                    IN THE COURT OF APPEALS OF IOWA

                                     No. 12-2273
                                 Filed June 11, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DUANE LUVERNE YATES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Jeffrey L.

Poulson, Judge.



      Duane Yates appeals an order denying his request to be present at a

resentencing hearing and certain nunc pro tunc orders. AFFIRMED IN PART,

VACATED IN PART, AND REMANDED WITH DIRECTIONS.



      Mark C. Smith, State Appellate Defender, and Patricia Reynolds, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney

General, Patrick Jennings, County Attorney, and Terry C. Ganzel, Assistant

County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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VAITHESWARAN, P.J.

       Duane Yates appeals an order denying his request to be present at a

resentencing hearing.     He also challenges certain nunc pro tunc orders and

asserts his trial was infected with several errors.

I.     Background Proceedings

       In 2002, a jury found Yates guilty of second-degree sexual abuse, and the

district court sentenced him to a prison term not exceeding fifty years under Iowa

Code sections 902.9(2) and 901A.2(3) (1999). Section 901A.2(3), a sentencing

enhancement provision, states, “[A] person convicted of a sexually predatory

offense which is a felony, who has a prior conviction for a sexually predatory

offense, shall be sentenced to and shall serve twice the maximum period of

incarceration for the offense, or twenty-five years, whichever is greater . . . .”

       In the ensuing years, Yates raised several challenges to various aspects

of his judgment and sentence.        See Yates v. State, No. 08-1879, 2009 WL

3064427, at *2 (Iowa Ct. App. Sept. 17, 2009) (affirming the district court’s

refusal to reinstate the application for postconviction relief dismissed under Iowa

Rule of Civil Procedure 1.944); State v. Yates, No. 03-1268, 2005 WL 425458, at

*1 (Iowa Ct. App. Feb. 24, 2005) (affirming the district court’s refusal to grant a

restitution hearing); State v. Yates, No. 02-1681, 2003 WL 22697964, at *4 (Iowa

Ct. App. Nov. 17, 2003) (affirming judgment and sentence on direct appeal).

Those challenges were unsuccessful.

       Eventually, Yates filed a postconviction-relief application, challenging the

section 901A.2(3) sentencing enhancement.             The district court granted his

application after concluding section 901A.2(3) should not have been applied to
                                        3

him.   See generally State v. Tornquist, 600 N.W.2d 301, 308 (Iowa 1999)

(concluding the enhancement provisions of Iowa Code chapter 901A did not

allow the use of a pre-July 1996 conviction to enhance a subsequent conviction

for a sexually predatory offense), partial analysis disapproved of in State v.

DeCamp, 622 N.W.2d 290, 293-94 (Iowa 2001) (disavowing Tornquist to the

extent it used a prospective application analysis on the ground that “the issue of

enhanced sentencing based on prior convictions is outside the scope of the

principles which apply to the prospective or retrospective application of a

statute”).

       In light of the court’s ruling, Yates moved to schedule a resentencing

hearing.     His motion included a request to be “present in the courtroom” at

resentencing.     On November 27, 2012, the district court entered an order

removing the section 901A.2(3) enhancement from Yates’s sentence and stating,

“In all other respects, the October 9, 2002 judgment is incorporated herein by

reference without further change.” The court further noted, “[R]emoval of the

enhancement is a reduction of the sentence under [Iowa Rule of Criminal

Procedure] 2.24 and constitutes a correction of the sentence which would not be

significantly aided by defendant’s presence.” This appeal followed.

II.    Denial of Presence at Resentencing Hearing

       In felony cases, the defendant “shall be personally present at every stage

of the trial including . . . the imposition of sentence.” Iowa R. Crim. P. 2.27(1).
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However, “[t]he defendant’s presence is not required at a reduction of sentence

under rule 2.24.”1 Iowa R. Crim. P. 2.27(3)(b).

          This court addressed the issue of a defendant’s presence at sentencing in

State v. Cooley, 691 N.W.2d 737, 740 (Iowa 2004).                  The court held that “a

defendant’s presence is not required where a district court is correcting an

existing sentence, so long as the disposition would not be aided by the

defendant’s presence and the modification does not make the sentence more

onerous.” Cooley, 691 N.W.2d at 741.

          Here, the district court simply removed the section 901A.2(3) sentencing

enhancement, as directed by the postconviction court.                 The removal of the

twenty-five year enhancement amounted to a reduction in Yates’s sentence. The

reduction inured to Yates’s benefit. The resulting prison term of no more than

twenty-five years was prescribed by statute for class “B” felonies. See Iowa

Code §§ 709.3(2) (stating second-degree sexual abuse is a class “B” felony);

902.9(1)(b) (prescribing a prison term of no more than twenty-five years for class

“B” felonies). Yates’s presence was not required to enlighten the court on this

reduction.

          Yates maintains, however, that he could have enlightened the court on

whether a seventy-percent minimum sentence should have applied and whether

he was subject to DNA testing.              Howerver, the seventy percent minimum

sentence is mandatory and, by its terms, applies to persons serving a sentence

for convictions prior to July 1, 2003. See Iowa Code § 902.12(3). Likewise, the

DNA testing requirement is mandatory. See Iowa Code § 81.2 (“A person . . .

1
    Rule 2.24(5) authorizes correction of an illegal sentence at any time.
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against whom a judgment or conviction for a felony has been entered shall be

required to submit a DNA sample for DNA profiling . . . .”).2 Because the district

court lacked discretion to do anything but impose these requirements, Yates’s

assistance was not required. Accordingly, we affirm the district court’s November

27, 2012 order denying Yates’s request to be present at resentencing. See State

v. Austin, 585 N.W.2d 241, 245 (Iowa 1998) (“[W]e vacate the sentence and

remand for imposition of a new sentence to omit the reference to the restrictions

regarding Austin’s eligibility for parole or work release.            The State need not

produce Austin to be personally present at the correction of the sentence.”).

III.   Nunc Pro Tunc Orders

       After Yates appealed the order resentencing him, the district court entered

two nunc pro tunc orders3 amending Yates’s sentence to include an additional

term of parole or work release not to exceed two years.                    See Iowa Code

§ 901A.2(8). Yates contends the district court lacked jurisdiction to enter the

nunc pro tunc orders and, in the alternative, the orders are void.

       The State agrees that nunc pro tunc orders are appropriate only to correct

clerical mistakes. See Graber v. Iowa Dist. Ct., 410 N.W.2d 224, 228 (Iowa


2
  This provision superseded section 13.10, which also required submission of a DNA
sample by persons convicted of second-degree sexual abuse. See also Schreiber v.
State, 666 N.W.2d 127, 130 (Iowa 2003) (concluding provision did not amount to ex post
facto punishment); Hartsfield v. Iowa Dist. Ct., No. 08-0562, 2009 WL 1708825, at *2
(Iowa Ct. App. June 17, 2009) (“[T]he legislature meant chapter 81 to be retroactive.
Furthermore, chapter 81’s predecessor, Iowa Code section 13.10 (2005), had been
applied to all convicted felons in certain categories whether the conviction occurred
before the statute’s effective date or not. It is highly doubtful that the legislature intended
to reduce the scope and coverage of DNA profiling when it replaced section 13.10 with
chapter 81 (2007).” (citation omitted)).
3
  “Nunc pro tunc” means “now for then” and a nunc pro tunc order makes the record
show now what was actually done then. Robco Transp., Inc. v. Ritter, 356 N.W.2d 497,
500 (Iowa 1984).
                                         6


1987). A court cannot use them “to remedy an error in judicial thinking, a judicial

conclusion, or a mistake of law.” Weissenburger v. Iowa Dist. Ct., 740 N.W.2d

431, 434 (Iowa 2007) (“[T]he purpose of a nunc pro tunc entry is to supply or

correct a record to make it conform to that which was actually done at an earlier

date, and that as between the parties it operates to validate or correct the original

judgment.”). Because the nunc pro tunc orders in this case did more than correct

clerical errors, they must be set aside. Additionally, because the two-year term

of parole made Yates’s sentence more onerous, his presence was required. See

Cooley, 691 N.W.2d at 740.

IV.    Trial Issues

       In 2013, more than a decade after the district court originally imposed

judgment and sentence, Yates filed pro se motions in arrest of judgment and for

new trial. The district court ruled that the two motions were untimely under Iowa

Rule of Criminal Procedure 2.24 because they were not filed “within 45 days after

the verdict.” Yates appealed this ruling, and the appeal was consolidated with

his appeal of the resentencing order.

       Yates has not challenged the court’s ruling that the motions were untimely,

nor could he. They clearly were, and we affirm the district court’s denial of the

motions on that ground. To the extent Yates attempts to raise a host of trial

issues in the guise of correcting an illegal sentence, we find that vehicle

inappropriate. See State v. Chadwick, 586 N.W.2d 391, 393 (Iowa Ct. App.

1998) (stating a claim that a sentence is illegal pursuant to now-numbered rule

2.24(5) does not “encompass redress for underlying procedural defects”).
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V.    Disposition

      We affirm the November 27, 2012 order correcting Yates’s sentence. We

vacate the nunc pro tunc orders and remand for a hearing on the addition of the

applicable section 901A.2(8) provision to Yates’s sentence, with directions to

grant Yates’s request to be present at that hearing.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED WITH

DIRECTIONS.
