                 IN THE SUPREME COURT OF IOWA
                           No. 103 / 06–1461

                        Filed September 26, 2008

STATE OF IOWA,

      Appellant,

vs.

JOHN EDWARD COWLES,

      Appellee.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Davis County, Daniel P.

Wilson, Judge.



      On further review of a decision of the court of appeals affirming the

district court’s ruling that a portion of defendant’s sentence was illegal.

COURT     OF     APPEALS   DECISION     VACATED;      DISTRICT     COURT

RULING REVERSED AND CASE REMANDED WITH INSTRUCTIONS.


      Thomas J. Miller, Attorney General, Mary Tabor and Karen Doland,

Assistant Attorneys General, and Rick Lynch, County Attorney, for

appellant.



      Justin Kurt Swaim of Swaim Law Firm, Bloomfield, for appellee.
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HECHT, Justice.

       We are asked, on further review of a decision of the court of

appeals, to decide whether the district court erred in concluding it

imposed an illegal mandatory minimum sentence.                   We conclude the

sentence was not illegal under the circumstances presented here, and

the district court therefore erred in correcting it. Accordingly, we vacate

the decision of the court of appeals affirming the “correction” of the

sentence, reverse the district court’s ruling, and remand for entry of a

judgment reinstating the mandatory minimum sentence.

       I.       Factual and Procedural Background.

       On March 14, 2003, John Edward Cowles was charged with twenty

counts of sexual abuse in the second degree,1 a class “B” felony, four

counts of sexual abuse in the third degree,2 a class “C” felony, and one

count of incest,3 a class “D” felony.             The parties reached a plea

agreement. Cowles pled guilty on July 18, 2003 to one count of sexual




       1Each   of the twenty counts alleged Cowles committed sexual abuse in the
second degree against his minor daughter in violation of Iowa Code sections 709.1 and
709.3(2) “[o]n or about April 9, 1996 through February 2, 1997” when the victim was
under the age of 12.

        2Count XXI alleged Cowles committed sexual abuse in the third degree in

violation of Iowa Code section 709.1 and section 709.4(2)(b) between the dates of
February 3, 1997 and February 2, 1998 when his daughter was 12 or 13 years of age.
Count XXII alleged Cowles violated the same statutes between the dates of February 3,
1998 and February 2, 1999. Count XXIII charged Cowles with acts of sexual abuse
against the same victim in violation of Iowa Code section 709.1 and section
709.4(2)(c)(1)–(4) between the dates of February 3, 1999 and February 2, 2000 when his
daughter was 14 or 15 years old. In count XXIV, the State alleged Cowles violated the
same statutes between the dates of February 3, 2000 and February 2, 2001.

       3Count  XXV of the information alleged Cowles committed incest between
February 3, 2001 and February 2, 2002 in violation of Iowa Code section 726.2.
                                           3

abuse in the second degree,4 four counts of sexual abuse in the third

degree, and one count of incest.

       To establish a factual basis for Cowles’s guilty plea to the class “B”

felony, the district court asked Cowles if he engaged in a sex act with his

daughter “prior to February 3, 1997.” Cowles responded affirmatively.

The district court informed Cowles that, if convicted, he would be

required to serve a minimum of seventy percent of the sentence for the

class “B” felony.      After Cowles’s counsel affirmed he had advised his

client of the relevant maximum and minimum penalties, the court

accepted Cowles’s guilty plea.5

       Cowles requested he be sentenced the same day. The prosecutor

and Cowles’s counsel jointly recommended Cowles be sentenced to the

maximum sentences of twenty-five years on the class “B” felony, ten

years on each of the four class “C” felonies, and five years on the class

“D” felony, with the sentences to run concurrently.                 In imposing the

sentence, the court noted Iowa Code section 902.12 prescribes a

mandatory minimum period of incarceration for conviction of sexual

abuse in the second degree.

       Cowles subsequently filed an application for correction of illegal
sentence asserting the sentence violated state and federal constitutional

prohibitions against ex post facto laws. The district court concluded the

       4Cowles   pled guilty to only one class “B” felony: Count XX. Although the
information did not expressly allege the crime charged in that count occurred in
January of 1997, the prosecutor asserted in the district court and the State asserts on
appeal that the twenty class “B” felonies occurred at the rate of two per month during
the months of April 1996 through January 1997. Thus, according to the State’s theory,
the crime charged in count XX was committed by Cowles in January 1997. The other
nineteen counts of sexual abuse in the second degree were dismissed consistent with
the terms of the plea agreement.

       5The   plea colloquy conducted by the sentencing court also addressed the other
five offenses to which Cowles pled guilty. As Cowles’s pleas to those offenses are not at
issue in this appeal, we do not discuss them here.
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mandatory minimum sentence imposed under Iowa Code section 902.12

for the conviction on count XX violated the Ex Post Facto Clause in

Article I, Section 10 of the United States Constitution and the corollary

clause found in article I, section 21 of the Iowa Constitution because the

plea colloquy did not establish the crime of sexual abuse in the second

degree was committed before July 1, 1996, the effective date of the

statute.    The court concluded “where the record does not establish

otherwise, [the] court must presume the [sentence] may have been based

on pre-July 1, 1996 acts.”      Having concluded the sentence originally

imposed was unconstitutional and therefore illegal, the district court

“corrected” Cowles’s sentence by deleting from the judgment entry the

reference to the applicability of section 902.12.

      The State sought, and this court granted, discretionary review of

the district court’s ruling.    We transferred the case to the court of

appeals, and that court affirmed the district court’s ruling. We granted

the State’s application for further review.

      II.    Scope of Review.

      Ordinarily we review for errors at law a case challenging the

legality of a sentence.   State v. Anderson, 565 N.W.2d 340, 342 (Iowa

1997). In this instance, however, Cowles claimed and the district court

concluded the sentence on the class “B” felony violated the Ex Post Facto

clauses of the Iowa and United States Constitutions.          We review

constitutional claims de novo.     State v. Corwin, 616 N.W.2d 600, 601

(Iowa 2000).    When performing de novo review, “we must make ‘an

independent evaluation of the totality of the circumstances as shown by

the entire record.’ ”   State v. Kinkead, 570 N.W.2d 97, 99 (Iowa 1997)

(quoting State v. Cook, 530 N.W.2d 728, 731 (Iowa 1995)).
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      III.   Discussion.

      Iowa Code section 902.12 became effective on July 1, 1996. 1996

Iowa Acts ch. 1151, § 3. As originally adopted, the statute required a

person convicted of sexual abuse in the second degree to “serve one

hundred percent of the maximum term of the person’s sentence . . . .”

An amendment of the measure which became effective on July 1, 2003

provided in relevant part:

      A person serving a sentence for conviction of the following
      felonies shall be denied parole or work release unless the
      person has served at least seven-tenths of the maximum
      term of the person’s sentence:

      ....

      3. Sexual abuse in the second degree in violation of section
      709.3.

2003 Iowa Acts ch. 156, § 11. As we have already noted, the district

court concluded the mandatory minimum sentence prescribed by this

statute could not be imposed on Cowles consistent with the Ex Post

Facto clauses of the state and federal constitutions.

      The United States Constitution states, “[n]o State shall . . . pass

any . . . ex post facto Law.” U.S. Const. art. I, § 10. The Ex Post Facto

Clause prohibits: (1) making criminal and punishing an act that was

innocent when done; (2) reclassifying a crime as a greater offense after it

was committed; (3) attaching greater punishment to a crime after it was

committed; and (4) altering the rules of evidence after the crime in order

to convict an offender. Collins v. Youngblood, 497 U.S. 37, 42, 110 S. Ct.

2715, 2719, 111 L. Ed. 2d 30, 39 (1990).

      The Iowa Constitution similarly states, “[n]o ex post facto law . . .

shall ever be passed.” Iowa Const. art. I, § 21. “Both the federal and

state constitutions’ Ex Post Facto Clauses ‘forbid the application of a new
                                     6

punitive measure to conduct already committed,’ and may also be

violated ‘when a statute makes more burdensome the punishment for a

crime after its commission.’ ” State v. Seering, 701 N.W.2d 655, 666–67

(Iowa 2005) (quoting Schreiber v. State, 666 N.W.2d 127, 129 (Iowa

2003)); see also State v. Klindt, 542 N.W.2d 553, 554 (Iowa 1996); State

v. Soppe, 374 N.W.2d 649, 652 (Iowa 1985).

      Under the circumstances presented in this case, we conclude the

mandatory minimum sentence did not violate the Ex Post Facto clauses.

At his plea and sentencing hearing, Cowles expressly admitted he

perpetrated a sex act on a victim under 12 years of age between April 9,

1996 and February 2, 1997.      Cowles also acknowledged he wished to

plead guilty after he was advised he would be required to serve at least

seventy percent of the maximum sentence for the offense. Although it is

true Cowles did not expressly admit during the plea colloquy he

committed the offense after July 1, 1996, we find an implicit admission

of such conduct in the full context of the hearing.
      The record made by the parties on the occasion of the plea-taking
and sentencing hearing evidences Cowles admitted guilt for an act of
sexual abuse that occurred after July 1, 1996. The mandatory minimum
sentence requirement of section 902.12 applied only to acts of sexual
abuse committed after that date. As we have already noted, the court
informed Cowles an admission of guilt would expose him to a mandatory
minimum sentence.       With knowledge of that prospect, and after his
counsel confirmed on the record he had advised his client of the
maximum and minimum penalties that could result, Cowles entered and
the court accepted the guilty plea. We conclude the guilty plea and the
resulting    sentence   conformed   completely   with   the   parties’   plea
agreement.     This conclusion is supported by the fact Cowles did not
                                        7

challenge the legality of the sentence until he filed an application for
postconviction relief more than two years later on August 4, 2005.
Under the circumstances, we conclude no violation of the Ex Post Facto
clauses occurred here.
      This case must be distinguished from cases in which a general jury
verdict of guilt leaves the court with uncertainty as to whether the verdict
is based on a valid factual or legal basis, or on an alternative invalid
theory submitted to the jury. When such uncertainty arises from a jury
verdict, the court will not speculate as to whether the verdict is based on
the valid or invalid grounds. See State v. Pilcher, 242 N.W.2d 348, 354–
56 (Iowa 1976) (noting the court will not speculate whether a guilty
verdict   is   based   on    a   constitutionally   repugnant   or   alternative
constitutionally sound ground).          In such cases of uncertainty, a
conviction cannot stand.
      The conviction of Cowles is not similarly vulnerable as the parties
and the sentencing court were left with no uncertainty as to the crime for
which Cowles was convicted and sentenced.             He admitted guilt for a
crime that was committed after July 1, 1996 and was sentenced
accordingly. The sentencing court’s application of section 902.12 did not
result in an illegal sentence.
      IV.      Conclusion.
      The mandatory minimum sentence was not illegal under the
circumstances presented here.          The district court therefore erred in
“correcting” it. We vacate the decision of the court of appeals, reverse the
district court’s ruling, and remand for entry of a judgment reinstating the
original sentence.
      COURT OF APPEALS DECISION VACATED; DISTRICT COURT
RULING REVERSED AND CASE REMANDED WITH INSTRUCTIONS.
      All justices concur except Baker, J., who takes no part.
