                       IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1230
                              Filed August 17, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DARWIN BAKER,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Jeffrey A.

Neary, Judge.



       The defendant challenges the denial of his pro se motion to correct an

illegal sentence alleging a double jeopardy violation. WRIT ANNULLED.



       Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux

City, for appellant.

       Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



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


TABOR, Judge.

      In 1993 Darwin Baker entered a plea of guilty to two counts of sexual

abuse in the second degree. At the plea hearing, Baker admitted breaking into a

woman’s home, forcing her to have sex against her will, beating her in the face,

leaving the bedroom while his accomplice took a turn raping her, and “a little

while later” returning to her room and doing “the same thing to her.”          The

sentencing court imposed consecutive terms not to exceed fifty years.

      In 2015 Baker filed a pro se motion to correct an illegal sentence, alleging

he was subjected to multiple punishments for the same offense in violation of

double jeopardy. The district court denied the motion, opining Baker should have

raised the double-jeopardy issue in one of his previous postconviction-relief

actions.   On appeal, Baker contends the court erred in denying his motion

without holding an evidentiary hearing.

      We have decided the proper vehicle to challenge the denial of a motion to

correct illegal sentence is a petition for writ of certiorari. State v. Dempsey, No.

15-1195, 2016 WL 3275306, at *2 (Iowa Ct. App. June 15, 2016). Certiorari

review is discretionary. Crowell v. State Pub. Def., 845 N.W.2d 676, 682 (Iowa

2014). We treat Baker’s notice of appeal and briefing as a petition for writ of

certiorari and grant the writ. See Iowa R. App. P. 6.108.

      We review the district court’s ruling on Baker’s motion for the correction of

legal error. See State v. Maxwell, 743 N.W.2d 185, 190 (Iowa 2008). To the

extent we reach his constitutional claims, we exercise de novo review. State v.

Bruegger, 773 N.W.2d 862, 869 (Iowa 2009).
                                          3


       The parties clash over the fundamental question whether Baker raises an

illegal sentence challenge. The answer matters because Baker’s convictions

date back more than two decades ago. He is no longer eligible for postconviction

relief. See Iowa Code § 822.3 (2015) (imposing three-year time limit); id. § 822.8

(requiring grounds be all-inclusive). But an illegal sentence may be corrected at

any time. Iowa R. Crim. P. 2.24(5)(a).

       We start with the parameters of an illegal sentence. “[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 that the sentence is outside the statutory bounds or that the

sentence itself is unconstitutional.” Bruegger, 773 N.W.2d at 871.

       Before Bruegger, constitutional challenges to sentences were governed by

normal rules of error preservation and did not fall within the rubric of illegal

sentences.    See State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995)

(explaining an illegal sentence was one not authorized by statute and considering

merger question under Iowa Code section 701.9). But Bruegger changed the

landscape, holding a sentence that violated the constitutional prohibition against

cruel and unusual punishment was not subject to the normal rules of error

preservation. 773 N.W.2d at 870–72 (overturning State v. Ramirez, 597 N.W.2d

795, 797 (Iowa 1999)). In expanding the definition of an illegal sentence, the

Bruegger court cautioned that its conclusion did “not mean that any constitutional

claim converts a sentence to an illegal sentence.”        Id. at 871.   Nor did the

expanded definition “allow litigants to reassert or raise for the first time

constitutional challenges to their underlying conviction.” Id.
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      Baker asserts that contrary to the district court’s conclusion, his double-

jeopardy challenge is “in fact a claim that his sentence is illegal.” He contends he

received an improper second punishment for the same conduct. Baker alleges

he was charged with two counts of second-degree sexual abuse based on

“exactly the same conduct”—specifically committing the same impermissible sex

act against the same person on the same day at the same location.

      The State counters that if Baker were arguing his sentences were subject

to merger under section 701.9 (which codifies the double-jeopardy protection

against cumulative punishments) he could legitimately attack them as illegal. But

the State contends Baker’s challenge is not about merger: “Instead, the

defendant only argues there is insufficient factual support for his two sexual

abuse convictions because ‘both charges were based on exactly the same

conduct.’”

      Faced with a similar debate about a year ago, our court recognized

“conflicting case law” on the question whether unit-of-prosecution challenges

strike at the substance of the conviction or the legality of a sentence.1 See State

v. Sanchez, No. 13-1989, 2015 WL 4935530, at *1 (Iowa Ct. App. Aug. 19, 2015)

(citing State v. Ross, 845 N.W.2d 692, 701 (Iowa 2014); State v. Copenhaver,

844 N.W.2d 442, 447–52 (Iowa 2014); State v. Velez, 829 N.W.2d 572, 584

(Iowa 2013); State v. Kidd, 562 N.W.2d 764, 765–66 (Iowa 1997); and State v.



1
  In another unpublished case, our court concluded a defendant’s claim that double
jeopardy prevented him from being convicted and sentenced on more than one count of
second-degree sexual abuse because the charges stemmed from a continuing offense
involving only one victim was not a proper subject for a motion to correct illegal
sentence. State v. Trueblood, No. 13-0687, 2014 WL 636167 (Iowa Ct. App. Feb. 19,
2014).
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Constable, 505 N.W.2d 473, 477–78 (Iowa 1993)). The Sanchez court was not

required to resolve the conflict because the defendant’s double-jeopardy claim

failed on the merits. Id. We take the same tack here.

       Regardless of whether Baker is truly raising an illegal-sentence claim, his

indeterminate fifty-year sentence did not violate double-jeopardy principles.

Baker’s motion to correct illegal sentence cited both the Fifth Amendment of the

United States Constitution and article I, section 12 of the Iowa Constitution.2

Only the Federal Double Jeopardy Clause protects against multiple punishments

for the same offense.3 See Velez, 829 N.W.2d at 584 (declining to evaluate

claim under state constitution because Velez was not acquitted); see also State

v. Kocher, 542 N.W.2d 556, 556 n.1 (Iowa 1996) (noting Iowa provision is “aimed

at multiple prosecutions, not multiple punishments”). Under the Federal Double

Jeopardy Clause, what punishments are constitutionally permissible coincide

with what punishments the legislature intended to impose. Velez, 829 N.W.2d at

584 (identifying “key question” as “what the legislature intended would constitute

a unit of prosecution” under the criminal statute).

       The unit-of-prosecution question for sexual abuse prosecutions arose in

Constable, 505 N.W.2d at 474.          Our supreme court determined any single

physical contact was a separate act sufficient to meet the definition of “sex act”

2
  The Double Jeopardy Clause of the Fifth Amendment provides that no person shall “be
subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const.
amend. V. The state counterpart provides that “no person shall after acquittal, be tried
for the same offence.” Iowa Const. art. I, § 12.
3
  In an alternative argument, Baker urges that if we find he has not proven his sentence
violated the double jeopardy clauses, we should nonetheless hold he is entitled to an
evidentiary hearing under the Iowa Constitution’s double jeopardy prohibition. Because
the state clause does not protect against multiple punishments, we find no merit to
Baker’s request for a remand.
                                            6

under Iowa Code section 702.17. Id. at 477–78. Therefore, when Constable

engaged in five distinct acts of physical contact, each act constituted a separate

crime of sexual abuse under section 709.1; the State did not violate his double-

jeopardy protection when he was convicted and sentenced on all five counts. Id.

at 478.

       In his 1993 plea colloquy, Baker admitted twice forcing the victim to

engage in sexual activity with him; his two distinct acts of physical contact with

the victim were separated in time by his accomplice also forcing her to engage in

a sex act. Given his admission to two sex acts, under Constable, Baker did not

suffer double jeopardy by the court accepting his pleas and sentencing him for

two offenses. Id. (“A defendant should not be allowed to repeatedly assault his

victim and fall back on the argument his conduct constitutes but one crime.”

(emphasis omitted) (quoting State v. Newman, 326 N.W.2d 788, 793 (Iowa

1982))).4 The district court properly denied Baker’s motion to correct an illegal

sentence.

       WRIT ANNULLED.




4
 Our court recently relied upon Constable in rejecting a similar claim by a defendant that
double jeopardy prevented him from being convicted on two counts of sexual abuse
when the jury found two distinct sex acts. Bryson v. State, ___ N.W.2d ___, ___, 2016
WL 3556325, at *5–6 (Iowa Ct. App. June 29, 2016).
