                    IN THE COURT OF APPEALS OF IOWA

                                 No. 14-0872
                           Filed January 27, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PERRY BERNARDO BENDER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, William C.

Ostlund, Judge.



      The defendant appeals from the district court’s denial of his motions to

correct an illegal sentence. AFFIRMED.




      Shawn Smith of Shawn Smith, Attorney at Law, P.L.L.C., Ames, for

appellant.

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

General, for appellee.




      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 motions to

correct an illegal sentence imposed for two 2007 convictions. In 2007, Bender

was convicted of possession of a firearm as a felon, as an habitual offender,1 and

in a second case he was convicted of burglary in the second degree, as an

habitual offender, and stalking in violation of a no-contact order, as an habitual

offender.2 Bender appealed in both cases, and his appeals were consolidated.

Bender maintains the district court erred in denying his motions because the

imposition of the habitual offender enhancements was illegal and should have

been corrected. He maintains the enhancements are only applicable when the

person in question has been twice convicted and sentenced for felonies. He

argues that because his 2001 sentence was illegal and void, he had not been

twice sentenced in 2007 when the enhancements were imposed, and it could not

be properly applied to him.

        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 1996 conviction and 2001 conviction preceded his 2007 convictions,

the imposition of the habitual offender enhancements was not in error, and we

affirm the district court’s denial of Bender’s motions to correct an illegal sentence.




1
    Case no. FECR331222
2
    Case no. FECR333021
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I. Backgrounds Facts and Proceedings.

         Following a trial by jury, on May 2, 2007, the district court entered

judgment against Bender for possession of a firearm as a felon, as an habitual

offender (case no. FECR331222). Also following a trial by jury, on May 7, 2007,

the district court entered judgment against Bender for burglary in the second

degree, as an habitual offender, and stalking in violation of a no-contact order, as

an habitual offender (case no. FECR333021). Regarding the habitual offender

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

degree and a 2001 conviction for willful injury.

         On March 12, 2013, Bender filed a motion to correct an illegal sentence in

case no. FECR331222. He maintained that the 2001 willful injury charge had not

reached “valid final judgment” at the time of the 2007 sentencing and thus was

not a predicate felony for the purpose of the sentencing enhancements. One

week later, Bender filed a similar motion in case no. FECR333021.

         On May 30, 2013, the court of appeals filed an opinion finding 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.” Neither the State nor

Bender sought further review, and procedendo issued on July 10, 2013.
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       The district court heard argument on Bender’s motions to correct the

illegal habitual offender sentences in FECR331222 and FECR333021 on

February 24, 2014.     The court denied both motions in a written ruling, filed

April 23, 2014, and Bender filed a consolidated appeal.

II. Standard of Review.

       We review challenges to the legality of a sentence for correction of errors

at law. State v. Chadwick, 586 N.W.2d 391, 392 (Iowa Ct. App. 1998).

III. Discussion.

       Bender maintains that the district court’s imposition of the habitual

offender enhancements was illegal. He maintains the enhancements are only

applicable when the person in question has been twice convicted and sentenced

for felonies. He argues that because his 2001 sentence was illegal and void, he

had not been twice convicted and sentenced in 2007 when the enhancements

were imposed, and it could not be properly applied to him.

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

which provides:

       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.

Bender maintains that “conviction”—as used in section 902.8—is not meant in

the colloquial sense, but rather in a “restricted or technical legal sense.” In State

v. Hanna, 179 N.W.2d 503, 507–08 (Iowa 1970), our supreme court stated:
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              The word ‘conviction’ is of equivocal meaning, and its use in
      a statute presents a question of legislative intent.
              In the restricted or technical legal sense in which it is
      sometimes used, the word ‘conviction’ includes the status of being
      guilty of, and sentenced for, a criminal offense, whether that status
      is established after confession of guilt by a guilty plea or after
      determination by a jury verdict upon an assertion of innocence.
      Stated otherwise technically the word means the final
      consummation of the prosecution against the accused including the
      judgment or sentence rendered pursuant to an ascertainment of his
      guilt.
              In its general and popular sense and frequently is its
      ordinary legal sense, the word ‘conviction’ is used in the sense of
      establishment of guilt prior to and independently of judgment and
      sentence by a verdict of guilty or a plea of guilty.

Moreover, the court has stated that 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). However, we are

not persuaded by these arguments because the meaning of conviction in the

habitual offender statute is not equivocal. Our supreme court interpreted the

meaning of “conviction” within the habitual offender enhancement in State v.

Hollins, 310 N.W.2d 216, 216 (Iowa 1981).

      In Hollins, the court was tasked with determining what was necessary “to

invoke the provisions of that statute and impose sentence as such upon an

habitual offender.”   310 N.W.2d at 216.       The court found, “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
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triggered by convictions alone and not by any resulting prior sentences or

commitments to prison.” Id. at 216 (emphasis added).

       We acknowledge two cases decided after Hollins and relied upon by

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

State Bd. of Parole, 414 N.W.2d 122, 123 (Iowa 1987). 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 217-18).

Additionally, in Hajek, the court cited Hollins and stated, “The general rule is that

criminal recidivism statutes which enhance punishment apply only when the

second offense occurs after the imposition of judgment and sentence on the first

offense.”   Hajek, 414 N.W.2d at 123.          However, these recitations 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. We also note that Freeman was a case involving a

sentencing enhancement under Iowa Code section 124.401(5) and Hajek was a

case involving Iowa Code section 906.5, as opposed to the habitual offender

enhancement mentioned in Hollins and set forth in Iowa Code section 902.8.

       Convictions alone trigger the habitual offender enhancement of Iowa Code

section 902.8, and Bender has not shown that his convictions were in error. “An

appeal or subsequent challenge to a conviction and sentence does not render
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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 (noting that absent bail, a 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, 2013 WL 2368826, at *3 (“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.”).

       Accordingly, the illegality of Bender’s sentence for the 2001 conviction did

not affect the conviction itself.   Because Bender’s 1996 conviction and 2001

conviction preceded his 2007 convictions, the habitual offender enhancements

were not in error. We affirm the district court’s denial of Bender’s motions to

correct an illegal sentence.

       AFFIRMED.
