                    IN THE SUPREME COURT OF IOWA
                              No. 16–1544

                           Filed April 12, 2019


MICHAEL JEFFERSON,

       Plaintiff,

vs.

IOWA DISTRICT COURT FOR SCOTT COUNTY,

       Defendant.


       On review from the Iowa Court of Appeals.



       Certiorari to the Iowa District Court for Scott County, Marlita A.

Greve, Judge.



       The plaintiff seeks further review of a court of appeals decision

upholding the district court denial of his motion to correct an illegal

sentence and his application for appointment of counsel. DECISION OF

COURT OF APPEALS VACATED; WRIT SUSTAINED.


       Les M. Blair III (until withdrawal) of Blair & Fitzsimmons, P.C.,

Dubuque, then Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque,

for plaintiff.



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

Attorney General, and Michael J. Walton, County Attorney, for defendant.
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CHRISTENSEN, Justice.
      A defendant filed a motion to correct an illegal sentence. He applied

for appointment of counsel.           The district court not only denied

appointment of counsel, but also summarily dismissed his motion. The

defendant filed a petition for writ of certiorari.   The court of appeals

annulled the writ.     On further review, we find Iowa Rule of Criminal

Procedure 2.28(1) requires the court to appoint counsel when an indigent

defendant files a motion to correct illegal sentence under Iowa Rule of

Criminal Procedure 2.24(1). Therefore, we sustain the writ and remand
the case for appointment of counsel.

      I. Background Facts and Proceedings.

      In 2007, Michael Jefferson, then twenty-one years old, engaged in

nonconsensual sexual contact with a fourteen-year-old female in a

Davenport motel alongside another adult male, Arnold Grice. Jefferson

forced the victim to have sexual intercourse with him against her will by

placing his penis into her vagina while Grice forced his penis into the

victim’s mouth. During this time, the victim was under the influence of

cocaine and alcohol. The victim later identified Grice from a photographic

line-up, and Grice’s girlfriend implicated Jefferson based on admissions
made to her. Upon further investigation, law enforcement was able to lift

Jefferson’s fingerprints from a condom wrapper found in the motel room.

Consequently, the state charged Jefferson with sexual abuse in the second

degree in violation of Iowa Code section 709.3 (2007), a class “B” felony,

and sexual abuse in the third degree in violation of Iowa Code section

709.4(2)(c)(4), a class “C” felony.

      Jefferson entered into a plea agreement in which he pled guilty to

third-degree sexual abuse based on his sexual assault of a fourteen-year-

old while he was twenty-one years old. As part of the plea agreement,
                                      3

Jefferson agreed to testify against Grice, and the state agreed to dismiss

the charge of second-degree sexual abuse against Jefferson, file no

additional charges, and make no sentencing recommendation.                  In

conditionally accepting Jefferson’s guilty plea, the district court found that

there was a factual basis to support this plea and that Jefferson entered

into the plea knowingly and voluntarily.

      Jefferson subsequently filed a timely motion in arrest of judgment

seeking permission to withdraw his guilty plea based on his alleged

innocence, fear of further prosecution due to his inadequate testimony

against Grice, and his belief that the district court failed to properly inform

him of the duration he would spend on the sex offender registry. The

district court denied Jefferson’s motion. The court of appeals affirmed

Jefferson’s conviction but vacated his sentence and remanded for

resentencing     based    on    the    state’s   unauthorized      sentencing

recommendation in breach of the plea agreement.               Jefferson later

unsuccessfully raised similar claims in a postconviction-relief action.

      The district court sentenced Jefferson to an indefinite term of

imprisonment not to exceed ten years and ordered his placement on the

sex offender registry for third-degree sexual abuse in violation of Iowa Code

section 709.4. The district court also imposed a special lifetime sentence

pursuant to Iowa Code section 903B.1, committing Jefferson into the

custody of the director of the Iowa Department of Corrections with parole

eligibility as set forth in chapter 906.     Approximately two years after

Jefferson was discharged from prison, the board of parole filed a notice of

parole violation claiming Jefferson violated three conditions of parole. The

violations alleged Jefferson provided false information to the sex offender

registry, thereby failing to obey all laws and ordinances, and Jefferson

made verbal threats in a phone call to his former girlfriend. Following a
                                      4

parole revocation hearing, a parole judge found the violations were correct,

revoked Jefferson’s parole, and ordered Jefferson be placed on the work

release list or at the work release center in Davenport. Soon thereafter,

another parole judge found Jefferson in violation of four parole conditions

and ordered Jefferson to serve up to five years in prison.

      Jefferson filed a motion for correction of an illegal sentence on May

19, 2016, challenging the discharge date for his special lifetime sentence

under 903B.1 and claiming an ex post facto violation. The district court

denied Jefferson’s motion in its entirety, explaining Jefferson’s offense

required “the imposition of the special sentence of lifetime parole pursuant

to Iowa Code [s]ection 903B.1 . . . [and] this court has no control or

authority over when Defendant is to be released or when his parole should

end.” Jefferson filed a second motion for correction of an illegal sentence

on August 9, 2016, maintaining his lifetime special sentence was

unconstitutionally vague and the result of an illegal bill of attainder in

violation of the United States and Iowa Constitutions.            Moreover,

Jefferson’s second motion claimed the lifetime special sentence violated

equal protection; the separation of powers doctrine; his constitutional

rights to freedom of association, to marry and have children, to be free

from bodily restraint, and to travel; as well as his right against self-

incrimination   under   the   Fifth   Amendment    of   the   United   States

Constitution.   Jefferson also filed an application for appointment of

counsel on August 9, 2016.

      The district court denied Jefferson’s second motion for correction of

an illegal sentence “for all the same reasons” the district court denied his

first motion for correction of an illegal sentence. The district court also

denied Jefferson’s motion to have counsel appointed. Prior to receiving

this denial, Jefferson mailed a motion to amend original filing of correction
                                      5

of sentence that raised additional constitutional violations, including a

claim that his special lifetime sentence violated the prohibition against

cruel and unusual punishment under the United States and Iowa

Constitutions. The district court denied this motion, noting it was “denied

for all of the same reasons the previous two motions were denied.”

      Jefferson filed a petition for writ of certiorari followed by a notice of

appeal from the district court’s denial of his second motion to correct an

illegal sentence “and from all adverse rulings and orders inhering therein.”

We denied Jefferson’s petition for writ of certiorari, noting he had a “related

appeal still pending before this court . . . in which” he had appointed

counsel to represent him.

      We then determined Jefferson was not entitled to an appeal as a

matter of right from a denial of a motion to correct an illegal sentence. It

was proper for Jefferson to seek permission to appeal by filing a petition

for a writ of certiorari.

      Jefferson filed a statement in support of granting certiorari review

on July 27, 2017, reasoning review was warranted because our “guidance

is necessary on the questions of whether and under what circumstances

a defendant may be entitled to counsel, a hearing, and/or a statement of

findings on a motion to correct illegal sentence.” Jefferson proclaimed we

also needed to provide guidance as to when a gross disproportionality cruel

and unusual punishment claim involving a section 903B.1 special

sentence “may lie, specifically including the question of whether the

threshold inquiry is satisfied under the circumstances of the present case.”

      Pursuant to Iowa Rule of Appellate Procedure 6.108, we treated all

of Jefferson’s filings as a petition for a writ of certiorari.    We granted

certiorari review.
                                     6

      The court of appeals annulled the writ of certiorari. It determined

Jefferson had no constitutional or statutory right to counsel in his

challenge to his alleged illegal sentence because the right to counsel does

not apply to “a collateral attack on the conviction that has been finalized

long ago.” Additionally, the court of appeals rejected Jefferson’s claim that

his sentence was cruel and unusual, noting Jefferson could not show an

inference of gross disproportionality between the gravity of his offense and

his challenged sentence.     Jefferson sought further review, which we

granted.

      II. Standard of Review.

      We review questions of statutory interpretation for correction of

errors at law.   State v. Coleman, 907 N.W.2d 124, 134 (Iowa 2018).

Moreover, “[w]e may review a challenge that a sentence is illegal at any

time.” State v. Zarate, 908 N.W.2d 831, 840 (Iowa 2018). Finally, “[t]hough

we typically review challenges to illegal sentences for correction of legal

errors, our standard of review for an allegation of an unconstitutional

sentence is de novo.” State v. Harrison, 914 N.W.2d 178, 187–88 (Iowa

2018).

      III. Analysis.

      Jefferson presents a number of claims. First, he argues the district

court violated his statutory right to counsel in denying his request for

court-appointed counsel to represent him on his motion for correction of

an illegal sentence.    Next, Jefferson contends this denial of court-

appointed counsel violated his constitutional right to counsel under both

the Iowa and Federal Constitutions. Should we hold Jefferson does not

have a federal constitutional right to counsel, Jefferson maintains the Iowa

Constitution still provides him with a state constitutional right to counsel

because the Iowa Constitution should be interpreted broader than the
                                     7

United States Constitution. Similarly, he argues he has a right to counsel

based on considerations of due process and fundamental fairness under

the Iowa Constitution. Jefferson also claims the district court violated his

procedural due process rights by summarily dismissing his motion for

correction of an illegal sentence without providing him an evidentiary

hearing or detailed findings.    Finally, he asserts his lifetime special

sentence under Iowa Code section 903B.1 constitutes cruel and unusual

punishment under the State and Federal Constitutions.

      A. The Right to Counsel on a Motion to Correct Illegal

Sentence.    Jefferson contends the district court violated his statutory

right to counsel, as well as his constitutional right to counsel under the

State and Federal Constitutions, in declining his request for appointed

counsel to represent him on his motion to correct an illegal sentence.

Additionally, he argues this denial of appointed counsel violates his due

process rights as a matter of fundamental fairness under the State and

Federal Constitutions. Jefferson asks us to hold that a motion to correct

an illegal sentence is a stage of the criminal proceeding for which a right

to counsel applies.

      Iowa Rule of Criminal Procedure 2.28(1) provides,

      Every defendant who is an indigent person as defined in Iowa
      Code section 815.9 is entitled to have counsel appointed to
      represent the defendant at every stage of the proceedings from
      the defendant’s initial appearance before the magistrate or the
      court through appeal, including probation revocation
      hearings, unless the defendant waives such appointment.

Iowa R. Crim. P. 2.28(1). Additionally, Iowa Code section 815.10

states,

      The court, for cause and upon its own motion or upon
      application by an indigent person or a public defender, shall
      appoint the state public defender’s designee pursuant
      to section 13B.4 to represent an indigent person at any stage
                                            8
       of the criminal, postconviction, contempt, commitment under
       chapter 229A, termination under chapter 600A, detention
       under section 811.1A, competency under chapter 812, parole
       revocation if applicable under section 908.2A, or juvenile
       proceedings or on appeal of any criminal, postconviction,
       contempt, commitment under chapter 229A, termination
       under chapter 600A, detention under section 811.1A,
       competency under chapter 812, parole revocation under
       chapter 908, or juvenile action in which the indigent person is
       entitled to legal assistance at public expense. However, in
       juvenile cases, the court may directly appoint an existing
       nonprofit corporation established for and engaged in the
       provision of legal services for juveniles. An appointment shall
       not be made unless the person is determined to be indigent
       under section 815.9.

Iowa Code § 815.10(1)(a) (2016) (emphasis added).

       In State v. Alspach, we read rule 2.28(1) (then rule 26(1)) and Iowa

Code section 815.10(1) together and concluded that they provided a right

to court-appointed counsel when a defendant is challenging restitution

“imposed as part of the original sentencing order, or supplemental orders,

under Iowa Code section 910.3,” but not when a defendant is later bringing

an action under section 910.7. 554 N.W.2d 882, 883–84 (Iowa 1996). 1 We
noted in Alspach that the defendant would have had a statutory right to

counsel had the restitution been finalized at sentencing and that he

“should not be denied counsel simply because the amount of pecuniary
damages was unavailable on the day of sentencing.”                         Id. at 884.

Nevertheless, we limited our holding “to challenges to restitution imposed

as part of the original sentencing order, or supplemental orders.” Id. In

doing so, we maintained the defendant would “ordinarily have no right to

appointed counsel” if he initiated a later action to modify the restitution



       1We   subsequently clarified in State v. Blank that a petition under Iowa Code
section 910.7 filed within thirty days of a court’s restitution order would be “considered
an extension of the criminal proceedings.” 570 N.W.2d 924, 926 (Iowa 1997). Hence, a
right to counsel would attach. See State v. Dudley, 766 N.W.2d 606, 619 n.5 (Iowa 2009).
                                     9

order because a later action would “not [be] part of the criminal

proceedings.” Id.

      In State v. Dudley, 766 N.W.2d 606 (Iowa 2009), we recognized that

Iowa Code section 815.10 is not self-contained.       It provides a right to

counsel “at any stage of the criminal . . . proceedings . . . in which the

indigent defendant is entitled to legal assistance at public expense.” Id. at

617 (quoting Iowa Code § 815.10(1) (2005)). Therefore, Dudley looked to

other sources to determine when the defendant is “entitled to legal

assistance at public expense.” Id. at 617–18. In Dudley, we pointed out

that the Iowa Constitution guarantees the right to counsel “in all criminal

prosecutions,” and that section 801.4(13) defines a “prosecution” as

ending at “final judgment on behalf of the state.” Id. at 617–18. Hence,

in Dudley, we concluded “the legislature intended to extend the right to

counsel enjoyed by a defendant charged with a criminal offense through

the conclusion of the criminal proceeding by judgment.”          Id. at 618.

However, we did not discuss rule 2.28(1) (or 26(1)) in Dudley, beyond

noting that Alspach had relied on it. Id. at 619. Thus, we held that an

acquitted defendant had a statutory right to counsel in a postacquittal

proceeding for a judgment against him for the costs of his legal assistance

as part of his defense since the judgment “was entered in the criminal

proceeding, not in a separate action by the State.” Id. “[B]y definition,”

the defendant’s “criminal case did not end . . . until the cost judgment had

been entered against [him] and in favor of the State.” Id. at 620.

      We must now decide in what category a motion to correct illegal

sentence belongs. The text of Iowa Code section 815.10 does not answer

the question; instead, it simply redirects us to whether this is a stage of

the proceeding “in which the indigent person is entitled to legal assistance

at public expense.”     Iowa Code § 815.10(1)(a) (2016).      Rule 2.28(1),
                                     10

meanwhile, is ambiguous.      It states that the defendant has a right to

counsel “at every stage of the proceedings . . . through appeal.” Iowa R.

Crim. P. 2.28(1). Does this mean that the right to counsel drops out once

the defendant has been through his or her direct appeal? Or does it mean

that as long as one is talking about a stage of the original criminal case,

including any appeal within that original criminal case, the right to

counsel remains?

      In Alspach and Dudley we appear to have opted for the second of

these two possible readings. That is, in Alspach we declined to find a right

to counsel when the defendant files “a later action” under Iowa Code

section 910.7, which is “civil in nature and not part of the criminal

proceedings.” 554 N.W.2d at 884. Yet in Dudley we found that there is a

right to counsel when the state is seeking to collect costs of defense from

an acquitted defendant because “[t]he State is not required to initiate a

separate suit.” 766 N.W.2d at 618. “This process takes place entirely in

the context of the criminal case.” Id.

      A motion to correct illegal sentence is a stage of the original criminal

case. It “takes place entirely in the context of [that case].” Id. Such a

motion is not filed as a separate action. Indeed, rule 2.24(1) authorizes it

as one of the “[p]ermissible motions after trial.” It is true that such a

motion may be filed at any time. See Iowa R. Crim. P. 2.24(5)(a). Still, it

is not filed as a separate action but within the original criminal case. It is

merely a “motion,” not an “application,” see Iowa Code § 822.3 (application

for postconviction relief), or even a “petition,” see id. § 910.7 (petition to

modify plan of restitution or restitution plan of payment). Thus, we believe

that under rule 2.28(1), Alspach, and Dudley, a right to counsel is

triggered.
                                     11

      Furthermore, we believe this interpretation is supported by the

principle that “we strive to avoid constitutional problems when we

interpret our rules.”   State v. Jones, 817 N.W.2d 11, 17 (Iowa 2012).

Needless to say, serious constitutional problems would be raised if the

state could move to correct an indigent defendant’s sentence and have that

defendant sent to prison without the defendant having a right to counsel.

Likewise, serious constitutional problems would be raised if an indigent

defendant who sought a correction of his or her sentence in light of a case

like State v. Lyle, 854 N.W.2d 378 (Iowa 2014) (holding all mandatory

minimum sentences of imprisonment for juvenile offenders violate article

I, section 17 of the Iowa Constitution), did not have a right to counsel at

the resentencing.

      We are aware that the motion to correct an illegal sentence has the

potential to be abused. There are tools to address such abuse. To begin

with, a motion challenging a defendant’s underlying conviction is not a

motion to correct an illegal sentence. State v. Bruegger, 773 N.W.2d 862,

871 (Iowa 2009). Additionally, “a defective sentencing procedure does not

constitute an illegal sentence . . . .” Tindell v. State, 629 N.W.2d 357, 360

(Iowa 2001) (emphasis omitted). In those events, rule 2.28(1) does not

require appointment of counsel because the motion is not a rule 2.28(1)

motion.

      Furthermore, a motion to correct an illegal sentence may be

frivolous, for example, if it claims that a routine sentence was cruel and

unusual or that two convictions should have merged when it is abundantly

clear they do not. In that event, counsel should be appointed, but may

ask to withdraw employing a procedure similar to that authorized by rule

6.1005 for frivolous appeals. See Iowa R. App. P. 6.1005.
                                     12

      Because we have concluded that rule 2.28(1) affords a right to

counsel on a motion to correct an illegal sentence, we need not address

Jefferson’s arguments that such a right is mandated by the Sixth and

Fourteenth Amendments to the United States Constitution or article I,

sections 9 and 10 of the Iowa Constitution. See, e.g., State v. Iowa Dist.

Ct., 843 N.W.2d 76, 85 (Iowa 2014) (“The doctrine of constitutional

avoidance suggests the proper course in the construction of a statute may

be to steer clear of ‘constitutional shoals’ when possible.”).

      B. The Constitutionality of Jefferson’s Sentence. Jefferson asks

us to find that his lifetime special sentence under Iowa Code section

903B.1 violates the Cruel and Unusual Punishment Clauses of the State

and    Federal   Constitutions,     arguing    the   sentence    is   grossly

disproportionate to his offense.    Under Iowa Code section 903B.1, “[a]

person convicted of a class ‘C’ felony or greater offense under chapter 709,”

including the offense Jefferson pled guilty to, is subject “to a special

sentence committing the person into the custody of the director of the Iowa

department of corrections for the rest of the person’s life, with eligibility

for parole as provided in chapter 906.” Iowa Code § 903B.1 (2007). This

special sentence commences “upon completion of the sentence imposed

under any applicable criminal sentencing provisions for the underlying

criminal offense and the person shall begin the sentence under

supervision as if on parole.” Id. At that point, the person serving the

special sentence is placed on the corrections continuum outlined in

chapter 901B and subject to the same procedures as other parole and

work release violations in ordinary sentencing.      Id.   Any revocation of

release due to parole violations “shall not be for a period greater than two

years upon any first revocation, and five years upon any second or

subsequent revocation.”     Id.   Finally, pursuant to Iowa Code section
                                    13

906.15, a person convicted of a crime against a child under section 709.4,

who is serving a special sentence pursuant to section 903B.1, is eligible

for early release from parole once “the person’s term of parole equals the

period of imprisonment specified in the person’s sentence, less all time

served in confinement.” Id. § 906.15. Jefferson claims his “lack of prior

criminal history, young age, and relatively lower culpability[,] comparing

the offense of statutory rape versus the other possible felonies that would

give rise to a 903B.1 lifetime special sentence[,]” create an inference that

his sentence is grossly disproportionate to his underlying crime.

      As described above, Jefferson is raising a claim that his sentence is

illegal. Accordingly, he was entitled to the appointment of counsel in the

district court. We sustain the writ and remand for the district court to

appoint counsel and consider the merits of Jefferson’s claims.

      IV. Conclusion.

      For the aforementioned reasons, we sustain the petition for writ of

certiorari and remand for further proceedings.

      DECISION      OF    COURT     OF    APPEALS      VACATED;       WRIT

SUSTAINED.

      All justices concur except McDonald, J., who takes no part.
