abuse was before July 1, 2005, and inconsistent with
the 2005 Christmas date. He then asserts the Christmastime 2005 statement
was an error and the last abuse must have ended at Christmastime 2004. A
closer look at Krambeck’s assumption shows he was far from meeting the burden
of proof necessary to collaterally attack his sentence.
It is more realistic and consistent with the record to assume the statement
that the abuse ended when the victim was in eighth grade was an error. To
assume otherwise would be totally inconsistent with Krambeck’s admission of the
factual basis for the plea. Based on the victim’s birthdate, she would have been
only thirteen at Christmastime 2004 instead of fourteen to fifteen, as Krambeck
stated at the time of his plea and as is charged in the trial information.
Krambeck’s claim is essentially a claim that he was sentenced on an
enhancement for which no factual basis existed at the time of the plea as proven
by subsequent evidence. The purpose of allowing review of an illegal sentence
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is to permit correction of such an illegal sentence, rather than re-examination of
errors made preceding the imposition of a sentence. State v. Bruegger, 773
N.W.2d 862, 871-72 (Iowa 2009). Even if a collateral attack can be made on the
factual basis of a guilty plea, Krambeck has failed to establish that the sexual
abuse did not continue until Christmastime 2005.
This case is very much like State v. Cowles, 757 N.W.2d 614 (Iowa 2008).
Cowles involves a guilty plea with no express admission by the defendant that
the prohibited act had happened after the effective date of a penalty
enhancement. 757 N.W.2d at 617. In Cowles, based on the court’s advice to the
defendant as to the penalty that could be imposed, the supreme court found an
implicit admission the act had taken place after the effective date of the statute.
Id. In this case the implicit admission comes primarily from the contents of the
trial information to which Krambeck entered his plea of guilty and implicitly and
explicitly from his admissions he made at the time of the plea colloquy. A factual
basis for the plea of guilty was present at the time of the plea, including the fact
that the prohibited act had continued until about Christmas 2005. No motion in
arrest of judgment was made; therefore, Krambeck has waived his right to attack
the guilty plea proceeding. Iowa R. Crim. P. 2.24(3)(a); State v. Brooks, 555
N.W.2d 446, 448 (Iowa 1996). He had knowledge of the existence of the lifetime
probation from the presentence investigation and the record made at sentencing.
Assuming a defendant can attack the factual basis for a plea without having filed
a motion in arrest of judgment, absent some unusual circumstance, we conclude
Krambeck has failed to establish there was an error in the factual basis upon
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which the plea and sentence were entered. The decision of the trial court is
affirmed.
AFFIRMED.