                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0294
                              Filed March 11, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSE MANUEL RAMOS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Montgomery County, James S.

Heckerman, Judge.



      Jose Ramos appeals the judgment and sentence entered following his

conviction of third-degree sexual abuse. CONVICTION AFFIRMED, SENTENCE

AND NUNC PRO TUNC ORDER VACATED, AND REMANDED FOR

RESENTENCING.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, and Bruce Swanson, County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., Tabor, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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EISENHAUER, S.J.

      Jose Ramos appeals the judgment and sentence entered following his

conviction of third-degree sexual abuse pursuant to Iowa Code sections 709.1

and 709.4(2)(c)(4) (2011) (performing a sex act on a person age fourteen or

fifteen when the other person is four or more years older).1 He contends his trial

counsel was ineffective and the court erred when it impermissibly corrected an

illegal sentence in a nunc pro tunc order.

      We affirm Ramos’s conviction but preserve his ineffective-assistance

claims for a possible postconviction-relief action. Because a nunc pro tunc order

is an improper means of correcting an illegal sentence, we vacate Ramos’s

sentence and the nunc pro tunc order. The case is remanded for resentencing.

I. Ineffective Assistance of Counsel.

      Ramos raises two ineffective-assistance-of-counsel claims, which we

review de novo. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). To

establish he was provided ineffective assistance of counsel, Ramos must prove

counsel failed to perform an essential duty and prejudice resulted.           See

Strickland v. Washington, 466 U.S. 668, 693 (1984).       To succeed, counsel’s

performance must fall below the “normal range of competence.”            State v.

McPhillips, 580 N.W.2d 748, 754 (Iowa 1998). Prejudice is shown where there is

a reasonable probability the outcome would have been different had counsel

acted competently. Ledezma v. State, 626 N.W.2d 134, 145 (Iowa 2001).




1
 This section was recodified by the legislature in 2013 and now appears at section
709.4(1)(b)(3)(d). See 2013 Iowa Acts ch. 30, § 201.
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       The State alleged Ramos performed a sex act on B.H. in March 2012

when B.H. was fifteen and Ramos was twenty-eight years old. Ramos’s first

ineffective-assistance claim relates to the age requirement for his third-degree

sexual abuse conviction. Deputy Sheriff Rick Mitchell testified that he used a

database to determine Ramos was born in July of 1983.                Ramos alleges

competent counsel would have objected to this evidence as hearsay. The State

argues Ramos cannot prove he was prejudiced because evidence of Ramos’s

age could have been introduced through Ramos’s or his brother’s testimony, or

the jury could have concluded Ramos was four or more years older than B.H. by

personal observation.

       Ramos’s second ineffective-assistance claim suggests the prosecutor

made inappropriate statements during closing arguments and his attorney failed

to object. Although there was physical evidence linking Ramos to a sex act with

B.H., the main evidence was B.H.’s testimony. Ramos’s counsel emphasized

B.H. was intoxicated and had taken another person’s prescription medication on

the night in question, calling her ability to recall the events accurately into doubt.

During closing arguments, the prosecutor made statements Ramos alleges

bolstered B.H.’s credibility, as well as the prosecutor’s, and implied B.H. would

be harmed if the jury found Ramos not guilty. He claims competent counsel

would have objected to these statements, which he alleges amount to

prosecutorial misconduct.

       In general, ineffective-assistance claims are not addressed on direct

appeal. State v. Biddle, 652 N.W.2d 191, 203 (Iowa 2002). Where the record
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needs to be developed further and counsel provided an opportunity to respond to

the defendant’s claims, we preserve ineffective-assistance claims for possible

postconviction-relief proceedings. Id. Where more than one claim of ineffective

assistance is raised on direct appeal, we can only dismiss the claim if the errors

alleged do not cumulatively prejudice the defendant. State v. Clay, 824 N.W.2d

488, 501-02 (Iowa 2012). In order to allow the record of Ramos’s claims to be

fully developed, we preserve these claims for a possible postconviction-relief

action.

II. Nunc Pro Tunc Order.

          Ramos next contends the court erred in correcting an illegal sentence with

a nunc pro tunc order.        The court initially sentenced Ramos to a term of

incarceration not to exceed ten years but did not impose a special sentence of

lifetime parole as required under section 903B.1. After Ramos appealed, the

court entered a nunc pro tunc order to impose the special sentence. We review

the court’s nunc pro tunc order for correction of errors at law. See State v.

Johnson, 744 N.W.2d 646, 648 (Iowa 2008).

          Nunc pro tunc orders may only be used to correct an “obvious error” or

conform the written order to the sentencing court’s original intent. Id. Here, the

court was changing the sentence it initially imposed to correct an illegal sentence

rather than correcting an error in the written sentencing order.         This is an

improper use of a nunc pro tunc order. See id. at 649 (“A court may not use a

nunc pro tunc order ‘for the purpose of correcting judicial thinking, a judicial

conclusion or a mistake of law.’” (quoting Headley v. Headley, 172 N.W.2d 104,
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108 (Iowa 1969))). Accordingly, we vacate the illegal sentence and nunc pro

tunc order, and remand to the district court for resentencing.

       CONVICTION AFFIRMED, SENTENCE AND NUNC PRO TUNC ORDER

VACATED, AND REMANDED FOR RESENTENCING.
