                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0150
                               Filed January 27, 2016


PERRY BERNARDO BENDER,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, Thomas J. Bice,

Judge.



      Defendant appeals from the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Shawn Smith of Shawn Smith, Attorney at Law, PLLC, Ames, for

appellant.

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

General, for appellee State.




      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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DANILSON, Chief Judge.

       Perry Bender appeals from the district court’s denial of his application for

postconviction relief (PCR). Bender maintains his application should have been

granted because he received ineffective assistance from trial counsel.

Specifically, he maintains trial counsel was ineffective for allowing his sentence

to be enhanced under the habitual offender statute because he received an

illegal sentence for one of the underlying felony convictions.

       The habitual offender enhancement of Iowa Code section 902.8 (2005) is

triggered by convictions alone.     Notwithstanding any issues with sentencing,

Bender has not shown that his previous convictions were in error. Because

Bender’s 2001 conviction preceded his 2007 conviction, counsel was not

ineffective for failing to object to the use of the 2001 conviction under the habitual

offender statute. We affirm.

I. Background Facts and Proceedings.

       In May 2006, Bender was charged by trial information with possession of a

firearm by a felon subject to sentence enhancement as a habitual offender

pursuant to Iowa Code section 902.8.               Regarding the habitual offender

enhancement, the State relied on a 1996 conviction for burglary in the third

degree and a 2001 conviction for willful injury.

       The matter proceeded to trial in February 2007, and a jury found Bender

guilty of being a felon in possession of a firearm. A jury trial was also held on

Bender’s status as a habitual offender. The jury entered a finding that Bender

was a habitual offender.       The sentencing enhancement was imposed, and

Bender was sentenced to a term of incarceration not to exceed fifteen years.
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       Later, our court found that Bender had received an illegal sentence for his

2001 conviction for willful injury. See State v. Bender, No. 12–0415, 2013 WL

2368826, at *3 (Iowa Ct. App. May 30, 2013). The court vacated the district

court’s initial sentencing order and remanded for resentencing. The court also

stated, “We also reject Bender’s pro se argument that due to a violation of Iowa

Code section 708.4(2) his conviction should be vacated. We agree with the

State’s argument that the time for appeal of that conviction has passed and affirm

the conviction.”

       Bender filed an application for PCR. As part of his application, Bender

asserted that his habitual offender sentence is illegal because “the underlying

felony of willful injury . . . was not complete as to both conviction and sentence.”

He maintained he received ineffective assistance from trial counsel because “had

trial counsel conducted a proper legal and factual investigation, counsel would

have readily ascertained that the conviction” for willful injury “had not reached a

valid final judgment and could not be relied upon for enhancement purposes

under the habitual offender statute.”

       On July 5, 2013, the district court denied Bender’s application for PCR.

Bender appeals.

II. Standard of Review.

       Generally an appeal from a denial of an application for PCR is reviewed

for corrections of errors at law. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa

2012). However, when an applicant asserts claims of a constitutional nature, our

review is de novo.     Id.   Thus, we review claims of ineffective assistance of

counsel de novo. Id.
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III. Discussion.

       To prevail on a claim of ineffective assistance of counsel, Bender must

prove by a preponderance of the evidence (1) counsel failed to perform an

essential duty and (2) prejudice resulted from the failure.           See State v.

Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011). To establish prejudice, Bender

must show there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. See State v.

McCoy, 692 N.W.2d 6, 25 (Iowa 2005).           His claim fails if either element is

lacking. See Everett v. State, 789 N.W.2d 151, 159 (Iowa 2010).

       Bender maintains trial counsel was ineffective for allowing his sentence to

be enhanced under the habitual offender statute because he received an illegal

sentence for one of the underlying felony convictions.          In other words, his

argument can be summarized as follows: each offense must have be complete

as to a conviction and sentencing before the commission of the next in order to

qualify for the enhancement of penalty under a recidivism statute;1 an illegal

sentence is a void sentence; thus any prior conviction for which an illegal

sentence was imposed is not complete as to both conviction and sentencing for

purposes of enhancing a subsequent conviction, and counsel was ineffective for

not challenging the imposition of the enhancement.

       Bender’s sentence was enhanced pursuant to Iowa Code section 902.8,

which provides:


1
   Bender relies on State v. Freeman, 705 N.W.2d 286, 291 (Iowa 2005), for the
proposition that “each offense must have been complete as to a conviction and
sentencing before the commission of the next in order to qualifies for the enhancement
of penalty under a recidivism statute.”
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      An habitual offender is any person convicted of a class “C” or a
      class “D” felony, who has twice before been convicted of any felony
      in a court of this or any other state, or of the United States. An
      offense is a felony if, by the law under which the person is
      convicted, it is so classified at the time of the person’s conviction.
      A person sentenced as an habitual offender shall not be eligible for
      parole until the person has served the minimum sentence of
      confinement of three years.

When considering the word “conviction” in a statute used to enhance

punishment, the word is construed to have a “relatively narrow and technical

meaning.” Schilling v. Iowa Dep’t of Transp., 646 N.W.2d 69, 71 (Iowa 2002).

When used in its technical legal sense, “it requires a formal adjudication by the

court and the formal entry of judgment of conviction.” Daughenbaugh v. State,

805 N.W.2d 591, 597 (Iowa 2011).

      “An appeal or subsequent challenge to a conviction and sentence does

not render the judgment of conviction unenforceable during the pendency of the

appeal.” Kurtz v. State, 854 N.W.2d 474, 479 (Iowa Ct. App. 2014); see also

Iowa Code § 811.5 (absent bail, defendant must begin serving the applicable

sentence).   A challenge to the legality of a sentence—even a challenge of

constitutional magnitude—does not affect the enforceability of the underlying

conviction. See, e.g., Kurtz, 854 N.W.2d at 479; State v. Hoeck, 843 N.W.2d 67,

72 (Iowa 2014). Rather, the challenge simply affects the enforceability of the

particular sentence, and, in such a case, the defendant is entitled to be

resentenced appropriately under existing law.       Kurtz, 854 N.W.2d at 479.

Moreover, here, our court explicitly rejected Bender’s contention that his 2001

conviction should be vacated. See Bender, No. 12–0415, 2013 WL 2368826, at

*3 (“We also reject Bender’s pro se argument that due to a violation of Iowa Code
                                          6


section 708.4(2) his conviction should be vacated. We agree with the State’s

argument that the time for appeal of that conviction has passed and affirm the

conviction.”).

       The former version of the habitual offender statute was codified in Iowa

Code section 747.5 (1973) and stated:

       Whoever has been twice convicted of crime, sentenced, and
       committed to prison, in this or any other state, or by the United
       States, or once in this state and once at least in any other state, or
       by the United States, for terms of not less than three years each
       shall, upon conviction of a felony committed in this state after the
       taking effect of this section, be deemed to be a habitual criminal,
       and shall be punished by imprisonment in the penitentiary for a
       term of not more than twenty-five years, provided that no greater
       punishment is otherwise provided by statute, in which case the law
       creating the greater punishment shall govern.

In interpreting the statute, our supreme court stated, “Even though the statute is

silent on the point, it follows that the offense, conviction, and imposition of

penalty must precede each succeeding offense, conviction, and imposition of

penalty for the statute to be applicable.” State v. Conley, 222 N.W.2d 501, 503

(Iowa 1974).

       In 1978, the legislature amended the language of the statute to its present

version. It now states:

       An habitual offender is any person convicted of a class “C” or a
       class “D” felony, who has twice before been convicted of any felony
       in a court of this or any other state, or of the United States. An
       offense is a felony if, by the law under which the person is
       convicted, it is so classified at the time of the person’s conviction. A
       person sentenced as an habitual offender shall not be eligible for
       parole until the person has served the minimum sentence of
       confinement of three years.

Iowa Code § 902.8 (2005). Shortly thereafter, our supreme court was asked to

interpret the amended statute. In State v. Hollins, 310 N.W.2d 216, 216 (Iowa
                                          7


1981), the court stated, “Sentences and commitments for prior offenses need not

be shown in order to impose the enhanced punishment for an habitual offender

under the new statute,” and “the trial court correctly held that the provisions of the

present recidivism statute are triggered by convictions alone and not by any

resulting prior sentences or commitments to prison.”         Additionally, the court

adopted the “general rule” that “each succeeding conviction must be subsequent

in time to the previous convictions, both with respect to commission of the

offense and to conviction.” Hollins, 310 N.W.2d at 217.

       We acknowledge a case decided after Hollins and relied upon by Bender,

State v. Freeman, 705 N.W.2d 286, 291 (Iowa 2005).             Freeman referenced

Hollins and recited:

       Despite the change in language in the statute, we reaffirmed our
       holding in Conley to follow the general rule that each offense must
       be complete as to a conviction and sentencing before commission
       of the next in order to qualify for the enhancement of penalty under
       a habitual offender statute.

Freeman, 705 N.W.2d at 289 (citing Hollins, 310 N.W.2d at 217-218). However,

this recitation simply reaffirmed the general rule. It did not modify the exception

to the general rule applied in Hollins that the habitual offender statute, Iowa Code

section 902.8, only requires a conviction—and not a conviction and sentence—to

be completed prior to the instant offense.2         Accordingly, even if Bender’s

sentence for the 2001 conviction was illegal, the illegality did not affect the

conviction itself.     Because Bender’s 2001 conviction preceded his 2007



2
  We also note that Freeman was a case involving a sentencing enhancement under
Iowa Code section 124.401(5) as opposed to the habitual offender enhancement
mentioned in Hollins.
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conviction, counsel was not ineffective for failing to object to the use of the 2001

conviction under the habitual offender statute. We affirm.

      AFFIRMED.
