IN THE COURT OF APPEALS OF IOWA

No. 15-1195

Filed June 15, 2016

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ERIC DEMPSEY,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Marlita A. Greve, 

Judge.

A criminal defendant appeals his sentence after pleading guilty to assault 

with intent to commit sexual abuse and burglary in the second degree. WRIT 

ANNULLED.

Gary D. Dickey Jr. of Dickey & Campbell Law Firm, P.L.C., Des Moines, 

for appellant.

Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant 

Attorney General, for appellee.

Heard by Potterfield, P.J., and Mullins and McDonald, JJ.
2

POTTERFIELD, Presiding Judge.

Eric Dempsey appeals his sentence after pleading guilty to assault with 

intent to commit sexual abuse and burglary in the second degree. He argues his 

sentence is illegal because the district court lacked authority to order that his tenyear special sentence under Iowa Code section 903B.2 (2007) commence after 

the completion of his two-year additional sentence under section 901A.2(8). We 

treat the appeal as a petition for writ of certiorari, find no illegality in the sentence,

and annul the writ. 

I. Background Facts and Proceedings

On July 30, 2008, Dempsey pled guilty to assault with intent to commit 

sexual abuse, an aggravated misdemeanor, and burglary in the second degree, 

a class “C” felony. See Iowa Code §§ 709.11, 713.5. Assault with intent to 

commit sexual abuse also qualifies as a “sexually predatory offense.” Id.

§ 901A.1(1)(a).

Dempsey was sentenced by the district court on September 4, 2008. The 

district court applied a mandatory sentencing enhancement and sentenced 

Dempsey to an indeterminate term of imprisonment not to exceed four years for 

the count of assault with intent to commit sexual abuse. See id. § 901A.2(1)

(requiring that a person convicted of a sexually predatory offense which is an 

aggravated misdemeanor be sentenced to and serve twice the maximum period 

of incarceration for the offense if the person has a prior conviction for a sexually 

predatory offense). The district court sentenced Dempsey to an indeterminate 

term of imprisonment not to exceed ten years for the count of burglary in the 
3

second degree. Dempsey was ordered to serve the two sentences 

consecutively.

Dempsey was resentenced on September 11, 2008, because the district 

court had forgotten to impose the ten-year special sentence applicable to sex 

offenders. See id. § 903B.2. The district court ordered the ten-year special 

sentence to commence upon completion of the four-year term of imprisonment 

imposed for the assault-with-intent-to-commit-sexual-abuse offense.

Dempsey appealed his sentence. Among his several arguments on direct 

appeal, Dempsey contended the district court illegally imposed the ten-year 

special sentence pursuant to section 903B.2. See State v. Dempsey, No. 08-

1611, 2009 WL 2170229, at *1 (Iowa Ct. App. July 22, 2009). He argued the tenyear special sentence conflicted with another statutory provision more directly 

applicable to his convictions—the two-year term of parole or work release set 

forth as an additional sentence for his sexually predatory offense. Id. at *3; see 

also Iowa Code § 901A.2(8). The State argued the two statutory provisions could 

be harmonized, and the district court’s mistake was not that it applied the wrong 

statutory subsection but that it failed to apply both. Dempsey, 2009 WL 

2170229, at *3. 

A panel of this court agreed with the State, finding, “Section 903B.2 plainly 

is an additional sentencing provision that is tacked on to section 901A.2(8), 

rather than an alternate, more general, sentencing provision.” Id. Dempsey’s 

sentence was vacated, and the case was remanded for resentencing so that the 

district court could impose the two-year term of parole prior to the ten-year 

special sentence. Id. at *3–4.
4

Dempsey was resentenced a second time on November 25, 2009. The 

district court reaffirmed the consecutive four- and ten-year sentences before 

stating as follows:

In addition, under [the count of assault with intent to commit sexual 

abuse], pursuant to Section 901A.2(8), the defendant is sentenced 

to an additional term of parole or work release of two years after 

discharge from custody. In addition, under [the same count], 

pursuant to Section 903B.2, the defendant is sentenced to an 

additional term of parole or work release of ten years after 

completion of the two-year additional term of parole or work 

release.

Dempsey filed a pro se motion for correction of an illegal sentence on 

March 30, 2015. The district court denied the motion on July 2, 2015. Dempsey 

now appeals.

II. Standard of Review

We review both the district court’s ruling on Dempsey’s motion to correct 

an illegal sentence and the district court’s construction of statutes for correction 

of errors at law. State v. Maxwell, 743 N.W.2d 185, 190 (Iowa 2008); In re Det.

of Swanson, 668 N.W.2d 570, 575 (Iowa 2003). Because the district court’s 

sentence is void if not authorized by statute, we examine Dempsey’s sentence in 

order “to determine whether it complies with the relevant statutes.” State v. 

Freeman, 705 N.W.2d 286, 287 (Iowa 2005) (citation omitted).

III. Discussion

The State contends on appeal we lack jurisdiction to review the district 

court’s denial of Dempsey’s motion to correct illegal sentence because the denial 

of such a postjudgment motion is not appealable as a matter of right. Dempsey
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replies that the district court’s denial of his motion is appealable as a matter of 

right under Iowa Rule of Appellate Procedure 6.103(1), which provides:

All final orders and judgments of the district court involving 

the merits or materially affecting the final decision may be appealed 

to the supreme court except as provided in this rule, rule 6.105

[(review of small claims actions)], and Iowa Code sections 814.5

[(the state as appellant or applicant)] and 814.6 [(the defendant as 

appellant or applicant)].

While the language of rule 6.103(1) might be read to permit an appeal 

from the denial of a motion to correct illegal sentence as an order involving the 

merits of the final judgment in a criminal case, the rule is expressly limited by 

Iowa Code section 814.6. Section 814.6(1) provides a criminal defendant may 

appeal as of right only from either “[a] final judgment of sentence, except in case 

of simple misdemeanor and ordinance violation convictions,” or “[a]n order for the 

commitment of the defendant for insanity or drug addiction.”

1

 

1 By way of comparison, the Tennessee Rules of Criminal Procedure explicitly provide

for an appeal as of right from both a grant and a denial of a motion to correct an illegal 

sentence:

(a) Either the defendant or the state may, at any time, seek the 

correction of an illegal sentence by filing a motion to correct an illegal 

sentence in the trial court in which the judgment of conviction was 

entered. For purposes of this rule, an illegal sentence is one that is not 

authorized by the applicable statutes or that directly contravenes an 

applicable statute.

. . . .

(d) Upon the filing of an amended uniform judgment document or 

order otherwise disposing of a motion filed pursuant to this rule, the 

defendant or the state may initiate an appeal as of right pursuant to Rule

3, Tennessee Rules of Appellate Procedure.

Tenn. R. Crim. P. 36.1(a),(d). Tennessee’s rule will become even more clear in July 

2016, when the following amended language becomes effective:

(f) Upon the filing of an amended uniform judgment document in 

those proceedings in which the court grants a motion filed under this rule, 

or upon the filing of an order denying a motion filed under this rule, the 

defendant or the state may initiate an appeal as of right pursuant to Rule

3, Tennessee Rules of Appellate Procedure.

Tenn. R. Crim. P. 36.1(f) (effective July 1, 2016). 
6

A defendant may challenge an illegal sentence at any time. Iowa R. Crim.

P. 2.24(5)(a); State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009). The filing of 

a motion to correct an illegal sentence under rule 2.24(5)(a) is the correct vehicle 

for such a challenge after the time for appeal has passed. However, we agree 

with the State that a defendant does not have the right to appeal the denial of a 

motion to correct an illegal sentence under Iowa Code section 814.6(1).

2 Rather, 

an appeal from the denial of a motion to correct an illegal sentence must be

taken either: (1) by application for discretionary review under Iowa Rule of 

Appellate Procedure 6.106, of “[a]n order raising a question of law important to 

the judiciary and the profession” as permitted by Iowa Code section 814.6(2)(e); 

or (2) on petition for writ of certiorari under Iowa Rule of Appellate Procedure 

6.107, as a claim the district court exceeded its jurisdiction or otherwise acted 

illegally.

In this case, where Dempsey challenges his sentence as illegal, we 

determine the proper form of review was by a petition for writ of certiorari. 

 

2 The Iowa Supreme Court and the Iowa Court of Appeals historically have reviewed 

these cases on appeal, without a challenge to jurisdiction. See, e.g., State v. Ragland, 

812 N.W.2d 654, 656–57 (Iowa 2012); Bonilla v. State, 791 N.W.2d 697, 700 (Iowa 

2010) (construing postconviction relief action as a motion to correct an illegal sentence 

before considering appeal); Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001); State v. 

Cohrs, No. 14-2110, 2016 WL 146526, at *1 (Iowa Ct. App. Jan. 13, 2016); State v. 

Posey, No. 15-0170, 2015 WL 6508494, at *1 (Iowa Ct. App. Oct. 28, 2015); State v. 

Johnson, No. 13-1839, 2014 WL 7343424, at *1 (Iowa Ct. App. Dec. 24, 2014); State v. 

Walters, No. 12-1555, 2013 WL 2146474, at *1 (Iowa Ct. App. May 15, 2013); State v. 

Harrington, No. 10-1299, 2012 WL 474162, at *1 (Iowa Ct. App. Feb. 15, 2012); State v. 

Greening, No. 10-0935, 2011 WL 768744, at *1 (Iowa Ct. App. Mar. 7, 2011); State v. 

Millsap, No. 08-1181, 2009 WL 2170246, at *1 (Iowa Ct. App. July 22, 2009); State v. 

Cole, No. 06-0579, 2007 WL 257856, at *1 (Iowa Ct. App. Jan. 31, 2007); State v. 

Rowley, No. 04-1394, 2006 WL 468354, at *1 (Iowa Ct. App. Mar. 1, 2006); State v. 

Flowers, No. 05-0951, 2005 WL 1630089, at *1 (Iowa Ct. App. July 13, 2005); State v. 

Dickinson, No. 00-898, 2001 WL 433417, at *1 (Iowa Ct. App. Apr. 27, 2001) (where the 

appeal concerned the district court’s denial of a criminal defendant’s motion to 

reconsider and for correction of sentence and “[t]he State agree[d] that a party may 

appeal from a ruling on a motion to correct sentence . . . .”).
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Pursuant to Iowa Rule of Appellate Procedure 6.108, we treat Dempsey’s notice 

of appeal and briefs as a petition for writ of certiorari and grant the writ.

Moving to the merits of Dempsey’s claim,3 we begin our analysis by 

looking to the statutory language of Iowa Code section 903B.2:

A person convicted of a misdemeanor . . . offense under 

chapter 709 . . . shall also be sentenced, in addition to any other 

punishment provided by law, to a special sentence committing the 

person into the custody of the director of the Iowa department of 

corrections for a period of ten years, with eligibility for parole as 

provided in chapter 906. The special sentence imposed under this 

section shall commence upon completion of the sentence imposed 

under any applicable criminal sentencing provisions for the 

underlying criminal offense and the person shall begin the sentence 

under supervision as if on parole . . . . 

“The language of section 903B.2 is unambiguous. The statute states the tenyear special sentence ‘shall commence upon completion of the sentence 

imposed under any applicable criminal sentencing provisions for the underlying 

criminal offense and the person shall begin the sentence under supervision as if 

on parole.’” State v. Anderson, 782 N.W.2d 155, 158 (Iowa 2010) (citation 

omitted). But cf. State v. Maklenburg, No. 14-1268, 2015 WL 2394145, at *3 

(Iowa Ct. App. May 20, 2015) (determining Anderson’s holding is not controlling 

in cases involving consecutive sentences for two sexually predatory offenses 

each subject to section 903B.2 because those consecutive sentences are 

construed as one continuous sentence under section 901.8, and holding the 

 

3 We decline the State’s invitation to apply the law-of-the-case doctrine and foreclose 

Dempsey’s appeal. As discussed further below, we find the controlling authority has 

been clarified by a judicial decision of the Iowa Supreme Court subsequent to 

Dempsey’s 2009 appellate ruling. Because the subsequent clarification serves as an 

exception to the general rule, the law-of-the-case doctrine does not apply. See State v. 

Ragland, 812 N.W.2d 654, 658 (Iowa 2012).
8

discharge date governing commencement of section 903B.2 special sentences in 

such cases shall be the discharge date of the single, continuous sentence).

Dempsey argues the Anderson decision compels us to find the district 

court lacked authority to delay commencement of the 903B.2 special sentence 

until after completion of the 901A.2(8) additional term of parole or work release. 

As a result, Dempsey argues, we must remand his case for resentencing with 

instruction that his ten-year special sentence commence upon completion of his 

four-year sentence for assault with intent to commit sexual abuse, so that his tenyear special sentence under section 903B.2 and his two-year additional term of 

parole or work release under section 901A.2(8) would run concurrently. We 

disagree.

In Anderson, the Iowa Supreme Court considered the appropriate time for 

commencement of the ten-year special sentence under section 903B.2 for a 

criminal defendant who was serving concurrent sentences for multiple counts. 

782 N.W.2d at 156–57. The defendant in Anderson had already discharged his 

two-year sentence for the criminal offense which led to the imposition of the 

special sentence, but the district court held the ten-year special sentence should 

not be implemented until after he had discharged two unrelated five-year 

sentences. Id. The Anderson court held, “Iowa Code section 903B.2 requires 

that a special sentence begin to run when the sentence for the underlying 

criminal offense is discharged, even if the defendant is serving a longer 

concurrent sentence,” and, thus, “the ten-year special sentence should have 

begun to run when the sentence for ‘the underlying criminal offense,’—

Anderson’s [two-year] sentence—was completed.” Id. at 159.
9

Dempsey’s sentences are distinguishable from the defendant’s sentences 

in Anderson in two ways: first, Dempsey was sentenced to consecutive 

sentences rather than concurrent ones; and second, Dempsey’s sentence for 

assault with intent to commit sexual abuse is itself a three-part sentence 

consisting of the four-year sentence, the two-year additional sentence of parole 

or work release, and the ten-year special sentence. These distinctions are fatal 

to Dempsey’s argument on appeal. 

Unlike in Anderson, the district court here ordered that Dempsey’s two 

sentences run consecutively. By law, his consecutive sentences merge into a 

single, continuous term of imprisonment. See Iowa Code § 901.8 (“[I]f 

consecutive sentences are specified in the order of commitment, the several 

terms shall be construed as one continuous term of imprisonment.”). As a result, 

Dempsey’s 903B.2 special sentence cannot begin prior to the discharge date of 

his single, continuous sentence. See Maklenburg, 2015 WL 2394145, at *3; 

McKeag v. Iowa Dep’t of Corr., No. 12-0111, 2012 WL 4099114, at *1 (Iowa Ct. 

App. Sept. 12, 2012) (agreeing with district court’s determination there was no 

specific date on which the defendant’s first sentence ended and second began 

because consecutive sentences must be construed as one continuous term of 

imprisonment).

More importantly, and also unlike in Anderson, Dempsey’s sentence for 

the underlying criminal offense—assault with intent to commit sexual abuse—

does not consist solely of a term of imprisonment. The express language of 

section 901A.2(8) mandated Dempsey be sentenced to two years of parole or 

work release “[i]n addition to any other sentence imposed” for the sexually 
10

predatory offense. As a result, a plain reading of section 903B.2’s statement, 

“The special sentence imposed under this section shall commence upon 

completion of the sentence imposed under any applicable criminal sentencing 

provisions for the underlying criminal offense,” leads us to conclude the ten-year 

special sentence may only begin once Dempsey has completed both other 

components of his sentence for assault with intent to commit sexual abuse—the 

four-year term of imprisonment imposed under section 901A.2(1), which has 

merged into a continuous fourteen-year term of imprisonment pursuant to section 

901.8, and the two-year additional sentence of parole or work release imposed 

under section 901A.2(8). Iowa Code § 903B.2 (emphasis added).

We therefore find the district court had statutory authority to order that 

commencement of his ten-year special sentence under section 903B.2 be 

delayed until after the completion of his two-year additional sentence under 

section 901A.2(8). 

WRIT ANNULLED.