State of Iowa v. Yarvon Nathaniel Russell ( 2015 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 14-1243
    Filed December 23, 2015
    STATE OF IOWA,
    Plaintiff-Appellee,
    vs.
    YARVON NATHANIEL RUSSELL,
    Defendant-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,
    Judge.
    A defendant appeals from the sentences imposed for his convictions of
    carrying weapons on school grounds and carrying weapons following the
    revocation of a deferred judgment. AFFIRMED.
    Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant
    Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant
    Attorney General, for appellee.
    Considered by Potterfield, P.J., Doyle, J., and Goodhue, S.J.*
    *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
    2
    GOODHUE, Senior Judge.
    Yarvon Nathaniel Russell appeals from the sentences imposed for his
    convictions of carrying weapons on school grounds and carrying weapons
    following the revocation of a deferred judgment.
    I. Factual Background
    A police officer searched Russell’s backpack at North High School and
    found it contained a loaded nine millimeter handgun.      He was charged with
    carrying weapons on school grounds, in violation of Iowa Code section 724.4B(1)
    (2011), and carrying weapons, in violation of section 724.4(1). On February 26,
    2013, he entered pleas of guilty to both charges. Russell requested and was
    granted deferred judgments. He was placed on supervised probation for five
    years.    Russell was arrested for a separate offense, and on July 25, 2014,
    Russell’s deferred judgment was revoked. The court sentenced him to a term of
    five years for carrying weapons on school grounds and two years for carrying a
    weapon.      The sentences were to run concurrently with each other but
    consecutively with another sentence entered the same date. Russell appeals,
    contending that the two charges are for the same offense and the sentence on
    the lesser should be merged into the greater. He contends the failure to merge
    the two sentences resulted in an illegal sentence.
    II. Preservation of Error
    The claim of an illegal sentence can be raised at any time and is not
    subject to the usual error preservation rules. State v. Bruegger, 
    773 N.W.2d 862
    ,
    872 (Iowa 2009).      Failure to merge sentences when merger is appropriate
    constitutes an illegal sentence. State v. Love, 
    858 N.W.2d 721
    , 723 (Iowa 2015).
    3
    III. Standard of Review
    To the extent that Russell presents a constitutional claim of double
    jeopardy, the review is de novo. State v. Finnel, 
    515 N.W.2d 41
    , 43 (Iowa 1994).
    But to the extent he presents a claim of a violation of Iowa Code section 701.9,
    the review is for errors at law. 
    Id. IV. Discussion
    Russell, in his appellate brief, mentions the double jeopardy, or double
    punishment, prohibition of the U.S. Constitution but substantially relies on the
    protection against cumulative punishment as provided by Iowa statute and rule.
    Section 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.
    Iowa Rule of Criminal Procedure 2.6(2) provides, “Prosecution and Judgment.
    Upon prosecution for a public offense, the defendant may be convicted of either
    the public offense charged or an included offense, but not both.”
    Iowa has adopted the statutory elements or impossibility test for
    determining whether one offense is included in another or a greater offense
    arising out of the same factual event. State v. Braggs, 
    784 N.W.2d 31
    , 35 (Iowa
    2010). The issue is whether it is possible to commit the greater offense without
    committing the lesser offense. 
    Id. at 35-36.
    Accordingly, the analysis is directed
    toward determining if the lesser offense includes an element not required by the
    greater offense. 
    Id. at 36.
    There are three general scenarios in which section
    724.4(1), carrying a weapon, can be charged: (1) A person goes armed with a
    4
    dangerous concealed weapon; (2) a person goes armed with a pistol or revolver
    or a loaded firearm of any kind, whether concealed or not, within the limits of a
    city; or (3) a person knowingly carries or transports a pistol or a revolver in a
    vehicle.   Section 724.4B(1), carrying a weapon on school grounds, does not
    require the weapon to be concealed. Therefore, the first option contains an extra
    element. The second option requires the firearm to be loaded and the act to take
    place within city limits. Section 724.4B(1) requires neither. The third option
    requires the person to knowingly carry or transport the weapon in a vehicle.
    Section 724.4B(1) makes no such requirement.        Each alternative under the
    carrying weapons charge set out in section 724.4(1) carries with it a requirement
    that it is not necessary to constitute a carrying weapons on school grounds
    charge under section 724.4B. The fact that the incident happened within city
    limits and the gun was loaded does not create a merger because the analysis is
    to be made without facts specific to the case under consideration. See State v.
    Stewart, 
    858 N.W.2d 17
    , 21 (Iowa 2015) (citing State v. Hickman, 623 N.W.2d.
    847, 850 (Iowa 2001) and State v. Jeffries, 
    430 N.W.2d 728
    , 737-39 (Iowa
    1988)). The two convictions do not merge under section 701.9 or Iowa Rule of
    Criminal Procedure 2.6(2).
    To the extent that the constitutional issue of double jeopardy, or double
    punishment, is raised, the issue rests on legislative intent.   See 
    Finnel, 515 N.W.2d at 43
    . Legislative intent is determined by the legal elements test for
    lesser-included offenses. 
    Id. Double jeopardy
    or multiple punishments for the
    same offense does not exist since the carrying weapon charge under section
    5
    724.4 is not a lesser-included offense with carrying weapons on school grounds
    under section 724.4B.
    AFFIRMED.
    

Document Info

Docket Number: 14-1243

Filed Date: 12/23/2015

Precedential Status: Precedential

Modified Date: 12/23/2015