                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1849
                             Filed January 14, 2015

PHILIP DEAN TERMAAT,
      Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Sioux County, James D. Scott,

Judge.



       Philip Termaat appeals the denial of his motion for correction of an illegal

sentence. AFFIRMED.



       Matthew R. Metzgar of Rhinehart Law, P.C., Sioux City, for appellant.

       Philip Dean Termaat, Fort Dodge, appellant pro se.

       Thomas J. Miller, Attorney General, Aaron Rogers, Assistant Attorney

General, and Thomas Kunstle, County Attorney, for appellee.



       Considered by Danilson, C.J., and Vogel and Bower, JJ. Scott, S.J., takes

no part.
                                               2



BOWER, J.

           Philip Termaat appeals the denial of his motion for correction of an illegal

sentence. Termaat claims his sentences for voluntary manslaughter and attempt

to commit murder are illegal because they violate Iowa’s one-death, one-

homicide rule as both are homicide offenses. We find attempt to commit murder

is not a homicide offense and affirm the district court’s order.

I.         BACKGROUND FACTS AND PROCEEDINGS

           In 2002, the State charged Termaat with murder in the first degree for the

killing of his wife, Melinda Termaat. After plea negotiations, Termaat agreed to

plead guilty to the amended charges of voluntary manslaughter and attempt to

commit murder. Termaat did not appeal his conviction or sentence.

           On September 3, 2010, Termaat filed a motion for correction of an illegal

sentence.        In his motion, Termaat argued by accepting his guilty pleas to

voluntary manslaughter and attempt to commit murder the district court violated

Iowa Code section 701.9 (2009),1 the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution, and article I, section twelve of the

Iowa Constitution. The State filed a resistance and claimed Termaat’s motion

should be treated as a petition for postconviction relief since Termaat’s

sentences were not illegal.          The district court agreed and denied Termaat’s

motion to correct an illegal sentence.             At the State’s request, the court then


1
     Iowa Code 701.9 provides:
          No person shall be convicted of a public offense which is necessarily
          included in another public offense of which the person is convicted. If the
          jury returns a verdict of guilty of more than one offense and such verdict
          conflicts with this section, the court shall enter judgment of guilty of the
          greater of the offenses only.
                                         3



considered the motion as an application for postconviction relief (PCR). The

court denied the application finding it time barred. Termaat then filed multiple pro

se motions with the district court, and a motion for writ of mandamus with the

Iowa Supreme Court. The district court denied all of Termaat’s motions, and our

supreme court denied the writ.

      On June, 8, 2012, Termaat filed a second PCR claiming the State violated

his Fifth Amendment rights, his sentence was illegal pursuant to Iowa Code

section 701.9, and he had received ineffective assistance of counsel. The State

resisted the application on the merits and also argued the claims were barred by

res judicata and collateral estoppel. Following a contested hearing, the court

dismissed Termaat’s application on all grounds except his claim for correction of

an illegal sentence. Termaat then amended his application.

      On September 4, 2013, a hearing was held on the amended application.

Termaat claimed his sentence was illegal because the underlying convictions

violate Iowa’s merger statute, section 701.9.     He claimed attempt to commit

murder, a class “B” felony, is a lesser included offense of voluntary

manslaughter, a class “C” felony. He also claimed the two offenses violated the

one-death, one-homicide rule.      After a thorough analysis, the court found

Termaat’s convictions did not violate the merger rule or subject him to double

jeopardy.   Finally, the court denied Termaat’s one-death, one-homicide rule

claim. Relying on State v. Fix, the court found attempted murder could not be

defined as a “homicide offense.” 830 N.W.2d 744, 746 (Iowa Ct. App. 2013).
                                          4



         Termaat now appeals the denial of his one-death, one-homicide rule

claim.

II.      STANDARD OF REVIEW

         We review claims of an illegal sentence for errors at law. Fix, 830 N.W.2d

at 746. A claim that a sentence is illegal may be raised at any time under Iowa

Rule of Criminal Procedure 2.24(5)(a). State v. Bruegger, 773 N.W.2d 862, 871

(Iowa 2009). Further, with respect to an illegal-sentence claim, the ordinary rules

of issue preservation do not apply. Id. Illegal-sentence claims are not barred by

statutes of limitation. Veal v. State, 779 N.W.2d 63, 65 (Iowa 2010).

III.     ANALYSIS

         Termaat claims his convictions for attempt to commit murder and

voluntary manslaughter of one victim resulting from one act violate the one-

death, one-homicide rule and therefore his sentences are illegal.        The State

claims attempt to commit murder is not a homicide offense and cannot violate the

one-death, one-homicide rule. The State also claims issue preclusion and the

law of the case prohibited the district court from addressing Termaat’s arguments

and should prohibit Termaat’s claim on appeal. 2

         In Fix, we provided an extensive definition of the one-death, one-homicide

rule:

         Under Iowa law, when a defendant is convicted of separate
         homicide counts involving a single victim, judgment can be entered
         and sentence can be imposed for only one homicide offense. State
         v. Wissing, 528 N.W.2d. 561, 567 (Iowa 1995) (setting aside
         conviction for involuntary manslaughter where defendant was also


2
  Relying on our tolerant stance toward illegal sentence claims, we find the State’s
arguments of issue preclusion and law of the case fail.
                                             5



         convicted of vehicular homicide but only one death occurred); State
         v. Gilroy, 199 N.W.2d, 63, 68 (Iowa 1972) (annulling conviction of
         premeditated murder because life sentences for felony murder and
         premeditated     murder      constituted   impermissible    double
         punishment). In holding that a defendant who kills one person
         cannot be convicted and sentenced for two separate homicides,
         Iowa follows the prevailing view among state courts. See Ex parte
         Rice, 766 So. 2d 143, 151–52 (Ala. 1999) (collecting cases); Ervin
         v. State, 991 S.W.2d 804, 807–09 (Tex. Crim. App. 1999) (same).

830 N.W.2d at 746–47.

         In Fix, we considered whether the offense of child endangerment resulting

in death was a homicide offense. In concluding child endangerment resulting in

death was a homicide offense, we defined “homicide offense”:

         In legal parlance, a homicide is “[t]he killing of one person by
         another.” Black’s Law Dictionary 739 (7th ed. 1999). An “offense”
         is another word for a crime. Id. at 1108. “Kill” means “to put to
         death.” American Heritage Dictionary 701 (2nd ed. 1985). It
         follows that a homicide offense would include any crime that
         involved one person putting another person to death. Because
         section 726.6 requires proof of a knowing, intentional, or willful act
         of endangerment that results in the death of a child (see Iowa Code
         § 726.6(1)(a)–(h)), we conclude it constitutes a homicide offense as
         contemplated by the Wissing court. Our conclusion is bolstered by
         the fact that the legislature deemed child endangerment resulting in
         death so grave an offense that it designated the crime as a class
         “B” felony and assigned a fifty-year prison term. Cf. State v.
         Halliburton, 539 N.W.2d 339, 344 (Iowa 1995) (considering length
         of sentences in deciding whether legislature intended multiple
         punishments).

Id. at 749.      Under this standard, Termaat’s claim fails.       As the district court

determined: “[A]ttempt to commit murder [Iowa Code section 707.113] does not



3
    Iowa Code section 707.11(1) (2009) states:
         A person commits the offense of attempt to commit murder when, with the
         intent to cause the death of another person and not under circumstances
         which would justify the person’s actions, the person does any act by
         which the person expects to set in motion a force or chain of events which
         will cause or result in the death of the other person.
                                         6



involve one person putting another person to death, but rather an attempt to

complete that act.”   Therefore, attempt to commit murder is not a homicide

offense and does not run afoul of the one-death, one-homicide rule. The court

did not err in denying Termaat’s motion for correction of an illegal sentence.

       AFFIRMED.
