                   IN THE COURT OF APPEALS OF IOWA

                                 No. 4-048 / 13-0715
                                 Filed March 12, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DOUGLAS EDWIN KURTZ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, John D.

Ackerman, Judge.



      Defendant appeals a district court ruling denying his motion to correct an

illegal sentence on the ground it was moot because he had discharged his

sentence. AFFIRMED.




      Matthew R. Metzgar of Rhinehart Law, P.C., Sioux City, for appellant.

      Thomas J. Miller, Attorney General, Kyle Hanson, Assistant Attorney

General, Patrick Jennings, County Attorney, and Mark Campbell, Assistant

County Attorney, for appellee.



      Considered by Potterfield, P.J., Bower, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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EISENHAUER, S.J.

       Defendant appeals the denial of his motions to correct an illegal sentence

and in arrest of judgment. The motion in arrest of judgment was untimely, and

we do not consider the issues raised in the motion. We affirm the decision of the

district court denying defendant’s motion to correct an illegal sentence on the

ground the issue was moot.

       I. Background Facts & Proceedings

       This case has a complicated procedural history. In 1997 Douglas Kurtz

was charged with (Count I) possession of methamphetamine with intent to

deliver, (Count II) failure to affix a drug tax stamp, (Count III) possession of

marijuana with intent to deliver, and (Count IV) keeping a dwelling for possession

of controlled substances.     The State alleged Counts I and III were second

offenses, and for Counts I, II, and III, Kurtz was an habitual offender.

       Kurtz entered into a plea agreement in which he pled guilty to possession

of methamphetamine with intent to deliver, second offense, in violation of Iowa

Code sections 124.401(1)(c)(6) and 124.411 (1997), and possession of

marijuana with intent to deliver, second offense, in violation of sections

124.401(1)(d) and 124.411. The State agreed to dismiss the other charges and

the habitual offender enhancement.            The parties agreed Kurtz would be

sentenced to terms of incarceration not to exceed ten years and five years, to be

served consecutively.

       Kurtz entered his guilty pleas on July 14, 1997. The court advised him

there was a mandatory minimum prison term of one-third of the sentence on the

charge of possession of methamphetamine with intent to deliver. The court also
                                            3


stated it would be bound by the plea agreement for purposes of sentencing.

Kurtz waived his right to file a motion in arrest of judgment, and the case

immediately proceeded to sentencing.              The court entered sentence in

accordance with the plea agreement, to ten years and five years, to be served

consecutively.    The order did not mention the mandatory minimum.                  Kurtz

appealed but later withdrew his appeal.

       On March 12, 2004, Kurtz filed a motion to correct an illegal sentence,

claiming the court had failed to impose the one-third mandatory minimum

sentence on his conviction for possession of methamphetamine with intent to

deliver.1 See Iowa Code § 124.413 (providing a defendant convicted of violating

section 124.401(1)(c), as defendant was here, is required to serve a minimum

period of one-third of the maximum indeterminate sentence provided by law).

Kurtz asked to be resentenced. On May 3, 2004, the district court entered an

order overruling the motion to correct an illegal sentence.

       Kurtz filed a motion to reconsider the court’s ruling. On May 27, 2004, the

court entered an order stating the failure to impose a mandatory minimum

sentence was a clerical error or oversight which could be corrected at any time

under Iowa Rule of Criminal Procedure 2.23(3)(g).              The court revised the

sentencing order to provide Kurtz should serve the one-third mandatory minimum

sentence.



1
  Kurtz had earlier filed what he termed a “motion to correct an illegal sentence,” but
which in fact challenged the factual basis supporting his guilty plea to possession of
marijuana with intent to deliver. See State v. Kurtz, No. 02-1772, 2003 WL 21230894, *1
(Iowa Ct. App. May 29, 2003). We determined Kurtz had waived his right to file a motion
in arrest of judgment and consequently waived his right to challenge the factual basis for
his plea. Id.
                                          4


       Kurtz then filed a motion to vacate the court’s ruling, alleging the court did

not have the authority to correct the sentencing order as a clerical mistake under

rule 2.23(3)(g). On June 11, 2004, the court vacated its ruling of May 27, 2004,

and gave the parties further time to respond. In its response, the State pointed

out Kurtz would be released from prison on June 18, 2004, and argued the

issues he raised were moot.

       On April 19, 2006, Kurtz filed a motion requesting a ruling on his previous

motion to reconsider. On May 30, 2006, the court vacated Kurtz’s sentence on

Count I, the charge of possession of methamphetamine with intent to deliver, and

determined he should be “sentenced in regard to that charge pursuant to the

Plea Agreement heretofore entered into by the parties and accepted by the

court.” No further action was taken in the case for many years. 2

       On February 15, 2013, the district court set the matter for a resentencing

hearing and appointed counsel for defendant. Kurtz filed a motion in arrest of

judgment, claiming not only was his sentence, but also the plea agreement, was

illegal because it did not provide for a mandatory minimum sentence.               He

claimed he should be allowed to withdraw his guilty plea.

       A hearing was held April 23, 2013. Kurtz stated he wanted to withdraw his

guilty plea. He asserted his conviction for possession of methamphetamine with

intent to deliver impacted him, “[b]ecause on my current sentence they’re using

this case for a second or subsequent offender enhancement.” Kurtz stated the


2
 At the resentencing hearing the prosecutor stated after Kurtz was released from prison
his address was unknown, so he could not be served with notice of a hearing, and the
matter languished for several years. Subsequently, however, Kurtz was incarcerated on
another charge, and he raised the issue he had never been resentenced in this case.
                                         5


Iowa Department of Corrections had imposed the one-third mandatory minimum,

he served his entire sentence, and he was discharged in June 2004. When

questioned by the court, he acknowledged he had been informed of the

maximum and minimum sentences at the guilty plea proceedings in 1997.

       The district court entered a ruling on May 1, 2013. The court noted the

remedy for an illegal sentence was vacation of the sentence, not reversal of the

underlying conviction. The court further stated:

              In any event, the challenge to the Amended Count 1 as
       being illegal is moot in light of the fact that the defendant’s
       sentence has expired and the defendant has been discharged for
       the sentence entered for Count I and 3. Therefore, since the issue
       is moot, the court denies the defendant’s request to be resentenced
       for Count 1 as well as the defendant’s Motions in Arrest of
       Judgment.
              The court hereby vacates the May 30, 2006 trial order. The
       sentence imposed on July 14, 1997, although illegal, stands since
       this court has found the issue of the illegal sentence for Count 1 is
       moot. The court will not resentence the defendant for Count 1.

(Citations omitted). Kurtz now appeals the district court’s order.

       II. Motion in Arrest of Judgment

       Kurtz had two matters pending before the district court regarding his

conviction for possession of methamphetamine with intent to deliver—his motion

in arrest of judgment and his motion to correct an illegal sentence. The motion in

arrest of judgment was clearly untimely because such motions must be filed not

later than forty-five days after a guilty plea. See Iowa R. Crim. P. 2.24(3)(b).

Here, Kurtz entered his guilty plea on July 14, 1997, and his motion in arrest of

judgment was filed April 17, 2013, more than fifteen years later.

       “A defendant’s failure to challenge the adequacy of a guilty plea

proceeding by motion in arrest of judgment shall preclude the defendant’s right to
                                             6

assert such challenge on appeal.” Iowa R. Crim. P. 2.24(3)(a); State v. Finney,

834 N.W.2d 46, 49 (Iowa 2013). Because Kurtz did not file a timely motion in

arrest of judgment, we do not consider his claims attacking the validity of his

guilty plea.3

       III. Motion to Correct an Illegal Sentence

       In his motion to correct an illegal sentence Kurtz claims his sentence for

possession of methamphetamine with intent to deliver, second offense, was

illegal. However, he no longer asks to be resentenced. He claims the plea

agreement did not provide for him to serve the one-third mandatory minimum and

therefore it would be contrary to the plea agreement to resentence him to serve

the mandatory minimum. On the other hand, he claims failure to resentence him

to serve the mandatory minimum is contrary to section 124.413, and therefore

illegal. Kurtz asserts the only available remedy is to permit him to withdraw from

the guilty plea.

       “The court may correct an illegal sentence at any time.” Iowa R. Crim. P.

2.24(5)(a). “The intended and obvious meaning of the language ‘at any time’ is

that an illegal sentence is subject to correction regardless of whether or not it

was timely appealed.” State v. Ohnmacht, 342 N.W.2d 838, 843 (Iowa 1983).

We review a district court’s ruling on a motion to correct an illegal sentence for



3
  There is an exception to the general rule of error preservation when the failure to file a
motion in arrest of judgment is due to the ineffective assistance of counsel. State v.
Carter, 582 N.W.2d 164, 165 (Iowa 1998). In this case, Kurtz has not alleged the failure
to file a timely motion was due to the ineffective assistance of counsel. The record
shows Kurtz was advised of his right to file a motion in arrest of judgment and he waived
that right. See State v. Loye, 670 N.W.2d 141, 149 (Iowa 2003) (noting a court has the
duty to inform a defendant of the necessity of filing a motion in arrest of judgment to
challenge a guilty plea).
                                           7

the correction of errors at law. State v. Maxwell, 743 N.W.2d 185, 190 (Iowa

2008).

         A claim a sentence is illegal “includes claims that the court lacked the

power to impose the sentence or that the sentence itself is somehow inherently

flawed, including claims that the sentence is outside the statutory bounds or that

the sentence itself is unconstitutional.” State v. Bruegger, 773 N.W.2d 862, 871

(Iowa 2009). The purpose of the rule “is ‘to permit correction at any time of an

illegal sentence, not to re-examine errors occurring at the trial or other

proceedings prior to the imposition of the sentence.’” Id. at 871-72 (quoting Hill

v. United States, 368 U.S. 424, 430 (1962)). Thus, the proper remedy for an

illegal sentence is vacation of the illegal sentence and remand for resentencing.

Id. at 866.

         Even if we assume for purposes of this appeal Kurtz received an illegal

sentence, the proper remedy would be to vacate the sentence imposed in 1997

and to resentence him. Because the underlying conviction is not under review in

a motion to correct an illegal sentence, a party does not have the ability to seek

redress for procedural defects in guilty plea proceedings. Tindell v. State, 629

N.W.2d 357, 359 (Iowa 2001). This also means a party does not have the ability

to withdraw a guilty plea due to an illegal sentence. State v. Woody, 613 N.W.2d

215, 217 (Iowa 2000) (rejecting party’s claim remedy should be vacation of

sentence and withdrawal of guilty plea).

         As the district court noted, however, to vacate Kurtz’s sentence and

resentence him would have no practical effect because Kurtz had already
                                          8


discharged his sentence. The court therefore concluded the issue of whether

Kurtz had received an illegal sentence was moot.

       We note a court may raise the issue of mootness on its own motion. See

Albia Light & Ry. Co. v. Gold Goose Coal & Mining Co., 176 N.W. 722, 723 (Iowa

1920) (“It is our duty on our own motion to refrain from determining moot

questions.”). The discharge of a sentence usually renders a challenge to the

sentence moot. Rarey v. State, 616 N.W.2d 531, 532 (Iowa 2000). “In general

an action is moot if it no longer presents a justiciable controversy because the

issues involved have become academic or nonexistent. A case is moot when

judgment, if rendered, will have no practical legal effect upon the existing

controversy.”   State v. Wilson, 234 N.W.2d 140, 141 (Iowa 1975) (finding a

challenge to the propriety of the revocation of defendant’s work release was moot

because he had served his sentence).

       Kurtz claims his challenge to his sentence is not moot because he is

suffering collateral legal consequences, citing Sibron v. New York, 392 U.S. 40,

57 (1968) (“[A] criminal case is moot only if it is shown that there is no possibility

that any collateral legal consequences will be imposed on the basis of the

challenged conviction.”). At the resentencing hearing he stated his conviction for

possession of methamphetamine with intent to deliver impacted him, “[b]ecause

on my current sentence they’re using this case for a second or subsequent

offender enhancement.”      The collateral legal consequences he is concerned

about therefore arise from his conviction for possession of methamphetamine

with intent to deliver, not from whether his sentence for that crime either did or

did not contain a mandatory minimum. We have already determined Kurtz’s
                                       9


motion to correct an illegal sentence cannot be used to challenge his underlying

conviction. See Bruegger, 773 N.W.2d at 871-72. We conclude his challenge to

his sentence, which has already been discharged, is moot.

      We affirm the decision of the district court denying defendant’s motion to

correct an illegal sentence on the ground the issue was moot.

      AFFIRMED.
