IN THE COURT OF APPEALS OF IOWA
No. 22-0081
Filed December 21, 2022
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GARY LEE JENSEN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Palo Alto County, Charles Borth,
Judge.
A defendant appeals his enhanced sentence and the denial of credit for time
served. SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller (until withdrawal)
and Sheryl Soich, Assistant Attorneys General, for appellee.
Considered by Bower, C.J., Tabor, J., and Mullins, S.J.* Buller, J., takes no
part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
2
TABOR, Judge.
Gary Jensen is a registered sex offender who, by statute, must appear
before the sheriff in his home county every three months to verify his residence
and other personal information. In December 2021, the Palo Alto County Attorney
charged him with a second-offense registry violation, a class “D” felony. See Iowa
Code §§ 692A.103(1), 108(1)(c), 111 (2021). A month later, Jensen filed a written
guilty plea to the felony offense and chose immediate sentencing. The court
rejected Jensen’s request for probation and sentenced him to a term of
incarceration not to exceed five years. It also denied credit for time he served in
the Clay County jail. See id. § 903A.5(1). Jensen now alleges his sentence was
illegal for two reasons: the district court (1) applied a sentencing enhancement with
neither a stipulation nor proof of a prior conviction and (2) refused to credit his time
in pretrial custody.
Because the record includes no admission to a previous conviction and the
State did not prove a prior offense beyond a reasonable doubt, we vacate Jensen’s
felony sentence and remand for resentencing. We also vacate the order denying
jail credit and direct the court to credit Jensen for any days he already served on
the term of the Palo Alto sentence under section 903A.5(1).
I. Facts and Prior Proceedings
Jensen was convicted of lascivious acts with a child in 1993, landing him on
the sex-offender registry for life. Because of that conviction, the Code defines him
as a tier III offender, compelling him to report to the sheriff’s office four times a
year. See Iowa Code § 692A.102(1)(c)(12). In September 2021, Jensen failed to
appear at the Palo Alto Sheriff’s Office. The State filed a trial information charging
3
him with a violation of the sex-offender verification requirement. See id.
§ 692A.108(1)(c). The first violation of that statutes is an aggravated
misdemeanor; the second is a class “D” felony. Id. § 692A.111(1). In the minutes
of testimony, the State alleged that a special agent with the Iowa Division of
Criminal Investigation would testify that this violation was Jensen’s seventh offense
for failure to comply with sex-offender registry requirements. But the minutes did
not list those specific offenses.
On a written guilty plea form, Jensen waived his right to a trial “of any kind”
and pleaded guilty to the class “D” felony. But the plea form did not mention any
previous convictions. The form only included a factual basis for the current failure
to appear at the sheriff’s office. Jensen also waived the fifteen-day delay before
sentencing. Jensen acknowledged that the State would ask for a prison term not
to exceed five years; he then jotted on the form that he expected “a contested open
sentencing hearing.” On the same day, Jensen appeared for sentencing. True to
the form, the State recommended Jensen serve an indeterminate five-year
sentence. To counter, Jensen requested probation.
The district court sided with the State, imposing the prison term. The five
years was to run concurrent with a Clay County sentence that Jensen faced for
eluding. Jensen then asked the court to grant him credit for the time he had served
in the Clay County jail. The court refused to give Jensen “separate credit” in the
Palo Alto County case. Jensen appeals his felony sentence and the denial of credit
for time served.
4
II. Analysis
We review Jensen’s illegal-sentence claims for correction of errors at law.
State v. Petty, 925 N.W.2d 190, 195 (Iowa 2019). Likewise, we review claims
involving the interpretation of a statute or rule for legal error. State v. Kukowski,
704 N.W.2d 687, 690–91 (Iowa 2005).
A. Second-Offense Enhancement
Jensen contends the district court imposed an illegal sentence because the
second-offense enhancement under section 692A.111(1) was neither admitted by
him nor proven by the State. See Iowa Rs. Crim. P. 2.8(2)(b) (requiring the court
to determine the plea is made voluntarily and intelligently and has a factual basis);
2.19(9) (outlining the “trial of questions involving prior convictions”). Jensen
conceded his September 2021 failure to comply with the registry requirements.
But he did not admit any prior offenses that would boost his crime from an
aggravated misdemeanor to a class “D” felony. Jensen contends the prosecutor’s
statements chronicling his prior offenses did not meet the burden of proof. See
State v. Coleman, 907 N.W.2d 124, 147 (Iowa 2018) (“When a defendant is subject
to an enhanced sentence due to prior convictions, the State must prove these prior
convictions beyond a reasonable doubt.”).
Before reaching the merits of Jensen’s claim, we address jurisdiction.
Jensen asserts that although he pleaded guilty, his appeal is not foreclosed by
Iowa Code section 814.6(1)(a)(3). He submits that his challenge goes to the
legality of his sentence and thus falls under the good-cause exception in the
statute. See State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020).
5
The State contests Jensen’s good cause to appeal his enhanced sentence
because he did not move in arrest of judgment to challenge any deficiencies in the
proceeding to establish his prior conviction.1 The State also advances a broader
argument that Jensen failed to preserve error under State v. Harrington. 893
N.W.2d 36, 43, 45–46 (Iowa 2017) (requiring courts to ensure a factual basis exists
to support the admission of prior convictions and requiring offenders to preserve
error on defects through a motion in arrest of judgment).
In reply, Jensen insists Harrington does not control because he did not
stipulate to any prior convictions. See id. at 43 (assessing Harrington’s claims of
deficiency in habitual-offender colloquy).2 We agree with Jensen. He is not
challenging a procedural defect in a colloquy on prior convictions. He did not admit
he was previously convicted of a crime subjecting him to an increased sentence.
Instead, he is challenging the legality of his enhanced sentence when no prior
conviction was admitted or proven. Thus, we find good cause for Jensen’s appeal.
And, contrary to the State’s position, Jensen did not have to preserve error on his
sentencing claim. See State v. Gordon, 732 N.W.2d 41, 44 (Iowa 2007) (“[H]is
enhanced sentence based on his purported habitual-offender status was illegal.
As an illegal sentence, it is not subject to normal error preservation rules and can
be challenged at any time.”).
1 The State cites State v. Tucker, 959 N.W.2d 140, 153 (Iowa 2021) for this
proposition. But Tucker addresses good cause for challenging the knowing and
voluntary nature of a guilty plea, not a sentencing enhancement.
2 In Coleman, our supreme court saw “no reason for treating a second offense
enhancement under Iowa Code section 692A.111 different from our rules
governing the habitual offender enhancement given that both enhancements result
from the defendant’s admission to prior convictions, thereby leading to increased
sentences.” 907 N.W.2d at 147.
6
Turning to the merits, Jensen highlights the State’s failure to prove that he
had a qualifying prior conviction. Despite that failure of proof, the district court
imposed the felony sentence. Lacking either a stipulation or proof of the prior
offense, according to Jensen, the felony sentence was not permitted by
section 692A.111(1) and was thus illegal. See State v. Woody, 613 N.W.2d 215,
217 (Iowa 2000) (“An illegal sentence is one that is not permitted by statute.”).
The State tries to frame the issue differently. It argues that the prior offense
was an element of the sex-abuse registry violation and not a habitual-offender
enhancement.3 From there, the State claims “the appropriate analysis is whether
there is a factual basis for that element.” But the State’s argument overlooks
Coleman, 907 N.W.2d at 147, which equates section 692A.111(1) with other
habitual-offender enhancements subject to Iowa Rule of Criminal
Procedure 2.19(9). Thus, to enhance Jensen’s sentence, the State needed to
follow that rule. And it did not.
Although the State does not focus on the written plea form, Jensen
acknowledged there that he was pleading guilty to a class “D” felony. That’s it
though. He did not affirm that he had been previously convicted of a qualifying
offense under section 692A.111(1).4 That bare-bones reference to a felony in the
3 To bolster its framing, the State cites State v. Love, No. 17-0316, 2017 WL
6033867, at *2 n.3 (Iowa Ct. App. Dec. 6, 2017). But that unpublished decision is
not instructive because it examined a plea to third-degree theft—a crime defined
as taking property exceeding $1000 in value or taking property exceeding $500 in
value by someone who has before been twice convicted of theft. See Iowa Code
§ 714.2(3).
4 His written plea is less comprehensive than the agreement in State v. Mosley,
where the defendant admitted that she had “previously been convicted of a
violation of chapter 124” and “twice been convicted of possession of marijuana.”
No. 20-0175, 2021 WL 4889070, at *3 (Iowa Ct. App. Oct. 20, 2021).
7
plea form does not work as a stipulation, nor does it suffice to prove a prior offense
beyond a reasonable doubt. Without Jensen’s stipulation or proof as required in
rule 2.19(9), he should not have faced an increased sentence. In the end, “[n]either
party may rely on a plea agreement to uphold an illegal sentence.” Woody, 613
N.W.2d at 218.
The next question is what remedy to impose. Jensen urges us to vacate
his felony sentence and remand for resentencing on the aggravated misdemeanor.
He contends “because the State already had a chance to present proof and failed
to do so, it should not be rewarded with a second opportunity.” The State bristles
at Jensen’s call for that “extraordinary remedy” and maintains that we should not
reward him for sitting silently at the sentencing hearing, then raising a new issue
on appeal—what the State calls “sandbagging.” Yet Jensen’s contention mirrors
the remedies imposed by our supreme court in Gordon and Woody. See 732
N.W.2d at 44–45; 613 N.W.2d at 218. It was the State’s burden to prove beyond
a reasonable doubt that Jensen had a prior conviction that would trigger the
enhancement under section 692A.111(1). Jensen’s silence did not excuse the
State from meeting that burden. “[T]he prosecution is not entitled to a second bite
of the apple to remedy its failure of proof.” Gordon, 732 N.W.2d at 44–45.
Because the record does not support a finding that this was Jensen’s second
offense under section 692A.111(1), we must vacate his sentence and remand for
resentencing on the aggravated misdemeanor.
B. Jail Credit
Jensen next contends that the district court erred in denying him credit for
time served in the Clay County jail toward his sentence on the Palo Alto County
8
conviction. For support, he cites Iowa Code section 903A.5(1) and Iowa Rule of
Criminal Procedure 2.26(1)(f). Here’s that statute’s relevant language: “If an
inmate was confined to a county jail . . . at any time prior to sentencing . . . because
of failure to furnish bail or because of being charged with a nonbailable offense,
the inmate shall be given credit for the days already served upon the term of the
sentence.” Iowa Code § 903A.5(1). And the related rule provides: “The defendant
shall receive full credit for time spent in custody on account of the offense for which
the defendant is convicted.” Iowa R. Crim. P. 2.26(1)(f).
Jensen argues that under these authorities, he is entitled to credit for the
number of days that he was detained for the offense for which he was ultimately
convicted. See Powell v. State, 766 N.W.2d 259, 263 (Iowa Ct. App. 2008)
(agreeing that “trigger for the commencement of presentence confinement on a
second charge that later results in a concurrent sentence is the point in time when
the court has set a bond that is not paid”). Jensen points to several orders showing
that “he spent some time in Clay County with a bond in place related to the case
at bar.” But he acknowledges the record does not reveal when his custody on the
Palo Alto charge began. He recommends a remand for further proceedings to
determine the days of jail credit to which he is entitled.
In its appellee’s brief, the State concedes that if Jensen “spent time in Clay
County held on the charge at issue in this appeal, he may be correct that the district
court erred in denying credit served.” But the State urges that the record is
inadequate to calculate how many days, if any, Jensen spent in the Clay County
jail on the Palo Alto charge. In the State’s view, Jensen should file a new motion
to correct illegal sentence in the district court.
9
We agree that Jensen is entitled to jail credit from the date when the court
set bond in the Palo Alto case that was not paid and the Clay County jail officials
had received notice that he could not be released from custody without posting
that bond. See id. at 262. As for the extra step suggested by the State, we find a
new motion unnecessary. Because we are remanding for resentencing, Jensen
should have the chance to make his case for jail credit at that hearing.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Bower, C.J., concurs; Mullins, S.J., dissents in part.
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MULLINS, Senior Judge (concurring in part and dissenting in part).
I concur in the part of the majority opinion that requires the district court to
give credit for time served in county jail. I respectfully part with the majority on the
remainder of the opinion and would dismiss the appeal as to the remainder of the
claims Jensen characterizes as sentencing challenges because I find those claims
are actually challenging the conviction following his guilty plea. He has no right to
raise those challenges on appeal, so we do not have jurisdiction of those claims.
See Iowa Code § 814.6(1)(a)(3) (2021).
Jensen was charged with second-offense failure to comply with registry
requirements, identified in the trial information as a class “D” felony.5 The minutes
of evidence state “this is Jensen’s seventh offense for Failure to Comply, making
this offense a Class D Felony.” He pled guilty per written guilty plea to the crime
of failure to comply with sex offender registry, a class “D” felony. The plea recites:
“My attorney has informed, counseled and advised me at length as to the nature
and cause of each accusation against me as set forth in the trial information and
as to any possible defenses I might have in this case.”
At the hearing set for accepting the written guilty plea and entering judgment
and sentence, the county attorney explained:
[Jensen] also has failure to register as a sex offender in Clay County.
That was from 2002, and that was a conviction. And he has some—
another failure to register out of Humboldt County for which he was
sent to Oakdale. He also has a failure to register out of Webster
County. That was a felony conviction, and that was in 2006. He also
has a sex offender registry out of—another one out of Webster
County. And he also has another conviction out of Bremer County
for violation of sex offender registry.
5 A first offense is classified as an aggravated misdemeanor. See Iowa Code
§ 692A.111(1).
11
After defense questioned the Bremer County conviction, the court stated,
“I’ll short-circuit it. In lieu of the numerous other convictions, I’ll just disregard the
conviction in Bremer County.” During Jensen’s allocution, he did not challenge
any other prior convictions. Later, the court stated:
The court takes into account the defendant’s lengthy criminal record
including multiple convictions for failure to register as a sex offender.
The court understands what the defendant is telling me regarding the
most recent logistical issues with registering. Unfortunately for the
defendant, that’s not an excuse. And the court does not find that to
be grounds to grant probation. It is therefore the judgment of the
court that the defendant is hereby convicted of the crime of failure to
register as a sex offender, second or subsequent offense, a class D
felony . . . .
(Emphasis added.)
Based on the written guilty plea and the facts before the court, as presented
by the county attorney and not disputed by Jensen, the record is clear the court
found him guilty of a second or subsequent offense failure to register as a sex
offender, entered judgment, and sentenced him accordingly. Although the written
judgment entry follows the sentence that was orally pronounced, it fails to
specifically state the judgment of conviction was as a second or subsequent
offense. But that is of little consequence because “[a] rule of nearly universal
application is that ‘where there is a discrepancy between the oral pronouncement
of sentence and the written judgment and commitment, the oral pronouncement of
sentence controls.’” State v. Hess, 533 N.W.2d 525, 528 (Iowa 1995) (citation
omitted). It seems clear the same rule applies to oral pronouncement of judgment.
The majority opinion concluded that Jensen did not stipulate or admit to
being a second offender; the State did not prove beyond a reasonable doubt he
12
was a second or subsequent offender; and, in the absence of either of those, the
court erred by sentencing Jensen as a second or subsequent offender. But, in my
opinion, the majority’s conclusion requires a finding that the judgment of conviction
was in error. The judgment of conviction is a separate and distinct step from
imposition of sentence; imposition of sentence follows the judgment of conviction.
The majority cites State v. Gordon, 732 N.W.2d 41, 43 (Iowa 2007), a case
in which our supreme court found the record clearly showed the defendant was not
a habitual offender. Based on that affirmative finding, the court remanded for
resentencing without an habitual offender enhancement. Similarly, in State v.
Woody, 613 N.W.2d 215, 218 (Iowa 2000), the defendant pled guilty to a felony
and admitted to being a habitual offender based on previous convictions. And, like
in Gordon, the record of prior offenses did not support a conclusion he was a
habitual offender. The court remanded for resentencing. In both of those cases,
the record affirmatively showed as a matter of law, the prior offenses of the
defendants did not satisfy the requirements of the habitual offender statute. See
Iowa Code § 902.8. I also find State v. Kukowski, 704 N.W.2d 687 (Iowa 2005)
distinguishable. Kukowski appealed his judgment and conviction of third-offense
operating while intoxicated (OWI). The court reversed the judgment and remanded
for resentencing. The reversal and remand were based on defects in the district
court’s application of Iowa Rule of Criminal Procedure 2.19(9), which provides
procedures in a trial of questions involving prior convictions.
Based on this record, I think Gordon and Woody are distinguishable. As I
read those cases, in each, there was no record to support the habitual offender
13
status. As I look at Kukowski, the reversal was to the judgment and conviction of
third-offense OWI and remand for resentencing.
Significantly, and perhaps even more on point, those cases were decided
before the legislature took away our jurisdiction to hear a direct appeal of a
conviction arising out of a guilty plea. See Iowa Code 814.6(1)(a)(3). Our supreme
court has interpreted the statute to allow appeals challenging a sentence following
a guilty plea, but not as to the judgment of conviction following the plea. See, e.g.,
State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020). In Jensen’s case, there is a
record that was made at the time the court entered the judgment of conviction and
sentence, and it is not challenged by Jensen. His characterization that his
challenge is to the sentence only misses the subtle but distinct character of the
court proceeding that led to imposition of sentence. The sentence itself is in fact
the proper sentence for the judgment of conviction that was entered.
Jensen’s challenge is to the adequacy of the factual basis for his plea and
resulting judgment of conviction. It cannot be raised as a sentencing challenge.
We have repeatedly “concluded that a defendant challenging the factual basis to
support a plea lacks good cause to appeal.” State v. Janvrin, No. 21-1271, 2022
WL 4361856, at *1 (Iowa Ct. App. Sept. 21, 2022) (collecting cases). Jensen must
first challenge the judgment of conviction. I submit that under
section 814.6(1)(a)(3), we cannot on direct appeal consider the adequacy of record
made before pronouncement of the judgment of conviction. Thus, the proper
course of action—the only course of action—for Jensen is to challenge the
judgment of conviction, a challenge he cannot make on direct appeal.
14
I would simply vacate the sentence imposed due to the jail-credit error and
remand for the entry of a corrected sentencing order granting credit for time
served. See State v. McLachlan, 880 N.W.2d 513, 516 n.5 (Iowa Ct. App. 2016)
(discussing the utility of corrected sentencing orders being issued by the district
court even though the appellate court has finally resolved the issue).