                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-1051
                                Filed April 16, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

STEPHEN ANDREA MARKS,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Scott County, Henry W. Latham II,

Judge.



       Stephen Marks appeals from his sentence. SENTENCE VACATED AND

CASE REMANDED FOR RESENTENCING.



       Mark C. Smith, State Appellate Defender, and Dennis Hendrickson,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney

General, Michael J. Walton, County Attorney, and Amy Devine, Assistant County

Attorney, for appellee.




       Considered by Vogel, P.J., McDonald, J., and Eisenhauer, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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MCDONALD, J.

      Stephen Marks appeals from the sentence imposed following his

conviction of second-degree robbery, enhanced as a habitual offender pursuant

to Iowa Code section 902.8 (2013).      He claims the court imposed an illegal

sentence and his trial attorney was ineffective in allowing him to stipulate to the

predicate convictions supporting the habitual offender enhancement. The State

agrees the sentence is illegal but for a different reason. The State contends the

court imposed the wrong mandatory minimum sentence.               We vacate the

sentence and remand for resentencing.

                                        I.

      A jury found Marks guilty of second-degree robbery. In preparation for the

habitual offender phase of the proceeding, the court asked Marks to consider

whether he wanted to stipulate to the prior convictions or have the State present

evidence to prove them. The court held a colloquy with Marks the next day,

during which Marks was given information about sentencing. After discussing

the issue with his attorney and the court, Marks stipulated to two prior felony

convictions.   At sentencing, the court imposed an indeterminate term of

incarceration not to exceed fifteen years pursuant to the habitual offender

enhancement. See Iowa Code §§ 902.8, 902.9(3). The court applied a three-

year mandatory minimum to the sentence.

                                        II.

                                        A.

      We first address the parties’ illegal sentence arguments.         An illegal

sentence may be challenged at any time. See State v. Bruegger, 773 N.W.2d
                                        3


862, 872 (Iowa 2009). Generally, a claim a sentence is illegal is reviewed for

corrections of errors at law, but to the extent a claim implicates constitutional

concerns, such as violation of the prohibition on ex post facto laws, review is de

novo. See State v. Brooks, 760 N.W.2d 197, 204 (Iowa 2009).

      Marks was convicted of robbery in the second degree. Iowa Code section

902.12 provides that a person convicted of robbery in the second degree must

serve at least seven-tenths of the maximum term of the person’s sentence. See

Iowa Code § 902.12.      Marks stipulated to two predicate felony convictions

supporting the application of the habitual offender enhancement pursuant to Iowa

Code section 902.8, which provides for an indeterminate term of incarceration

not to exceed fifteen years without eligibility for parole until the person has

served the minimum sentence of confinement of three years. See Iowa Code

§ 902.8.   The written judgment entry in this case provides for a fifteen-year

sentence with a three-year mandatory minimum sentence.

      The State contends the court imposed an illegal sentence because the

sentencing court imposed a three-year mandatory minimum instead of the

seventy percent mandatory minimum in section 902.12. The State is correct.

Our supreme court concluded the seventy percent mandatory minimum in

section 902.12 applies to the habitual offender enhancement imposed following

conviction for robbery in the second degree and trumps the three-year mandatory

minimum. See State v. Ross, 729 N.W.2d 806, 811-12 (Iowa 2007). Marks

appears to agree the sentence is illegal but contends that nothing further needs

to be done on appeal because his release date on the department of corrections

website shows he actually is serving a ten-and-one-half-year (seventy percent of
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fifteen years) sentence. While the department of corrections website may show it

is administering the correct sentence, the sentence pronounced and the written

judgment entry is incorrect.       We vacate the sentence and remand for

resentencing with the correct mandatory minimum.

       Marks contends his sentence is illegal in another respect. Marks contends

his sentence violates the constitutional prohibition against ex post facto laws

because one of the predicate convictions supporting the habitual offender

enhancement was obtained before the effective date of the seventy percent

mandatory minimum set forth in section 902.12. “The ex post facto provisions of

the federal and state constitutions forbid enactment of laws that impose

punishment for an act that was not punishable when committed or that increases

the quantum of punishment provided for the crime when it was committed.” State

v. Pickens, 558 N.W.2d 396, 397 (Iowa 1997). It “forbids application of a new

punitive measure to conduct already consummated where it operates to the

detriment or material disadvantage of the accused.” State v. Walker, 506 N.W.2d

430, 433 (Iowa 1993). Application of the seventy percent mandatory minimum to

the habitual offender enhancement raises no constitutional concern here. These

laws “do not punish for the old offense, but stiffen the punishment for the latest

offense.” State v. DeCamp, 622 N.W.2d 290, 294 (Iowa 2001). As such, “the

issue of enhanced sentencing based on prior convictions is outside the scope of

the principles which apply to the prospective or retrospective application of a

statute.” Id. Accordingly, Marks’ claim fails.
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                                        B.

       Marks contends his attorney was constitutionally ineffective in allowing

him to stipulate to the predicate convictions supporting the habitual offender

enhancement. Specifically, he contends the stipulation to the prior convictions

was made without his being informed the seventy percent mandatory minimum

sentence applied to the habitual offender enhancement. While a defendant may

raise ineffective-assistance claims on direct appeal if there are reasonable

grounds to believe the record is adequate to address the claim, the trial record

alone will be sufficient to resolve the claim on direct appeal in only “rare cases.”

State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006).           We find the record is

adequate in this case. Ineffective-assistance-of-counsel claims are reviewed de

novo. State v. Thompson, 836 N.W.2d 470, 476 (Iowa 2013). To establish his

attorney was ineffective, Marks must prove his attorney breached an essential

duty and prejudice resulted. See State v. Null, 836 N.W.2d 41, 48 (Iowa 2013).

Failure to prove either element by a preponderance of the evidence is fatal to the

claim. State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003). We conclude that

counsel did not breach an essential duty and there was no prejudice.

       While the written judgment entry in this case does apply the three-year

mandatory minimum set forth in the habitual offender statute, Marks was

informed during colloquy with the court that the seventy percent mandatory

minimum set forth in section 902.12 would apply:

              Robbery in the Second Degree, because it’s a C felony,
       instead of being ten years for a C felony with a mandatory minimum
       of seventy percent, the habitual offender enhances it to fifteen
       years.
              ....
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       . . . the Defendant is being advised under 902.8 and 902.9(3), of
       the increased penalty of the fifteen years with the mandatory—
       although the mandatory three years doesn’t apply here because it’s
       already seventy percent under the Robbery Second . . . .
                ....
                902.8, minimum sentence, habitual offender. “A habitual
       offender is any person convicted of a Class C or Class D felony
       who has twice before been convicted of any felony in a court of this
       or any other state or of the United States. An offense is a felony if
       by law under which the person is convicted it is so classified at the
       time of the person’s conviction. A person sentenced as an habitual
       offender should not be eligible for parole until the person has
       served the minimum sentence of confinement of three years.” But
       as [the State] correctly stated on the record, you understand, there
       is a minimum sentence if you are found guilty on the Robbery
       Second Degree charge.
                902.9(3) is the maximum sentence for felonies. And under
       902.9 (3), “An habitual offender shall be confined for no more than
       fifteen years.” Do you understand if you stipulate, the minimum
       sentence, it would be a term of fifteen years, sir?
                THE DEFENDANT: Yes. Would that be run concurrent if I’m
       found guilty?
                THE COURT: That is the sentence of the Court that would
       be imposed. It would be a total of fifteen years on this charge
       rather than the ten years that you would have received just
       convicted on the crime of Robbery in the Second Degree.

       We conclude Marks was properly informed of the applicable maximum

period of incarceration and mandatory minimum sentence. Because Marks was

properly informed, his decision to stipulate was neither involuntary nor

unintelligent.   Consequently, his attorney had no duty to prevent him from

entering the stipulation or to question the adequacy of the court’s inquiry.

       Even if counsel breached a duty owed Marks, Marks cannot demonstrate

prejudice. See State v. Vesey, 482 N.W.2d 165, 168 (Iowa Ct. App. 1991). The

minutes of testimony and the State’s witness list identified court officials and

probation officers who could have presented evidence of Marks’ two prior felony

convictions if he had decided not to stipulate to the same. Because the State
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could have proved the prior convictions if Marks had not stipulated to them, his

claim fails. See id.

       SENTENCE        VACATED        AND      CASE       REMANDED         FOR

RESENTENCING.
