State of Iowa v. George James Jackson ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1816
Filed December 19, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GEORGE JAMES JACKSON,
Defendant-Appellant.
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Appeal from the Iowa District Court for Story County, James A. McGlynn
(plea), James C. Ellefson (sentencing), and Adria Kester (nunc pro tunc order),
Judges.
George Jackson appeals his guilty-plea convictions of three crimes and a
post-judgment nunc pro tunc order. CONVICTIONS AFFIRMED; NUNC PRO
TUNC ORDER VACATED; AND REMANDED FOR ENTRY OF A CORRECTED
SENTENCING ORDER.
Christopher A. Clausen of Clausen Law Office, Ames, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
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MULLINS, Judge.
George Jackson appeals his guilty-plea convictions of second-degree
burglary, domestic-abuse assault, and stalking, contending the court erred in
accepting his pleas because they were not made knowingly and voluntarily.
Jackson acknowledges his claim was not preserved for our review, as he was
advised of the requirement to file a motion in arrest of judgment to challenge the
pleas for any reason but failed to do so.1 See Iowa R. Crim. P. 2.24(3)(a). He
alternatively claims his attorney was ineffective in failing to file a motion in arrest
of judgment on voluntariness grounds because, during the plea proceedings,
“[t]here were a number of breaks . . . and a number of times where [he] had to
speak with his attorney before answering the court’s questions.” Upon our de novo
review, we find Jackson’s pleas were entered knowingly and intelligently, and
therefore voluntarily; consequently, we find counsel’s failure to file a motion in
arrest of judgment was neither a breach of an essential duty or prejudice resulting.
See State v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018).
At the time of the oral pronouncement of Jackson’s sentence for the
domestic-abuse-assault conviction, the district court did not order him to participate
in a batterers’ treatment program as required by Iowa Code section 708.2A(10)
(2017). Nor was the requirement contained in the court’s written sentencing order.
Three months after Jackson filed his notice of appeal, the State electronically filed
an application for a nunc pro tunc order noting the court “failed to include the
requirement that the defendant complete the batterers’ education program.” The
1
Jackson did file a motion in arrest of judgment but subsequently withdrew the motion.
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application was accompanied by a proposed order adding the requirement to
Jackson’s sentence, which the court approved within minutes. Jackson challenges
the order as inconsistent with the oral sentence. The State argues we do not have
jurisdiction to consider the propriety of its ex parte communication and the resulting
order, which sought to modify the judgment and sentence which Jackson had
already appealed.
We reject the jurisdiction argument, as the nunc pro tunc order was not a
ruling on a collateral or independent matter, thus requiring Jackson to perfect a
separate appeal as to such order. See State v. Formaro, 638 N.W.2d 720, 727
(Iowa 2002). Instead, it was an order purporting to “show now what was actually
done then.” See Wirtanen v. Provin, 293 N.W.2d 252, 255 (Iowa 1980) (quoting
McVay v. Kenneth E. Montz Implement Co., 287 N.W.2d 149, 150–51 (Iowa
1980)). Likewise, the nunc pro tunc order “amended” the sentencing order, from
which Jackson had already perfected an appeal. “The function of a nunc pro tunc
order is not to modify or correct a judgment but to make the record show truthfully
what judgment was actually rendered—not to make an order now for then, but to
enter now for then an order previously made.” Headley v. Headley, 172 N.W.2d
104, 108 (Iowa 1969) (quoting General Mills, Inc. v. Prall, 56 N.W.2d 596, 600
(Iowa 1953)). The problem with the State’s position is that what happened “then”
was a sentence that failed to order the batterers’ treatment program. That resulted
in an illegal sentence, which the court may correct at any time. Iowa R. Crim. P.
2.24(5)(a); Veal v. State, 779 N.W.2d 63, 64 (Iowa 2010). A nunc pro tunc order
can only be used to correct an order to show what really happened, not to correct
a legal error or a mistake. Where, as here, the original sentence is illegal, the
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proper procedure is to vacate the original sentence and enter a new one. See
State v. Suchanek, 326 N.W.2d 263, 266 (Iowa 1982).
The district court’s original sentence was an illegal one. As a matter of law,
the nunc pro tunc order had no effect on the illegal sentence. We therefore vacate
that portion of the sentence imposed by the nunc pro tunc order. Under the unique
circumstances of this case—where Jackson’s written guilty plea recited “I will also
be required to complete the Iowa Domestic Abuse Education Program,” at the plea
hearing the prosecutor recited the same requirement when informing the court of
the plea agreement, the plea-taking court informed Jackson of the batterers’
treatment requirement, and the court had no discretion whether to order the
statutorily mandated batterers’ treatment program but failed to do so at the time of
sentencing—we will not require the court to convene a new sentencing hearing.
See State v. Tenny, 493 N.W.2d 824, 826 (Iowa 1992) (requiring sentencing courts
“to order all defendants convicted of domestic abuse assault to participate in a
batterers’ treatment program”). Instead, we remand for entry of a corrected
sentencing order, which adds the requirement that Jackson participate in a
batterers’ treatment program as part of his sentence for his conviction of domestic-
abuse assault, and otherwise includes all provisions in the original sentencing
order.
CONVICTIONS AFFIRMED; NUNC PRO TUNC ORDER VACATED; AND
REMANDED FOR ENTRY OF A CORRECTED SENTENCING ORDER.