                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-2124
                            Filed November 25, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TIMOTHY WARREN PITTMAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, Kurt J. Stoebe,

Judge.



      A defendant appeals from a district denial of a motion to correct an illegal

sentence.    CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART,

VACATED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, and Louis S. Sloven, Student Legal Intern, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
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VAITHESWARAN, Judge.

       Timothy Pittman pled guilty to second degree robbery, domestic abuse

assault (second offense), and willful injury. The district court entered judgment

and sentence, which included prison terms, and a “$10 Domestic Assault

Surcharge.” The court suspended the surcharge.

       Pittman filed a motion to correct an illegal sentence, arguing the domestic-

abuse and willful-injury convictions should have merged with the robbery

conviction. The district court denied the motion.

       On appeal, Pittman argues “[t]he district court imposed an illegal sentence

by failing to merge [his] conviction for domestic assault . . . into his conviction[]

for willful injury.” Although this is a different merger argument than he raised in

the district court, the State urges us to consider the issue on the merits. Because

illegal sentences may be corrected at any time, we agree this is the more

expeditious option. See State v. Parker, 747 N.W.2d 196, 203 (Iowa 2008) (“We

may correct an illegal sentence at any time . . . .”).

       A person may not be convicted of an offense which is necessarily included

in “another public offense of which the person is convicted.” Iowa Code § 701.9

(2011). In 2001, the Iowa Supreme Court concluded the crimes of domestic

abuse assault and willful injury do not merge.           See State v. Rodriquez, 636

N.W.2d 234, 247 (Iowa 2001). The court stated:

       It is at once apparent that the domestic abuse assault charges
       contain an element not found in the willful injury charge: “The act
       occurred between household members who resided together at the
       time of the incident.” Thus, it is possible to commit the greater
       offense without also committing the lesser offenses. Consequently,
       the domestic abuse assault convictions are not “necessarily
       included” in the willful injury conviction.
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Rodriquez, 636 N.W.2d at 247; see also State v. Scott, No. 10-1160, 2012 WL

664635, at *1-2 (Iowa Ct. App. Feb. 29, 2012) (“It is clear that willful injury may

be committed without committing domestic abuse assault with the intent to inflict

a serious injury, as willful injury does not require a family or household

relationship. For this reason, domestic abuse assault with the intent to inflict a

serious injury is not ‘necessarily included’ in the willful injury conviction, and the

district court did not err in entering separate judgments and sentences for each

crime.” (citation omitted)). Based on Rodriquez, we decline to merge the crimes.

       Pittman also argues the $10 domestic assault surcharge was illegal. The

State concedes error on this record. See State v. Robinson, 841 N.W.2d 615,

616-17 (Iowa Ct. App. 2013); State v. Claytor, No. 12-2228, 2013 WL 5291956,

at *4 (Iowa Ct. App. Sept. 18, 2013).

       We affirm all of Pittman’s sentence except the $10 domestic assault

surcharge.    We vacate the surcharge and remand for entry of a corrected

judgment.

       CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART, VACATED

IN PART, AND REMANDED.
