               IN THE SUPREME COURT OF IOWA
                            No. 126 / 05-0364

                          Filed March 23, 2007


STATE OF IOWA,

      Appellee,

vs.

CHARLES EDWARD ROSS III,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Joel D. Novak,

Judge.



      Defendant seeks further review of court of appeals decision rejecting,

in part, his challenge to imposition of fines and mandatory minimum

sentences on two convictions of second-degree robbery as a habitual

offender. DECISION OF COURT OF APPEALS VACATED; SENTENCES

VACATED IN PART AND AFFIRMED IN PART.



      Patricia A. Reynolds, Acting State Appellate Defender, Nan Jennisch,

Assistant State Appellate Defender, for appellant.

      Charles Edward Ross III, Fort Dodge, pro se.



      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant

Attorney General, John P. Sarcone, County Attorney, and James P. Ward,

Assistant County Attorney, for appellee.
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TERNUS, Chief Justice.

      The appellant, Charles Edward Ross III, challenges his sentences on

two counts of robbery in the second degree as a habitual offender. He

claims the court was without authority to impose a fine because neither the

robbery statute nor the habitual-offender statute provide for a fine, a claim

with which the State agrees.     Ross’s second challenge to his sentence

focuses on the court’s imposition of a period of imprisonment “as provided

by Iowa Code section[] . . . 902.12,” which requires a defendant to serve a

minimum of seventy percent of his sentence before becoming eligible for

parole. He claims this statute does not apply to sentences imposed on

habitual offenders.

      The defendant’s appeal was transferred to the court of appeals. That

court vacated the defendant’s sentences in part, holding the district court

was without authority to impose a fine. The court of appeals refused to

address the defendant’s challenge to the applicability of section 902.12,

holding error had not been preserved.

      We granted further review.      We agree the district court had no

authority to impose a fine on the charges of second-degree robbery as a

habitual offender.    We disagree, however, with the court of appeals’
disposition of the defendant’s challenge to the mandatory minimum aspect

of his sentences. Finding no error preservation problem and addressing

this claim on the merits, we conclude section 902.12 does apply, and the

court properly sentenced the defendant to serve a minimum of seventy

percent of his sentence.    Accordingly, we vacate the court of appeals’

decision, vacate that portion of the defendant’s sentences imposing a fine,

and affirm the balance of the sentences imposed by the district court.
                                               3

       I. Background Facts and Proceedings.

       Ross pled guilty as a habitual offender to two counts of second-degree

robbery. See Iowa Code §§ 711.1, 711.3, 902.8 (2003). The defendant

waived his right to file a motion in arrest of judgment and requested

immediate sentencing. The district court found the defendant guilty and

imposed concurrent sentences “for a period not to exceed fifteen years as

provided in Iowa Code sections 902.3, 902.9 and 902.12.” The defendant

was ordered to pay restitution, court costs, a law-enforcement-initiative

surcharge, attorney fees, and a $5000 fine for each offense.

       On appeal, the defendant’s counsel made one argument: the court

was without authority to impose a fine. In a pro se brief, the defendant

raised several additional issues, none of which were raised in the district

court. As we discuss below, one of these issues—the question of the legality

of imposing a mandatory minimum sentence—is not subject to the normal

error preservation rules. Consequently, we will address that claim on its

merits. The other issues raised in the defendant’s pro se brief were not

preserved, and therefore, we give them no consideration. 1

       II. Standard of Review.

       In determining the proper standard for review, we focus on the nature
of the defendant’s claimed error. The defendant contends his sentences

were not authorized by statute. A sentence not permitted by statute is


       1The   defendant claims the district court failed to inform him at the time of his guilty
plea that a mandatory minimum sentence would be applied to his habitual-offender
sentence, as required by Iowa Code section 901.5(7). The defendant failed to file a motion
in arrest of judgment raising this issue, and therefore, this argument has been waived. See
Iowa R. Crim. P. 2.24(3) (stating failure to challenge adequacy of plea proceeding by motion
in arrest of judgment precludes defendant from asserting such a claim on appeal). The
defendant also makes several challenges to the constitutionality of section 902.12 and the
application of that statute to him. These claims, being raised for the first time on appeal,
are also untimely. See State v. Ceaser, 585 N.W.2d 192, 195 (Iowa 1998) (holding
constitutional challenges to sentencing statutes are governed by normal error preservation
rules).
                                       4

illegal. See State v. Kress, 636 N.W.2d 12, 17 (Iowa 2001). “[T]he sentence

is illegal because it is ‘beyond the power of the court to impose.’ ” State v.

Ceaser, 585 N.W.2d 192, 195 (Iowa 1998) (quoting State v. Wilson, 294

N.W.2d 824, 825 (Iowa 1980)).

      The issues raised by the defendant are, therefore, essentially

questions of statutory interpretation.          Kress, 636 N.W.2d at 17.

Consequently, our review is for correction of errors of law. Id.

      III. Legality of Fine.

      The defendant asserts the district court was without authority to

impose a fine because neither the robbery statute nor the habitual-offender

statute provides for a fine. The State agrees, and so do we.

      Second-degree robbery is a class “C” felony. See Iowa Code § 711.3.

Section 902.9(4) provides that a “class ‘C’ felon, not a habitual offender, . . .

shall be sentenced to a fine of at least one thousand dollars but not more

than ten thousand dollars.”         Id. § 902.9(4) (emphasis added).        The

sentencing statute for a habitual offender simply provides that an “offender

shall be confined for no more than fifteen years.” Id. § 902.9(3). Therefore,

the applicable statutes do not authorize a fine as part of the sentence for a

habitual offender convicted of second-degree robbery.
      A sentence not permitted by statute is illegal and void. See State v.

Woody, 613 N.W.2d 215, 217 (Iowa 2000). Accordingly, the unauthorized

fines imposed as part of the defendant’s sentences must be vacated.

      IV. Mandatory Minimum Sentence.

      A. Error preservation.      As noted above, the defendant did not

challenge the district court’s application of the mandatory minimum

sentence set forth in section 902.12 until this appeal. For this reason, the

court of appeals held error had not been preserved. Our cases do not

support this conclusion. We stated in Woody:
                                       5
      An illegal sentence is void and “not subject to the usual
      concepts of waiver, whether from a failure to seek review or
      other omissions of error preservation.” Because an illegal
      sentence is void, it can be corrected at any time.

613 N.W.2d at 217 (quoting State v. Ohnmacht, 342 N.W.2d 838, 843 (Iowa

1983)). Thus, we proceed to consider this issue on the merits.

      B. Issue.     The defendant argues that the minimum sentence

requirements for habitual offenders is that set forth in Iowa Code section

902.8, which provides: “A person sentenced as an habitual offender shall

not be eligible for parole until the person has served the minimum sentence

of confinement of three years.” The district court relied on Iowa Code

section 902.12(5) in sentencing the defendant to serve seventy percent of

his sentence. That statute provides:

             A person serving a sentence for conviction of the
      following felonies shall be denied parole or work release unless
      the person has served at least seven-tenths of the maximum
      term of the person’s sentence:
             ....
            5. Robbery in the first or second degree in violation of
      section 711.2 or 711.3.

Iowa Code § 902.12(5) (Supp. 2003). We must interpret these statutes to

determine whether section 902.12 applies to this defendant.
      C. Governing legal principles.       “ ‘When a minimum sentence is

prescribed . . . the legislature ordinarily requires a judicial determination of

its applicability.’ ” State v. Iowa Dist. Ct., 616 N.W.2d 575, 578 (Iowa 2000)

(quoting State v. Wilson, 314 N.W.2d 408, 409 (Iowa 1982)).           Whether

section 902.12(5) applies to a habitual offender must be considered in light

of well-established principles of statutory interpretation:

             “When the text of a statute is plain and its meaning
      clear, the court should not search for meaning beyond the
      express terms of the statute . . . .” However, where the
      language of a statute is ambiguous, so that reasonable minds
      would differ on the meaning, we turn to our rules of
                                     6
      interpretation. The polestar of statutory interpretation is to
      give effect to the legislative intent of a statute. We “consider
      the objects sought to be accomplished and the evils and
      mischiefs sought to be remedied, seeking a result that will
      advance, rather than defeat, the statute’s purpose.” . . . [W]e
      will not construe a statute in a way [that] creates an
      impractical or absurd result, nor will we speculate as to the
      probable legislative intent beyond what the language clearly
      states.

State v. Tesch, 704 N.W.2d 440, 451 (Iowa 2005) (quoting State v. Schultz,

604 N.W.2d 60, 62 (Iowa 1999)); see also State v. Allen, 708 N.W.2d 361,

366 (Iowa 2006) (“Legislative intent is derived not only from the language

used but also from ‘the statute’s “subject matter, the object sought to be

accomplished, the purpose to be served, underlying policies, remedies

provided, and the consequences of the various interpretations.” ’ ” (quoting

Cox v. State, 686 N.W.2d 209, 213 (Iowa 2004))).

      “[W]e ‘construe statutes that relate to the same or a closely allied

subject together so as to produce a harmonious and consistent body of

legislation.’ ” Iowa Dist. Ct., 616 N.W.2d at 578 (quoting State v. Casey’s

Gen. Stores, Inc., 587 N.W.2d 599, 601 (Iowa 1998)). “In addition, the

legislative history of a statute is instructive and we may consider it when

ascertaining legislative intent.” Allen, 708 N.W.2d at 366.

      D. Discussion.    The defendant argues the mandatory minimum

sentence applicable to his crime is the three-year mandatory minimum for

habitual offenders established in section 902.8. He claims the district court

erred in imposing the seventy-percent mandatory minimum sentence

provided for persons convicted of robbery in the second degree as

authorized by section 902.12.

      Although we have never addressed this precise question, we

considered a similar issue in State v. Burgs, 479 N.W.2d 323 (Iowa 1992).

In that case, the defendant, Nathan Burgs, was convicted of a class “D”

theft and sentenced as a habitual offender subject to the parole restrictions
                                       7

of Iowa Code section 902.11. Burgs, 479 N.W.2d at 323. Section 902.11

provides that forcible felons who have a prior forcible felony conviction must

serve at least one-half of their term of imprisonment before being eligible for

parole. Id. (citing Iowa Code § 902.11). Burgs claimed on appeal that

section 902.11 did not apply because the parole restrictions of section

902.11 conflicted with the parole restrictions of section 902.8, which stated

that habitual offenders were not eligible for parole until the person had

served a three-year minimum sentence. Id. at 323-24.

      Finding section 902.11 “unambiguous and its meaning plain,” this

court held that statute “authorize[d] extended prison terms for [certain]

forcible felons . . ., whether habitual offenders or not . . . .” Id. at 324. We

noted section 902.11 was “a reasonable legislative response to the problem

of recidivism.” Id. In essence, we held, “the lengthier penalty of section

902.11 merely subsumes the three-year minimum of section 902.8.” Id.

      The same analysis applies here.          Section 902.12 provides no

exception for habitual offenders. Its terms are clear: “A person serving a

sentence for conviction of [second-degree robbery] shall be denied parole or

work release unless the person has served at least seven-tenths of the

maximum term of the person’s sentence.”           Iowa Code § 902.12.       The
defendant here is such a person. He was sentenced for the crime of second-

degree robbery, not for being a habitual offender. See Woody, 613 N.W.2d

at 217 (stating “habitual-offender statutes do not charge a separate offense;

they only provide for enhanced punishment on the current offense”).

Consequently, the clear and unambiguous terms of section 902.12

encompass this defendant.       Like the sentence in Burgs, “the lengthier

sentence of section [902.12] merely subsumes the three-year minimum of

section 902.8.” Burgs, 479 N.W.2d at 324.
                                        8

      The defendant contends the legislative history of section 902.8

warrants a different result. Prior to 1976, Iowa Code section 747.5 defined

a “habitual criminal” and provided that a habitual criminal “shall be

punished by imprisonment in the penitentiary for a term of not more than

twenty-five years, provided that no greater punishment is otherwise provided

by statute, in which case the law creating the greater punishment shall

govern.” Iowa Code § 747.5 (1975) (emphasis added). When section 902.8

was enacted, the italicized qualification was not included. See Iowa Code

§ 902.8. The defendant argues that the omission of similar language in

section 902.8 evidences the legislature’s intent that section 902.8 should

stand alone to govern the punishment of habitual offenders.

      An obvious fallacy in this argument is the fact that section 902.9(3)

prescribes the term of imprisonment for a habitual offender. Moreover, in

1992 this court held in Burgs that the mandatory minimum sentence of

section 902.11 trumped the mandatory minimum sentence of section 902.8.

479 N.W.2d at 324. The legislature has taken no action in the fourteen

years since that decision to correct our interpretation of these statutes, if

indeed that interpretation was wrong. See generally Drahaus v. State, 584

N.W.2d 270, 276 (Iowa 1998) (“We consider the legislature’s inaction as tacit
approval of our [prior] decision . . . .”).

      Our interpretation of sections 902.8 and 902.12 also gives effect to

the principle that the court should avoid construing a statute so as to

create an absurd result. Adopting the defendant’s argument would result in

the illogical situation that a recidivist would serve less time than a first-time

offender. A recidivist convicted of second-degree robbery would be subject

to the fifteen-year sentence for habitual offenders, but would be required to

serve only a three-year minimum. See Iowa Code §§ 902.8, .9(3) (providing

for a fifteen-year sentence with a three-year mandatory minimum for
                                       9

habitual offenders). In contrast, a first-time offender convicted of second-

degree robbery would serve a ten-year sentence with a mandatory seven-

year minimum. See id. §§ 902.9, .12 (providing for a ten-year sentence for

second-degree robbery and a mandatory seventy-percent minimum). This

result is clearly contrary to the legislature’s intent to treat recidivists more

harshly. See Woody, 613 N.W.2d at 218 (noting section 902.8 was designed

to punish recidivism).

      Applying well-established rules of statutory construction, we hold the

mandatory minimum sentences prescribed in section 902.12 apply to

habitual offenders.      Therefore, the district court did not impose illegal

sentences in this case when it sentenced the defendant to two fifteen-year

sentences to be served pursuant to section 902.12.

      V. Summary and Disposition.

      The district court imposed an illegal sentence when it required the

defendant to pay fines for his second-degree robbery convictions. On the

other hand, the district court properly interpreted section 902.12 in making

the defendant’s sentences subject to the parole restrictions of that statute.

Because the court of appeals erroneously held that error was not preserved

on the latter issue, we vacate that court’s decision. We also vacate that
portion of the defendant’s sentences requiring him to pay a fine.           The

defendant’s sentences are affirmed in all other respects.

      DECISION OF COURT OF APPEALS VACATED; SENTENCES

VACATED IN PART AND AFFIRMED IN PART.

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