                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0493
                              Filed March 8, 2017


STATE OF IOWA,
     Plaintiff-Appellant,

vs.

ANTHONY STIVERS,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, James C.

Ellefson, Judge.



      The State seeks discretionary review of the district court’s ruling on a

defendant’s motion to correct an illegal sentence. AFFIRMED.



      Thomas J. Miller, Attorney General, and William A. Hill, Assistant Attorney

General, for appellant.

      Philip B. Mears of Mears Law Office, Iowa City, for appellee.



      Considered by Vogel, P.J., and Tabor and Mullins, JJ.
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VOGEL, Presiding Judge.

       In this appeal, we are asked to decide whether a court may order multiple

special sentences to be served consecutively, following a defendant’s convictions

for certain offenses that mandate the imposition of a special sentence under Iowa

Code section 903B.2 (2006). Because we conclude the sentencing order in this

case did not impose consecutive special sentences, we decline to address this

question and affirm the district court’s decision.

       I.     Background Facts and Proceedings

       On October 30, 2006, Anthony Stivers pled guilty to two counts of

lascivious acts with a child, in violation of Iowa Code section 709.8(1). On April

23, 2007, the sentencing court sentenced Stivers to two terms of imprisonment

not to exceed five years. The court ordered the terms to run consecutively.

Stivers’s convictions also each carried a mandatory ten-year special sentence of

supervision by the Iowa Department of Corrections (Iowa DOC) under section

903B.2. See Iowa Code § 903B.2 (“A person convicted of a misdemeanor or a

class ‘D’ felony offense under chapter 709, section 726.2, or section 728.12 shall

also be sentenced, in addition to any other punishment provided by law, to a

special sentence committing the person into the custody of the director of the

Iowa department of corrections for a period of ten years, with eligibility for parole

as provided in chapter 906.”). The sentencing order states:

       Pursuant to Iowa Code [section] 903B.2, the defendant is
       committed to the custody of the director of the Iowa Department of
       Corrections for a period of ten (10) years with eligibility for parole as
       provided in chapter 906. The special sentence shall commence
       upon completion of the sentence of confinement as if on parole.
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Because the sentences for Stivers’s underlying convictions were to run

consecutively, the Iowa DOC assumed two special sentences were imposed and

they should run consecutively.1

       On January 27, 2016, Stivers filed a motion to correct an illegal sentence,

claiming the sentencing court lacked the authority to order special sentences to

run consecutively under section 903B.2. In ruling on Stivers’s motion to correct

an illegal sentence, the district court relied on a recent unpublished case from

this court, State v. Maklenburg, No. 14-1268, 2015 WL 2394145 (Iowa Ct. App.

May 20, 2015), as persuasive authority2 and determined the sentencing court

lacked the authority to order special sentences under 903B.2 to run

consecutively.3 In the alternative, the court also interpreted the sentencing order

as imposing concurrent special sentences under 903B.2:

       This court is also persuaded by an alternative approach that is
       inconsistent with Maklenburg but follows a generally accepted
       principle of Iowa law. In reading and interpreting [the] sentencing
       order, the court notes that the [sentencing court] was very clear that
       the sentences of imprisonment were to be consecutive. There is
       nothing in [the sentencing] order that indicates that [the court]
       intended to impose consecutive special sentences under 903B.2.
       Where the sentencing court does not definitively indicate an
       intention to run sentences consecutively, the sentences are
       concurrent. See State v. Jones, 299 N.W.2d 679 (Iowa 1980);
       Cleesen v. Brewer, 201 N.W.2d 474 (Iowa 1972).

The supreme court granted the State’s application for discretionary review and

then transferred the case to this court.
1
  The State asserts the Iowa DOC’s practice is to treat multiple special sentences as
consecutive if the sentences for the underlying convictions are consecutive and to treat
them as concurrent if the sentences for the underlying convictions are concurrent.
2
  See Iowa R. App. P. 6.904(2)(c) (“Unpublished opinions or decisions shall not
constitute controlling legal authority.”).
3
  Because Stivers’s discharge date had passed if the special sentences were run
concurrently, the district court ordered his release. The State sought a stay pending
appeal, but the stay was denied by our supreme court.
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        II.    Standard of Review

        We review rulings on motions to correct an illegal sentence for errors at

law. State v. Maxwell, 743 N.W.2d 185, 190 (Iowa 2008).

        III.   Mootness

        Both parties allude to the possibility that the issue on appeal is moot

because Stivers has discharged his sentence. However, the State argues we

should decide the issue because “the issue is of public concern, authoritative

guidance is needed on the topic, the issue is likely to occur in the future and the

issue is likely to evade review.”

        Generally, we do not decide cases when the underlying controversy is

moot.     Rhiner v. State, 703 N.W.2d 174, 176 (Iowa 2005).          “[O]ur test of

mootness is whether an opinion would be of force or effect in the underlying

controversy.” Wengert v. Branstad, 474 N.W.2d 576, 578 (Iowa 1991). “In other

words, will our decision in this case ‘have any practical legal effect upon an

existing controversy.’” Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 540

(Iowa 1997) (citations omitted).

        Although Stivers discharged his special sentence following the district

court’s ruling and the subsequent denial of the State’s request for a stay, we do

not believe the issue on appeal is moot. If we were to reverse the district court’s

ruling and determine the original sentencing court lawfully ordered Stivers’s

special sentences to run consecutively, our ruling would have the practical effect

of returning Stivers to the supervision of the Iowa DOC until his original discharge

date in 2020. Thus, our ruling “would be of force or effect in the underlying

controversy,” and the issue is not moot. See Wengert, 474 N.W.2d at 578.
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       IV.     Sentence

       The State requests we address the issue raised in Maklenburg and hold

that courts have the authority to impose special sentences that run consecutively.

However, we decline to reach the issue because we agree with the district court’s

interpretation of the sentencing order in this case. In Iowa, multiple sentences

are generally construed to run concurrently unless the sentencing order

specifically orders consecutive sentences. See Iowa Code § 901.8 (providing

judges with the discretion to order consecutive sentences); see also State v.

Jacobs, 607 N.W.2d 679, 690 (Iowa 2000) (holding that a sentencing court must

explain its reasons for imposing consecutive sentences).            First, we assume

because of the sentencing requirement of section 903B.2, the sentencing court

imposed two special sentences.        While the trial court explicitly ordered the

sentences for Stivers’s underlying conviction to run consecutively, the court did

not explicitly order the special sentences to run consecutively. Absent such an

explicit pronouncement, the special sentences that were mandated with Stivers’s

underlying convictions should have been construed as concurrent. Thus, we

agree with the district court’s interpretation of the sentencing order and affirm.

       V.     Conclusion

       Because we agree with the district court the sentencing order did not

explicitly order the special sentences to run consecutively, we affirm the district

court’s grant of Stivers’s motion to correct an illegal sentence.

       AFFIRMED.
