                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-0660
                                Filed April 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TERRY DALE KRAMBECK,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Muscatine County, Marlita A.

Greve, Judge.



       A defendant appeals from a denial of his motion to correct an illegal

sentence. AFFIRMED.



       Philip B. Mears of Mears Law Office, Iowa City, for appellant.

       Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Alan Ostergren, County Attorney, and Korie Shippee, Assistant County

Attorney, for appellee.



       Considered by Doyle, P.J., Bower, J., and Goodhue, S.J.*

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

       Terry Krambeck appeals from a denial of his motion to correct an illegal

sentence.

   I. Background Facts and Proceedings

       On April 9, 2008, Krambeck was accused of the crime of sex abuse third

by a trial information stating, “in that the defendant on the   day of      , 2005

in the city of Muscatine did commit the act of sexual abuse in the third

degree . . . .” The trial information further stated, “In 2005 Krambeck on multiple

occasions did perform sexual acts on the victim, who was then fourteen years of

age.” There was no other reference in the charging portion of the document that

made further specification to the date of the offense.

       On July 23, 2008, Krambeck entered a plea of guilty to the charge levied.

The trial information to which he pleaded guilty further stated “in 2005 Krambeck

on multiple occasions did perform sexual acts” on the victim who was then

fourteen years old. The minutes attached to the trial information stated the victim

had reported that the last instance of sexual abuse by Krambeck had occurred

“during Christmastime in 2005.” The minutes also stated the victim was in eighth

grade at the time the abuse ended.

       In 2005 there was a legislative change, which became effective for

offenses that took place after July 1, 2005. See 2005 Iowa Acts ch. 158. The

legislation provided that a person convicted of a class “C” felony or greater under

Iowa Code chapter 709 was to be sentenced in addition to any other sentence to

a special sentence, which included commitment to the Iowa Department of

Corrections for supervision as if on parole for the rest of the person’s life. Iowa
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Code § 903B.1 (Supp. 2005). No mention of lifetime probation or the exact date

the sexual abuse took place was made in the colloquy when Krambeck entered

his plea.   He did admit it took place in the year 2005 as stated in the trial

information. He also admitted the victim was between fourteen and fifteen when

the offense occurred. The presentence investigation reported Krambeck was

subject to the “Life special Sentence.” The record at sentencing does not reflect

any discussion about the ramification of the date of the offense.

       The lifetime provision provided by section 903B.1 was specifically included

as a part of the sentence announced at the sentencing hearing and was made a

part of the official sentencing order. Krambeck did not file a motion in arrest of

judgment or object to the inclusion of the lifetime sentence, but on February 26,

2012, he filed the instant motion to correct an illegal sentence as provided by

Iowa Rule Criminal Procedure 2.24(5)(a).       Krambeck, at the hearing on his

motion, introduced into evidence the victim’s report card showing she was in

eighth grade in 2004 through May 2005.           He further asserts the victim’s

statement that the abuse ended at Christmastime 2005 was an obvious error,

since the victim would have been in ninth grade and not eighth grade at

Christmastime 2005.      He concludes the last abuse must have ended at

Christmastime in 2004 and before 903B.1 became effective. He contends the

lifetime probation provision in his sentence is being applied ex post facto and is

therefore void.

   II. Standard of Review

       A claim that an illegal sentence has been entered is reviewed for errors of

law.   State v. Liddell, 672 N.W.2d 805, 815 (Iowa 2003).           Krambeck also
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contends the sentencing court applied the punishment provided by section

903B.1 to a crime perpetrated before its effective date, and that as such it is a

violation of the United States Constitution and the Iowa Constitution’s prohibition

of an ex post facto law. See U.S. Const. art I, § 10; Iowa Const. art I, § 21. If a

constitutional issue is involved, the review becomes de novo. State v. Oliver,

812 N.W.2d 636, 639 (Iowa 2012).

   III. Preservation of Error

      If Krambeck’s claim is correctly labeled as a motion to correct an illegal

sentence, it may be corrected at any time. Iowa R. Crim. P. 2.24(5)(a). The

normal error preservation rules do not apply to an illegal or void sentence. State

v. Thomas, 520 N.W.2d 311, 313 (Iowa 1994). However, if this is in reality a

challenge to the factual basis of the plea, as the State contends, then a motion in

arrest of judgment would generally be considered necessary to preserve error.

State v. Gant, 597 N.W.2d 501, 503 (Iowa 1999).

   IV. Discussion

      How to properly classify this proceeding is pivotal in determining whether

error has been preserved, as well as the final disposition of the matter.

Krambeck primarily relies on State v. Lathrop, 781 N.W.2d 288, 291 (Iowa 2010),

in which a jury convicted Lathrop of third-degree sexual assault. The jury had

been instructed that to find the defendant guilty they must find, among other

things, that “[d]uring the months of June through September 2005, the defendant

performed a sex act with [the victim].”     Lathrop, 781 N.W.2d at 297.        The

sentencing court imposed the lifetime probation requirement of 903B.1, which

became law on July 1, 2005. Id. at 291. Given the lack of specificity contained in
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the jury verdict as to whether any offense had occurred after July 1, 2005, it was

determined the defendant should be given the benefit of the doubt as to when the

offense took place.     Id. at 297.    Under that scenario our supreme court

determined there was no finding that the offense had taken place after July 1,

2005. Id. at 298. Accordingly, the application of lifetime probation was an invalid

ex post facto sentence and, as such, an illegal sentence. Id.

       This is a much different case than Lathrop. Krambeck entered a plea of

guilty. A plea of guilty “waives all defenses and irregularities except that the

information or indictment charges no offense and the right to challenge the plea

itself.” State v. McGee, 211 N.W.2d 267, 268 (Iowa 1973). Krambeck raises

some question as to whether he knew about the existence of the new statute

providing for lifetime probation.   Its existence was noted in the presentence

investigation report, and the court orally announced it as a part of the sentence.

Krambeck filed no motion in arrest of judgment and raised no objection to its

inclusion in the sentence. He might not have known about its existence at the

time of the entry of the plea, but he certainly knew about it at the time of

sentencing. As the trial court who heard the motion to correct illegal sentence

noted, “Defendant and his counsel clearly reviewed the presentence investigation

report because defendant offered a rather extensive lists of corrections to the

report.”

       Furthermore, when a collateral attack is made on a plea of guilty because

the court sentencing the defendant erred in failing to advise him of all the

consequences of his plea, the burden is on the defendant to show not only the

omission, but also that the appropriate disclosure would have changed his plea.
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State v. Finney, 834 N.W.2d 46, 53 (Iowa 2013) (citing United States v.

Timmreck, 441 U.S., 780 (1979)). Krambeck does not contend that he did not

know of the lifetime probation at the time of sentencing or that if he had known of

it at the time of the plea, such knowledge would have had any effect on the plea

he entered. He fails to claim he was prejudiced by his lack of knowledge of the

lifetime probation when he entered the plea. He does not claim his plea was not

made voluntarily.

       It is appropriate to consider whether a factual basis for imposing lifetime

probation existed as a part of the plea before considering the claim that it was an

ex post facto application of the statute. The record as a whole, including an

inquiry of the defendant and the minutes of evidence, may be considered in

determining whether the factual basis for entry of a plea exists. State v. Ortiz,

789 N.W.2d 761, 768 (Iowa 2010).        The State contends this matter can be

disposed of by looking at the minutes of the trial information and the entry of the

plea itself.

       The minutes attached to the trial information explicitly state that the last

incident of sexual abuse took place around Christmastime 2005 and provide a

1991 birthdate for the victim, making her fourteen at that time. Christmastime in

2005 would have been after the effective date of section 709B.1. Krambeck, in

the plea colloquy, admitted the abuse had taken place when the victim was

between fourteen and fifteen, and admitted it took place in 2005. Both of those

admissions were consistent with the trial information and the plea he entered.

The minutes attached to the trial information also stated the abuse ended when

the victim was in the eighth grade. At the time the plea was entered, there was
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no inconsistency between the victim’s grade level and the Christmastime 2005

allegation as the ending of the abuse. The State argues that the existence of the

factual basis at the time of the plea is dispositive. Krambeck asserts the factual

basis developed at the time of the plea is inaccurate and inconsistent, and

contrary to the true facts. Krambeck does not appear to deny that a factual basis

existed for his plea of guilty including a basis for lifetime probation when the plea

was entered. Nor can he logically do so. His effort is to collaterally attack the

plea by contending it was an illegal sentence and therefore void.

       Krambeck provided new evidence at the hearing on his motion.              He

established that the victim graduated from the eighth grade in May 2005. If that

were the case, then the last abuse was before July 1, 2005, and inconsistent with

the 2005 Christmas date. He then asserts the Christmastime 2005 statement

was an error and the last abuse must have ended at Christmastime 2004. A

closer look at Krambeck’s assumption shows he was far from meeting the burden

of proof necessary to collaterally attack his sentence.

       It is more realistic and consistent with the record to assume the statement

that the abuse ended when the victim was in eighth grade was an error. To

assume otherwise would be totally inconsistent with Krambeck’s admission of the

factual basis for the plea. Based on the victim’s birthdate, she would have been

only thirteen at Christmastime 2004 instead of fourteen to fifteen, as Krambeck

stated at the time of his plea and as is charged in the trial information.

Krambeck’s claim is essentially a claim that he was sentenced on an

enhancement for which no factual basis existed at the time of the plea as proven

by subsequent evidence. The purpose of allowing review of an illegal sentence
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is to permit correction of such an illegal sentence, rather than re-examination of

errors made preceding the imposition of a sentence. State v. Bruegger, 773

N.W.2d 862, 871-72 (Iowa 2009). Even if a collateral attack can be made on the

factual basis of a guilty plea, Krambeck has failed to establish that the sexual

abuse did not continue until Christmastime 2005.

       This case is very much like State v. Cowles, 757 N.W.2d 614 (Iowa 2008).

Cowles involves a guilty plea with no express admission by the defendant that

the prohibited act had happened after the effective date of a penalty

enhancement. 757 N.W.2d at 617. In Cowles, based on the court’s advice to the

defendant as to the penalty that could be imposed, the supreme court found an

implicit admission the act had taken place after the effective date of the statute.

Id. In this case the implicit admission comes primarily from the contents of the

trial information to which Krambeck entered his plea of guilty and implicitly and

explicitly from his admissions he made at the time of the plea colloquy. A factual

basis for the plea of guilty was present at the time of the plea, including the fact

that the prohibited act had continued until about Christmas 2005. No motion in

arrest of judgment was made; therefore, Krambeck has waived his right to attack

the guilty plea proceeding. Iowa R. Crim. P. 2.24(3)(a); State v. Brooks, 555

N.W.2d 446, 448 (Iowa 1996). He had knowledge of the existence of the lifetime

probation from the presentence investigation and the record made at sentencing.

Assuming a defendant can attack the factual basis for a plea without having filed

a motion in arrest of judgment, absent some unusual circumstance, we conclude

Krambeck has failed to establish there was an error in the factual basis upon
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which the plea and sentence were entered. The decision of the trial court is

affirmed.

      AFFIRMED.
