                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1268
                               Filed May 20, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHN ALAN MAKLENBURG,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Worth County, Rustin T. Davenport

(plea hearing) and Gregg R. Rosenbladt (sentencing hearing), Judges.



      A defendant appeals his sentencing following his guilty plea to two counts

of lascivious acts with a child. AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.



      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Sheryl A. Soich,

Assistant Attorneys General, and Jeffrey H. Greve, County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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MULLINS, J.

      John Maklenburg appeals his sentence following his guilty plea to two

counts of lascivious acts with a child, in violation of Iowa Code section

709.8(1)(d) (2013). He asserts the district court abused its discretion in imposing

judgment given his age, time in custody, educational progress, and employment

prospects. He also contends the district court’s imposition of consecutive special

sentences, to commence upon the end of his consecutive prison sentences, was

illegal because special sentences must begin upon the discharge of the sentence

for underlying offenses.    We affirm Maklenburg’s sentences, we affirm the

imposition of the two ten-year special sentences, but vacate the district court’s

direction that the special sentences are consecutive for a total of twenty years,

and remand for entry of a corrected sentence.

I.    Sentencing

      Maklenburg asserts the district court failed to properly balance several

sentencing factors in sentencing him to two consecutive five-year prison terms.

As he does not contend his consecutive prison sentences are outside a statutory

limit, our review is for abuse of discretion. State v. Thomas, 547 N.W.2d 223,

225 (Iowa 1996). An abuse of discretion is found only when the “sentencing

court exercises its discretion on grounds or for reasons clearly untenable or to an

extent clearly unreasonable.” Id. Sentencing decisions of the district court are

“cloaked with a strong presumption in their favor.” State v. Loyd, 530 N.W.2d

708, 713 (Iowa 1995).
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       In determining an appropriate sentence, the district court is to weigh all

pertinent matters, including “the nature of the offense, the attending

circumstances, the defendant’s age, character, and propensities or chances for

reform.” Id. It is within the district court’s discretion to give weight one factor

more than others. State v. Wright, 340 N.W.2d 590, 593 (Iowa 1983).

       Maklenburg contends the district court abused its discretion by not giving

enough weight to his young age, the fact that he spent a year in custody before

sentencing, the educational strides he made while in custody, and his

employment prospects. The State contends the district court did not abuse its

discretion because it considered the pertinent factors and properly rested its

sentencing decision on the presentence investigation (PSI) report and

psychosexual evaluation.

       Upon review of the record, we find the court considered not only the

nature of the offense, but several other material factors in imposing Maklenburg’s

sentence. These factors included Maklenburg’s rehabilitation prospects, the risk

he presented to the community, his age, his employment prospects, his family,

the psychosexual evaluation, and the PSI. The evaluation indicated Maklenburg

lacked remorse, had issues with authority, and exhibited a high risk to reoffend.

The PSI recommended Maklenburg receive consecutive prison sentences.

Relying heavily on the psychosexual evaluation and PSI, the court stated it would

like to defer judgment based on Maklenburg’s age, but given his need for

“structured” rehabilitation and his risk of reoffending, it declined to do so. We find
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the district court did not abuse its discretion and considered and balanced the

pertinent sentencing factors.

II.      Special Sentences

         Maklenburg contends the court imposed illegal special sentences by

ordering the special sentences to begin upon the discharge of both five-year

terms, as opposed to the discharge of his sentence for each underlying offense,

per State v. Anderson, 782 N.W.2d 155, 159 (Iowa 2010). He further implies, but

does not argue, the court incorrectly ordered the special sentences to run

consecutively for a total of twenty years.       The State asserts the special

sentences do not commence until Maklenburg’s completion of both sentences,

since consecutive sentences are not severable under Iowa Code section 901.8.

We review challenges to an illegal sentence for correction of errors at law. State

v. Maxwell, 743 N.W.2d 185, 190 (Iowa 2008).            The State also asserts

Maklenburg does not contest the consecutive structure of the special sentences.

         The district court imposed special sentences pursuant to section 903B.2.

Section 903B.2 provides that violators of section 709.8(1)(d) shall be sentenced,

in addition to any other punishment provided by law, to a special sentence of ten

years.     The imposition of the special sentence must commence upon the

completion of the underlying criminal offense. Iowa Code § 903B.2.

         In Anderson, the defendant was serving a two-year sentence for a crime

subject to section 903B.2. That sentence was being served concurrently with

two five-year sentences that were consecutive to each other and not subject to

section 903B.2. 782 N.W.2d at 156. While still incarcerated, he filed a motion
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asking the court to order the commencement of his special sentence because he

had discharged the two-year sentence, even though he would still be

incarcerated on the unrelated offenses.     Id. at 157.   In reversing the district

court’s holding that the special sentence should commence upon the defendant’s

release from prison, our supreme court held the special sentence under section

903B.2 must begin to run when the sentence for the underlying criminal offense

was discharged, regardless of other sentences the defendant may be serving at

that time. Id. at 159.

       The court in Anderson was considering the start date of the special

sentence following completion of a sexual predator violation that ran concurrent

to other non-sexually violent predator offenses. The State argues that under

section 901.8, Maklenburg’s consecutive five-year sentences are not severable,

and therefore the special sentences must commence at the end of the entire

term of incarceration.   Section 901.8 provides in relevant part: “Except as

otherwise provided in section 903A.7, if consecutive sentences are specified in

the order of commitment, the several terms shall be construed as one continuous

term of imprisonment.”       Section 903A.7 begins with: “Consecutive multiple

sentences that are within the same category under section 903A.2 shall be

construed as one continuous sentence for purposes of calculating reductions of

sentence for earned time.”

       Maklenburg was convicted of two violations of section 709.8(1)(d), each of

the same category of offense under section 903A.2. His prison sentences were

ordered to be served consecutively. Thus, for purposes of calculating reductions
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of sentence for earned time, section 903A.7 provides the sentences shall be

construed as one continuous sentence. Calculation of a discharge date for the

first of the consecutive sentences could only be accomplished if earned time

were separately calculated for each sentence. Section 903A.7 mandates that is

not the case.   See Thompson v. State, 524 N.W. 160, 162-63 (Iowa 1994)

(construing sections 901.8 and 903A.7 to treat consecutive sentences as one

continuous sentence for disciplinary purposes); McKeag v. Iowa Dep’t of

Corrections, No. 12-0111, 2012 WL 4099114, at *1 (Iowa Ct. App. Sept. 19,

2012) (affirming district court’s ruling that DOC could not provide an inmate with

a “discharge date” for his first sentence of imprisonment when it was part of a

consecutive sentence under section 901.8); see also Pierce v. Iowa Dep’t of

Corrections, No. 10-1384, 2011 WL 3925484, at *2 (Iowa Ct. App. Sept. 8, 2011)

(rejecting inmate’s postconviction-relief claim he had separately discharged his

robbery sentence when his “one continuous term of imprisonment [had] not

expired”).

       Accordingly,   we   determine    the   discharge   date    governing   the

commencement of the section 903B.2 special sentences shall be the discharge

date of the continuous sentence as provided in sections 901.8 and 903A.7.

Thus, we distinguish the Anderson holding and determine it is not controlling in

this case involving consecutive sentences for two sexually predatory offenses

each subject to section 903B.2 special sentences.

       Having determined the commencement date for serving the section

903B.2 special sentences is the discharge date as directed above, and finding no
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authority to postpone the commencement of serving that special sentence or to

run them consecutive to each other, we vacate so much of the sentencing order

that orders the section 903B.2 sentences to run consecutive to each other.

III.   Conclusion

       The district court considered several pertinent factors and properly

exercised its discretion when it imposed two consecutive five-year prison

sentences. The district court’s order that the section 903B.2 special sentences

commence upon Maklenburg’s discharge of both underlying offenses was

correct. The imposition of consecutive section 903B.2 special sentences was

illegal because the district court was without the authority to postpone the

commencement of a special sentence to any date after the completion of the

sentence for the underlying offense. We affirm Maklenburg’s prison sentences,

we affirm the imposition of the two ten-year special sentences, but we vacate the

district court’s direction that the special sentences are consecutive for a total of

twenty years, and remand for entry of a corrected sentence.

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
