                IN THE SUPREME COURT OF IOWA
                             No. 13–1906

                          Filed March 4, 2016


STATE OF IOWA,

      Appellee,

vs.

JOSHUA SCOTT PEARSON,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Marion County, Martha L.

Mertz, Judge.



      Defendant seeks further review of a court of appeals decision

holding the district court properly resentenced the defendant upon

remand.   DECISION OF COURT OF APPEALS AND JUDGMENT AND

SENTENCE OF DISTRICT COURT VACATED; CASE REMANDED WITH

DIRECTIONS.



      William L. Bushell, Des Moines, and Angela L. Campbell of Dickey

& Campbell Law Firm, P.L.C., Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Mary A. Triick, Assistant

Attorney General, and Edward Bull, County Attorney, for appellee.
                                         2

CADY, Chief Justice.

         The defendant, Joshua Scott Pearson, seeks further review of a

court of appeals decision holding the district court properly resentenced

him upon remand.           Pearson asserts the district court exceeded its

authority when it resentenced him instead of merely correcting an error

in the sentencing order.          As a result, Pearson contends, he unjustly

received a harsher sentence than the one in the original sentencing

order.        Upon further review, we hold the district court exceeded its

mandate when it resentenced the defendant upon remand. Accordingly,

we vacate the decision of the court of appeals and the judgment and

sentence of the district court and remand the case for entry of judgment

consistent with this opinion.

         I. Background Facts and Proceedings.

         On November 4, 2011, the State charged thirty-one-year-old

Joshua Scott Pearson with committing sex acts with a fifteen-year-old

girl.    On April 17, 2012, Pearson pled guilty to two counts of sexual

abuse in the third degree in violation of Iowa Code section 709.4(2)(c)(4)

(2011).       This section criminalizes the performance of a sex act with a

fourteen- to fifteen-year-old person by an individual at least four years

older and not married to the person. Id. At the guilty plea hearing, the

State established a factual basis for the plea.

         At    the   subsequent     sentencing   proceeding,   the   prosecutor

mistakenly informed the district court that the defendant “pled guilty . . .

to two counts of sexual abuse in the third degree in violation of Iowa

Code [s]ection[s] 709.1 and 709.4(2)(b).”        This was the only reference

made to the applicable Code sections by anyone at the sentencing

proceeding. A violation of Iowa Code section 709.4(2)(b) criminalizes a

sex act with a twelve- or thirteen-year-old.        Compare id. § 709.4(2)(b),
                                          3

with id. § 709.4(2)(c)(4).     Section 709.4(2)(b) is a forcible felony while

section 709.4(2)(c)(4) is a nonforcible felony.           See id. § 702.11.       The

written judgment and sentence entered by the district court adjudged the

defendant guilty of two counts of sexual abuse in the third degree in

violation of Iowa Code section 709.4(2)(b). Yet, it was clear that during

the sentencing proceeding, the court understood the defendant pled

guilty to crimes involving a fifteen-year-old female and a thirty-one-year-

old male consistent with the elements of section 709.4(2)(c)(4).                In its

colloquy with the defendant, the court stated, “This victim was roughly

fifteen years younger. She was a 15 year old girl.”

       As part of the plea agreement, the parties were free to argue for

whatever disposition they deemed appropriate. The defendant argued for

a twenty-year suspended sentence.               Probation, he asserted, would

provide him with the maximum opportunity for rehabilitation. The State

argued for two consecutive, indeterminate ten-year sentences.                       In

delivering its sentence, the district court stated probation was not

justified in this instance. The major issue before the court was whether

the sentences should be consecutive or concurrent. The court sentenced

the defendant to two concurrent, indeterminate ten-year sentences. 1

       On June 13, Pearson filed a notice of appeal. Two months later, on

August 29, the defendant filed a motion to correct an illegal sentence,

asserting the district court applied the wrong Code section at his

sentencing and asking the court to correct the error promptly. 2                  The

       1In  addition to the prison terms, the judgment also provided the defendant was
subject to lifetime parole, DNA profiling, sex-offender registration, and several no-
contact orders. See Iowa Code § 81.2; id. § 664A.5; id. § 692A.104; id. § 901.5(8A)(a);
id. § 903B.1.
        2There is nothing in the record to indicate the district court addressed this

motion. Because the defendant had filed an appeal, the district court did not have
jurisdiction to correct the judgment. See State v. Jose, 636 N.W.2d 38, 46 (Iowa 2001).
                                     4

defendant also filed successive motions for reconsideration of sentence

with the district court.   Each time the defendant argued for probation

and alleged, among other things, the court used the wrong Code section

in his sentencing.   The district court denied each of the defendant’s

motions for reconsideration.

      A. Original Appeal. We transferred Pearson’s case to the court of

appeals.   In his appeal, Pearson asserted the district court made a

mistake of law when it entered judgment and convicted Pearson of

violating Iowa Code section 709.4(2)(b), which he contended could not be

corrected by the use of a nunc pro tunc order. He requested remand to

the district court “to correct the statutory violation of the judgment.” The

State agreed the wrong Code section had been entered in the defendant’s

judgment but contended it was merely a clerical error, which could be

corrected with a nunc pro tunc order. The State further contended the

record unambiguously demonstrated the court intended to enter

judgment against Pearson for violating Iowa Code section 709.4(2)(c)(4),

criminalizing a sex act with a fifteen-year-old.    It asserted that “[t]he

district court did not consciously reason and determine to enter

judgment under Iowa Code section 709.4(2)(b).” The State requested the

court affirm the judgment and remand the case to the district court to

enter a nunc pro tunc order correcting the clerical error.

      The court of appeals, however, agreed with Pearson. It found that

the “oral pronouncement of the sentence . . . was to charges Pearson had

not pleaded guilty to” and for which there was no support in the record.

State v. Pearson, No. 12-1311, 2013 WL 5291941, at *2 (Sept. 18, 2013).

Therefore, the court was unable to remand for a nunc pro tunc order.

Instead, the court “vacate[d] the judgment and sentence on Iowa Code

section 709.4(2)(b) and remand[ed the case] to the district court to allow
                                      5

the district court to amend the judgment and sentence to reflect the

defendant’s intent in entering the plea.” Id. at *1.

      B. Proceeding on Remand.            The matter returned to the district

court before a different judge on November 22, 2013. Initially, the court

stated, “This matter is back before the Court for the purpose of

resentencing on two counts of sexual abuse in the third degree contrary

to Iowa Code [s]ection 709.4(2)(c).” (Emphasis added.) The prosecutor

agreed, and the court continued:

            This matter went up on appeal and was remanded for
      sentencing based on an interesting opinion drawing a
      distinction between when we must vacate sentences and
      when we can simply correct them with an order
      nunc pro tunc. In this instance the Court of Appeals said it
      had to remand for resentencing.

      The court then proceeded to review the presentence investigation

report (PSI) and the record in the case. The court inquired whether there

was “any legal reason or cause why judgment and sentence should not

now be pronounced,” to which defense counsel replied, “No.” Both the

State and the defendant renewed the sentencing recommendations

previously urged.   The State requested consecutive, indeterminate ten-

year sentences while the defendant again asked for “a probationary

sentence, two ten-year sentences run concurrent and on probation.”

The defendant was then given the opportunity to address the court

before sentence was pronounced.           In speaking to the court, Pearson

initially objected to the prosecutor’s remarks that he failed to apologize to

the victim. In addition, he stated:

      I didn’t ask for a new sentencing. I asked for the correct
      code to be applied in my appeal. It’s my belief that [the court
      of appeals] determined that an error in judgment, not a
      clerical error, was made by either the district attorney’s office
      or the Court initially.
                                     6

      The court then found the defendant guilty of two counts of sexual

abuse in the third degree in violation of Iowa Code section 709.4(2)(c)(4),

the correct Code section, and sentenced him to two indeterminate ten-

year sentences to be served consecutively.

      At the end of the hearing, when discussing whether the judgment

order should send the defendant to Oakdale for assessment or back to

prison, the court stated, “I think that was sort of the whole point of the

appeal, was it not, Mr. Pearson, to get it right the first time?”          The

defendant responded, “Yes.     It was just to get the code right the first

time. I didn’t think a new sentencing and everything but that’s . . . .”

      The court advised the defendant that he was subject to DNA

profiling, sex-offender registration, and several no-contact orders.        In

addition, the court’s judgment and sentencing order provided the

“[d]efendant shall successfully complete a sexual offender treatment

program [(SOTP)] while incarcerated.”

      C. Current Appeal. The defendant now appeals his resentencing,

asserting that upon remand the district court erred by not following the

instructions of the court of appeals in two respects.        First, Pearson

claims the court erred because “instead of correct[ing] the technical error

in the first sentencing order, it resentenced [him] anew,” resulting in a

change in his sentences from concurrent to consecutive.         Second, he

asserts the court’s resentencing also resulted in a change in his sentence

by requiring that he complete the required SOTP while incarcerated as

opposed to the original sentence, which would have allowed him to

complete the program while on parole.

      We again transferred the case to the court of appeals, which

concluded the district court properly resentenced the defendant and

affirmed the district court. Upon our further review, we find the district
                                        7

court exceeded its mandate when it resentenced the defendant upon

remand, and we vacate the decision of the court of appeals and the

judgment and sentence of the district court and remand for entry of

judgment consistent with this opinion.            Consequently, we need not

address the defendant’s assertion that the harsher sentence was unjust

and the result of vindictiveness, we need not address this claim.

        II. Standard of Review.

        Both the defendant and the State assert this court’s review is for

errors at law. The defendant has brought this challenge as an appeal,

see Iowa Code § 814.6 (2013) (providing criminal defendants in most

instances a right of appeal from final judgment of sentence); however, in

his argument he relies almost exclusively on City of Okoboji v. Iowa

District Court, 744 N.W.2d 327 (Iowa 2008), a certiorari case. Because

the defendant has a statutory right to appeal, we need not address

whether he could have challenged the district court’s action with a writ of

certiorari.   See Kuhlmann v. Persinger, 261 Iowa 461, 468–69, 154

N.W.2d 860, 864 (1967) (recognizing other forms of relief when a district

court misconstrues an appellate mandate); see also Bousman v. Iowa

Dist. Ct., 630 N.W.2d 789, 793–94 (discussing defendant’s right to appeal

under     section   814.6    and   availability   of   certiorari   proceedings).

Additionally, we agree our review is for correction of errors at law. See

Iowa R. App. P. 6.907.

        III. Discussion.

        A. Resentencing. The defendant asserts the district court erred

in resentencing him.        Specifically, the defendant contends the district

court exceeded its authority upon remand.

        “It is a fundamental rule of law that a trial court is required to

honor and respect the rulings and mandates by appellate courts in a
                                      8

case.” City of Okoboji, 744 N.W.2d at 331. “A mandate to the district

court contained in a decision of this court becomes the law of the case on

remand, and a district court that misconstrues or acts inconsistently

with the mandate acts illegally by failing to apply the correct rule of law

or exceeding its jurisdiction.” Id. at 330. Moreover, a district court on

remand “is limited to do the special thing authorized by this court in its

opinion, and nothing else.” Kuhlmann, 261 Iowa at 468, 154 N.W.2d at

864.

         When presented with a mandate on remand, the district court’s

first task is to determine the precise action directed to be performed by

the appellate court. City of Okoboji, 744 N.W.2d at 331. In doing so, the

court “must not read the mandate in a vacuum, but must consider the

full opinion of the appellate court and the circumstances the opinion

embraces.” Id. at 332. In other words, “[t]he rationale of the appellate

court opinion must be examined to uncover the intent of the appellate

court.” Id.

         The defendant contends the appellate court was clear: “We vacate

the judgment and sentence on Iowa Code Section 709.4(b) and remand to

the district court to allow the district court to amend the judgment.”

Pearson, 2013 WL 5291941, at *3 (emphasis added). According to the

defendant, the district court only had authority to correct the clerical

error on the judgment and was not authorized to resentence the

defendant.

         Before addressing the merits of the defendant’s substantive claim,

we must first consider whether the defendant has preserved error on this

issue.     The State concedes a defendant may challenge an “error[] in

sentencing . . . on direct appeal even in the absence of an objection in the

district court.” State v. Lathrop, 781 N.W.2d 288, 293 (Iowa 2010). It
                                     9

argues, however, that the defendant’s challenge is to the district court’s

authority to resentence him, not to the legality of the sentence itself;

therefore it contends his challenge does not fall into this broad error-

preservation principle applicable to illegal sentences. See, e.g., State v.

Bruegger, 773 N.W.2d 862, 872 (Iowa 2009) (holding when “the claim is

that the sentence itself is inherently illegal, whether based on

constitution or statute,” the claim may be asserted at any time). When

specifically asked by the district court whether he knew of “any legal

reason or cause why judgment and sentence should not be pronounced,”

the defendant, through counsel, responded he did not. Thus, the very

issue the defendant challenges in this appeal—resentencing—his counsel

failed to object to when given the opportunity to do so by the court.

      We have long held that we “would not decide a case based on a

ground not raised in the district court.” DeVoss v. State, 648 N.W.2d 56,

60 (Iowa 2002). These error preservation rules are based upon fairness.

      [I]t is fundamentally unfair to fault the trial court for failing
      to rule correctly on an issue it was never given the
      opportunity to consider. Furthermore, it is unfair to allow a
      party to choose to remain silent in the trial court in the face
      of error, taking a chance on a favorable outcome, and
      subsequently assert error on appeal if the outcome in the
      trial court is unfavorable.

Id. (alteration in original) (quoting 5 Am. Jur. 2d Appellate Review § 690,

at 360–61 (1995)).

      Even though neither the State nor Pearson sought resentencing on

appeal or on remand, and both only wanted the conceded mistake in the

existing judgment and sentence corrected, the district court on remand

ordered resentencing. While the attorneys yielded to the directive of the

district court, Pearson told the court when he had the opportunity to

address the judge that he did not want to be resentenced.           In other
                                       10

words, the one person in the courtroom who was the subject of the

resentencing objected when it was his turn to speak.            Under these

unique facts, we conclude the defendant did not fail to preserve error on

his claim.

      We now proceed to determine whether the district court acted

contrary to “the precise action directed to be done by the appellate

court.” City of Okoboji, 744 N.W.2d at 331. In this case, the court of

appeals opinion stated it “vacate[d] the judgment and sentence on Iowa

Code section 709.4(2)(b) and remand[ed] to the district court to allow the

district court to amend the judgment and sentence to reflect the

defendant’s intent in entering the plea.” Pearson, 2013 WL 5291941, at

*1 (emphasis added).

As previously noted, the appellate court did not believe it could remand

the case to the district court for the entry of a nunc pro tunc order to

correct a clerical error. Id. at *1.

            The function of    a nunc pro tunc order is not   to modify
      or correct a judgment    but to make the record show    truthfully
      what judgment was        actually rendered—“not to      make an
      order now for then,      but to enter now for then       an order
      previously made.”

Gen. Mills, Inc. v. Prall, 244 Iowa 218, 225, 56 N.W.2d 596, 600 (1953)

(quoting Chariton & Lucas Cty. Nat’l Bank v. Taylor, 213 Iowa 1206,

1208, 240 N.W. 740, 741 (1932)). The court found that this was not a

case of judgment entry incorrectly differing from the oral rendition of the

judgment, in which the nearly universal application is that the oral

pronouncement controls.        Pearson, 2013 WL 5291941, at *2.            The

appellate court concluded, “The oral pronouncement of the sentence here

was to charges Pearson had not pleaded guilty to, nor was there any

evidence to support a finding Pearson had violated that code section.” Id.
                                     11

It found the case akin to State v. Garrett, 516 N.W.2d 892 (Iowa 1994).

Id.

      In Garrett, the state charged the defendant with criminal trespass,

and the court properly submitted the elements of trespass to the jury.

516 N.W.2d at 894. However, the verdict form for the criminal trespass

charge was erroneously labeled “criminal mischief.” The jury returned a

verdict against Garrett on this form. Id. Nevertheless, the court entered

judgment of conviction and sentence for criminal trespass.          Id.   The

defendant challenged his sentence as illegal. Id.

      Under the facts of that case, this court drew two conclusions: (1) A

clerical error existed in the verdict form, and (2) the jury intended to find

Garrett guilty of criminal trespass. Id. at 895–96. We held “the district

court had the authority to ignore the clerical error . . . and accept the

verdict as a finding by the jury that Garrett was guilty of criminal

trespass.” Id. at 896. We said this because we found the jury’s intention

to find him guilty of criminal trespass was “clearly apparent from the

instructions and verdict forms.” Id. However, we held, “Technically, the

district court should have amended the verdict form to reflect this

finding.”   Id.   For that reason, we vacated the sentence on criminal

trespass and remanded to the district court to allow it to amend the

verdict form and resentence on the criminal trespass. Id.

      At first blush, it would appear that the court of appeals’ reliance on

Garrett supports the conclusion that it intended for the district court to

engage in a resentencing of Pearson on remand. However, we “must not

read the mandate in a vacuum, but must consider the full opinion of the

appellate court and the circumstances the opinion embraces.”          City of

Okoboji, 744 N.W.2d at 332. “The rationale of the appellate court opinion

must be examined to uncover the intent of the appellate court.” Id.
                                         12

       Even though the district court in this case was not provided with

any evidence to support a finding that Pearson had violated Iowa Code

section 709.4(2)(b), it entered judgment and sentence on this section.

The appellate court determined this was a mistake of law in the

judgment, not a mere clerical error. Pearson, 2013 WL 5291941, at *1.

The appellate court noted that in Garrett “the proper remedy was to

vacate the sentence on criminal trespass and remand to allow the district

court to amend the verdict form to reflect the jury’s actual intent and to

enter a new sentence on the amended verdict.” Id. at *2.

       Although the appellate court directed the district court to vacate

Pearson’s sentence, it did not specifically direct the district court to

engage in a resentencing procedure.           Rather, it directed the court to

amend its error in judgment. 3 The appellate court found that while the

district court made a mistake in judgment because it erroneously entered

judgment on a Code section to which the defendant had not pled guilty

and for which there was no evidence, the main issue before the district

court had been whether the sentences should be served consecutively or

concurrently. Id. It further found there was “nothing in the record to

suggest that the court believed Pearson had a younger victim.” Id. Thus,
the appellate court acknowledged that the original sentence, though

based upon a mistake in law in the judgment, was not based upon a

mistake in the district court’s understanding of the actual factual basis

for the plea.     Id.   Under these circumstances, we do not believe the

appellate court, regardless of any reliance upon Garrett, could have

intended the State, upon remand, to have another bite at the apple to

       3Black’sLaw Dictionary defines “amend” to mean “[t]o correct or make usu[ally]
small changes to (something written or spoken); to rectify or make right.” Amend,
Black’s Law Dictionary (10th ed. 2014).
                                    13

argue for a harsher sentence than the one originally imposed.

Conversely, the appellate court could not have intended Pearson to have

a new opportunity to seek a lighter sentence when resentencing was

never requested on appeal.

      Additionally, we think Garrett can be distinguished from the facts

of this case.   In Garrett, the court’s judgment and sentence was for a

wholly different crime than the crime for which the jury found him guilty.

Garrett, 516 N.W.2d at 894. Unlike in this case, the fact finder in Garrett

made findings as to an uncharged crime. Id. The finding of guilt that

entitled the court to impose sentence was faulty. See id. It makes sense

that we required the district court to “resentence Garrett on the amended

criminal trespass verdict.” Id. at 896. Criminal trespass was a crime for

which Garrett had never been sentenced.         Here, however, the court

sentenced Pearson for the correct crime but under the wrong Code

section. There was no error in the entry of guilt. Therefore, there was no

need to resentence Pearson once the judgment was amended.

      B. Sentence. We find that the district court exceeded its mandate

in resentencing the defendant anew, and we vacate the resulting

sentence.   Therefore, we need not consider whether the district court

unjustly provided the defendant with a harsher sentence than he had

before the district court committed error in the original sentencing order.

      C. Outcome. This case presents the choice of two outcomes. One

is for Pearson to continue to serve out the sentence of incarceration he

received in 2012. The other is for Pearson to now serve a new sentence

of incarceration twice as long as his original sentence. It all comes about

because Pearson exercised his right to appeal from his sentence to

correct an inadvertent, nonsubstantive mistake in the entry of judgment

and sentence that he was not responsible for creating. It would be wrong
                                    14

for the process of criminal justice to do anything more than correct its

own mistake and allow Pearson to serve out the original sentence

imposed.

      In the end, it is important that we apply our own rules of error

preservation and judicial interpretation in a way that does not obscure

the goal of justice in each case. What is painfully obvious in this case is

that the mistake that occurred at the original sentencing hearing was

inconsequential to the sentence imposed.         As a result, there was

absolutely no reason for any court to order resentencing as a means to

fix the mistake. Nor was there any reason for the mistake to consume

the time and expense of two appeals and now the further review of this

court. Nor was the mistake one that should further require the time and

expense of postconviction relief proceedings.

      IV. Conclusion.

      For the reasons stated above, we vacate the decision of the court of

appeals and the judgment and sentence of the district court and remand

the case to the district court to amend the original judgment and

sentence to reflect the correct Code section without a resentencing of the

defendant.

      DECISION OF COURT OF APPEALS AND JUDGMENT AND

SENTENCE OF DISTRICT COURT VACATED; CASE REMANDED WITH

DIRECTIONS.

      All justices concur except Mansfield and Zager, JJ., who dissent.
                                      15

                                                 #13–1906, State v. Pearson

MANSFIELD, Justice (dissenting).

         I respectfully dissent.   In my view, the district court correctly

followed the court of appeals’ mandate from the prior appeal.         In any

event, Pearson waived any objection to resentencing by voluntarily

participating in the resentencing proceeding and seeking to benefit from

it.

         The defendant in this case, Joshua Pearson, repeatedly coerced a

fifteen-year-old girl who was less than half his age into having sex with

him. Pursuant to a plea agreement, Pearson pled guilty to two counts of

third-degree sexual abuse.         There was no agreement on sentence.

Pearson argued for a suspended sentence and probation.             The State

asked for consecutive sentences. The district court sentenced Pearson to

prison but made the two sentences concurrent. Yet at the conclusion of

the hearing, the court observed, “I will say it’s a very difficult question as

to whether these should be consecutive or should be concurrent.”

         The June 8, 2012 judgment and sentencing order contained an

error.     It cited Iowa Code section 709.4(2)(b) rather than section

709.4(2)(c)(4) as the provision under which Pearson had been convicted.

This error may have occurred because at the outset of the sentencing

hearing, the county attorney cited to section 709.4(2)(b) rather than

section 709.4(2)(c)(4). This was the only reference to a code section at

the sentencing hearing. However, the trial information had cited to the

correct code provision.

         Pearson appealed.     Meanwhile, he submitted two motions for

reconsideration of his sentence accompanied by personal letters.          The

letters pointed out the incorrect code citation but also asked for

probation. Thus, his September 20 letter said, “I am filing a motion to
                                    16

reconsider my sentence of two concurrent ten year sentences to

probation time instead.”   His January 22, 2013 letter again noted the

incorrect code provision while setting forth “reasons that I am arguing for

probation.” Both motions were denied by the original sentencing judge.

      When the case reached the court of appeals, the parties agreed the

mistake in the judgment and sentencing order necessitated a remand.

The State, however, argued that because the error was merely clerical, it

was necessary only to remand for a nunc pro tunc order correcting the

statutory citation. Pearson argued the case should be remanded for a

correction of a mistake of law in the judgment. Neither side specifically

asked for the existing judgment and sentence to be vacated.

      In a September 18, 2013 decision, the court of appeals found nunc

pro tunc relief was unavailable because the oral pronouncement of

sentence had also contained a reference to the wrong code section.

Therefore, it “vacate[d] the judgment and sentence on Iowa Code section

709.4(2)(b) and remand[ed] to the district court to allow the district court

to amend the judgment.”       State v. Pearson, No. 13–1311, 2013 WL

5291941, at *3 (Iowa Ct. App. Sept. 18, 2013) (emphasis added).

      After procedendo issued, the State moved in the district court for a

hearing “for the Court to amend its ruling.” The State did not ask for

resentencing. However, the district court issued an order on November 1

setting a date for a new sentencing hearing.

      On November 22, the resentencing hearing took place. A different

judge presided from the one who had conducted the previous sentencing.

At the very beginning of the hearing, the judge explained that she

interpreted the court of appeals decision as requiring resentencing. No

one objected. The parties then proceeded with a resentencing.
                                         17

       The State was asked for its position on sentence. Once again, the

State recommended consecutive sentences.              Among other things, the

State directed the court’s attention to the self-serving January 22 letter

sent by the defendant to the court seven months after the original

sentencing hearing. This letter, in the State’s view, demonstrated “that

the time that he spent in prison hasn’t reached the goals of sentencing

rehabilitation.” 4

       The court then turned to defense counsel and asked for his

recommendation regarding sentencing.               As before, defense counsel

argued for a suspended sentence and offered into evidence a letter from a

potential employer indicating that Pearson had a job available upon

release. 5

       Lastly, the court gave Pearson the opportunity to address the

court. During this colloquy, the court asked Pearson why he had never

apologized to the victim or her family. Pearson responded that he was

“not questioning” the court’s statement that he had never apologized.

However, he said, “I do feel remorse for her and them.”

       At the conclusion of the hearing, the court pronounced judgment

and sentence. It made clear that Pearson was being found guilty under
Iowa Code section 709.4(2)(c)(4). It stated that it was not going to grant

probation and would run the sentences consecutively.               The court gave


       4For  example, in the letter, Pearson complained that the girl’s mother rather
than the girl herself had submitted a victim impact statement:
       [The mother] stated that her daughter wanted nothing to do with these
       proceedings, yet said she would speak on [the daughter’s] behalf. I am
       confused at how someone can speak for another person when said
       person does not wish to speak in the first place.
       5Pearson  later acknowledged that because he is serving time concurrently for
third-degree sexual abuse perpetrated on the same victim in two other counties, he
would have to resolve those matters before he could be released.
                                       18

separate reasons for not suspending sentence and for ordering

consecutive sentences.      Its explanation for consecutive sentences

centered on the defendant’s “absence of remorse.”

      Pearson appealed again, this time arguing that the district court

had not followed the court of appeals’ mandate. We transferred the case

to the court of appeals.

      In a March 11, 2015 opinion, the court found that the district

court had not exceeded the scope of its mandate by conducting a

resentencing. It noted the prior appellate decision had done two things:

(1) it had vacated Pearson’s judgment and sentence, and (2) it had

remanded to allow the district court to amend the judgment.

      In the court of appeals’ view, a resentencing was authorized, if not

required, under its previous 2013 decision.       The court noted that the

2013 decision had specifically discussed and relied on State v. Garrett,

516 N.W.2d 892 (Iowa 1994), as its model for what should happen. In

Garrett, as here, there had been a “clerical error”—although in the verdict

form rather than the judgment form. Id. at 896. Our court in Garrett

vacated the existing sentence, remanded for the verdict form to be

amended, and ordered the district court to “resentence [the defendant]

on the amended . . . verdict.” Id.

      The court now overturns the court of appeals’ second decision. In

doing so, my colleagues commit two errors. First, they conclude that the

court of appeals misread the mandate of its own prior decision.           I

disagree with my colleagues.         The original court of appeals decision

vacated the judgment and sentence below and cited Garrett for what it

was doing, specifically noting that Garrett had directed the district court

to “enter a new sentence.” Pearson, 2013 WL 5291941, at *2–3.
                                     19

      According to Webster’s Dictionary, “vacate” means to “make void,”

to “annul.”   See Vacate, Webster’s Third New International Dictionary

(unabr. ed. 2002). Black’s Law Dictionary defines the term as meaning

“[t]o nullify or cancel; make void; invalidate.”      Vacate, Black’s Law

Dictionary (10th ed. 2014).      Once the court of appeals vacated the

judgment and sentence, there was no longer a legal or valid sentence.

The district court had no alternative but to resentence Pearson. This is

exactly what the district court did through a formal resentencing

proceeding. As in any resentencing, the district court had to exercise its

discretion based upon the current information that was available to it.

That is what the district court did here and what the court of appeals

confirmed to be appropriate in its second decision.

      In today’s opinion, the court distinguishes Garrett. It notes that in

Garrett the original inadvertent error was in the verdict form rather than,

as here, in the judgment. This may be a relevant distinction, but nobody

sought rehearing or further review of the prior court of appeals decision.

Hence, it is the law of this case.    Whether the initial court of appeals

decision correctly or incorrectly applied Garrett is really not at issue now.

      My colleagues also say that the prior court of appeals decision did

not “intend[] the State, upon remand, to have another bite at the apple to

argue for a harsher sentence.” But of course, a resentencing gives both

sides another bite at the apple—as this case illustrates. The defendant

can argue for a more lenient sentence, the State for a stricter one. Just

last year, we emphasized that appellate courts have discretion to order a

resentencing on all counts even when the improper sentence was only on

one count and was severable from the sentence on the remaining counts.

See State v. Hopkins, 860 N.W.2d 550, 554 (Iowa 2015). If anything, it

appears that in a doubtful case, resentencing is the safest option.
                                      20

        This leads to my colleagues’ second error.        A fair reading of the

record reveals that Pearson did not object to the resentencing below. In

fact, he was a willing participant.      Through his counsel, he sought a

lesser sentence than the original sentence; meanwhile, the State sought

one that was more severe.

        Three weeks before the November 22 hearing, an order had been

served on both defense counsel and the defendant setting this hearing

for “sentencing.”   At the opening of the hearing, the court announced

several times that it was going to be conducting a new sentencing.

Defense counsel came prepared for a new sentencing and prepared to

argue for probation with a letter from a potential employer.               The

defendant, in other words, plainly sought to take advantage of the

opportunity provided by a resentencing.

        The court concedes that by this course of conduct the defendant

would normally waive any objection to resentencing, but it declines to

apply this waiver rule because of the “unique facts” of this case.

        The unique fact detected by the court is that the defendant

personally objected to resentencing during his colloquy with the district

court    even   though   his   counsel     went   along    with   resentencing.

Respectfully, I believe the court is misreading the hearing record.

Notably, until this court’s opinion today, no one had suggested that the

defendant personally objected to resentencing.        His appellate counsel

makes no such claim despite being new to the case and unencumbered

by any position taken by prior counsel at resentencing.

        In discerning the existence of an objection no one claims was

actually made, the majority has taken out of context a few sentences

from the defendant’s colloquy with the district court. In context, Pearson

was backpedaling after having been criticized by the State for a lack of
                                     21

remorse. Thus, he told the district court that he had not asked for a

resentencing on appeal. Instead, he maintained, “I asked for the correct

code to be applied in my appeal.” However, he acknowledged the court of

appeals did something different than he had requested:

      It’s my belief that Judge Sackett, after reading the—going
      through my case had determined that an error in judgment,
      not a clerical error, was made by either the district attorney’s
      office or the Court initially.

These statements indicate to me that Pearson had been briefed by his

counsel ahead of the November 22 hearing and understood that even

though his initial request had been for nunc pro tunc relief based on a

clerical error, the court of appeals concluded a more significant error had

occurred, opening the door for a resentencing. Pearson was not stating

an objection to resentencing, he was giving an accurate description of the

course of his appeal.    And Pearson sought, albeit unsuccessfully, to

benefit from the situation.

      As we said recently,

      [I]t is fundamentally unfair to fault the trial court for failing
      to rule correctly on an issue it was never given the
      opportunity to consider. Furthermore, it is unfair to allow a
      party to choose to remain silent in the trial court in the face
      of error, taking a chance on a favorable outcome, and
      subsequently assert error on appeal if the outcome in the
      trial court is unfavorable.

State v. Ambrose, 861 N.W.2d 550, 555 (Iowa 2015) (alternation in

original) (quoting State v. Pickett, 671 N.W.2d 866, 869 (Iowa 2003)).

      But what if I’m wrong? What if Pearson was misinformed or ill-

served by his resentencing counsel?           Then Pearson can file an

application for postconviction relief alleging he received ineffective

assistance at the November 22 hearing. That is what PCR proceedings

are for, so a record can be developed on what the defendant understood
                                       22

and why defense counsel did what he did. In short, even if I agreed with

the majority that the court of appeals misread the mandate of its own

prior decision, I would find that Pearson waived objection to a

resentencing and that any challenge to the resentencing must be

developed in a PCR application.

      The court also indicates that Pearson may have asserted a

vindictiveness claim, but I do not see such a claim being raised in the

briefs. Regardless, I see no basis for concluding that the district judge

acted vindictively in resentencing Pearson.

      I acknowledge the unfairness recognized by the majority when a

defendant receives a more severe sentence after appealing a technical

error that was not his fault. In my view, this unfairness is tempered by

the defendant’s willing participation in and attempt to benefit from

resentencing, the potential availability of PCR relief, and some of the

aggravating facts of this case as recognized by both sentencing judges.

      For the foregoing reasons, I would affirm the district court and the

court of appeals.

      Zager, J., joins this dissent.
