                    IN THE COURT OF APPEALS OF IOWA

                                     No. 18-0083
                                  Filed May 1, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RAMON HERNANDEZ-MENDOZA,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Crawford County, Jeffrey A. Neary,

Judge.



      Ramon Hernandez-Mendoza appeals his convictions and sentence for

homicide by vehicle, controlled substance violations, and supplying alcohol to

minors. CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND

REMANDED FOR RESENTENCING.



      Mark C. Smith, State Appellate Defender, (until his withdrawal) and Shellie

L. Knipfer, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VOGEL, Chief Judge.

         Ramon Hernandez-Mendoza appeals his convictions and sentence for

homicide by vehicle, controlled substance violations, and supplying alcohol to

minors. He argues his counsel was ineffective for failing to move for judgment of

acquittal on the basis of causation for the homicide-by-vehicle charge. Because

substantial evidence supports finding his intoxicated driving was a factual cause

and—if applicable—a proximate cause of death, we find his counsel was not

ineffective. He also argues his sentences are illegal because the sentencing order

is inconsistent on whether it applied an enhancement and it imposed a minimum

term of confinement on one charge without authority. The State in turn argues his

sentences are illegal because the court waived a minimum term of confinement on

other charges without authority. We find his sentences are illegal because the

court misapplied minimum terms of confinement.         Therefore, we affirm his

convictions, vacate his sentences in part, and remand for the district court to

amend the judgment and sentences.

         I.     Background Facts and Proceedings

         Shortly after 3:00 a.m. on January 19, 2017, Deputy Todd Perdew with the

Crawford County Sherriff’s Office learned of a vehicle accident near a home in

Denison. When he arrived at the home, he found J.H.1 covered in blankets and

shivering. J.H. said he was in the accident and four other people were still in a

“pond.” After some searching, Deputy Perdew found Hernandez-Mendoza, Y.A.,2




1
    J.H. was born in 2000.
2
    Y.A. was born in 2001.
                                           3


Y.M.,3 and Valeria Rodriguez4 trapped in the Boyer River. They were partially

submerged and clinging to grass on the river banks. Their vehicle had apparently

been driven through a nearby field and fell into the river. Deputy Perdew requested

assistance with the rescue due to the cold and dark conditions and the steepness

and size of the river banks. While waiting for assistance, he used a rope to pull

Hernandez-Mendoza to safety. He then saw Y.A. separate from the river bank

and float down the river. Assistance arrived shortly thereafter and pulled Y.M. and

Rodriguez to safety. Hernandez-Mendoza, Y.M., and Rodriguez were transported

to a hospital, though Y.A. remained missing.

       Later that morning, Deputy Perdew went to the hospital to talk to the

persons pulled from the river. At the hospital, Hernandez-Mendoza told Deputy

Perdew he was driving at the time of the accident and he had consumed six beers

prior to the accident. He believed the accident had occurred around 11:00 the

previous night and they had been in the river for three to four hours before their

rescue.

       On January 23, Hernandez-Mendoza spoke to law enforcement at the

sheriff’s office in a recorded interview. During the interview, he acknowledged he

drank six beers at his home early in the evening of January 18. Later, he drove to

pick up J.H., Y.A., Y.M., and Rodriguez, and he then purchased alcohol and

Swisher Sweets cigarillos for the group.5 The group went to another home, where

they drank the alcohol he purchased. They also rolled and smoked blunts using




3
  Y.M. was born in 2000.
4
  Rodriguez was born in 1997.
5
  A receipt shows he purchased the alcohol and cigarillos at 8:38 p.m.
                                          4


the cigarillos he purchased and marijuana he supplied. They left the home around

10:30 that night to cruise around the area. After driving the group for about a half-

hour, Hernandez-Mendoza swerved into a ditch. He drove through a field, thinking

he was driving back toward the road but unintentionally drove into the river.

       On January 26, officials found Y.A.’s body in the river.          An autopsy

determined her cause of death was drowning with hypothermia being a significant

other condition.

       Following a jury trial, Hernandez-Mendoza was convicted of: (Count 1)

homicide by vehicle as to the death of Y.A. under Iowa Code section 707.6A(1)

(2017); (Counts 2, 3, and 4) distribution of or possession with intent to distribute a

controlled substance to a person under age eighteen as to J.H., Y.A., and Y.M.

under Iowa Code section 124.406(1)(a); (Count 5) delivery of or possession with

intent to deliver marijuana as to Rodriguez under Iowa Code section 124.401(1)(d);

and (Counts 6, 7, 8, and 9) selling, giving, or otherwise supplying alcohol to

persons under legal age as to all four passengers under Iowa Code section

123.47(1), (5). The court sentenced him to terms of incarceration not to exceed

twenty-five years for Counts 1 through 4 and ten years for Count 5, to run

concurrently, and it imposed fines for Counts 5 through 9 and surcharges for all

Counts. He now appeals.

       II.    Standard of Review

       “We review ineffective-assistance-of-counsel claims de novo.” State v.

Straw, 709 N.W.2d 128, 133 (Iowa 2006). We review nonconstitutional claims of

an illegal sentence for correction of errors at law. State v. Seats, 865 N.W.2d 545,

553 (Iowa 2015).
                                         5


      III.   Ineffective Assistance—Causation

      Hernandez-Mendoza argues his counsel was ineffective for failing to move

for judgment of acquittal on the grounds of causation for homicide by vehicle. To

show ineffective assistance, he must prove “(1) his trial counsel failed to perform

an essential duty, and (2) this failure resulted in prejudice.” Straw, 709 N.W.2d at

133 (citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). A motion for

judgment of acquittal fails “when, viewing the evidence in the light most favorable

to the State and drawing all reasonable inferences in the State’s favor, ‘there is

substantial evidence in the record to support a finding of the challenged element.’”

State v. Williams, 695 N.W.2d 23, 28 (Iowa 2005) (quoting State v. Reynolds, 670

N.W.2d 405, 409 (Iowa 2003)). “Substantial evidence means evidence that ‘could

convince a rational fact finder that the defendant is guilty beyond a reasonable

doubt.’” Id. (quoting Reynolds, 670 N.W.2d at 410).

      A person commits homicide by vehicle “when the person unintentionally

causes the death of another by operating a motor vehicle while intoxicated.” Iowa

Code § 707.6A(1). The State must “prove a causal connection between the

defendant’s intoxicated driving and the victim’s death.” State v. Adams, 810

N.W.2d 365, 371 (Iowa 2012).        This type of causation is known as “factual

causation.” Id. at 372. In typical criminal cases, “the determination of factual

causation turns simply on whether ‘the harm would not have occurred absent the

[defendant’s] conduct.’” Id. (quoting State v. Tribble, 790 N.W.2d 121, 127 (Iowa

2010)). In a prosecution for homicide by vehicle while intoxicated, the factual

causation question “asks whether the victim’s death would have occurred in the

absence of the defendant’s criminal act—intoxicated driving.”         Id.   We find
                                          6


substantial evidence clearly supports the jury’s finding of factual causation as

described in Adams. See id. Hernandez-Mendoza admitted he drank multiple

beers and smoked marijuana before driving the vehicle off the road, through the

field, and into the icy river where Y.A. drowned.        These admissions provide

substantial evidence for the jury to conclude the harm—Y.A.’s death—would not

have occurred absent Hernandez-Mendoza’s conduct—his intoxicated driving.

The State proved factual causation.

       Hernandez-Mendoza more specifically asserts his counsel was ineffective

for failing to challenge legal or proximate cause, which is the “scope of liability” of

his conduct. Under this standard, the defendant’s “liability is limited to those

physical harms that result from the risks that made the actor’s conduct” criminal,

which confines the scope of liability “to the reasons for holding the actor liable in

the first place.” Thompson v. Kaczinski, 774 N.W.2d 829, 838 (Iowa 2009) (quoting

Restatement (Third) of Torts: Liab. for Physical Harm § 29 (Am. Law Inst. Proposed

Final Draft No. 1, 2005)); see also State v. Hubka, 480 N.W.2d 867, 869 (Iowa

1992) (“[T]he definition of ‘proximate cause’ in criminal cases is identical to its

definition in civil cases.”).

       Since adopting the Restatement (Third) view of causation in civil cases, our

supreme court has not found proximate cause still applies in criminal cases; rather,

the court has “left open the possibility that criminal causation might still require

more than proof of but-for factual causation.” State v. Tyler, 873 N.W.2d 741, 750

(Iowa 2016). When the law is unsettled, counsel has no duty “to raise a claim that

has not been recognized or suggested by our previous case law or other authority.”

Schertz v. State, 380 N.W.2d 404, 415 (Iowa 1985). Even if we presume proximate
                                          7


cause utilizing the scope of liability standard in criminal cases has been sufficiently

recognized or suggested to create a potential duty for Hernandez-Mendoza’s

counsel, we cannot find his counsel was ineffective for failing to raise proximate

cause, as the instructions indicate the jury was instructed on both factual and legal

cause.6    Moreover, Hernandez-Mendoza argues his actions were not the

proximate cause of Y.A.’s death because “[e]veryone was fine” on the river banks

until the rescue attempt went “afoul” hours after the accident. However, as the

State notes and record clearly shows, everyone was not “fine.” Multiple witnesses,

including Deputy Perdew, Y.M., and Rodriguez, testified as to the life-threatening

conditions in the icy river and the individuals clinging to grass in the steep river

bank in the dark of night. They also testified as to the difficulty of escaping the

river, especially before the well-equipped rescuers arrived. The jury accepted this

testimony, as they are entitled to do. See State v. Thornton, 498 N.W.2d 670, 673

(Iowa 1993). Additionally, the record contains no evidence the rescue went “afoul”

other than the mere fact Y.A. separated from the river bank and floated away at

one point. While hours passed between the accident and Y.A.’s drowning, the



6
  Jury Instruction No. 12 provided guidance on both factual cause and proximate cause,
referred to as scope of criminal liability:
                 The State must prove a causal connection between the act or acts
        of Ramon Hernandez and the death of [Y.A.]. The alleged acts or conduct
        of Ramon Hernandez “caused” the death of [Y.A.] when her death would
        not have happened except for the acts or conduct. . . .
                 The State must also prove that the death of [Y.A.] was within the
        scope of Ramon Hernandez’s criminal responsibility. The death is within
        the scope of criminal responsibility if that death arises from the same types
        of danger created by Ramon Hernandez’s act or acts. You should consider
        whether repetition of Ramon Hernandez’s act or acts would make it more
        likely that the death of [Y.A.] would happen. If Ramon Hernandez’s act or
        acts would not make [Y.A.’s] death more likely to occur, they are not within
        the scope of his criminal responsibility.
                                         8


evidence is sufficient to conclude Hernandez-Mendoza’s intoxicated driving was a

proximate cause of her death.

       Hernandez-Mendoza also asserts his counsel was ineffective for failing to

raise proximate cause as it existed before Iowa adopted the Restatement (Third)

view of proximate cause. Our supreme court has explicitly stated Iowa clarified its

law on causation with the adoption of the Restatement (Third) and challenges to

criminal causation must address the recent caselaw. See Tyler, 873 N.W.2d at

749. Therefore, his counsel had no duty to raise proximate cause as it existed

before adoption of the Restatement (Third). See Schertz, 380 N.W.2d at 415.

       Because substantial evidence supports finding Hernandez-Mendoza’s

intoxicated driving was a factual cause and—if applicable—a proximate cause of

Y.A.’s drowning, his counsel was not ineffective for failing to raise causation in a

motion for judgment of acquittal.

       IV.    Sentence

              A. Counts 2, 3, and 4

       The State argues Hernandez-Mendoza’s sentencing order is illegal as to

Counts 2, 3, and 4 (distribution of marijuana to a minor) because it does not impose

minimum terms of confinement. Under Iowa Code section 124.406(1)(a), a person

who:

              Unlawfully distributes or possesses with intent to distribute a
       substance listed in schedule I or II to a person under eighteen years
       of age commits a class “B” felony and shall serve a minimum term of
       confinement of five years. However, if the substance was distributed
       in or on, or within one thousand feet of, the real property comprising
       a public or private elementary or secondary school, public park,
       public swimming pool, public recreation center, or on a marked
       school bus, the person shall serve a minimum term of confinement
       of ten years.
                                         9



This language clearly requires a minimum term of confinement, and the court

imposed illegal sentences by requiring no such minimum on Counts 2, 3, and 4.

Therefore, we vacate his sentences in part due to the lack of minimum terms of

confinement on Counts 2, 3, and 4, and we remand for resentencing for the district

court to impose the appropriate minimums required by Iowa Code section

124.406(1)(a) under the record.

              B. Count 5

       Hernandez-Mendoza argues his sentencing order is illegal as to Count 5

(delivery of marijuana) because the order: (1) states the court both did and did not

enhance his sentence under Iowa Code section 124.401A; (2) imposes a term of

incarceration not to exceed ten years on Count 5, which exceeds the sentence

authorized by section 124.401(1)(d) without the section 124.401A enhancement;

and (3) imposes a minimum term of confinement, which is not authorized under

the Iowa Code.

       The State argues we should dismiss Hernandez-Mendoza’s arguments as

moot because, after he filed his appeal, the district court entered a nunc pro tunc

order to correct his sentence. However, the nunc pro tunc order only addresses

the mandatory minimum sentence; it does not address his other arguments about

the section 124.401A enhancement. Furthermore, a district court may use a nunc

pro tunc order to correct a sentencing order only if the error is clerical. Iowa R.

Crim. P. 2.23(3)(g); State v. Suchanek, 326 N.W.2d 263, 265–66 (Iowa 1982). If

the sentencing court committed judicial error, “the sentence must be vacated”

rather than relying on a nunc pro tunc order. Suchanek, 326 N.W.2d at 266.
                                         10


       At sentencing, the court said Count 5, “starts out as a Class ‘D’ felony, with

a period of incarceration not to exceed five years, but because of the [section

124.401A] enhancement . . . that goes essentially to a five-year mandatory

minimum. So it goes to a ten with a five-year mandatory minimum, I believe.” The

transcript clearly shows the court intended to apply the section 124.401A

enhancement and impose a term of incarceration not to exceed ten years with a

five-year minimum. Any indication in the sentencing order that the court did not

apply the section 124.401A enhancement is mere clerical error. However, a five-

year minimum is not authorized for distribution of marijuana, even with the

enhancement. See generally Iowa Code §§ 124.401, .401A. This error is judicial

and requires vacating his sentence, regardless of the actual sentence he is

currently serving after the nunc pro tunc order. See Suchanek, 326 N.W.2d at 266.

Therefore, we vacate his sentence as to Count 5, and we remand for resentencing

to correct the errors.

              C. Resentencing on Remand

       Having vacated Hernandez-Mendoza’s sentences in part, the question

remains as to how the court should correct his sentences on remand.             The

sentencing transcript shows the court understood the facts and the essential

sentencing options available to it. The court made a nonsubstantive error in the

written order about waiving the section 124.401A enhancement for Count 5, and it

made minor judicial errors about the minimum terms of confinement for Counts 2

through 5. These errors are not so fundamental as to require a full resentencing

where the parties are free to argue for harsher or lighter sentences. See State v.

Pearson, 876 N.W.2d 200, 207 (Iowa 2016). Therefore, on remand we direct the
                                      11


district court to amend the original judgment and sentences to impose the

appropriate minimum terms of confinement for each of Counts 2, 3, and 4; to

remove the five-year minimum term of confinement for Count 5; and to clarify the

application of the section 124.401A enhancement for Count 5.

      CONVICTIONS AFFIRMED, SENTENCES VACATED IN PART, AND

REMANDED FOR RESENTENCING.
