                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1381
                             Filed October 28, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LEROY DEPRAE JOHNSON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       Leroy Johnson appeals the district court’s denial of Johnson’s motion to

correct an illegal sentence. AFFIRMED.



       Unes J. Booth of Booth Law Firm, Osceola, for appellant.

       Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney

General, Linda Fangman, County Attorney, and James J. Katcher, Assistant

County Attorney, for appellee.



       Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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VOGEL, Judge.

       Leroy Johnson appeals the district court’s denial of Johnson’s motion to

correct an illegal sentence, asserting it erred when denying his claims.         He

further argues the district court violated his constitutional right to be present at

the hearing on the motion and counsel was ineffective for failing to present all of

Johnson’s pro se arguments before the district court. We conclude the court

properly denied Johnson’s motion, and Johnson did not have a constitutional

right to be present at the hearing. Additionally, counsel was not ineffective for

failing to present Johnson’s meritless pro se claims. Consequently, we affirm the

order of the district court.

I. Factual and Procedural Background

       On December 18, 2003, following a bench trial, the court found Johnson

guilty of robbery in the first degree, in violation of Iowa Code sections 711.1 and

711.2 (2003); burglary in the first degree, in violation of Iowa Code sections

713.1 and 713.3(b) and (c); willful injury, in violation of Iowa Code section

708.4(2); and criminal mischief in the fourth degree, in violation of Iowa Code

sections 716.1 and 716.6. In its findings of fact, the court stated that on January

19, 2003, Johnson went to the home of Wendell and Edith Ottmann and, on the

pretense of using their phone, asked if he could come into the house. Then:

              After asking for and getting a drink of water, Johnson told
       Wendell “give me all your money.” Johnson admits that the “stick”
       was then in his hand. Wendell stated he didn’t have money.
       Johnson then hit Wendell over the head. Wendell fell to the floor.
       Johnson then went down the stairs into the basement looking for
       Edith. As she saw him and attempted to flee, he hit her in the head
       “once or twice.” Johnson claims that he did not want to hurt either
       Wendell or Edith but struck them to force their cooperation.
                                         3


              Edith went into the garage and started her car, intending to
       leave to seek help. As she backed out of the garage, Johnson
       broke the driver’s-side window with a rock and attempted to reach
       into the car to turn off the ignition. Although Johnson was able to
       hold onto the car for awhile, when the vehicle began moving
       forward and turning, he was thrown off. Johnson then went to the
       basement, took Edith’s wallet from her purse and left through the
       garage.

       During sentencing, the court merged the robbery and willful-injury

convictions.   Johnson appealed the conviction and sentence, which was

dismissed as frivolous. Johnson filed an application for postconviction relief in

2005, which our court denied. See Johnson v. State, No. 13-1015, 2014 WL

1999171, at *1 (Iowa Ct. App. May 14, 2014).

       On May 13, 2014, Johnson filed a pro se motion alleging the trial court

had imposed an illegal sentence. Counsel was appointed, and a hearing on the

matter was held, in which counsel represented Johnson but Johnson did not

personally appear.    The district court denied Johnson’s motion, holding his

assertions did not amount to a claim of an illegal sentence because Johnson only

asserted the trial court should have set forth the particular, individualized

reasoning for Johnson’s sentence and he should not have received consecutive

sentences. Johnson appeals the district court’s dismissal of his motion.

II. Standard of Review

       To the extent we are addressing constitutional issues, including

ineffective-assistance-of-counsel claims, our review is de novo. State v. Hoeck,

843 N.W.2d 67, 70 (Iowa 2014).        A ruling on a motion to correct an illegal

sentence is reviewed for correction of errors at law. Id.
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III. Illegal Sentence

       Johnson first claims the district court improperly denied his motion to

correct an illegal sentence. He argues the sentencing court did not properly

consider his mental illness and the fact he is a chronic substance abuser, and

should have stated its reasoning as to why it imposed consecutive sentences.

He also asserts the court should have addressed his pro se claims of merger and

the alleged Eighth Amendment violation.

       We agree with the district court Johnson failed to establish his sentence

was illegal. A sentence is illegal if the court lacked the power to impose the

sentence or the sentence is legally flawed, that is, if it fails to comply with

applicable statutes or is unconstitutional. State v. Bruegger, 773 N.W.2d 862,

871 (Iowa 2009). Neither applies here. While Johnson offers a vague merger

argument, this doctrine does not apply to the crimes for which he was

convicted—robbery, burglary, and criminal mischief—given they each have

distinct elements. Compare Iowa Code § 711.1, with id. § 713.1, and id. § 716.1.

See also State v. Lambert, 612 N.W.2d 810, 815 (Iowa 2000) (noting the test for

whether two crimes should merge is whether the crimes have the same

elements). Moreover, Johnson’s sentence did not constitute cruel and unusual

punishment pursuant to the Eighth Amendment because his sentence was

proportional to his crimes. See State v. Oliver, 812 N.W.2d 636, 640 (Iowa 2012)

(stating the Eighth Amendment prohibits sentences that are disproportional to the

crime committed).

       With regard to Johnson’s other claims—namely, that the sentencing court

did not consider certain factors and should not have imposed consecutive
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sentences—they cannot now be addressed.             These claims are procedural in

nature, and Johnson cannot raise these alleged errors through a challenge to an

illegal sentence.     See Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001).

Consequently, we decline to address the merits of his arguments.

IV. Right to Counsel

         Johnson further claims he had a right to effective representation at the

hearing, and the district court should have allowed Johnson to appear personally.

However, Johnson had no right to counsel, given this was not a “critical stage[] of

the criminal process.” See State v. Majeres, 722 N.W.2d 179, 182 (Iowa 2006).

Rather, this was a collateral appeal on a conviction that has long since been

final, which does not require the presence of counsel. See Fuhrmann v. State,

433 N.W.2d 720, 722 (Iowa 1988). Consequently, Johnson’s claim is without

merit.

         Furthermore, counsel was not ineffective for failing to seek a continuance

so Johnson could present his other pro se arguments. Though Johnson asserts

this was a structural error, which would mean no prejudice need be established

regarding counsel’s error, we do not agree.           The three instances when a

structural error occurs is when counsel is completely denied at a crucial stage in

the proceedings, adversarial testing of the prosecution’s case did not occur, or

surrounding circumstances justify a presumption of ineffectiveness.        Lado v.

State, 804 N.W.2d 248, 252 (Iowa 2011). None of these factors are present in

Johnson’s case; consequently, no structural error occurred. See id.

         For these reasons, we affirm the order of the district court.

         AFFIRMED.
