                     IN THE COURT OF APPEALS OF IOWA

                                     No. 13-0396
                                 Filed April 30, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JUSTIN JENTZ,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Dubuque County, Thomas A.

Bitter, Judge.



       A defendant appeals his judgment and sentence for possession of a

controlled substance, third or subsequent offense. He contends the district court:

(1) failed to hold trial on his multiple or habitual offender status within the speedy-

trial deadline and (2) should have sentenced him to an aggravated misdemeanor

rather than a class “D” felony. AFFIRMED.



       Samuel M. Degree of Drake Law Firm, P.C., Dubuque, for appellant.

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

General, Ralph Potter, County Attorney, and Timothy Gallagher, Assistant

County Attorney, for appellee State.




       Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
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VAITHESWARAN, J.

        Justin Jentz appeals his judgment and sentence for possession of a

controlled substance, third or subsequent offense. He contends the district court:

(1) failed to hold trial on his multiple or habitual offender status within the speedy-

trial deadline and (2) should have sentenced him to an aggravated misdemeanor

rather than a class “D” felony.

   I.      Background Proceedings

        The State charged Justin Jentz with assault causing injury and possession

of a schedule I controlled substance—marijuana.           The State later moved to

amend the trial information to add Jentz’s statuses as a third or subsequent

offender and as a habitual offender. The district court granted the motion.

        Trial was scheduled for October 1, 2012, with the district court ordering

that date to serve as the one-year speedy-trial deadline.          Iowa R. Crim. P.

2.33(2)(c) (“All criminal cases must be brought to trial within one year after the

defendant’s initial arraignment pursuant to rule 2.8 unless an extension is

granted by the court, upon a showing of good cause.”). The jury found Jentz

guilty of possession of marijuana.

        All that remained was the second phase of trial on whether Jentz was a

multiple offender and disposition of the assault charge. Jentz moved to dismiss

this phase, asserting the date scheduled to prove the prior convictions fell

outside the speedy-trial deadline. The district court denied the motion. On the

scheduled date, Jentz pled guilty to possession of marijuana, third or subsequent

offense, in exchange for dismissal of the habitual offender enhancement and
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assault charge.1 The district court sentenced him to an indeterminate prison term

not exceeding five years. This appeal followed.

    II. Analysis

           A. Speedy Trial

       Jentz concedes the original trial was held within the speedy-trial deadline

but reiterates that the date scheduled to establish his prior convictions fell outside

the deadline. In his view, the district court should have determined there was

good cause for an extension of the deadline.            Iowa R. Crim. P. 2.33(2)(c)

(authorizing court to grant an extension of the speedy-trial deadline “upon a

showing of good cause”).

       Jentz’s argument presupposes that he had a separate right to a speedy

trial on his status as a multiple offender. That premise is not supported by our

precedent.

       “When a defendant faces a charge that imposes an enhanced penalty for

prior convictions, our law, in turn, imposes a two-stage trial.”              State v.

Kukowski, 704 N.W.2d 687, 691 (Iowa 2005). The second phase of the trial is

governed by Iowa Rule of Criminal Procedure 2.19(9), which states:

              After conviction of the primary or current offense, but prior to
       pronouncement of sentence, if the indictment or information alleges
       one or more prior convictions which by the Code subjects the
       offender to an increased sentence, the offender shall have the
       opportunity in open court to affirm or deny that the offender is the
       person previously convicted, or that the offender was not
       represented by counsel and did not waive counsel. If the offender
       denies being the person previously convicted, sentence shall be
       postponed for such time as to permit a trial before a jury on the
       issue of the offender’s identity with the person previously convicted.

1
 The Court accepted a written plea of guilty to the “offense” of possession of marijuana
while being a third or greater offender.
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      Other objections shall be heard and determined by the court, and
      these other objections shall be asserted prior to trial of the
      substantive offense in the manner presented in rule 2.11. On the
      issue of identity, the court may in its discretion reconvene the jury
      which heard the current offense or dismiss that jury and submit the
      issue to another jury to be later impaneled. If the offender is found
      by the jury to be the person previously convicted, or if the offender
      acknowledged being such person, the offender shall be sentenced
      as prescribed in the Code.

Under this rule, the fact question to be decided is whether the identity of the

person previously convicted is the same as the person convicted of the present

offense so as to permit enhancement of the sentence.         State v. Smith, 282

N.W.2d 138, 143 (Iowa 1979) (“[T]he sole ‘issue’ submitted to a jury is

defendant’s identity as a person twice previously convicted of a felony.”). No

separate offense is involved. See State v. Woody, 613 N.W.2d 215, 217 (Iowa

2000) (“When the State alleges that a defendant is an habitual offender, the

State is not charging a separate offense. . . . The accused therefore does not

enter a plea of guilty to an habitual offender ‘charge.’     Rather, the accused

merely admits prior convictions for habitual offender purposes.” (citations

omitted)); State v. Brady, 442 N.W.2d 57, 58 (Iowa 1989) (“An admission by a

defendant of prior convictions cannot be said to be a plea of guilty to an habitual

offender ‘charge,’ moreover, habitual offender statutes do not charge a separate

offense. They only provide for enhanced punishment on the current offense.”);

Smith, 282 N.W.2d at 143 (“The habitual offender statute does not create a

crime, it merely enhances punishment.”); State v. Hanna, 277 N.W.2d 605, 608

(Iowa 1979) (“[B]eing a habitual criminal is not a crime, even though it was

repeatedly referred to as one during these proceedings. The habitual criminal

statute goes only to the punishment meted out to one who has committed
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multiple designated offenses.”).   Accordingly, the same speedy-trial date that

governs trial on the substantive offense governs the second habitual offender

phase. See State v. Popes, 290 N.W.2d 926, 927 (Iowa 1980) (holding the

ninety-day speedy-trial rule did not apply to the hearing on the habitual criminal

statute).

       Because Jentz concedes the underlying charge was timely brought to trial,

we discern no violation of the one-year speedy-trial deadline set forth in rule

2.33(2)(c).

            B. Sentencing

       Jentz next contends the district court should not have granted the State’s

motion to amend the trial information to charge him as a third or subsequent

offender. However, his real complaint is not with the court’s ruling on the motion

to amend but with the court’s application of Iowa Code section 124.401(5)

(2011).

       The first paragraph of section 124.401(5) generally classifies drug

possession crimes based on the number of prior convictions.           It states in

pertinent part:

              It is unlawful for any person knowingly or intentionally to
       possess a controlled substance . . . . Any person who violates this
       subsection is guilty of a serious misdemeanor for a first offense. A
       person who commits a violation of this subsection and who has
       previously been convicted of violating this chapter or chapter 124A,
       124B, or 453B is guilty of an aggravated misdemeanor. A person
       who commits a violation of this subsection and has previously been
       convicted two or more times of violating this chapter or chapter
       124A, 124B, or 453B is guilty of a class “D” felony.

Iowa Code § 124.401(5). The second paragraph provides different and more

lenient classifications for marijuana possession crimes. It states:
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             If the controlled substance is marijuana, the punishment
      shall be by imprisonment in the county jail for not more than six
      months or by a fine of not more than one thousand dollars, or by
      both such fine and imprisonment for a first offense. If the controlled
      substance is marijuana and the person has been previously
      convicted of a violation of this subsection in which the controlled
      substance was marijuana, the punishment shall be as provided in
      section 903.1, subsection 1, paragraph “b”. If the controlled
      substance is marijuana and the person has been previously
      convicted two or more times of a violation of this subsection in
      which the controlled substance was marijuana, the person is guilty
      of an aggravated misdemeanor.

Id.

      Jentz agreed he had two prior convictions for possession of marijuana.

The State also asserted, and Jentz does not dispute, he had a prior conviction for

manufacturing marijuana. Jentz contends he should have been found guilty of

an aggravated misdemeanor under the second paragraph of section 124.401(5)

rather than a class “D” felony under the first paragraph. The State counters that

because Jentz has one prior drug conviction that involved the manufacture rather

than possession of marijuana, he is foreclosed from taking advantage of the

second paragraph of section 124.401(5). We agree with the State.

      The pertinent language in the second paragraph is as follows:

      If the controlled substance is marijuana and the person has been
      previously convicted two or more times of a violation of this
      subsection in which the controlled substance was marijuana, the
      person is guilty of an aggravated misdemeanor.


(Emphasis added.) The language quoted above refers to prior convictions for

possession of marijuana.    Because one of Jentz’s prior convictions was for

manufacturing marijuana, he cannot avail himself of the second paragraph of

section 124.401(5). See State v. Rankin, 666 N.W.2d 608, 610–11 (Iowa 2003)
                                        7


(stating “the second paragraph of section 124.401(5) applies only to those

persons convicted of possession of marijuana” and concluding a delivery offense

was not a possession offense and did not fall within the ambit of the second

paragraph). We conclude the district court did not err in finding Jentz guilty of a

class “D” felony rather than an aggravated misdemeanor and in sentencing him

accordingly.

       We find it unnecessary to address any of the remaining issues raised by

Jentz or the State.

       AFFIRMED.
