              IN THE SUPREME COURT OF IOWA
                              No. 09–0239

                          Filed March 11, 2011


STATE OF IOWA,

      Appellee,

vs.

DAVID EDWARD BRUCE,

      Appellant.


      Appeal from the Iowa District Court for Black Hawk County,

James C. Bauch (trial and posttrial motions to amend trial informations)

and Thomas N. Bower (sentencing), Judges.



      Defendant appeals from his sentence as a habitual offender

asserting that the State’s recidivist allegation was untimely. SENTENCE

VACATED AND CASE REMANDED.



      Mark C. Smith, State Appellate Defender, and Stephan J.

Japuntich, Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant

Attorney General, Thomas J. Ferguson, County Attorney, and Brad P.

Walz, Assistant County Attorney, for appellee.
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APPEL, Justice.

      This case presents one straightforward, procedural question: When

does a trial end?    Here, after the jury returned a verdict finding the

defendant guilty, the State moved to amend the trial informations to

include sentencing enhancements.          The district court allowed the

amendment and sentenced the defendant as a habitual offender.

Finding the amendment untimely, we vacate the sentence and remand

the case to the district court for resentencing.

      I. Factual and Procedural History.
      The State, in two separate trial informations, charged the

defendant,   David   Edward    Bruce,    with   two   counts   of   delivering

methamphetamine to a minor and one count of sexual abuse in the third

degree.   See Iowa Code §§ 124.401D(2), 902.9(1), 709.1, 709.4 (2007).

The charge of delivering methamphetamine to a minor is a “special B”

felony offense, punishable by up to ninety-nine years in prison.           Id.

§ 902.9(1). Sexual abuse in the third degree is punishable by up to ten

years in prison. Id. § 902.9(4). Although the State was aware that Bruce

had a criminal record that included prior felony drug and theft offenses,

the State did not charge Bruce as a habitual offender in the original trial

informations. If convicted on all charges, Bruce faced a maximum prison

sentence of 208 years.

      The case was submitted to the jury. The jury was instructed that

delivery of methamphetamine was a lesser-included offense of the crime

of delivery of methamphetamine to a minor. The jury convicted Bruce of

two counts of the lesser-included offense of delivery of methamphetamine

and one count of sexual abuse in the third degree. Based on the jury’s
verdict, the maximum sentence that Bruce could receive was thirty

years, assuming the three sentences were to be served consecutively, and
                                    3

a minimum sentence of 3.3 years, assuming all sentences were to be

served concurrently. See id. §§ 124.401(1)(c), 124.413, 902.9(4).

      Twelve days after the jury’s verdict, the State moved to amend the

trial informations to allege that Bruce had prior felony drug and theft

convictions. Because of these prior convictions, the State sought to have

Bruce sentenced as a habitual offender. If treated as a habitual offender,

Bruce faced a maximum prison term of 105 years. Id. §§ 124.401(1)(c),

124.411, 709.4, 902.9(3)–(4).

      Bruce resisted the amendments, contending that the motion to
amend was untimely under Iowa Rule of Criminal Procedure 2.4(8)(a).

While no record was made of the subsequent hearing, rule 2.4(8)(a)

provides:
             a. Generally. The court may, on motion of the state,
      either before or during the trial, order the indictment
      amended so as to correct errors or omissions in matters of
      form or substance. Amendment is not allowed if substantial
      rights of the defendant are prejudiced by the amendment, or
      if a wholly new and different offense is charged.

Iowa R. Crim. P. 2.4(8)(a). The district court concluded that, under State

v. Berney, 378 N.W.2d 915 (Iowa 1985), an amendment to enhance

punishment based on the defendant’s habitual offender status may be

filed subsequent to the jury verdicts on the substantive charges but prior

to judgment and sentence.

      The district court sentenced Bruce as a habitual offender.      The

court sentenced Bruce to two concurrent forty-five-year terms for the

drug offenses and a fifteen-year term, to be served consecutively to the

sentence on the drug charges, for the sexual abuse offense. Because the

court sentenced Bruce as a habitual offender, Bruce would serve a
maximum of sixty years and a minimum of eighteen years in prison. See

Iowa Code §§ 124.401(1)(c), 124.411, 124.413, 709.4, 902.8, 902.9(3).
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      Bruce appealed from his sentence, urging this court to overturn

Berney. In the alternative, Bruce alleges that he was prejudiced by the

late amendment to the indictment.        Finally, Bruce asserts that his

counsel was ineffective for failing to raise due process challenges to the

late amendments under the United States and Iowa Constitutions.

      II. Standard of Review.

      To the extent this case turns on the question of the proper

interpretation of our rules of criminal procedure, review is for correction

of errors at law. State v. Taeger, 781 N.W.2d 560, 564 (Iowa 2010).
      III. Discussion.

      The critical issue in this case is the proper interpretation of the

phrase “during the trial” in Iowa Rule of Criminal Procedure 2.4(8)(a). In

approaching this question, we recognize that this issue was previously

decided in Berney. The Berney court considered what it characterized as

the “difficult” question of whether the phrase “during the trial” included

proceedings that were conducted after a jury verdict but prior to

sentencing and entry of judgment.       378 N.W.2d at 919.      The court

concluded that “during the trial” included these postverdict proceedings.

Id. In reaching this decision, however, the court did not engage in an

extended analysis of the language, applicable cases, or other provisions

of the Iowa Rules of Criminal Procedure. See id.

      While the phrase “during the trial” in rule 2.4(8)(a) was given an

expansive interpretation in Berney, the court was clearly uncomfortable

with the result. The Berney court stated:

            We disapprove the prosecution’s dilatory filing of its
      request to amend the trial information to charge habitual
      offender status. Our rules of criminal procedure provide
      both the defendant and the prosecution clear procedural
      guidelines to follow. When the parties adhere to the rules
      they are more likely to achieve a fair and expeditious trial or
                                      5
      other satisfactory disposition of criminal charges. When a
      party does not comply with the rules, the rights of the other
      party are likely to be jeopardized. Here, however, defendant
      claims no prejudice, and we are entirely satisfied that
      defendant was not harmed by the amendment which
      preceded trial of the habitual offender issue.

Id.

      The above language demonstrates tension in Berney between its

ultimate holding and its observation that the rules provided “clear

procedural guidelines” and that the failure to follow them would likely

cause the rights of the other party to be prejudiced. See id. While the

Berney court allowed the particular defendant’s sentence to stand, the

court admonished prosecutors to not file dilatory amendments in the

future. Id.

      We, of course, recognize that the principle of stare decisis demands

that we respect prior precedent and that we do not overturn them merely

because we might have come to a different conclusion. See, e.g., McElroy

v. State, 703 N.W.2d 385, 394–95 (Iowa 2005). On the other hand, it is

our obligation to revisit cases that were plainly wrongly decided.        See,

e.g., Miller v. Westfield Ins. Co., 606 N.W.2d 301, 306 (Iowa 2000). Upon

our review, we conclude that Berney is unsound and should be
overruled.

      First, we believe the common understanding of the phrase “during

the trial” does not include proceedings after a jury has returned a

verdict. Absent a specific definition in the statute or rule, we believe the

phrase “during the trial” means the period of time in which the trier of

fact hears evidence and makes a decision based on that evidence. See

Weber v. Kessler, 179 Cal. Rptr. 299, 301 (Ct. App. 1981). Under this
definition, once the jury returns its verdict, the trial has concluded.
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       Second, the expansive approach of “during the trial” in Berney is

inconsistent with    authoritative case law interpreting         the Double

Jeopardy Clauses of the Iowa and United States Constitutions.             These

constitutional limitations prevent a defendant from being subject to

multiple prosecutions for the same offense. U.S. Const. amend. V; Iowa

Const. art. I, § 12. We have noted that jeopardy terminates when the

jury reaches a verdict or, in cases tried to the court, when the trial judge

enters a final judgment of acquittal. State v. Kramer, 760 N.W.2d 190,

194–95 (Iowa 2009); see also United States v. Byrne, 203 F.3d 671, 673
(9th Cir. 2000).    By analogy, our approach to double jeopardy cases

strongly suggests that the term “trial” ordinarily does not extend into

proceedings after rendition of the verdict.

       Third, the view that “trial” does not include events after verdict is

reinforced by reference to other rules of criminal procedure. See State v.

Kamber, 737 N.W.2d 297, 299–300 (Iowa 2007) (considering entire

context of statute and related provisions in interpretation). Iowa Rule of

Criminal Procedure 2.19 is entitled “Trial.” Although the rule does not

define “trial,” rule 2.19(1)(a) states that after the jury is “impaneled and

sworn,” the “order of trial” must proceed according to certain rules. The

rule   regarding   jury   deliberations   includes   a   reference   to   “final

submission” of the case to the jury. Iowa R. Crim. P. 2.19(5)(h).

       Iowa Rule of Criminal Procedure 2.24 further suggests that the

term “trial” does not include proceedings after a jury verdict.             For

example, under rule 2.24(1), “motions after trial” include “motions for

new trial.” Rule 2.24(2)(a) further directs that motions after trial be filed

no “later than 45 days after verdict of guilty or special verdict upon
which a judgment of conviction may be rendered.”           Iowa R. Crim. P.

2.24(2)(a). Clearly, under rule 2.24, the period of time after a jury verdict
                                      7

but prior to entry of judgment is considered to be “after trial.”      It is

difficult to understand how “after trial” under rule 2.24 has the same

meaning as “during the trial” under rule 2.4(8)(a).

      Furthermore, the interplay between rules 2.19(9) and 2.4(8)(a)

suggests that “trial,” even in the habitual offender context, concludes

when the jury renders its verdict on the substantive offense.          Rule

2.19(9) states that certain objections to the State’s habitual offender

allegation may only be heard and determined by the court if they are

“asserted prior to trial of the substantive offense in the manner presented
in rule 2.11.”     Iowa R. Crim. P. 2.19(9).   By filing a habitual offender

amendment after the jury has rendered its verdict on the substantive

offense, the State could effectively foreclose the defendant’s opportunity

to make these objections. See Iowa R. Crim. P. 2.4(8), 2.19(9); see also

State v. Spoonmore, 323 N.W.2d 202, 203 (Iowa 1982). For example, the

State, by filing its amendment after the trial on the substantive offense,

could procedurally bar a defendant from challenging a habitual offender

enhancement on the grounds that a predicate felony is based on an

invalid guilty plea.   See Iowa R. Crim. P. 2.19(9); State v. Cooley, 471

N.W.2d 786, 787 (Iowa 1991); Spoonmore, 323 N.W.2d at 203.             This

obvious problem militates heavily against the State’s interpretation of

rule 2.4(8)(a). See State v. Gonzalez, 718 N.W.2d 304, 308 (Iowa 2006)

(stating that we strive for “a reasonable interpretation that best achieves

the statute’s purpose and avoids absurd results”).

      The State focuses its attention on the first part of rule 2.19(9)

because it calls for a bifurcated trial process in certain circumstances.

The rule states:

      After conviction of the primary or current offense, but prior
      to pronouncement of sentence, if the indictment or
                                    8
      information alleges one or more prior convictions which by
      the Code subjects the offender to an increased sentence, the
      offender shall have the opportunity in open court to affirm or
      deny that the offender is the person previously convicted, or
      that the offender was not represented by counsel and did not
      waive counsel.      If the offender denies being the person
      previously convicted, sentence shall be postponed for such
      time as to permit a trial before a jury on the issue of the
      offender’s identity with the person previously convicted.

Iowa R. Crim. P. 2.19(9) (emphasis added). But bifurcation under rule

2.19(9) only occurs if the defendant is accused of being a habitual

offender at the time of the trial on the substantive offense and “denies

being the person previously convicted.” Id.

      Finally, we note the obvious discomfort of the Berney court. The

court stated that the rules provided “clear procedural guidelines.”

Berney, 378 N.W.2d at 919. It also expressed concern that departure

from them will create situations that will likely jeopardize the rights of

litigants. Id. Yet the court upheld the State’s “dilatory” filing. Id. The

inconsistency of the admonition with the holding in Berney creates an

unstable opinion that should be abandoned.

      For the above reasons, we conclude that Berney should be

overruled.   We further conclude that “the trial” under rule 2.4(8)(a)

means the substantive trial when the State seeks to enhance the

defendant’s sentence based on a prior conviction.       As a result, the

sentence in this proceeding was the result of an amendment filed after

trial and must be vacated.

      Because of our holding, we do not need to address Bruce’s claims

that he was substantially prejudiced by the late amendment or that the

granting of the amendment violated his right to due process under the

United States and Iowa Constitutions.
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     IV. Conclusion.

     For all of the above reasons, the sentence imposed by the district

court is vacated.   The matter is remanded to the trial court for

resentencing.

     SENTENCE VACATED AND CASE REMANDED.
