                       IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0203
                                  Filed April 5, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER JEPSEN,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Crawford County, Steven J.

Andreasen, Judge.



       A defendant challenges his sentence of incarceration, claiming a double

jeopardy violation.     SENTENCE CONDITIONALLY AFFIRMED, REMANDED

WITH INSTRUCTIONS.



       Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux

City, for appellant.

       Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



       Considered by Potterfield, P.J. and Doyle and Tabor, JJ.
                                             2


TABOR, Judge.

       For more than four years, Christopher Jepsen was mistakenly allowed to

serve probation following his conviction for a forcible felony. In 2016, on the

State’s motion, the district court corrected the illegally lenient sentence and

ordered Jepsen to serve a prison term not to exceed ten years. In this appeal,

Jepsen contends the court’s failure to credit his corrected sentence for the time

he served on probation violated double jeopardy.

       Because the multiple-punishment protection under the Double Jeopardy

Clause turns on legislative intent, we must examine whether Jepsen was entitled

to a sentencing credit under Iowa Rule of Criminal Procedure 2.24(5)(b).1

Finding our examination hindered by a limited record, we conditionally affirm the

corrected sentence and remand with directions for the district court to determine

whether Jepsen served any of his probationary sentence in a residential

treatment facility or an alternative jail facility. Under rule 2.24(5)(b), Jepsen is

entitled to “full credit” for any time spent in “custody” in those facilities, but he is

not entitled to credit for time otherwise spent under supervised probation.

       I.      Facts and Prior Proceedings

       On August 24, 2011, a jury convicted twenty-five-year-old Jepsen on two

counts of third-degree sexual abuse, class “C” felonies. On count I, the jury


1
  Article V, section 14 of the Iowa Constitution charges our legislature with the duty to
provide “a general system of practice” for the state courts. Iowa Civil Liberties Union v.
Critelli, 244 N.W.2d 564, 568 (Iowa 1976). In turn, the legislature has endowed our
supreme court with the authority to prescribe rules of criminal procedure. See Iowa
Code § 602.4201(3)(b) (2015). The supreme court’s authority is subject to rulemaking
procedures established by the legislature. Id. § 602.4202. The rules have the same
force and effect as statutes. State v. Mootz, 808 N.W.2d 207, 221 (Iowa 2012). And the
courts are obligated to interpret the rules “pursuant to their original intent.” See State v.
Liddell, 672 N.W.2d 805, 816 (Iowa 2003) (Cady, J., specially concurring).
                                           3


found Jepsen performed a sex act in 2010 with E.G., who was fourteen or fifteen

years old at the time. See Iowa Code § 709.4(2)(c) (2009). On count II, the jury

decided Jepsen performed a sex act in 2010 with H.B., who was thirteen years

old. See id. § 709.4(2)(b). On September 11, 2011, the court entered judgment

and sentenced Jepsen to indeterminate terms not to exceed ten years on each

count, to run consecutively for an indeterminate twenty-year term. Under section

907.3(3), the court then suspended the prison sentences, placing Jepsen on

probation for five years to the Third District Department of Correctional Services

upon the terms and conditions required by his probation officer. Among those

conditions, the sentencing order recognized Jepsen could be placed in a

residential treatment facility at the probation officer’s discretion.

       In October 2014, the State filed an application to revoke Jepsen’s

probation due to his admitted use of the internet to obtain pornographic images

of children. While investigating the probation violation, the State noticed the

illegality of Jepsen’s original sentence on count II. Specifically, because H.B.

was thirteen years old, this conviction was a forcible felony, and a person

convicted of a forcible felony was not eligible for a suspended sentence. See id.

§ 702.11.    In December 2015, the State filed a motion to correct the illegal

sentence. The court ordered an updated presentence investigation (PSI) report.

Jepsen resisted the motion, arguing double jeopardy should prevent the court

from correcting his sentence at such a late date and also requesting “credit for

his time served on probation from 9/26/11 through the present”—but trial counsel

did not link the double-jeopardy argument to the credit request as Jepsen now

does on appeal.
                                          4


       At the hearing on the State’s motion, the court found the original sentence

on count II was illegal and void because the sentencing court did not have the

authority to suspend the sentence and order probation. The court then told the

parties it “would stand by the general rule that double jeopardy arguments

generally cannot be applied when the sentence is void.”

       The court conducted a full resentencing hearing, noting it had all

sentencing options available to it. The court referenced the updated PSI report

and the materials filed by the State for an anticipated revocation hearing. The

court’s January 29, 2016 corrected judgment and sentencing order voided the

conflicting portions of the original sentence and imposed indeterminate ten-year

terms of incarceration on each count, to run concurrently.          The court gave

Jepsen credit for time served in the county jail, but it did not grant his request for

credit for time served on probation under section 907.3(3) and Anderson v. State,

801 N.W.2d 1, 4 (Iowa 2011).          The court explained: “[F]rom a procedural

standpoint, this is a new sentence. Mr. Jepsen is not being sent to prison based

upon a revocation of that probation under section 907.3[(3)], which was applied

by the Anderson case. That is where the credit is received following a revocation

of probation.”   Based on the new sentence, the court dismissed the State’s

application for probation revocation as moot on February 1, 2016.

       Jepsen now appeals, claiming his trial attorney rendered ineffective

assistance “because she failed to argue the Double Jeopardy Clause . . .

requires that Jepsen receive credit against his corrected sentence of

incarceration for all of the nearly four years that he spent on probation under the

illegal sentence.”
                                           5


       II.     Scope of Review/Preservation of Error

       Jepsen is challenging the constitutionality of his corrected sentence. We

review double-jeopardy claims de novo. State v. Stewart, 858 N.W.2d 17, 19

(Iowa 2015). Jepsen raises the claim as ineffective assistance of counsel. But

the State acknowledges we may directly review Jepsen’s constitutional challenge

to the corrected sentence because the illegality of a sentence may be raised at

any time under Iowa Rule of Criminal Procedure 2.24(5)(a).                See State v.

Bruegger, 773 N.W.2d 862, 872 (Iowa 2009) (holding a claim “that the sentence

itself is inherently illegal, whether based on constitution or statute . . . may be

brought at any time”). Accordingly, we need not consider the effectiveness of

trial counsel’s performance.

       III.    Analysis

       It is important to note Jepsen does not dispute that his original sentence

was illegal and subject to correction under rule 2.24(5)(a). See State v. Allen,

601 N.W.2d 689, 690 (Iowa 1999); State v. Ohnmacht, 342 N.W.2d 838, 843

(Iowa 1983).     Neither does he argue that he had discharged his sentence,

making it too late for a corrected sentence.2 When a court corrects an illegal

sentence, our rules provide the defendant “shall receive full credit for time spent

in custody under the sentence prior to correction.” Iowa R. Crim. P. 2.24(5)(b).

In this appeal, Jepsen contends he was entitled to credit for the time he spent on

probation before the January 2016 resentencing hearing.



2
  Where a defendant has discharged his or her sentence, double jeopardy principles
prevent the court from modifying the sentence to include an additional probationary term.
State v. Houston, No. 09-1623, 2010 WL 5050564, at *4 (Iowa Ct. App. Dec. 8, 2010).
                                           6


       Jepsen premises his demand for a sentencing credit on the Double

Jeopardy Clause of the Fifth Amendment of the United States Constitution.3

Among other protections, the Double Jeopardy Clause prohibits “multiple

punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717

(1969), narrowed on other grounds by Alabama v. Smith, 490 U.S. 794, 795

(1989).   In the context of multiple punishments, the purpose of the Double

Jeopardy Clause is “limited to ensuring that the total punishment [does] not

exceed that authorized by the legislature.” Jones v. Thomas, 491 U.S. 376, 381

(1989) (citation omitted); see also Missouri v. Hunter, 459 U.S. 359, 368 (1983)

(“Where Congress intended, as here, to impose multiple punishments, imposition

of such sentences does not violate the Constitution.” (citation omitted)). Under

Pearce, “the constitutional guarantee against multiple punishments for the same

offense absolutely requires that punishment already exacted must be fully

‘credited’ in imposing sentence upon a new conviction for the same offense.”

395 U.S. at 718–19. Pearce also advised “the same principle obviously holds

true whenever punishment already endured is not fully subtracted from any new

sentence imposed.” Id. at 718. The crediting principle from Pearce has been

applied to a new sentence imposed for the same conviction after a successful

challenge by the prosecution. See United States v. Martin, 363 F.3d 25, 37 (1st

Cir. 2004); United States v. McMillen, 917 F.2d 773, 777 (3d Cir. 1990).



3
   “[N]or shall any person be subject for the same offence to be twice put in jeopardy of
life or limb . . . .” U.S. Const. amend. V. The Fifth Amendment applies to the states
through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 794–96 (1969).
We note the Iowa Constitution also has a double jeopardy clause, but its protections are
limited to defendants who have been acquitted. See Iowa Const. art. I, § 12 (“No person
shall after acquittal, be tried for the same offence.”).
                                                7


          The State concedes if Jepsen “served time in prison, in jail, or under some

other level of restraint comparable to incarceration” he would likely receive credit

against his new sentence. But the thorny question is whether Jepsen is entitled

to receive credit for his time served on probation.                 Probation is a form of

punishment—on this point, Jepsen and the State agree.                       See Toyosaburo

Korematsu v. United States, 319 U.S. 432, 435 (1943) (describing probation as

“an authorized mode of mild and ambulatory punishment” intended as a

“reforming discipline”). But the State says Jepsen is not entitled to credit for his

probationary sentence because “the restrictions imposed cannot be equated with

incarceration,” citing Trecker v. State, 320 N.W.2d 594, 595 (Iowa 1982) (ruling

defendant, after probation revocation, was not entitled to sentencing credit for

time spent on probation as no statute authorized credit), superseded by statute,

1996 Iowa Acts ch. 1193, § 19 (codified as amended at Iowa Code § 907.3(3)

(1997)) (providing sentencing credit upon probation revocation where defendant

was committed to the judicial district department of correctional services for

supervision or services), as recognized in Anderson, 801 N.W.2d at 4–5

(granting credit for time served subject to electronic monitoring and home

supervision), superseded by statute, 2012 Iowa Acts ch. 1138, § 91 (codified as

amended at Iowa Code § 907.3 (2013)),4 as recognized in State v. Walden, 870

N.W.2d 842, 845 (Iowa 2015).


4
    As of the 2012 amendment, Iowa Code § 907.3(3) now provides:
          [T]he court may suspend the sentence and place the defendant on
          probation upon such terms and conditions as it may require including
          commitment to an alternate jail facility or a community correctional
          residential treatment facility to be followed by a period of probation . . . or
          commitment of the defendant to the judicial district department of
          correctional services for supervision or services . . . at the level of
                                          8

      Jepsen relies on Martin for the proposition that because a probationary

sentence is “a punishment already exacted” for his offense, it must be credited

against the new sentence of imprisonment imposed after the State’s motion to

correct his illegal sentence. See 363 F.3d at 37. In Martin, the First Circuit Court

of Appeals held while probation and imprisonment are “different types of

sentences, each restricts a defendant’s liberty (albeit to varying degrees) over a

specific period of time, allowing the sentencing court to compare the degree and

length of restriction when determining the proper amount of credit.” Id. at 38.

The Martin court remanded for resentencing under the federal sentencing

guidelines, stating “‘fully crediting’ probation against a subsequent sentence of

imprisonment, Pearce, 395 U.S. at 717–18, does not require a day-to-day offset

against time to be served in prison” and holding the amount of credit depended

upon the specific conditions of the defendant’s probation. Martin, 363 F.3d at

39–40.

      Jepsen’s enthusiasm for the Martin opinion wanes at the point of the

remedy. He argues: “[I]t is impossible to conceive of any formula for equating a

certain number of days on probation to a single day of incarceration that is not

completely arbitrary.” Jepsen maintains Pearce requires “full credit” for the time

he spent on probation under his first sentence. 395 U.S. at 717–18.

      The State balks at Jepsen’s suggestion that he should receive credit on

his prison term at a one-to-one ratio for every day spent on probation, believing


      sanctions [the] department determines to be appropriate . . . . A person
      so committed who has probation revoked shall not be given credit for
      such time served. However, a person committed to an alternate jail
      facility or a community correctional residential treatment facility who has
      probation revoked shall be given credit for time served in the facility.
                                          9


instead the difficulty in crafting a non-arbitrary formula for subtracting some

fraction of the days on probation from the prison sentence “illustrates the folly of

Martin.” The State prefers the approach taken by the Illinois Supreme Court in

People v. Whitfield, which held “a defendant sentenced to probation, and then

sentenced to imprisonment for the same offense, is not subjected to an

unconstitutional second punishment for double jeopardy purposes and, therefore,

is not entitled to credit for time spent on probation.” 888 N.E.2d 1166, 1176 (Ill.

2007).     The Whitfield court opined, under Illinois law, “probation is not a

‘punishment’ in the same sense as imprisonment is a punishment.” Id. (noting

legislature recognized a distinction by statute mandating credit for time spent in

prison but instructing credit for time spent on probation was discretionary).

         The parties’ competing positions offer us an all-or-nothing solution—either

remand for the district court to subtract more than four years from Jepsen’s

indeterminate ten-year prison sentence to compensate for the time he spent on

supervised probation, even though such probation was a much less demanding

punishment than prison, or affirm and leave Jepsen with zero days of credit, even

though he endured the conditions of his probation for nearly the entire five-year

term. Neither position is wholly satisfying. The first option undercuts the length

of the prison sentence our legislature intended for the forcible felony of sexual

abuse against a thirteen-year-old child. The second option appears to ignore the

full-credit principle from Pearce, 395 U.S. at 718–19.         To reconcile these

positions, we turn to our case law interpreting the prohibition against multiple

punishments.
                                         10


       We implement the principles of the Double Jeopardy Clause as developed

in Pearce and its progeny by asking: what punishment did our legislature intend

in this situation? See State v. Finnel, 515 N.W.2d 41, 43 (Iowa 1994) (“[T]he

question of what punishments are constitutionally permissible is no different from

the question of what punishments the legislature intended to be imposed.”

(citation omitted)). In other words, we must ask whether the total punishment

imposed on Jepsen exceeded the punishment authorized under Iowa law. See

id. Although the parties do not discuss rule 2.24(5)(b), it provides the foundation

for determining what credit the legislature intended the courts to provide to a

defendant whose illegal sentence has been corrected. See Iowa R. Crim. P.

2.24(5)(b). The rule directs courts to provide “full credit for time spent in custody

under the sentence prior to correction.” Id. Our supreme court has interpreted

“custody” in this rule to mean “being in jail or a detention facility,” i.e.,

“institutional custody,” as opposed to being in police custody.            State v.

Rodenburg, 562 N.W.2d 186, 188 (Iowa 1997) (stating this rule “deals with credit

for time served after sentence and before correction of a sentence”).

       The concept of institutional custody is also found in the statute governing

probation revocation.    See Iowa Code § 907.3(3) (2013).          We believe the

legislative intent would be the same when crediting a defendant whose probation

is revoked as when resentencing a defendant upon a belated discovery that he

was not entitled to probation in the first instance. At the resentencing hearing,

Jepsen asked for Anderson credit, referring to our supreme court’s decision

interpreting section 907.3(3) (2011). See 801 N.W.2d at 4. The Anderson court

held a convicted sex offender incarcerated after revocation of his probation was
                                         11


entitled to credit against his prison sentence for time spent living at home under

supervised probation wearing an electronic monitoring device.              Id. at 5

(interpreting post-Trecker amendment to section 907.3(3) as allowing sentencing

credit for a revoked probationary term where the district’s department of

correctional services provided supervision or services). Critically, after Anderson

was filed, the legislature again amended section 907.3(3), this time providing a

person shall not be given sentencing credit for probation supervised by the

district’s department of correctional services. See 2012 Iowa Acts ch. 1138, § 91

(codified as amended at Iowa Code § 907.3(3) (2013)).                But the 2012

amendment made an exception—“a person committed to an alternate jail facility

or a community correctional residential treatment facility who has probation

revoked shall be given credit for time served in the facility.”       See id.   The

legislative change essentially equated the credit allowed for probation revocation

with the credit allowed for “custody” upon correction of an illegal sentence. See

Rodenburg, 562 N.W.2d at 188 (discussing “custody” credit and “institutional

credit”). Compare Iowa Code § 907.3(3) (2013) (probation revocation), with Iowa

R. Crim. P. 2.24(5)(b) (illegal sentence “custody” credit).

       Accordingly, when the court corrected Jepsen’s sentence in January 2016,

both section 907.3(3) (revocation) and rule 2.24(5)(b) (correction) authorized

sentencing credit only for probationary sentences served in an alternative jail

facility or a residential treatment facility. See Crouch v. State, No. 12-1826, 2013

WL 4011010, at *3 (Iowa Ct. App. Aug. 7, 2013) (“The legislature’s deliberate

decision [in 2012] to afford sentencing credits for probationary periods in

residential facilities indicates a view of placement in such facilities as a punitive
                                       12


correctional measure.”). Based on these expressions of legislative intent, we find

the Double Jeopardy Clause requires an award of sentencing credit for any time

Jepsen has spent living in those more restrictive facilities but not for time he

otherwise has spent on supervised probation outside of such a facility.

       Finally, our record on appeal does not include a complete record from the

district’s department of correctional services showing all the conditions of

Jepsen’s probation imposed at the discretion of probation officers between

September 2011 and January 2016.         Thus, we conditionally affirm Jepsen’s

sentence and remand for a hearing where the parties will provide that missing

information to the district court. Any days spent by Jepsen in an alternate jail

facility or a community correctional residential treatment facility shall be fully

credited against his corrected prison sentence by the district court. We do not

retain jurisdiction.

       SENTENCE        CONDITIONALLY        AFFIRMED,       REMANDED        WITH

INSTRUCTIONS.
