                    IN THE COURT OF APPEALS OF IOWA

                              No. 3-1250 / 13-0687
                             Filed February 19, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GARY ELDON TRUEBLOOD,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Webster County, Gary L.

McMinimee, Judge.



       Defendant appeals from the district court’s order overruling his motion for

correction of an illegal sentence. AFFIRMED.




       Mark C. Smith, State Appellate Defender, and Vidhya Reddy, Assistant

Appellate Defender, for appellant.

       Gary Eldon Trueblood, Fort Dodge, pro se.

       Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney

General, Ricki Osborn, County Attorney, and Jennifer Bonzer, Assistant County

Attorney, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Mullins, JJ.
                                            2


DANILSON, C.J.

       Gary Trueblood appeals from the district court’s order overruling his

motion for correction of an illegal sentence.          He maintains the district court

violated his constitutional right by overruling his motion without appointing him

counsel.    Because we find the issues raised by Trueblood are not properly

described as a challenge to the legality of the sentence, we affirm the district

court’s order overruling his motion.

I. Background Facts and Proceedings.

       On September 21, 2011, the State charged Trueblood with six counts of

sexual abuse in the second degree and two counts of sexual abuse in the third

degree. Trueblood accepted a plea agreement and pled guilty to two of the

counts of sexual abuse in the second degree. The State dismissed the other six

counts. Per the agreement, the State and Trueblood jointly recommended that

he receive indeterminate twenty-five-year prison sentences on each count to be

served consecutively for a total indeterminate sentence of fifty years, with a

mandatory minimum of seventy percent to be served before obtaining eligibility

for parole. On April 11, 2012, the district court sentenced Trueblood, accepting

the joint recommendations of Trueblood and the State.

       On March 29, 2013, Trueblood filed a pro se motion for correction of an

illegal sentence.    In his motion, Trueblood argued the Iowa Department of

Correction’s policy1 pertaining to the sexual offender treatment program was an


1
  No copy of the of the department of correction’s policy is included in the district court
record, but Trueblood’s motion alleged that the policy requires sex offender inmates to
be within three years of their discharge date before they are allowed to enter the
required sex offender treatment program and that the program then takes three years to
                                         3


illegal implementation of the court’s sentence, as it would require him to

discharge his entire fifty-year sentence rather than allowing him to be paroled

after serving the mandatory minimum.         He also argued the district court’s

imposition of convictions and sentences on two counts of sexual abuse violated

his Fifth Amendment protection against double jeopardy because all of the

alleged sexual abuse acts grew out of one continuous criminal offense with one

victim. Within the motion, Trueblood also asked the court to appoint counsel.

       On April 18, 2013, the district court issued a written order overruling

Trueblood’s motion.    The court did so without appointing Trueblood counsel.

Trueblood appeals.

II. Standard of Review.

       We review de novo a district court decision implicating a defendant’s

constitutional rights. State v. Lyman, 776 N.W.2d 865, 873 (Iowa 2010).

III. Discussion.

       The Sixth Amendment to the United State Constitution provides, “In all

criminal prosecutions, the accused shall enjoy the right to . . . have the

assistance of counsel for his defense.” “The Sixth Amendment safeguards to an

accused who faces incarceration the right to counsel at all critical stages of the

criminal process.” Iowa v. Tovar, 541 U.S. 77, 80–81 (2004). Although the

defendant has a right to counsel, he may choose to waive the right. State v.

Majeres, 722 N.W.2d 179, 182 (Iowa 2006).




complete. Thus, sex offender inmates are required to discharge their entire sentence,
rather than allowing them the opportunity to be paroled after serving the mandatory
minimum.
                                           4


       Trueblood argues his motion to correct an illegal sentence was a “critical

stage of the criminal process.” He maintains he did not waive his right to counsel

and thus argues the district court violated his constitutional right by failing to

appoint him counsel.

       Whether a defendant has a constitutional right to have counsel appointed

to represent him on a motion to correct an illegal sentence is an issue of first

impression. Here, we need not determine the merits of the claim, as even if our

supreme court would decide such a right exists, the two issues raised by

Trueblood are not properly described as a challenge to the legality of his

sentence.    See State v. Bruegger, 773 N.W.2d 862, 871 (Iowa 2009) (“[A]

challenge to an illegal sentence includes claims that the court lacked the power

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

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

sentence itself is unconstitutional.”)

       Neither of Trueblood’s claims states a potential ground for relief from an

illegal sentence. Iowa Rule of Criminal Procedure 2.24(5)(a) states, “The court

may correct an illegal sentence at any time.” Trueblood’s challenge to the Iowa

Department of Correction’s policy regarding when he might be permitted to begin

the required sex offender treatment program is a challenge to the department’s

implementation of his sentence, not the legality of the actual sentence imposed.

Thus, relief may not be granted for the wrongful implementation of a sentence via

a motion to correct an illegal sentence.

       Similarly, Trueblood’s second claim—that double jeopardy prevented him

from being convicted and sentenced on more than one count of second-degree
                                            5


sexual abuse because the charges stemmed from a continuing offense involving

only one victim—is also not a proper subject for a motion to correct an illegal

sentence.2 See Iowa Code § 822.2(1)(a) (2011); see also State v. Chadwick,

586 N.W.2d 391, 392–93 (Iowa Ct. App. 1998) (holding that defendant’s motion

to correct an illegal sentence that was actually a Sixth Amendment claim should

have been filed as part of an application for postconviction relief).           The rule

permits sentences to be corrected that are beyond the jurisdiction of the court

and are void. Tindell v. State, 629 N.W.2d 357, 359–360 (Iowa 2001). Here,

Trueblood was sentenced to two indeterminate terms of twenty-five years as

authorized for second-degree sexual abuse. Iowa Code §§709.3(2), 902.9(2).

The sentences were imposed consecutively as permitted in the discretion of the

court. State v. Delaney, 526 N.W.2d 170, 178 (Iowa Ct. App. 1994). The terms

of the sentences were not illegal or unconstitutional in any respect.

       Because we find the issues raised by Trueblood are not properly

described as a challenge to the legality of the sentence, we need not address his

other issue concerning the appointment of counsel. We affirm the district court’s

order overruling his motion.

       AFFIRMED.

2
  We acknowledge the difficulty a self-represented party may face in determining how to
raise a particular issue. We also note that a “label attached to a motion is not
determinative of its legal significance” and we must look to the content of the motion “to
determine its real nature.” Iowa Elec. Light & Power Co. v. Lagle, 430 N.W.2d 393, 395
(Iowa 1988). We also observe that Iowa Code section 822.6 requires the court, in
considering an application for postconviction relief, to take into account substance
“regardless of form.” However we decline to consider “substance over form” in these
circumstances because Trueblood never argued the “substance over form” principle and
his motion was filed and docketed in the underlying criminal action, whereas a
postconviction-relief proceeding is a civil action and is docketed as a separate action.
Jones v. State, 545 N.W.2d 313, 314 (Iowa 1996) (“A postconviction proceeding is a civil
action triable at law.”).
