                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0034
                            Filed February 11, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHNNY TERRELL CLAYTON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark D. Cleve,

Judge.



      Johnny Clayton appeals from the district court’s dismissal of his motion to

correct an illegal sentence. AFFIRMED.



      Clayton Grueb, Davenport, until withdrawal, and then Lauren Phelps,

Dvenport, for appellant.

      Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney

General, Michael J. Walton, County Attorney, and James Cosby and Amy

Devine, Assistant County Attorneys, for appellee.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
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POTTERFIELD, J.

       Johnny Clayton appeals from the district court’s dismissal of his motion to

correct an illegal sentence. Because at the time of the 2010 sentencing Clayton

had been convicted twice previously of a felony, qualifying him as an habitual

offender, the district court did not err in denying his motion to correct an illegal

sentence.

I. Background Facts and Proceedings.

       On November 24, 2009, Johnny Clayton grabbed a man from behind,

saying “don’t make a sound unless you want to die, I just want your money.”

Clayton took the man’s wallet from his rear pocket and attempted to put his hand

in the man’s front pocket. In the process, Clayton inflicted a cut to the man’s

finger and a laceration to his neck.

       On January 5, 2010, the State charged Clayton with one count of robbery

in the first degree, in violation of Iowa Code section 711.2 (2009), and one count

of assault while participating in a felony, in violation of section 708.3.

       On August 25, 2010, a notice of additional minutes of testimony was filed,

stating the clerk of the circuit court for Milwaukee County, Wisconsin, would

testify that Clayton had been convicted and sentenced for two felony offenses of

burglary (2000CF003684 and 1990CF01025).

       On September 2, 2010, an amended trial information added a third

count—first degree theft, in violation of section 714.2(1)—and asserted Clayton

was an habitual offender.      With respect to the habitual offender allegations,

however, the amended trial information list two convictions—1990CF01025 and
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2004CF006384—the last having been charged as a felony, but Clayton having

pled guilty to a serious misdemeanor.

      Clayton entered into a plea agreement in which he agreed to plead guilty

to a lesser-included offense of robbery in the second degree as a habitual

offender and assault while participating in a felony as a habitual offender. In

return, the State would dismiss the first-degree-theft count and would

recommend that the sentences on the two convictions would run concurrently. A

special condition of the agreement provided:

             Should the Defendant have a criminal history more extensive
      than that revealed in the pleadings, or should the Defendant fail to
      cooperate with Correctional Services in preparing the [presentence
      investigation] P.S.I., . . . the State may withdraw any
      recommendation previously made. . . .
             The Defendant understands that incarceration is mandatory.
      The Defendant understands that this recommendation will result in
      a sentence of 15 years of incarceration.           The Defendant
      understands that he must serve seventy (70%) of his sentence
      before he is eligible for parole.

      At the plea hearing, Clayton asked the court, “I’m not understanding how

this time is being ran. . . . I mean, is it 15 years or is it 10 years?” The court

responded:

      It’s 15 years because you’re pleading—normally it’s 10 years, but
      since you’re pleading guilty as habitual offender, which means you
      have two prior felonies, the penalty is enhanced or increased
      because of your prior felonies to imprisonment for not to exceed 15
      years, not 10. Do you understand?
             THE DEFENDANT: And I would have to serve 70 percent of
      15 years?
             THE COURT: Yes. Is there anything else you don’t
      understand that I’ve read?
             THE DEFENDANT: No.

      On September 29, 2010, a sentencing hearing was held. The PSI set

forth Clayton’s criminal history, including two prior felony convictions.    At the
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hearing, both the State and Clayton agreed that the report was accurate. The

court sentenced Clayton to two terms of imprisonment not to exceed fifteen

years, to be served concurrently.

        On direct appeal, Clayton raised an ineffective-assistance-of-counsel

claim, arguing counsel failed to move in arrest of judgment because a record of

his prior convictions was not made during the plea proceeding. State v. Clayton,

No. 10-1736, 2011 WL 25656588, at *1 (Iowa Ct. App. June 29, 2011). This

court noted Clayton made no argument as to how a defect in procedure and his

counsel’s alleged failure resulted in prejudice—we preserved his “general and

conclusory” ineffectiveness claim for possible postconviction relief proceedings.

Id. at *2.

        On September 13, 2013, Clayton filed a motion to correct illegal sentence

asserting the State had improperly relied upon a conviction that was not a felony.

The State filed a resistance asserting Clayton was an habitual offender as

defined in Iowa Code section 902.8 because he had been twice previously

convicted of felony offenses at the time of sentencing.        The State attached

records showing Clayton had been convicted of a felony in Wisconsin in 1990

and again in 2000 (which convictions had been noticed in the August 25, 2010

additional minutes of testimony).

        After a hearing, the district court dismissed the motion, concluding that at

the time of Clayton’s plea and sentencing, “the State had provided notice, via the

minutes of testimony, of two prior and sequentially appropriate felony

convictions,” and, “[t]o date, Defendant has not alleged or demonstrated that

either such prior offense is not in fact a felony conviction.” The court concluded
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“the application of the habitual offender enhancement in this case constituted a

valid sentence supported by a statute and was not an illegal sentence.”

      Clayton appeals.

II. Scope and Standard of Review.

      Our review of challenges to the illegality of a sentence is for errors at

law. Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001).

III. Discussion.

      An illegal sentence is one not authorized by statute. See id.; see also

Iowa R. Crim. P. 2.24(5)(a) (“The court may correct an illegal sentence at any

time.”). Iowa Code section 902.8 provides:

             An habitual offender is 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.
      An offense is a felony if, by the 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 shall not be eligible for
      parole until the person has served the minimum sentence of
      confinement of three years.

      Clayton does not argue that the sentences imposed were outside the

sentence authorized by statute. The record here supports the habitual offender

status and Clayton did not at sentencing and does not now deny that he is an

habitual offender with two prior felony convictions. Cf. State v. Gordon, 732

N.W.2d 41, 43 (Iowa 2007) (finding that where the defendant’s prior convictions

were not sufficient to classify him as a habitual offender, he could challenge the

imposition of an habitual-offender status as an illegal sentence); State v.

Woody, 613 N.W.2d 215, 217 (2000) (same). His reliance on State v. Albee, No.

13-0321, 2014 WL 1245329 (Iowa Ct. App. Mar. 26, 2014), is misplaced. There,
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the defendant was not an habitual offender because the two prior convictions to

which he admitted did not qualify, that is, the defendant had not been convicted

and sentenced on the first offense before committing the second offense. See

Albee, 2014 WL 1245329, at *3. We held, “The convictions to which Allbee

admitted were not sufficient to classify him as a third offender or as a habitual

offender. Consequently, his enhanced sentence was illegal.” Id.

       Here, however, the record supports Clayton’s classification as a habitual

offender. The district court did not err in denying his motion to correct an illegal

sentence. We therefore affirm.

       AFFIRMED.
