              IN THE SUPREME COURT OF IOWA
                            No. 65 / 07–0687

                            Filed July 25, 2008


STATE OF IOWA,

      Appellant,

vs.

LEE ANDREW SMITH,

      Appellee.



      Appeal from the Iowa District Court for Black Hawk County,

Stephen C. Clarke, Judge.



      The State appeals an order granting the defendant a new trial.

REVERSED AND CASE REMANDED WITH INSTRUCTIONS.



      Thomas J. Miller, Attorney General, Karen Doland, Assistant

Attorney General, Thomas J. Ferguson, County Attorney, and Linda

Fangman, Assistant County Attorney, for appellant.


      John J. Sullivan of Sullivan Law Office, Oelwein, for appellee.
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WIGGINS, Justice.

      In this case we must decide whether a defendant who waived his

right to file a motion in arrest of judgment at his initial sentencing, and

whom the district court ordered to be resentenced because his original

sentence was illegal, can file a motion in arrest of judgment before he is

resentenced.     Because we find the defendant cannot file a motion in

arrest of judgment before resentencing under these circumstances, we
reverse the judgment of the district court granting the defendant a new

trial and remand the case for resentencing.

      I.     Background Facts and Proceedings.

      The State charged Lee Smith with first-degree burglary, third-

degree sexual abuse as a habitual offender, and assault causing injury

as a habitual offender. The case proceeded to trial on June 27, 2006. At

some point during the testimony of the State’s first witness, Smith

negotiated a plea bargain. Smith pled guilty to all three counts under a

sentencing     recommendation    for   twenty-five   years   on   count   one

(burglary), fifteen years on count two (sexual abuse), and fifteen years on

count three (assault), with counts two and three running concurrent to

each other but consecutive to count one, for a total of forty years.
      In the required colloquy, the judge informed Smith he would have

to take a batterer’s education class, register as a sex offender, and pay a

civil penalty.   The judge failed to inform Smith that under Iowa Code

section 903B.1 (Supp. 2005) he would be subject to mandatory lifetime

supervision by the department of corrections as a result of his guilty plea

to the habitual offender sexual assault charge.          The district court

accepted Smith’s plea.

      Smith requested immediate sentencing.          The judge explained to

Smith that by accepting immediate sentencing Smith would waive his
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right to file a motion in arrest of judgment. The colloquy between the

judge and Smith indicated Smith understood he was waiving that right.

The court then sentenced Smith to the recommended sentence without

sentencing him to mandatory lifetime supervision.

      On October 31, the chief judge of the first judicial district entered

an order finding Smith’s sentence did not comply with section 903B.1.

On November 15, the district court entered an order setting aside Smith’s
first sentence and scheduling a resentencing hearing for December 18.

At the December 18 hearing, Smith requested to withdraw his guilty plea

on the basis that the court did not inform him of the mandatory lifetime

supervision requirement. The judge continued the resentencing hearing

to January 16, 2007. On January 11, five days before the resentencing

hearing, Smith filed a motion in arrest of judgment and an application to

withdraw his guilty plea.

      The district court entered an order granting Smith a new trial. The

court held it could correct an illegal sentence at any time and Smith’s

sentence was illegal because it did not include the mandatory lifetime

supervision requirement under section 903B.1. Additionally, the court

held that Smith was not informed of a direct consequence of his plea, the
mandatory lifetime supervision; thus, his plea was unknowing. Finally,

the court held the improper plea invalidated the entire agreement, not

just the plea to sexual assault, because a plea agreement is akin to a

contract; therefore, it cannot be partitioned.

      The State appeals.

      II. Issue.

      The only issue we need to decide is whether the district court

should have considered Smith’s motion in arrest of judgment prior to the

resentencing.
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      III. Scope of Review.

      We review a district court’s grant or denial of a motion in arrest of

judgment and a motion to withdraw a plea for abuse of discretion. State

v. Myers, 653 N.W.2d 574, 581 (Iowa 2002) (motion in arrest of

judgment); State v. Blum, 560 N.W.2d 7, 9 (Iowa 1997) (motion to

withdraw plea). An abuse of discretion will only be found where the trial

court’s discretion was exercised on clearly untenable or unreasonable
grounds. State v. Craig, 562 N.W.2d 633, 634 (Iowa 1997). A ruling is

untenable when the court bases it on an erroneous application of law.

Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).

      IV. Analysis.

      The State contends the district court improperly considered

Smith’s motion in arrest of judgment because he waived his right to file

the motion at the original sentencing. In State v. Peterson, 327 N.W.2d

735 (Iowa 1982), we found a sentence to be illegal and remanded the

case for resentencing, instructing the district court to allow the

defendant to file a motion in arrest of judgment prior to the resentencing.

327 N.W.2d at 738–39. However, in Peterson, neither party raised, nor

did this court consider, whether the defendant’s initial waiver of his right
to file a motion in arrest of judgment would preclude the filing of a new

motion in arrest of judgment prior to resentencing.

      Our criminal rules of procedure require the court to sentence a

defendant within a reasonable time after entry of a guilty plea, but not

less than fifteen days after the defendant enters the plea. Iowa R. Crim.

P. 2.23(1). The rules also require a defendant to file a motion in arrest of

judgment no later than forty-five days after the plea, but in any case no

later than five days before the sentencing. Id. r. 2.24(3)(b). Smith claims
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his motion in arrest of judgment was timely because he filed it no later

than five days before the resentencing. We disagree.

      We must construe the time limits set for sentencing in conjunction

with the time limits set for filing a motion in arrest of judgment. See

Niles v. Iowa Dist. Ct., 683 N.W.2d 539, 541 (Iowa 2004) (holding courts
are obliged to consider a challenged statute in its entirety and in pari

materia with other pertinent statutes).          Construing these two rules

together, we find if the date of sentencing is set for more than fifty days

after the plea, the maximum time a defendant has to file the motion in

arrest of judgment is forty-five days from the plea. On the other hand, if

the court sets the date of sentencing less than fifty days after the plea,

the maximum time a defendant has to file the motion is no later than five

days before the sentencing.       Id.       The not-later-than-five-days time

limitation has no application to a resentencing. Consequently, Smith’s

voluntary waiver of his right to file a motion in arrest of judgment

continues to apply at the time of his resentencing.         Therefore, it was

clearly erroneous for the court to consider Smith’s motion in arrest of

judgment, and the court abused its discretion by considering the motion.

      When a defendant claims a plea was not made knowingly and

voluntarily because the court failed to disclose the maximum penalty,

but the defendant failed to file a motion in arrest of judgment, we have

decided the proper remedy is for the defendant to raise this issue on

postconviction relief. State v. Bearse, 748 N.W.2d 211, 219 (Iowa 2008);

State v. Straw, 709 N.W.2d 128, 138 (Iowa 2006).          Thus, because the

district court improperly considered the motion in arrest of judgment,

Smith’s avenue for relief is a postconviction-relief proceeding. Id.
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      V. Disposition.

      Because Smith waived his right to file a motion in arrest of

judgment, the district court improperly considered his motion when it

entered an order granting him a new trial. Accordingly, we reverse the

judgment of the district court. We remand the case for the sole purpose

of resentencing Smith. After resentencing, Smith may bring an action for

postconviction relief challenging his guilty plea.
      REVERSED AND CASE REMANDED WITH INSTRUCTIONS.

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