                    IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1477
                           Filed September 17, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TERAN WAYNE HUFF,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Linn County, Douglas S. Russell,

Judge.



      Teran Huff appeals from the judgment and sentence entered following his

convictions for first-degree robbery and conspiracy to commit first-degree

robbery. REVERSED IN PART, VACATED IN PART, AND REMANDED FOR

ENTRY OF CORRECTED JUDGMENT OF CONVICTION AND CORRECTED

SENTENCE.



      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Jerry Vander Sanden, County Attorney, and Jason Burns,

Assistant County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
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VAITHESWARAN, P.J.

      Teran Huff pled guilty to several crimes, including first-degree robbery and

conspiracy to commit first-degree robbery. The district court entered judgment

and sentence. In imposing sentence, the court “merged” the “penalties” on the

conspiracy count with the penalties on the robbery count.

      On appeal, Huff contends the district court also should have merged the

judgments of conviction. Huff relies on Iowa Code section 706.4 (2011), which

states: “A conspiracy to commit a public offense is an offense separate and

distinct from any public offense which might be committed pursuant to such

conspiracy.   A person may not be convicted and sentenced for both the

conspiracy and for the public offense.” (Emphasis added.)

      By its terms, section 706.4 precludes the entry of conviction as well as

sentence. The State has conceded as much in the past, although it does not

make the same concession here. See State v. Daniels, No. 09-0891, 2010 WL

1875707, at *5 (Iowa Ct. App. May 12, 2010) (“Daniels claims the district court

erred when it did not merge the conviction for possession of a controlled

substance (marijuana) with intent to deliver with the conviction for conspiracy to

deliver a controlled substance (marijuana). The district court found these counts

merged as a matter of law, and merged the sentences, but did not merge the

convictions. The State concedes the convictions should be merged under Iowa

Code section 706.4.”); State v. Brown, No. 02-0969, 2003 WL 22015985, at *9

(Iowa Ct. App. Aug. 27, 2003) (“The trial court merged the convictions for the

purpose of sentencing, but did not merge the actual convictions. Brown claims

the court erred in not merging both the convictions and the sentences. . . . The
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State agrees the court should have merged both the convictions and sentenced

Brown only for the substantive offense.”); State v. Steil, No. 01-0587, 2002 WL

181136, at *1 (Iowa Ct. App. Feb. 6, 2002) (“The State concedes both

convictions cannot stand . . . . While the guilty pleas standing alone were not

invalid, entering judgment on both was clearly erroneous. The trial court should

have merged the convictions, entered judgment on the public offense of robbery

in the second decree and sentenced accordingly.” (citing Iowa Code § 706.4)).

       We recognize certain language used by the Iowa Supreme Court may

suggest a contrary conclusion. See State v. Waterbury, 307 N.W.2d 45, 51-52

(Iowa 1981) (stating district court properly sentenced the defendant “solely on the

substantive offense.” (emphasis added)); State v. Lies, 566 N.W.2d 507, 509

(Iowa 1997) (stating “conspiracy and the substantive offense merge for

sentencing purposes pursuant to section 706.4.” (emphasis added)). However,

the question of whether a conviction should be entered on both the conspiracy

and the substantive offense or solely on the substantive offense was not the

dispositive issue in either case.

       In Waterbury, the jury found one of the defendants guilty of conspiracy to

commit murder and murder. 307 N.W.2d at 51. The district court only entered

judgment of conviction on the murder count. Id. at 47. On appeal, the defendant

raised several issues including a section 706.4 challenge to the court’s conviction

and sentence, apparently contending she should only have been convicted on

the conspiracy count or should not have been convicted at all. Id. at 52. After

concluding one of the issues required reversal and remand for a new trial, the

court turned to the section 706.4 issue, noting it might arise on retrial. Id. at 49,
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52.   It was in this context that the court stated the defendant was properly

sentenced solely on the substantive offense. Notably, the court read section

706.4 as “creating a merger of the conspiracy and the substantive offense where

the defendant has been found guilty of both offenses” and stated the reasons

behind treating conspiracy as a separate offense were “less compelling after the

goal of the conspiracy has been realized.”      Id. at   52.   These statements,

although dicta, support entry of conviction and sentence solely on the substantive

offense.

       In Lies, the issue was whether conspiracy to commit burglary and burglary

were the same offense for purposes of the speedy indictment rule. 566 N.W.2d

at 508.    The defendant raised the language of section 706.4 to support his

argument that the conspiracy charge was a lesser-included offense. Id. at 509.

In the course of addressing this argument, the court mentioned merger of the

conspiracy and substantive offense “for sentencing purposes.” Id. But the court

went on to explain that “even though defendant could not be convicted and

sentenced for both second-degree burglary and conspiracy to commit burglary,”

they were “separate offenses for charging purposes.” Id.; see also Robert R.

Rigg, Iowa Practice: Criminal Law § 24:6 at 617 (2013) (“[A]lthough it is still

possible to charge one with both the conspiracy and the substantive offense, one

may not be convicted of both.”).

       We conclude Huff’s conspiracy conviction and sentence merged with his

robbery conviction and sentence. We partially reverse and vacate his judgment
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and sentence and remand for entry of judgment of conviction and sentence

solely on the robbery offense.1

      Huff also challenges the district court’s decision to tax him with costs on

two dismissed counts. The State concedes error. We vacate that portion of the

sentencing order.

      REVERSED IN PART, VACATED IN PART, AND REMANDED FOR

ENTRY OF CORRECTED JUDGMENT OF CONVICTION AND CORRECTED

SENTENCE.




1
 Huff does not challenge his judgment and sentences on the remaining counts to which
he pled guilty. Accordingly, the judgment and sentences stand with respect to those
counts.
