                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0435
                              Filed March 9, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BENJAMIN W. BARNES,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Montgomery County, Kathleen A.

Kilnoski, Judge.



      Benjamin Barnes appeals following the denial of his motion to correct an

illegal sentence. AFFIRMED.



      Gary Dickey and Jamie Hunter of Dickey & Campbell Law Firm, P.L.C.,

Des Moines, for appellant.

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

General, for appellee.




      Considered by Doyle, P.J., and Mullins and McDonald, JJ.
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DOYLE, Presiding Judge.

          Benjamin Barnes appeals following the denial of his motion to correct an

illegal sentence.      He contends the district court exceeded its authority in

imposing a ten-year special sentence under Iowa Code section 903B.2 (2011) in

a nunc pro tunc order entered three days after his sentence was issued. We

affirm.

          In 2012, Barnes pled guilty to lascivious acts with a child. The written

guilty plea and waiver of rights states in part:

                  Special Sentence Parole (§903B) and Sex Offender
          Registry (§692A)
                  All persons convicted under §709 receive the special
          sentence parole which begins at the end of the original sentence or
          the end of probation. If the person is successful the 10 year parole
          can be cut to 4 years 199 days. Lifetime parole means lifetime. If a
          violation occurs during this parole period, even a technical violation
          and a parole violation report is filed (Parole officer has some
          discretion to file a report) and the Administrative Law Judge
          determines a violation has occurred, then the Judge has no choice
          but to sentence the violator to a 2 year sentence, no good time.
          While in prison the time on parole is stayed so when the Defendant
          gets out they still have all the remaining time. A second or
          subsequent violation will result in a hard 5 years in prison.

During sentencing, Barnes was granted a deferred judgment. The sentencing

order, “pursuant to § 903B.2,” also commits Barnes “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.       This special sentence shall

commence upon completion of the sentence imposed for Count I herein.”

          Two months after pleading guilty, Barnes admitted to violating the terms of

his probation.      At the probation revocation hearing, the following exchange

occurred:
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             [COUNTY ATTORNEY]: Your Honor, one other thing. In the
      original order they had some special sentence information on there,
      and that was taken out. That would need to be put back in I
      believe.
             THE COURT: Because the special sentence will be imposed
      once he’s not under incarceration, not in prison, correct? So you
      understand that the special sentence is ten years?
             MR. BARNES: Yep.
             THE COURT: Is still in effect, and that once you’re released
      from prison you’re still under the special sentence under Chapter
      903B as if you’re on parole for ten years after your sentence is
      discharged in prison. You understand that?
             MR. BARNES: Yes.

      Barnes consented to immediate sentencing after his probation was

revoked. The court imposed a sentence of no more than five years in prison on

the lascivious-acts charge before stating: “You are still under the special

sentence under 903B.2, and once you are finished with your prison sentence,

you will continue to be committed to the Director of the Department of

Corrections for a period of ten years with eligibility for parole as provided in

Chapter 906.”    The written sentencing order, however, states: “Pursuant to

section 903B.2, defendant is committed to the custody of the director of adult

corrections for a probationary period of ten years with eligibility for parole as

provided in chapter 906. Said probation to commence after the completion of

defendant’s sentence.” (Emphasis added.) Three days later, the court issued a

nunc pro tunc order, amending the sentencing order to remove the word

“probationary” from that sentence and change the word “probation” to “sentence.”

      Barnes completed his prison sentence on the lascivious-acts charge in

2014 and began serving his special sentence. Some months later, he filed a pro

se motion to correct an illegal sentence, alleging the special sentence imposed

under section 903B.2 constitutes cruel and unusual punishment and violates the
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Double Jeopardy Clause and the Ex Post Facto Clause of the United States

Constitution. His motion was denied in an order filed in February 2015.

       Now, for the first time, Barnes asserts his sentence is illegal because the

district court imposed a special sentence on him in a nunc pro tunc order. He

argues the ten-year probationary period the court initially imposed was illegal

because it is not authorized by statute. See State v. Hess, 533 N.W.2d 525, 527

(Iowa 1995) (stating a sentence that is not permitted by statute is illegal). He

then argues the special sentence imposed in the nunc pro tunc order is illegal

because it imposed an additional sentence, which it lacked authority to do in a

nunc pro tunc order. See State v. Naujoks, 637 N.W.2d 101, 113 (Iowa 2001)

(“An order nunc pro tunc cannot be used to remedy an error in judicial thinking, a

judicial conclusion, or a mistake of law.”).

       The State argues Barnes has failed to preserve error on this issue.

Although an illegal sentence may be corrected at any time under Iowa Rule of

Criminal Procedure 2.24(5)(a), a sentence is only “illegal” under rule 2.24 if it is

not authorized by statute. See Tindell v. State, 629 N.W.2d 357, 359 (Iowa

2001). The sentence as amended in the nunc pro tunc order is authorized by

section 903B.2. Therefore, Barnes is not challenging an illegal sentence; he is

challenging a sentence he alleges was not legally imposed due to procedural

errors. Our supreme court has held “a defective sentencing procedure does not

constitute an illegal sentence under [rule 2.24(5)(a)].” Tindell, 629 N.W.2d at

360. Because his claim of procedural error is being raised for the first time in this

appeal of his motion to correct an illegal sentence, which was brought more than

two years after his sentence was imposed, the issue is not properly before us for
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review. See id. (holding a defendant’s claim of procedural error, raised three

years after his sentence was imposed, was precluded by the rules of error

preservation).

      Even if the claim Barnes now raises was properly before us, the district

court’s use of a nunc pro tunc order to correct Barnes’s sentence was proper.

              When a court imposes a sentence which statutory law does
      not permit, the sentence is illegal, and such a sentence is void and
      we will vacate it. However, when a judgment entry incorrectly
      differs from the oral rendition of the judgment merely as a result of
      clerical error, the trial court holds the inherent power to correct the
      judgment entry so that it will reflect the actual pronouncement of the
      court. The district court may correct a clerical error in a judgment
      entry through issuance of a nunc pro tunc order.

Hess, 533 N.W.2d at 527 (citations omitted). Here, the court informed Barnes of

the special sentence at the probation revocation hearing, and Barnes stated he

understood. In its oral pronouncement of the sentence, the court stated: “You

are still under the special sentence under 903B.2, and once you are finished with

your prison sentence, you will continue to be committed to the director of the

department of corrections for a period of ten years with eligibility for parole as

provided in chapter 906,” clarifying that the special sentence would begin once

Barnes had completed his prison sentence for his lascivious-acts conviction. The

only discrepancy between the sentence imposed at the hearing and the written

sentencing order concerns two erroneous references to probation in the written

sentencing order.      “[W]here there is a discrepancy between the oral

pronouncement of sentence and the written judgment and commitment, the oral

pronouncement of sentence controls.” Id. at 528.
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      The record unambiguously shows the court properly imposed a special

sentence pursuant to section 903B.2 and the discrepancy in the written

sentencing order was the result of clerical error. Not only is a nunc pro tunc

order properly utilized under these circumstances, this is precisely the type of

error a nunc pro tunc order is designed to correct. Because Barnes’s sentence

was legally imposed, we affirm.

      AFFIRMED.
