                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0033
                             Filed August 19, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CYNTHIA GAIL MCMANUS,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Jasper County, Steven J.

Holwerda, District Associate Judge.



      The defendant challenges her conviction and sentence.       REVERSED

AND REMANDED.



      John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Mary A. Triick,

Assistant Attorneys General, Michael Jacobsen, County Attorney, and Kelly T.

Bennett, Assistant County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and McDonald, JJ.
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MCDONALD, J.

       The defendant Cynthia McManus challenges her conviction and sentence

for possession of a controlled substance, marijuana. On appeal, she contends

the district court abused its discretion in denying her motion in arrest of judgment.

She also contends the sentencing order erroneously states she pleaded guilty to

and was adjudged guilty of possession of marijuana, a second offense, rather

than a first offense.

       In February 2014, McManus was charged by trial information with

possession of a controlled substance, marijuana, a second offense, and

possession of a controlled substance, methamphetamine, a second offense. The

State filed a supplemental trial information, changing both counts to first

offenses, both in violation of Iowa Code section 124.401(5) (2013).                In

September 2014, the defendant entered a written guilty plea to possession of

marijuana, first offense, with sentencing set for November 2014. Subsequently,

the defendant timely filed a motion in arrest of judgment, claiming there was not a

factual basis for her guilty plea. The district court denied the motion in arrest of

judgment.

       In December 2014, the district court entered its sentencing order. The

sentencing order stated the defendant pleaded guilty to “Possession of

Methamphetamine a Schedule II Controlled Substance, Second Offense, in

violation of Iowa Code Section(s) 124.401(5), a Serious Misdemeanor.”           The

district court sentenced McManus to 180 days’ incarceration with all but ten days

suspended. The State applied to correct the sentencing order, asserting the
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correct charge was “Possession of Marijuana, a Schedule I controlled substance,

Second Offense, in violation of Iowa Code Section 124.401(5).” The district court

granted the application and entered an order nunc pro tunc. Subsequently, the

district court entered a second order nunc pro tunc, dismissing the second count

of the trial information. The defendant timely filed this appeal.

       The defendant first challenges the district court’s denial of her motion in

arrest of judgment. We review the ruling on a motion in arrest of judgment for

abuse of discretion. See State v. Smith, 753 N.W.2d 562, 564 (Iowa 2008). An

abuse of discretion occurs when the trial court exercises its discretion on clearly

untenable or unreasonable grounds. See id. A ruling is untenable when the law

is erroneously applied. See id. At hearing on the motion in arrest of judgment,

the defendant argued the marijuana was not hers but instead belonged to her

terminally-ill partner. However, the defendant acknowledged her written guilty

plea in which she wrote she had marijuana in her possession. In her written

guilty plea, the defendant also incorporated by reference the minutes supporting

the trial information. On appeal, the defendant acknowledges the written guilty

plea and incorporated minutes are sufficient to support a factual basis for her

guilty plea to possession of marijuana, first offense. On this record, we cannot

conclude the district court abused its discretion in denying the motion. See State

v. Augustine, No. 13-2003, 2014 WL 3511901, at *2-3 (Iowa Ct. App. July 16,

2014) (affirming denial of motion in arrest of judgment where record reflected a

factual basis for the plea); State v. Blow, No. 11-0463, 2011 WL 6740165, at *2
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(Iowa Ct. App. Dec. 21, 2011) (same); State v. Hightower, 587 N.W.2d 611, 614

(Iowa Ct. App. 1998) (same).

       With respect to the sentencing order, the State concedes that it incorrectly

states the defendant pleaded guilty to and was adjudged guilty of possession of

marijuana, second offense, rather than possession of marijuana, first offense. It

should be noted the sentence imposed was a legal sentence for a conviction for

the crime of possession of marijuana, first offense or second offense. Thus, the

sentence imposed was not illegal. Under these facts, we vacate the sentencing

order and remand this matter for the entry of judgment and sentence in accord

with the defendant’s guilty plea. .

       REVERSED AND REMANDED.
