               IN THE SUPREME COURT OF IOWA
                            No. 120 / 04-1474

                            Filed May 18, 2007


STATE OF IOWA,

      Appellee,

vs.

BENJAMIN THOMAS GORDON,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Jasper County, Thomas W.

Mott, District Associate Judge.



      Defendant seeks further review of court of appeals decision rejecting,

on error-preservation grounds, his claim that he was illegally sentenced as a

habitual offender.    DECISION OF COURT OF APPEALS VACATED.

JUDGMENT OF CONVICTION AFFIRMED, SENTENCE VACATED, AND

CASE REMANDED FOR RESENTENCING.



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

Assistant State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney

General, R. Steven Johnson, County Attorney, and Michael K. Jacobsen,

Assistant County Attorney, for appellee.
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TERNUS, Chief Justice.

      The appellant, Benjamin Gordon, challenges his sentence as a

habitual offender on the charge of criminal mischief in the second degree.

He claims the prior felony convictions proven by the State are insufficient to

warrant application of the habitual-offender statute. We agree and remand

for resentencing on the conviction of second-degree criminal mischief.

      I. Background Facts and Proceedings.

      Gordon was charged by trial information with one count of criminal

mischief in the second degree, a class “D” felony. See Iowa Code § 716.4

(2003) (defining offense of criminal mischief). In the same pleading, he was

accused of being a habitual offender based on two prior convictions for

third-degree burglary. Id. § 902.8 (providing for enhanced sentences for

habitual offenders). On July 21, 2004, Gordon waived his right to counsel

and pled guilty to the criminal-mischief charge. He also admitted that he

was a habitual offender under section 902.8. The district court accepted

the defendant’s guilty plea and admission of habitual-offender status.

      On August 11, 2004, the court sentenced the defendant to fifteen

years in prison pursuant to the habitual-offender statute. Compare id.

§ 902.9(3) (“An habitual offender shall be confined for no more than fifteen
years.”), with id. § 902.9(5) (“A class ‘D’ felon, not a habitual offender, shall

be confined for no more than five years . . . .”). The defendant filed a notice

of appeal, and counsel was appointed to represent him.

      In his appeal, the defendant contends he does not qualify as a

habitual offender, and therefore, his sentence is illegal and void. The State

claims the defendant did not preserve error because he admitted to being a

habitual offender at the guilty plea proceeding. The appeal was transferred

to the court of appeals, which held error was not preserved. This court

granted further review.
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      II. Issues on Appeal.

      The underlying claim made by the defendant—that his sentence is

illegal and void—is based on the fact that his prior convictions for burglary

both occurred on January 17, 1995. The habitual-offender statute defines

a habitual offender as “any person convicted of a class ‘C’ or a 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 . . . .” Id. § 902.8. The State does

not challenge the defendant’s claim that under our case law, “each offense

must be complete as to a conviction and sentencing before commission of

the next in order to qualify for the enhancement of penalty under a habitual

offender statute.” State v. Freeman, 705 N.W.2d 286, 291 (Iowa 2005).

Clearly, the defendant’s prior burglary convictions do not qualify as two

prior convictions under this rule.

      The issue in this appeal, then, is not whether the defendant is a

habitual offender. Based on the record before us, he is not. The issue we

must address on appeal is whether the defendant can challenge his

habitual-offender status for the first time on appeal. If he can, we must

then decide whether, upon remand, the prosecution can introduce evidence

of other prior felony convictions in support of its allegation the defendant is
a habitual offender.

      III. Error Preservation.

      “An illegal sentence is one that is not permitted by statute.” State v.

Woody, 613 N.W.2d 215, 217 (Iowa 2000). It “is void and ‘not subject to the

usual concepts of waiver, whether from a failure to seek review or other

omissions of error preservation.’ Because an illegal sentence is void, it can

be corrected at any time.” Id. (quoting State v. Ohnmacht, 342 N.W.2d 838,

843 (Iowa 1983)). This court has applied these principles to an enhanced
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sentence entered under an erroneous conclusion that the defendant was a

habitual offender. Id.

       In Woody, the defendant was charged with first-degree robbery as a

habitual offender. Id. at 216-17. Pursuant to a plea bargain, he pled guilty

to second-degree robbery and admitted to being a habitual offender. Id. at

217.   On appeal, he challenged his enhanced sentence as a habitual

offender, and the State agreed that the enhanced sentence was not

appropriate. Id. The State argued the sentence should be vacated and the

case remanded so the defendant could withdraw his guilty plea. Id. In the

alternative, the State suggested that the defendant’s claim be preserved for

a possible postconviction relief action. Id.

       We held it was not necessary for the defendant to raise the sentencing

error as an ineffective-assistance-of-counsel claim because the sentence

was illegal and could be challenged on direct appeal, notwithstanding the

defendant’s guilty plea. Id. This court pointed out that habitual-offender

status is not a separate offense; it is simply a sentencing enhancement. Id.;

accord State v. Brady, 442 N.W.2d 57, 58 (Iowa 1989) (stating “habitual

offender statutes do not charge a separate offense,” but simply “provide for

enhanced punishment on the current offense”).          Consequently, if the
habitual-offender statute does not apply, an enhanced sentence based on

habitual-offender status is “not permitted by statute” and is, therefore,

illegal. Woody, 613 N.W.2d at 217. Accordingly, we held, the defendant

“did not plead guilty to an habitual offender status because he could not.

Rather, he pled guilty to robbery in the second degree and admitted the

previous convictions.” Id. at 218; accord Brady, 442 N.W.2d at 58 (“An

admission by a defendant of prior convictions cannot be said to be a plea of

guilty to an habitual offender ‘charge’ . . . .”).
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         The same analysis is applicable here. The defendant did not plead

guilty to being a habitual offender; he pled guilty to second-degree criminal

mischief and admitted his previous convictions.          Those convictions,

however, were not sufficient to classify the defendant as a habitual offender.

Consequently, his 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.

Consequently, we disagree with the court of appeals’ conclusion that the

defendant’s failure to preserve error prevents him from challenging his

sentence on appeal.      To the contrary, the defendant is permitted to

challenge his sentence on appeal, notwithstanding his guilty plea.

Therefore, we vacate the court of appeals’ contrary decision.

         IV. Remedy.

         Because the State does not dispute that the defendant’s prior

convictions do not support a finding that the defendant is a habitual

offender, we must vacate the defendant’s sentence and remand for

resentencing.     The parties disagree, however, upon the scope of this

remand.

         The State asks that upon remand it be allowed to amend the trial
information to allege other prior felony convictions of the defendant, thus

permitting proof of these convictions at a new hearing. Relying on the fact

that the habitual-offender charge is not a substantive offense, but merely a

sentencing enhancement, it argues that double-jeopardy principles do not

apply.

         Assuming the State is correct in its assertion that the Double

Jeopardy Clause does not apply so as to preclude a new evidentiary hearing

on the enhancement issue, we have still found no basis in the record to

conclude the initial hearing on this issue was inadequate. The State has
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pointed to no error in the district court proceeding that would entitle the

State to a new hearing, nor does the record reveal any other matter that

hindered the prosecution’s ability to amend the trial information prior to

that hearing in order to rely on other prior convictions. In sum, the State

had a full and fair opportunity to support its accusation that the defendant

was a habitual offender, but its evidence was insufficient. In view of these

circumstances, the prosecution is not entitled to a second bite of the apple

to remedy its failure of proof. Cf. Woody, 613 N.W.2d at 218 (holding State

was “stuck” with unenhanced conviction on reduced charge to which

defendant pled guilty and prosecution could not reinstate original charge

upon remand: “[T]he State should bear the consequences of a decision that

was based on the State’s wrong assumption that the habitual-offender

statute applied.”); M-Z Enters., Inc. v. Hawkeye-Sec. Ins. Co., 318 N.W.2d

408, 416 (Iowa 1982) (holding party should not rely on court’s power to

remand for new trial under Iowa Rule of Appellate Procedure 26 (now rule

6.26) “as a substitute for careful trial preparation and presentation of

evidence”). This case is remanded for resentencing on the second-degree

criminal mischief conviction.

      DECISION OF COURT OF APPEALS VACATED. JUDGMENT OF
CONVICTION AFFIRMED, SENTENCE VACATED, AND CASE REMANDED

FOR RESENTENCING.

      All justices concur except Hecht and Appel, JJ., who take no part.
