                   IN THE COURT OF APPEALS OF IOWA

                                     No. 15-1060
                                  Filed May 3, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID WINSLOW DUNHAM,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.



      The defendant appeals the denial of his pro se motion to correct an illegal

sentence for his conviction of possession of methamphetamine with intent to

deliver in violation of Iowa Code section 124.401(1)(b)(7) (2012). AFFIRMED.



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

appellant.

      Thomas J. Miller, Attorney General, and Kristin Guddall, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., Tabor, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                         2


POTTERFIELD, Presiding Judge.

      David Winslow Dunham appeals the denial of his motion to correct an

illegal sentence for his conviction of possession of methamphetamine with intent

to deliver in violation of Iowa Code section 124.401(1)(b)(7) (2012). The district

court sentenced Dunham after a jury trial to an indeterminate thirty-year term of

incarceration based on Dunham’s stipulations that he was a second or

subsequent offender, in violation of Iowa Code section 124.411, and that he was

an habitual offender in violation of section 902.8.      Dunham’s conviction was

affirmed by this court in 2015.       See State v. Dunham, 13-0220, 2015 WL

3613312 (Iowa Ct. App. June 10, 2015). He then requested relief in the district

court challenging the sentence imposed and raising other matters. The district

court denied his motion. We affirm.

I. Background Facts and Proceedings.

      Dunham        was   charged   by   trial   information   with   possession   of

methamphetamine with intent to deliver in violation of Iowa Code section

124.401(1)(b)(7).    The trial information indicated Dunham was a second or

subsequent offender and habitual offender pursuant to Iowa Code sections

124.411 and 902.8, respectively. Pursuant to the second or subsequent offender

and habitual offender provisions, and according to the trial information, Dunham

was convicted in the United States District Court for the Southern District of Iowa

on June 10, 1998, of conspiracy/distribution of a controlled substance, a drug

related felony. The trial information also listed March 23, 1983 felony convictions

of burglary, theft, and terroristic threats in Leavenworth County, Kansas.
                                        3


      On or around November 26, 2012, the trial information was amended,

reducing the charge from a class “B” felony under section 124.401(b)(7) to a

class “C” felony under section 124.401(1)(c)(6), as the lab results revealed the

seized methamphetamine was fewer than five grams.           During an exchange

between Dunham, his counsel, and the court, Dunham confirmed that he

discussed the second or subsequent offender and habitual offender provisions

with counsel:

             THE COURT: The county attorney filed an amended trial
      information which the Court approved yesterday, November 26,
      2012. The amended trial information alleges that the defendant is a
      second or subsequent offender as well as a habitual offender. Ms.
      Summers, have you discussed this with your client, Mr. Dunham?
             DEFENSE COUNSEL: Yes, Your Honor, I have. I’ve talked
      to David about this, and Mr. Dunham indicates that he would
      stipulate that he has been convicted of two prior felonies which
      would enable this to be the habitual offender provision to be
      enabled and also that this is his second or subsequent drug
      offense. Is that correct, David?
             DUNHAM: Yes.

Dunham also confirmed he was the individual convicted in the 1998 felony

conviction, and an attorney represented him during the proceedings:

             THE COURT: [I]t’s alleged in the amended trial information
      that you are the same David W. Dunham who on June 10, 1998 . . .
      in the United States District Court for the Southern District of Iowa,
      case      number       4:97CR00111,         was     convicted       of
      conspiracy/distribution of a controlled substance, which was a
      felony. Do you understand that’s what’s alleged
             DUNHAM: Yes.
             THE COURT: And are you willing at this time, then to
      answer the Court’s questions with respect to this?
             DUNHAM: Yes.
             THE COURT: Are you the same David W. Dunham who was
      convicted as just indicated?
             DUNHAM: Yes, I am.
                                        4


While on the record, the trial information was amended again, pursuant to

statements from the parties, to correct the date and location of the March 23,

1983 convictions of burglary theft, and terroristic threats in Leavenworth County,

Kansas, to a 1988 conviction of the same charges in Lyon County, Kansas.

Dunham was given an opportunity to resist the amendment; he declined.

Dunham then admitted that he was the same person convicted of the 1988

Kansas convictions:

             THE COURT: Do you agree, then, that on March 10, 1988,
      you were convicted of a felony in the District Court of Kansas, Lyon
      County, Kansas, the crime being terroristic threats, which was a
      felony?
             DUNHAM: There was a burglary, theft, and a terroristic
      threat. It was a plea agreement, Your Honor.
             THE COURT: Right. Did you plead only to the terroristic
      threats, or do you recall?
             DUNHAM: No. It was a plea agreement. It was all three.
             THE COURT: You pled to all three. Was one of those a
      felony?
             DUNHAM: They were all considered felonies.
             THE COURT: Do you remember what the sentences would
      have been?
             DUNHAM: My sentence was two to seven years, and I went
      to prison on those.

Dunham also confirmed he was represented by counsel in the Kansas

conviction.

      On November 27, 2012, a jury found Dunham guilty of the possession-

with-intent-to-deliver charge pursuant to section 124.401(1)(c)(6), a class “C”

felony. On January 9, 2013, the district court sentenced Dunham, looking first to

section 902.9(3) to determine the ten year indeterminate sentence prescribed for

the violation of section 124.401(1)(c)(6), a class “C” felony.   Then, the court

looked to section 902.9(3), which provides that an habitual offender shall be
                                        5


sentenced to no more than fifteen years. The district court next utilized section

124.411(1), which authorizes the court to punish the defendant “for a period not

to exceed three times the term otherwise authorized,” or forty-five years.

Ultimately, the district court sentenced Dunham to an indeterminate thirty-year

term of incarceration, two times the fifteen-year habitual offender sentence,

although the State argued for the maximum multiplier of three.

       On June 10, 2015, a panel of our court affirmed Dunham’s conviction after

he appealed on grounds that trial counsel failed to conduct an inadequate

investigation, object to an amendment to the trial information, file a motion to

suppress, and object to evidence on chain-of-custody grounds. Dunham, 2015

WL 3613312, at *1. The court held trial counsel did not have a duty to object to

evidence on chain-of-custody grounds.       Id. at *4.   The court also held trial

counsel did not have a duty to challenge the amended trial information or file a

motion to suppress. Id. at *2. The court preserved Dunham’s claims for post-

conviction relief regarding trial counsel’s investigation of the case and discovery

practice because the record was inadequate to make a determination on the

issues. Id. at *3–4,

       In January 2015, Dunham filed a pro se motion to correct an illegal

sentence arguing his sentence amounted to cruel and unusual punishment under

article I, section 17 of the Iowa Constitution. In February 2015, Dunham filed an

amended pro se motion arguing, in part, the State failed to prove the facts

supporting an habitual-offender violation and a second or subsequent offender

violation. The State filed a resistance to Dunham’s motion. On May 22, 2015,

the trial court denied the motion. Dunham appeals.
                                          6


II. Standard of Review and Jurisdiction.

       A. Jurisdiction.

       Dunham filed a notice of appeal on June 16, 2015, to initiate review of the

May 22, 2015 district court order denying Dunham’s pro se motion to correct an

illegal sentence. The proper avenue to review an illegal sentence is through a

writ of certiorari. However, we treat Dunham’s notice of appeal as “seeking the

proper form of review” and we “proceed as though the proper form of review has

been requested.” See Iowa R. App. P. 6.108; see also Crowell v. State Pub.

Def., 845 N.W.2d 676, 682 (Iowa 2014) (“When an appeal should have been filed

as a writ of certiorari, our rules of appellate procedure authorize us to consider

the appeal as though it was properly filed as a certiorari action.”).

       B. Standard of Review.

       We review challenges to the legality of a sentence for correction of errors

at law. State v. Sisk, 577 N.W.2d 414, 416 (Iowa 1998).

       We review constitutional challenges to a sentence de novo.           State v.

Tripp, 776 N.W.2d 855, 857 (Iowa 2010).

III. Discussion.

       Dunham submits two general arguments to this court: (1) the sentence

was illegal because of issues surrounding his stipulations to prior convictions—

such as he was not afforded an opportunity to admit or deny that he was the

individual alleged in the prior offenses; he had a right to a separate jury trial on

the issue of identity in the prior convictions; the court had a duty to inform him of

this right under Iowa Rule of Criminal Procedure 2.19(9); the State failed to prove

his prior convictions; and (2) the sentence was illegal because it violated federal
                                           7


and state constitutional provisions related to cruel and unusual punishment,

equal protection, and double jeopardy.1

       Normal error-preservation rules do not apply when a sentence is

challenged for its illegality; Dunham can challenge the illegality of a sentence at

any time. See Iowa R. Crim. P. 2.24(5)(a). “[A] challenge to an illegal sentence

includes claims that the court lacked the power to impose the sentence or that

the sentence itself is somehow inherently legally flawed, including claims that the

sentence is outside the statutory bounds or that the sentence itself is

unconstitutional.”   Bruegger, 773 N.W.2d at 871.           For example, in State v.

Gordon, the defendant challenged his sentence arguing it was not within the

statutory limits since he was not a habitual offender.          732 N.W.2d 41 (Iowa

2007). The court held the sentence was illegal because the trial court utilized

two felony convictions that occurred on the same day to enhance the defendant’s

sentence, which is contrary to the habitual offender provision requiring “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.” Id. at 43 (quoting State v. Freeman, 705 N.W.2d 286, 291

(Iowa 2005)). Defendants can also attack an illegal sentence at any time on the

basis the sentence amounts to cruel and unusual punishment under state and


1
    Dunham raises illegal-seizure, ineffective-assistance-of-counsel, and prosecutorial-
misconduct claims in his pro se brief. Dunham cannot use his motion to correct an
illegal sentence to attack issues related to the trial. See State v. Bruegger, 773 N.W.2d
862, 871 (Iowa 2009); Kurtz v. State, 854 N.W.2d 474, 479 (Iowa Ct. App. 2014).
Dunham did not raise these issues in the district court, and Dunham can only appeal the
legality of his sentence. See id. Dunham also fails to cite authority in support of his
equal protection argument against his sentence. Arguments that are not supported by
authority are deemed waived by the appellant. See Iowa R. App. P. 6.903(2)(g)(3).
Accordingly, we decline to address the above issues on appeal.
                                          8

federal constitutional provisions. See Bruegger, 773 N.W.2d at 870–71. The

purpose of this error-preservation exception is “to permit correction at any time of

an illegal sentence, not to re-examine errors occurring at the trial or other

proceedings prior to the imposition of the sentence.” Id. at 872 (quoting Hill v.

United States, 368 U.S. 424, 43 (1962)); see also Kurtz, 854 N.W.2d at 479.

       A. Sentence Enhancement Proceedings.

       This error preservation exception does not apply to defects in sentencing

procedures.     See Tindel v. State, 629 N.W.2d 357, 359 (Iowa 2001).

Procedurally defective sentences—as opposed to illegal sentences—focus on

how the sentence was imposed rather than the legality of the actual sentence.

See id.; State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000) (holding a sentence

is illegal if the habitual-offender statute does not apply or “Is one not permitted by

statute”); State v. Vance, 15-0070, 2015 WL 4936328, at *1 (Iowa Ct. App. Aug.

19, 2015).    Faulty procedures that are not subject to review on appeal of a

motion to correct an illegal sentence include claims that the trial court did not

satisfy the requirement of rule 2.19(9). See State v. Wilson, 294 N.W.2d 824,

825 (Iowa 1980) (holding a defect in sentencing procedures does not amount to

an illegal sentence because “If we were to expand that concept to encompass

redress for underlying procedural defects, as well, it would open up a virtual

Pandora's box of complaints with no statutorily prescribed procedures for their

disposition nor any time limits for their implementation.”); State v. Wilson, 10-

1859, 2011 WL 2556042, at *2 (Iowa Ct. App. June 29, 2011). In Wilson, for

example, the defendant argued the sentence was illegal “because a record of his

prior convictions was not made as required by [rule] 2.19(9).” 2011 WL 2556042,
                                          9


at *2. The court held, “Wilson does not argue that the sentence imposed was

outside the sentence authorized by statute.       The record clearly supports the

habitual offender status and Wilson did not at sentencing, nor does he now deny

that he is an habitual offender with three prior felony convictions.” Id. at *3

(emphasis added). The error preservation exception that applied in Gordon did

not apply to Wilson because Wilson apparently was a habitual offender under the

statute despite the procedural errors; Gordon was not.

       During the pendency of this case, the Iowa Supreme Court elaborated on

the constitutional requirements in habitual offender enhancement proceedings

when a defendant admits to prior convictions. See generally, State v. Harrington,

__N.W.2d __, __, 2017 WL 1291343, at *5–6 (Iowa 2017). In Harrington, the

defendant challenged on direct appeal the sufficiency of the habitual offender

proceedings that led to a sentence enhanced under the habitual offender statute.

Id. at *1. The defendant claimed that “the habitual offender colloquy failed to

show his admission to the prior offenses was made voluntarily and intelligently,”

and “the colloquy failed to identify evidence to show he was represented by

counsel or waived counsel in the cases involving the prior convictions.” Id. at *2.

The court held the district court must not accept an admission to prior convictions

without determining the admission was made voluntarily and intelligently through

the following steps:

       First, the court must inform the offender of the nature of the habitual
       offender charge and, if admitted, that it will result in sentencing as a
       habitual offender for having “twice before been convicted of a
       felony.” See Iowa Code § 902.8 (2017). The court must inform the
       offender that these prior felony convictions are only valid if obtained
       when the offender was represented by counsel or knowingly and
       voluntarily waived the right to counsel. See Iowa R. Crim. P.
                                         10


       2.19(9). As a part of this process, the court must also make sure a
       factual basis exists to support the admission to the prior
       convictions. See Iowa R. Crim. P. 2.8(2)(b).
              Second, the court must inform the offender of the maximum
       possible punishment of the habitual offender enhancement,
       including mandatory minimum punishment. Id. In the typical case,
       the court must ensure the offender understands he or she will be
       sentenced to a maximum sentence of fifteen years and that he or
       she must serve three years of the sentence before being eligible for
       parole. See Iowa Code §§ 902.8, .9(1)(c). If the offender faces a
       greater mandatory minimum punishment or maximum possible
       punishment due to the present offense charged, the court must
       inform the offender of the specific sentence he or she will face by
       admitting the prior offenses. See In re Yurko, 519 P.2d at 565
       (noting an offender must be informed “of the precise increase in the
       term or terms which might be imposed”); State v. Ross, 729 N.W.2d
       806, 812 (Iowa 2007) (“[T]he mandatory minimum sentences
       prescribed in section 902.12 apply to habitual offenders.”).
              Third, the court must inform the offender of the trial rights
       enumerated in Iowa Rule of Criminal Procedure 2.8(2)(b)(4). For
       the reasons discussed below, the right to a jury in the second trial
       only pertains to the issue of identity. Any claim by the offender that
       he or she was not represented by counsel and did not waive
       counsel in the prior convictions is heard and decided by the district
       court. Although the offender has no right to a jury trial on these
       issues, the other rights associated with a trial are applicable at the
       hearing before the court.
              Fourth, the court must inform the offender that no trial will
       take place by admitting to the prior convictions. The court must also
       inform the offender that the State is not required to prove the prior
       convictions were entered with counsel if the offender does not first
       raise the claim.

Id. at *5–6. The court also held that a defendant must file a motion in arrest of

judgment to preserve error, but stated this rule would be applied prospectively.

Id. at *3, *6 (“Finally, we reiterate that the district court must inform the offender

that challenges to an admission based on defects in the habitual offender

proceedings must be raised in a motion in arrest of judgment. The district court

must further instruct that the failure to do so will preclude the right to assert them

on appeal. See Iowa R. Crim. P. 2.8(2)(d).”).
                                         11

       Dunham’s case is procedurally distinct from Harrington because Dunham

challenged the sufficiency of his admissions to prior convictions in a motion to

correct an illegal sentence, as opposed to directly appealing alleged errors at the

trial level or through post-conviction proceedings.2 See Harrington, 2015 WL

3613312 at *1. Our limited review of Dunham’s appeal of a motion to correct an

illegal sentence “includes whether ‘the [t]he punishment meted out was . . . in

excess of that prescribed by the relevant statutes, multiple terms were . . .

imposed for the same offense, . . . [or] the terms of the sentence itself [were]

legally or constitutionally invalid in any other respect.’” Bruegger, 773 N.W.2d at

872 (quoting Hill v. U.S., 368 U.S. 424, 430 (1962)). Dunham’s challenge to the

district court’s procedural omissions surrounding his stipulation to the prior

convictions are not challenges to the “the sentence itself.” Id. Dunham claims

procedural error under rule 2.19(9), but he does not suggest the record before

the sentencing court was inadequate to support his habitual offender status.

Wilson, 2011 WL 2556042, at *2. It clearly does; he admitted to the prior felony

convictions. Like Wilson, Dunham’s procedural argument does not amount to an

attack on an illegal sentence. Therefore, it is not subject to our review.

       This leaves the remaining issue of whether Dunham’s sentence was legal.

Dunham was found guilty by a jury of possession of a controlled substance with

intent to deliver in violation of Iowa Code section 124.401(1)(c)(6). Dunham also

stipulated that he was a second or subsequent offender, in violation of section

124.411, and an habitual offender, in violation of section 902.8. The maximum

2
  We make no determination whether Dunham’s failure to file a motion in arrest of
judgment bars review of the procedural deficiencies in the sentencing enhancement
proceedings through other appellate avenues, such as post-conviction relief.
                                          12


sentence for a second or subsequent offender and habitual offender for violation

of   section   124.401(1)(c)(6)   is   forty-five   years.    See    Iowa   Code     §§

124.401(1)(c)(6), 124.411, 902.8, 902.9(3). Dunham was sentenced for a period

not to exceed thirty years. The term was within the statutory period for Dunham’s

conviction.    “[T]he exclusion of illegal sentences from the principles of error

preservation is limited to those cases in which a trial court has stepped outside

the codified boundaries of allowable sentencing.”            State v. Hochmuth, 585

N.W.2d 234, 237 (Iowa 1998). The record supports Dunham’s status as habitual

offender, and the sentence is within the statutory timeframe.

       B. Constitutional Issues.

       1. Cruel and Unusual Punishment. Dunham next claims the sentence is

illegal because it amounted to cruel and unusual punishment. Cruel and unusual

punishment is prohibited under the Eight Amendment of the United States

Constitution and article I, section 17 of the Iowa Constitution.3 Punishment is

cruel and unusual if “it inflicts torture, is otherwise barbaric, or is so excessively

severe it is disproportionate to the offense charged.” State v. Cronkhite, 613

N.W.2d 664, 669 (Iowa 2000).           “Generally, a sentence that falls within the

parameters of a statutorily prescribed penalty does not constitute cruel and

unusual punishment.” Id.

       Iowa utilizes a three-step analysis to determine whether a penalty

amounts to cruel and unusual punishment. The first step “requires a reviewing


3
  When a defendant challenges his sentence under both article 1, section 17 of the Iowa
Constitution and the Eighth Amendment of the United States Constitution, we analyze
the claim under the “more stringent gross-disproportionality review” available under the
Iowa Constitution. State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012).
                                          13


court to determine whether a defendant’s sentence leads to an inference of gross

disproportionality.” Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (quoting Bruegger,

773 N.W.2d at 873). In doing so, we balance the gravity of the crime against the

severity of the sentence. Id. “If the sentence does not create an inference of

gross disproportionality, then ‘no further analysis is necessary.’”       Id. (citation

omitted). We defer to legislative determinations of punishment, and a sentence

crafted within the statutory guidelines is grossly disproportionate only in rare

circumstances. See State v. Musser, 721 N.W.2d 734, 479 (Iowa 2006).

       Dunham was convicted of possession of a controlled substance

(methamphetamine) with intent to deliver in violation of section 124.401(1)(c)(6)

as a habitual offender and a second drug offender and sentenced for a period not

to exceed thirty years, which was authorized by statute. See Iowa Code §§

124.401(1)(c)(6), 124.411, 902.8, 902.9(3). The sentence was fifteen years less

than the maximum allowable sentence under the statute. See id. Prior to this

conviction, Dunham was convicted of a felony drug charge and a felony burglary,

theft, and terroristic threats charge. It is a principle under Iowa law that recidivist

offenders are “more deserving of a longer sentence than a first-time offender.”

Oliver, 812 N.W.2d at 650. These circumstances fall within the narrow elements

of the statutorily proscribed activity.        Dunham does not present unique

circumstances that can lead to an inference of gross disproportionality, such as

“a broadly framed crime, the permissible use of preteen juvenile adjudications as

prior convictions to enhance the crime, and a dramatic sentence enhancement

for repeat offenders.”    See Bruegger, 773 N.W.2d at 884.          Nor can we say

Dunham’s sentence was a dramatic enhancement; it was fifteen years below the
                                       14

maximum allowable sentence. See id. Because the sentence does not create

an inference of gross disproportionality, Dunham’s claim fails, and our cruel-and-

unusual-punishment analysis ends here. See Oliver, 812 N.W.2d at 653.

      2. Double Jeopardy. Dunham next argues the imposition of a second or

subsequent offender enhancement and a habitual offender enhancement

amounts to an illegal sentence.    In a similar case, the Iowa Supreme Court

upheld a district court’s sentence for a class “C” felony that was enhanced to

fifteen years under the habitual offender provision and an additional three times

the authorized sentence under the second or subsequent offender provision.

See Sisk, 577 N.W.2d at 416. In Sisk, the Iowa Supreme Court upheld a forty-

five year sentence for the defendant’s conviction of delivery of a controlled

substance as a second offender and an habitual offender. Id. The court held,

“[T]he district court properly sentenced defendant by imposing the penalty for an

habitual offender under chapter 902 and then enhancing that sentence pursuant

to section 124.411(1).” Id.

      Similarly, the district court enhanced Dunham’s punishment under the

habitual offender provision, tripled the result under the second or subsequent

offender provision, and sentenced Dunham to thirty years, which was fifteen

years less than the maximum allowable sentence under the statutory framework.

Dunham’s sentence was also fifteen years less than the legal sentence in Sisk.

We find the district court imposed a statutorily and constitutionally permissible

sentence and affirm the denial of Dunham’s motion to set aside illegal sentence.

      AFFIRMED.
