                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1689
                            Filed December 24, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

THOMAS HENDRICKSON,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Robert A. Hutchison

(plea and sentencing), Christopher L. McDonald (probation revocation), and

Douglas F. Staskal (motion to correct illegal sentence), Judges.



      A defendant appeals from the district court ruling denying his pro se

motion to correct an illegal sentence. AFFIRMED.



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

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, John P. Sarcone, County Attorney, and Nan M. Horvat, Assistant

County Attorney, for appellee.



      Considered by Doyle, P.J., Tabor, J., and Goodhue, S.J.* McDonald, J.,

takes no part.

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

      Thomas Hendrickson appeals from the district court ruling denying his pro

se motion to correct an illegal sentence.

   I. Background Facts and Proceedings

      On July 28, 2011, a trial information was filed charging Hendrickson with

sexual abuse in the third degree by engaging in sex with a fifteen-year-old

female. Hendrickson was twenty-seven years old at the time and not married to

the female. He entered a plea of guilty on October 7, 2011. He was given a ten-

year sentence, but the sentence was suspended and he was placed on probation

for five years.   A no-contact order was entered prohibiting him from having

contact with any person under eighteen years of age. He was also sentenced to

lifetime supervision by the department of corrections as provided by Iowa Code

section 903B.1 (2011).

      Hendrickson violated the terms and conditions of his probation agreement,

and on April 9, 2012, his probation was continued but made subject to placement

in the Fort Des Moines Residential Correctional Facility.        Another report of

violation was filed, and on February 4, 2013, the district court revoked his

probation and imposed the original sentence.

      On August 23, 2013, Hendrickson filed a pro se motion for correction of an

illegal sentence, challenging the section 903B.1 lifetime special sentence as an

illegal sentence in violation of the state and federal constitutions’ prohibition on

cruel and unusual punishment, as well as the constitutional prohibitions against

double jeopardy. On October 14, 2013, an unreported hearing was held on the
                                          3


motion.    Hendrickson participated telephonically and without counsel.          The

district court overruled the motion.

       Hendrickson has appealed.        He made no request for court-appointed

counsel until sometime after the appeal had been filed. Counsel was appointed

on February 18, 2014. On appeal, Hendrickson contends that absent a waiver,

the court erred in failing to appoint counsel prior to the October 14, 2013 hearing.

He further contends the lifetime special sentence is grossly disproportionate to

the crime committed and violates the cruel and unusual punishment prohibitions

of the United States and Iowa Constitutions, and that the no-contact order

prohibiting him from having contact with persons under eighteen years of age is

an illegal order.

   II. Error Preservation

       To the extent that Hendrickson is attacking the legality of his sentence, he

is not required to preserve error. See State v. Thomas, 520 N.W.2d 311, 313

(Iowa Ct. App. 1994). The State points out that Hendrickson never requested

counsel, therefore no ruling was made and it necessarily follows that error has

not been preserved as to the right to counsel issue. See Lamasters v. State, 821

N.W.2d 856, 862 (Iowa 2012) (holding issues must ordinarily be decided by the

district court before being decided on appeal). The State’s argument begs the

underlying question of whether Hendrickson had a constitutional right to counsel.

If he had a constitutional right to counsel, the right to counsel existed until it was

expressly waived. State v. Rater, 568 N.W.2d 655, 658 (Iowa 1997). To waive

one’s constitutional right to counsel and represent himself or herself, a party must

knowingly, intelligently, voluntarily, and unequivocally waive that right and
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affirmatively set out his intention to represent himself. Id. If the constitutional

right existed here, there is no record of the required waiver.

   III. Standard of Review

       A claim implicating a constitutional right to counsel is reviewed de novo.

State v. Lyman, 776 N.W.2d 865, 873 (Iowa 2010). Constitutional challenges to

an allegedly illegal sentence are reviewed de novo.         State v. Ragland, 836

N.W.2d 107, 113 (Iowa 2013). If the right to counsel is statutory as opposed to

constitutional, our review is for errors of law. Id.

   IV. Discussion

       Hendrickson contends that a motion to correct a sentence is a critical

stage of the trial proceeding and therefore he has a constitutional right to

counsel. In considering the constitutional right to counsel, our supreme court has

noted that “the right to appointed counsel for a convicted criminal extends only to

the first appeal of right.” Fuhrmann v. State, 433 N.W.2d 720, 722 (Iowa 1988).

The constitutional right to counsel does not apply to collateral issues that long

ago became final. Id. Hendrickson did not file his motion to correct his sentence

until after the time to file an appeal had lapsed. Hendrickson’s requested relief

was made under Iowa Rule of Criminal Procedure 22.4(1). In Fuhrmann, the

requested relief was made using our postconviction-relief procedure, id. at 721-

22, but there is no reason to differentiate the application of one’s constitutional

right to counsel based on the procedure used to request the relief sought.

       Hendrickson contends that the right to counsel as expressed in the Iowa

Constitution should be interpreted more expansively than the right to counsel

under the United States Constitution. The Fuhrmann court did not do so. Id. at
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722. Further, Hendrickson does little more than cite the language of the Iowa

Constitution. We do not interpret a provision of our state constitution differently

than the United States Constitution on a mere citation of the applicable state

constitution provision. State v. Effler, 769 N.W.2d 880, 895 (Iowa 2009) (Appel,

J., dissenting). Furthermore, making an argument in a reply brief for the first time

is not timely. See Sun Valley Iowa Lakes Ass’n v. Anderson, 551 N.W.2d 621,

642 (Iowa 1996).

       Even if Hendrickson did have a statutory right to counsel the statutory right

requires either the court to exercise its discretionary right to appoint counsel on

its own motion, or the defendant or someone on his behalf to make such a

request. Iowa Code § 815.10 (2011). The need for some action to be taken

before the appointment of counsel is required is in contrast to the constitutional

right, when the right to counsel attaches immediately and without request. See

Hannon v. State, 732 N.W.2d 45, 52 (Iowa 2007).          As the trial court noted,

Hendrickson made no request for counsel and the court did not appoint counsel

on its own motion.    The statutory right to counsel was not invoked until the

appellate level had been reached.

       Hendrickson relies on State v. Alspach, 554 N.W.2d 882, 883 (Iowa 1996),

for his contention that a motion to correct a sentence is a critical stage of the

criminal proceeding and therefore the right to counsel continued until his motion

was heard. Alspach is a restitution case and can be differentiated from the case

at hand. 554 N.W.2d at 883. The restitution sentencing provision of the order

had been left open in Alspach until the amount of restitution had been

determined. Id. at 882-883. In Hendrickson’s case, the application of section
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903B.1 was immediately included in the sentencing order. Furthermore, in the

Alspach case a request for counsel was made, which invoked the statutory right.

Id. at 882. Again, Hendrickson made no such request until the appellate level

was reached.

      Hendrickson contends that the lifetime special sentence under section

903B.1 is grossly disproportionate to the crime committed and is therefore cruel

and unusual punishment.       In a matter substantially similar to Hendrickson’s

situation, it was determined that the issue of whether the lifetime parole

provisions of Iowa Code section 903B.1 constitute cruel and unusual punishment

was not ripe for adjudication. State v. Tripp, 776 N.W.2d 855, 859 (Iowa 2010).

Hendrickson, in effect, admits he cannot differentiate his situation from the

situation existed in Tripp by urging that the Tripp case should be overruled. We

decline the invitation to do so and defer to our supreme court when such

requests are made.

      Finally, Hendrickson contends the order entered prohibiting his contact

with any persons under the age of eighteen is an unauthorized, illegal sentence.

Hendrickson states he cannot tell if the injunction entered was a condition of

probation or a part of the sentencing order.     The State concedes it was a

condition of the probation.    The parties agree that if it was a condition of

probation, then when Hendrickson’s probation was revoked the no-contact order

was no longer effective. An appeal is ordinarily considered moot when the issue

it presents becomes nonexistent and its judgment is rendered with an unknown

practical effect. In re M.T., 625 N.W.2d 702, 704 (Iowa 2001). We generally
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refrain from reviewing moot issues. State v. Hernandez-Lopez, 639 N.W.2d 226,

234 (Iowa 2002). We refrain from doing so in this case.

      AFFIRMED.
