Philip Dean Termaat, Applicant-Appellant v. State of Iowa , 867 N.W.2d 853 ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1849
Filed January 14, 2015
PHILIP DEAN TERMAAT,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Sioux County, James D. Scott,
Judge.
Philip Termaat appeals the denial of his motion for correction of an illegal
sentence. AFFIRMED.
Matthew R. Metzgar of Rhinehart Law, P.C., Sioux City, for appellant.
Philip Dean Termaat, Fort Dodge, appellant pro se.
Thomas J. Miller, Attorney General, Aaron Rogers, Assistant Attorney
General, and Thomas Kunstle, County Attorney, for appellee.
Considered by Danilson, C.J., and Vogel and Bower, JJ. Scott, S.J., takes
no part.
2
BOWER, J.
Philip Termaat appeals the denial of his motion for correction of an illegal
sentence. Termaat claims his sentences for voluntary manslaughter and attempt
to commit murder are illegal because they violate Iowa’s one-death, one-
homicide rule as both are homicide offenses. We find attempt to commit murder
is not a homicide offense and affirm the district court’s order.
I. BACKGROUND FACTS AND PROCEEDINGS
In 2002, the State charged Termaat with murder in the first degree for the
killing of his wife, Melinda Termaat. After plea negotiations, Termaat agreed to
plead guilty to the amended charges of voluntary manslaughter and attempt to
commit murder. Termaat did not appeal his conviction or sentence.
On September 3, 2010, Termaat filed a motion for correction of an illegal
sentence. In his motion, Termaat argued by accepting his guilty pleas to
voluntary manslaughter and attempt to commit murder the district court violated
Iowa Code section 701.9 (2009),1 the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution, and article I, section twelve of the
Iowa Constitution. The State filed a resistance and claimed Termaat’s motion
should be treated as a petition for postconviction relief since Termaat’s
sentences were not illegal. The district court agreed and denied Termaat’s
motion to correct an illegal sentence. At the State’s request, the court then
1
Iowa Code 701.9 provides:
No person shall be convicted of a public offense which is necessarily
included in another public offense of which the person is convicted. If the
jury returns a verdict of guilty of more than one offense and such verdict
conflicts with this section, the court shall enter judgment of guilty of the
greater of the offenses only.
3
considered the motion as an application for postconviction relief (PCR). The
court denied the application finding it time barred. Termaat then filed multiple pro
se motions with the district court, and a motion for writ of mandamus with the
Iowa Supreme Court. The district court denied all of Termaat’s motions, and our
supreme court denied the writ.
On June, 8, 2012, Termaat filed a second PCR claiming the State violated
his Fifth Amendment rights, his sentence was illegal pursuant to Iowa Code
section 701.9, and he had received ineffective assistance of counsel. The State
resisted the application on the merits and also argued the claims were barred by
res judicata and collateral estoppel. Following a contested hearing, the court
dismissed Termaat’s application on all grounds except his claim for correction of
an illegal sentence. Termaat then amended his application.
On September 4, 2013, a hearing was held on the amended application.
Termaat claimed his sentence was illegal because the underlying convictions
violate Iowa’s merger statute, section 701.9. He claimed attempt to commit
murder, a class “B” felony, is a lesser included offense of voluntary
manslaughter, a class “C” felony. He also claimed the two offenses violated the
one-death, one-homicide rule. After a thorough analysis, the court found
Termaat’s convictions did not violate the merger rule or subject him to double
jeopardy. Finally, the court denied Termaat’s one-death, one-homicide rule
claim. Relying on State v. Fix, the court found attempted murder could not be
defined as a “homicide offense.” 830 N.W.2d 744, 746 (Iowa Ct. App. 2013).
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Termaat now appeals the denial of his one-death, one-homicide rule
claim.
II. STANDARD OF REVIEW
We review claims of an illegal sentence for errors at law. Fix, 830 N.W.2d
at 746. A claim that a sentence is illegal may be raised at any time under Iowa
Rule of Criminal Procedure 2.24(5)(a). State v. Bruegger, 773 N.W.2d 862, 871
(Iowa 2009). Further, with respect to an illegal-sentence claim, the ordinary rules
of issue preservation do not apply. Id. Illegal-sentence claims are not barred by
statutes of limitation. Veal v. State, 779 N.W.2d 63, 65 (Iowa 2010).
III. ANALYSIS
Termaat claims his convictions for attempt to commit murder and
voluntary manslaughter of one victim resulting from one act violate the one-
death, one-homicide rule and therefore his sentences are illegal. The State
claims attempt to commit murder is not a homicide offense and cannot violate the
one-death, one-homicide rule. The State also claims issue preclusion and the
law of the case prohibited the district court from addressing Termaat’s arguments
and should prohibit Termaat’s claim on appeal. 2
In Fix, we provided an extensive definition of the one-death, one-homicide
rule:
Under Iowa law, when a defendant is convicted of separate
homicide counts involving a single victim, judgment can be entered
and sentence can be imposed for only one homicide offense. State
v. Wissing, 528 N.W.2d. 561, 567 (Iowa 1995) (setting aside
conviction for involuntary manslaughter where defendant was also
2
Relying on our tolerant stance toward illegal sentence claims, we find the State’s
arguments of issue preclusion and law of the case fail.
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convicted of vehicular homicide but only one death occurred); State
v. Gilroy, 199 N.W.2d, 63, 68 (Iowa 1972) (annulling conviction of
premeditated murder because life sentences for felony murder and
premeditated murder constituted impermissible double
punishment). In holding that a defendant who kills one person
cannot be convicted and sentenced for two separate homicides,
Iowa follows the prevailing view among state courts. See Ex parte
Rice, 766 So. 2d 143, 151–52 (Ala. 1999) (collecting cases); Ervin
v. State, 991 S.W.2d 804, 807–09 (Tex. Crim. App. 1999) (same).
830 N.W.2d at 746–47.
In Fix, we considered whether the offense of child endangerment resulting
in death was a homicide offense. In concluding child endangerment resulting in
death was a homicide offense, we defined “homicide offense”:
In legal parlance, a homicide is “[t]he killing of one person by
another.” Black’s Law Dictionary 739 (7th ed. 1999). An “offense”
is another word for a crime. Id. at 1108. “Kill” means “to put to
death.” American Heritage Dictionary 701 (2nd ed. 1985). It
follows that a homicide offense would include any crime that
involved one person putting another person to death. Because
section 726.6 requires proof of a knowing, intentional, or willful act
of endangerment that results in the death of a child (see Iowa Code
§ 726.6(1)(a)–(h)), we conclude it constitutes a homicide offense as
contemplated by the Wissing court. Our conclusion is bolstered by
the fact that the legislature deemed child endangerment resulting in
death so grave an offense that it designated the crime as a class
“B” felony and assigned a fifty-year prison term. Cf. State v.
Halliburton, 539 N.W.2d 339, 344 (Iowa 1995) (considering length
of sentences in deciding whether legislature intended multiple
punishments).
Id. at 749. Under this standard, Termaat’s claim fails. As the district court
determined: “[A]ttempt to commit murder [Iowa Code section 707.113] does not
3
Iowa Code section 707.11(1) (2009) states:
A person commits the offense of attempt to commit murder when, with the
intent to cause the death of another person and not under circumstances
which would justify the person’s actions, the person does any act by
which the person expects to set in motion a force or chain of events which
will cause or result in the death of the other person.
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involve one person putting another person to death, but rather an attempt to
complete that act.” Therefore, attempt to commit murder is not a homicide
offense and does not run afoul of the one-death, one-homicide rule. The court
did not err in denying Termaat’s motion for correction of an illegal sentence.
AFFIRMED.