                       IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0867
                                Filed July 9, 2015

MATTHEW DUANE MCGUIRE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

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

Poulson, Judge.



       An applicant for postconviction relief appeals from the dismissal of his

application. AFFIRMED.



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

City, for appellant.

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

General, and Patrick Jennings, County Attorney, for appellee.



       Heard by Vogel, P.J., and Potterfield and Mullins, JJ.
                                           2



MULLINS, J.

       Matthew Duane McGuire appeals from dismissal of his application for

postconviction relief (PCR). He contends the district court erroneously applied

the sentencing enhancement under Iowa Code section 901A.2(5) (2001) to

sentence him to life in prison without the opportunity for parole. He argues the

district court erred in finding he had twice been convicted of sexual abuse in the

second degree; rather, he insists his first conviction was not valid for the purpose

of sentencing enhancement due to subsequent case law that disapproved the

jury instruction the court cited in its verdict and judgment of guilt. Consequently,

he contends the district court applied an illegal sentence, and the PCR court

erred in dismissing his application. We affirm.

I.     BACKGROUND FACTS AND PROCEEDINGS.

       In 1989, McGuire was charged with two counts of sexual abuse in the

second degree, one count of sexual abuse in the third degree, three counts of

indecent contact with a minor, and two counts of lascivious acts. After a 1991

bench trial, the district court convicted him of sexual abuse in the second degree,

in violation of Iowa Code section 709.3(2);1 all other counts were dismissed.

With respect to the other counts, the court found there was insufficient evidence




1
  All references are to Iowa Code section 709.3(2) as it existed from 1986 (the date of
the first allegation relating to the 1991 conviction) through 2004 (the date of the last
conviction), making it a class “B” felony to commit sexual abuse with a person under the
age of twelve. During that time it remained unchanged with the exception of a minor
wording change in 1999. See Acts 1999 (78 G.A.) ch. 159, § 3. Section 709.3(2) was
renumbered in 2003, but the substance has remained the same. See Acts 2013 (85
G.A.) ch. 90, § 228.
                                          3



of McGuire’s specific intent to arouse or satisfy the sexual desires of either the

victim or himself.

       On the last count of sexual abuse in the second degree, the court found

the act of inserting a finger into the victim’s vagina was a sex act, consistent with

then Uniform Jury Instruction 900.8:

       A sex act is defined as . . . :
             1. Penetration of the penis into the vagina.
             2. Contact between the mouth of one person and genitals of
             another.
             3. Contact between the genitals of one person and the
             genitals of another.
             4. Contact between the finger or hand of one person and the
             genitals of another person.
             5. A person’s use of an artificial sex organ or a substitute for
             a sexual organ in contact with the genitals of another.

       In 1994, in State v. Monk, 514 N.W.2d 448, 450 (Iowa 1994), our supreme

court explicitly disapproved of Jury Instruction 900.8, finding it was inconsistent

with the definition of sex act as set out in then Iowa Code section 702.17.2 The

court held a necessary element of sexual abuse in the second degree was not

merely contact between specified body parts or substitutes but contact of a

sexual nature. Id. (citing State v. Pearson, 514 N.W.2d 452, 455 (Iowa 1994)).



2
 The court explained in Monk:
      The term “sex act” is defined in Iowa Code section 702.17 as follows:
              The term “sex act” . . . means any sexual contact between
              two or more persons by: penetration of the penis into the
              vagina or anus; contact between the mouth and genitalia
              or by contact between the genitalia of one person and the
              genitalia or anus of another; contact between the finger or
              hand of one person and the genitalia or anus of another
              person, except in the course of examination or treatment
              by a [licensed] person . . . ; or by use of artificial sexual
              organs or substitutes therefor in contact with the genitalia
              or anus.
Monk, 514 N.W.2d at 450.
                                         4



“The sexual nature of the contact can be determined from the type of contact and

the circumstances surrounding it.” Id.

      In 1996, the Iowa legislature enacted the sexual predator sentencing

enhancement under Iowa Code section 901A.2. Acts 1996 (76 G.A.) ch. 1082,

§ 4. In 1998, the Iowa legislature amended the enhancement provision in section

901A.2(4A).3 The amendment provided:

      A person who has been convicted of a violation of section 709.3,
      subsection 2, shall, upon a second conviction for a violation of
      section 709.3, subsection 2, be committed to the custody of the
      director of the Iowa department of corrections for the rest of the
      person’s life. In determining whether a conviction is a first or
      second conviction under this subsection, a prior conviction for a
      criminal offense committed in another jurisdiction which would
      constitute a violation of section 709.3, subsection 2, if committed in
      this state, shall be considered a conviction under this subsection.

See Acts 1998 (77 G.A.) ch. 1171, § 20.

      In 2000, the legislature amended Iowa Code section 901A.1(2) to provide

the following definition of “prior conviction”: “As used in this chapter, the term

‘prior conviction’ includes a plea of guilty, deferred judgment, deferred or

suspended sentence, or adjudication of delinquency, regardless of whether a

prior conviction occurred before, on, or after the effective date of this act [March

31, 2000].”4 Acts 2000 (78 G.A.) ch. 1030, § 2.




3
  The section was later renumbered to 901A.2(5) and the code references updated to
reflect the renumbered sexual abuse code section. Acts 2013 (85 G.A.) ch. 90, H.F.
556, § 255.
4
  The legislature provided the amendment would take effect upon enactment on March
31, 2000. Acts 2000 (78 G.A.) ch. 1030, § 4.
                                            5



       In 2003, McGuire again was charged with and convicted of sexual abuse

in the second degree, in violation of Iowa Code section 709.3(2).5 At his January

2004 sentencing hearing, McGuire agreed he had a previous conviction under

section 709.3(2), and the court determined—without objection from the State or

McGuire—that the sentencing enhancement under section 901A.2 applied to

require he receive a lifetime sentence without eligibility for parole.           McGuire

appealed, and this court preserved his ineffective-assistance-of-counsel claim for

postconviction relief. State v. McGuire, No. 04-0187, 2004 WL 2952377, at *1

(Iowa Ct. App. Dec. 22, 2004). McGuire subsequently filed two unsuccessful

applications for postconviction relief. McGuire v. State, No. 09-1506, 2010 WL

3155233 (Iowa Ct. App. Aug. 11, 2010); McGuire v. State, No. 11-1722, 2013 WL

3457420 (Iowa Ct. App. July 10, 2013). This is McGuire’s third application for

postconviction relief. In this third application, he asserts for the first time that his

1991 conviction under section 709.3(2) was inconsistent with Monk because the

jury instruction did not require the court to find the contact was sexual in nature. 6

Therefore, he argues, it was not a valid conviction7 for the purposes of the

section 901A.2(5) sentencing enhancement, thus, his sentence is illegal and

should be reversed.




5
  In addition, McGuire was convicted of two counts of indecent contact with a child, in
violation of Iowa Code section 709.12.
6
  McGuire also asserted the sentencing enhancement violated the ex post facto clauses
of the federal and Iowa constitutions. The PCR court dismissed this assertion, and
McGuire does not renew it on appeal.
7
  McGuire does not dispute that the 1991 conviction is a conviction; he argues only that it
is not a first conviction for the purposes of the section 901A.2(5) sentencing
enhancement.
                                         6



       The State filed a motion to dismiss the application, arguing the court’s

findings in the 1991 conviction indicated the court considered the sex act to be

sexual in nature based on its consideration of the surrounding circumstances.

The State further argued Monk was not a substantial change to section 709.3(2),

only a change to the jury instruction. As such, the sentencing enhancement was

applicable under section 901A.2 and not illegal.        The State further argued

McGuire waived the argument by failing to raise it at sentencing, in his direct

appeal, and in his two previous postconviction-relief applications. According to

the State, the argument challenged the procedure which led to the sentence

rather than an illegal sentence itself, meaning McGuire was not excused from the

rules of error preservation.    The PCR court ruled, on the merits, that the

legislature meant the enhancement to apply to all prior convictions under section

709.3(2), even if they were inconsistent with Monk. It ruled, in the alternative,

that McGuire’s acts resulting in the 1991 conviction were sexual in nature as a

matter of law. The court, therefore, dismissed the application. McGuire appeals.

II.    ERROR PRESERVATION.

       Ordinarily, objections to a sentencing decision must be raised at the

earliest opportunity after the grounds for objection become apparent. Tindell v.

State, 629 N.W.2d 357, 359 (Iowa 2001).          However, Iowa Rule of Criminal

Procedure 2.24(5)(a) provides, “The court may correct an illegal sentence at any

time.” “[W]ith respect to a claim of an illegal sentence, the ordinary rules of issue

preservation do not apply.” Veal v. State, 779 N.W.2d 63, 65 (Iowa 2010) (citing

State v. Bruegger, 773 N.W.2d 862, 871 (Iowa 2009)). “An illegal sentence is
                                            7



void and, for this reason, is not subject to the usual concepts of waiver, whether

from a failure to seek review or other omissions of error preservation.” State v.

Lathrop, 781 N.W.2d 288, 293 (Iowa 2010) (internal quotation marks omitted).

“[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 bound

or that the sentence itself is unconstitutional.” Bruegger, 733 N.W.2d at 871.

“[T]o be ‘illegal’ for the purposes of rule [2.24(5)(a)8], the sentence must be one

not authorized by statute.” Tindel, 629 N.W.2d at 359. “The exclusion of illegal

sentences from the principles of error preservation is limited to those cases in

which a trial court has stepped outside the codified bounds of allowable

sentencing.”      State v. Ceasar, 585 N.W.2d 192, 195 (Iowa 1998) (internal

quotation marks and citations omitted). “In other words, the sentence is illegal

because it is beyond the power of the court to impose.” Id.

         Although the rule and case law “allow challenges to illegal sentences at

any time . . . they do not allow challenges to sentences that, because of

procedural errors, are illegally imposed.”         Tindel, 629 N.W.2d at 359.   “[A]

defective sentencing procedure does not constitute an ‘illegal sentence.’” State

v. Wilson, 294 N.W.2d 824, 825 (Iowa 1980). “[W]hen the claim is that the

sentence itself is inherently illegal, whether based on constitution or statute, the

claim may be asserted at any time.”             Lathrop, 781 N.W.2d at 293 (internal

quotations omitted). “[E]rrors in sentencing may be challenged on direct appeal



8
    Previously numbered as rule 23(5)(a).
                                         8



even in the absence of an objection in the district court.” Id. at 293 (emphasis

added). “Illegal sentences may be challenged at any time, notwithstanding that

the illegality was not raised in the trial court or on appeal.” Id. (emphasis added).

McGuire raised his Monk challenge for the first time in this, his third application

for postconviction relief.

       McGuire’s primary claim on appeal is that the sentence was illegal. He

contends the section 901A.2(5) sentencing enhancement does not apply to him

because when he was convicted of sexual abuse in 2004, it was not a second

conviction under the enhancement statute. In the years between his 1991 and

2004 convictions, the supreme court determined in Monk that conviction for

sexual abuse in the second degree required a factual finding that the contact be

sexual in nature. McGuire argues he was convicted in 1991 without such a

finding. He further contends because the sentencing enhancement statute was

enacted after Monk, the legislature must be presumed to have intended only

convictions consistent with Monk be counted as convictions for the purposes of

the sentencing enhancement. Accordingly, he argues the court did not have

statutory authority to impose the life sentence.

       The State responds that McGuire is challenging a procedural flaw in his

sentencing rather than an illegal sentence and, consequently, he waived the

claim by not raising it earlier. The State argues examining the jury instructions in

the first conviction converts McGuire’s claim from a challenge of an illegal

sentence to a challenge of an underlying conviction, which goes to substantive

issues concerning the conviction, not merely the sentence.
                                         9



       If a sentencing enhancement is improperly imposed, the sentence is

illegal. State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000) (finding the sentence

was illegal where the facts did not support a finding of “habitual offender status”).

McGuire argues the sentencing enhancement was improperly imposed.

Therefore, ordinary rules of error preservation do not apply, and we will address

the merits.

III.   STANDARD OF REVIEW.

       We review challenges to the illegality of a sentence for errors of law.

Tindell, 629 N.W.2d at 359. We affirm a motion to dismiss where the petition

shows no right of recovery under any state of facts. Reiff v. Evans, 630 N.W.2d

278, 284 (Iowa 2001).

IV.    ANALYSIS.

       We must determine whether the sentencing enhancement was permitted

by law. In other words, did the sentencing enhancement apply in this case?

McGuire argues, “The General Assembly, in enacting the § 901A.2(5) sentencing

enhancement, had in mind [the supreme court’s] decision in Monk, and so

intended for that enhancement to apply to a second conviction under § 709.3(2)

only where the first conviction under § 709.3(2) was consistent with Monk.”

Thus, the issue on appeal involves statutory interpretation. We must determine if

the legislature intended the enhancement to have the meaning McGuire urges.

       “We do not search for legislative intent beyond the express language of a

statute when that language is plain and the meaning is clear.” McGill v. Fish, 790

N.W.2d 113, 118 (Iowa 2010). “[O]ur starting point in statutory interpretation is to
                                        10



determine if the language has a plain and clear meaning within the context of the

circumstances presented by the dispute.”       Id.   “We only apply the rules of

statutory construction when the statutory terms are ambiguous.”         Id.    “[W]e

presume words used in a statute to have their ordinary and commonly

understood meaning.” Id. at 119.

      In 2004, section 901A.2(5) provided:

      A person who has been convicted of a violation of section 709.3,
      subsection 2, shall, upon a second conviction for a violation of
      section 709.3, subsection 2, be committed to the custody of the
      director of the Iowa department of corrections for the rest of the
      person’s life. In determining whether a conviction is a first or
      second conviction under this subsection, a prior conviction for a
      criminal offense committed in another jurisdiction which would
      constitute a violation of section 709.3, subsection 2, if committed in
      this state, shall be considered a conviction under this subsection.

On our reading, the plain language of the statute is clear in requiring the

sentencing court to apply the enhancement where the defendant is convicted of

second-degree sexual abuse and has a previous conviction for second-degree

sexual abuse. McGuire argues because Monk was decided in 1994 and the

enhancement was amended to substantially its current language in 1998, the

legislature must be presumed to have intended the reference to section 709.3(2)

to refer only to convictions under section 709.3(2) consistent with Monk. The

plain language does not support his interpretation—the unambiguous language

applies to persons upon a second conviction of section 709.3(2) who previously

have been convicted under section 709.3(2). There is no reference to Monk or

convictions secured with a finding of contact of a sexual nature. McGuire asserts

the legislature’s use of “conviction of a violation of section 709.3, subsection 2”
                                             11



has some significance in light of Monk—that this construction requires the

sentencing court to focus not on the mere fact of a prior conviction, but on the

conduct underlying the prior conviction.          Again, the plain language does not

support this interpretation.

       What is significant is that the word “conviction” is not qualified based on

the legislature’s awareness of the holding in Monk, as McGuire asserts.9

McGuire argues in this third PCR application that his 1991 conviction is not a

conviction for the purposes of the section 901A.2(5) enhancement.                  McGuire

assumes Monk applies automatically to somehow invalidate the use of his first

conviction for the purpose of enhancement. Monk does not have such an effect;

the plain language of the enhancement does not prescribe such an effect. We

need not decide whether the holding in Monk created a claim that McGuire could

have brought to seek reversal of his conviction. Neither McGuire’s direct appeal

from the 1991 conviction nor his PCR applications challenged the conviction.

The conviction cannot now be collaterally attacked or the effect limited. The

1991 conviction is a standing conviction for violating section 709.3(2). When he

was sentenced in 2004 for second-degree sexual abuse, it was his second

conviction for violating section 709.3(2). The legislative sentencing enhancement


9
  The PCR court in its ruling relied upon the 2000 amendment to the section 901A.1(2)
definition of “prior conviction,” set out above. It determined that this amendment showed
the legislature intended for a pre-Monk conviction to constitute a “prior conviction” for the
purposes of section 901A.2(5). However, as McGuire points out, the first sentence of
section 901A.2(5) does not contain the term “prior conviction.” That term only appears in
the second sentence of section 901A.2(5) in reference to convictions in another
jurisdiction. We cannot find, therefore, that the definition under 901A.1(2) is applicable
to determine whether pre-Monk convictions are still valid for the purpose of the
enhancement. Nonetheless, our analysis of the plain language is determinative of this
issue.
                                         12



applied; the district court was required by law to impose it. Consequently, it was

not an illegal sentence. Accordingly, we affirm the PCR court’s dismissal of the

application for postconviction relief.

V.     CONCLUSION.

       We find the plain language of the sentencing enhancement in section

901A.2(5) supports the conclusion that the 2004 conviction was McGuire’s

second conviction for second-degree sexual abuse within the meaning of the

sentencing enhancement. Consequently, the sentencing enhancement applied,

and the district court was required by law to impose it. The sentence was not

illegal. We affirm.

       AFFIRMED.
