IN THE COURT OF APPEALS OF IOWA

No. 14-1381

Filed October 28, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

LEROY DEPRAE JOHNSON,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, George L. 

Stigler, Judge.

Leroy Johnson appeals the district court’s denial of Johnson’s motion to 

correct an illegal sentence. AFFIRMED.

Unes J. Booth of Booth Law Firm, Osceola, for appellant.

Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney 

General, Linda Fangman, County Attorney, and James J. Katcher, Assistant 

County Attorney, for appellee.

Considered by Danilson, C.J., and Vogel and Tabor, JJ.
2

VOGEL, Judge.

Leroy Johnson appeals the district court’s denial of Johnson’s motion to 

correct an illegal sentence, asserting it erred when denying his claims. He 

further argues the district court violated his constitutional right to be present at 

the hearing on the motion and counsel was ineffective for failing to present all of 

Johnson’s pro se arguments before the district court. We conclude the court 

properly denied Johnson’s motion, and Johnson did not have a constitutional 

right to be present at the hearing. Additionally, counsel was not ineffective for 

failing to present Johnson’s meritless pro se claims. Consequently, we affirm the 

order of the district court.

I. Factual and Procedural Background

On December 18, 2003, following a bench trial, the court found Johnson 

guilty of robbery in the first degree, in violation of Iowa Code sections 711.1 and 

711.2 (2003); burglary in the first degree, in violation of Iowa Code sections 

713.1 and 713.3(b) and (c); willful injury, in violation of Iowa Code section 

708.4(2); and criminal mischief in the fourth degree, in violation of Iowa Code 

sections 716.1 and 716.6. In its findings of fact, the court stated that on January 

19, 2003, Johnson went to the home of Wendell and Edith Ottmann and, on the 

pretense of using their phone, asked if he could come into the house. Then:

After asking for and getting a drink of water, Johnson told 

Wendell “give me all your money.” Johnson admits that the “stick”

was then in his hand. Wendell stated he didn’t have money. 

Johnson then hit Wendell over the head. Wendell fell to the floor. 

Johnson then went down the stairs into the basement looking for 

Edith. As she saw him and attempted to flee, he hit her in the head 

“once or twice.” Johnson claims that he did not want to hurt either 

Wendell or Edith but struck them to force their cooperation.
3

Edith went into the garage and started her car, intending to 

leave to seek help. As she backed out of the garage, Johnson 

broke the driver’s-side window with a rock and attempted to reach 

into the car to turn off the ignition. Although Johnson was able to 

hold onto the car for awhile, when the vehicle began moving 

forward and turning, he was thrown off. Johnson then went to the 

basement, took Edith’s wallet from her purse and left through the 

garage.

During sentencing, the court merged the robbery and willful-injury 

convictions. Johnson appealed the conviction and sentence, which was 

dismissed as frivolous. Johnson filed an application for postconviction relief in 

2005, which our court denied. See Johnson v. State, No. 13-1015, 2014 WL 

1999171, at *1 (Iowa Ct. App. May 14, 2014).

On May 13, 2014, Johnson filed a pro se motion alleging the trial court 

had imposed an illegal sentence. Counsel was appointed, and a hearing on the 

matter was held, in which counsel represented Johnson but Johnson did not 

personally appear. The district court denied Johnson’s motion, holding his 

assertions did not amount to a claim of an illegal sentence because Johnson only 

asserted the trial court should have set forth the particular, individualized 

reasoning for Johnson’s sentence and he should not have received consecutive 

sentences. Johnson appeals the district court’s dismissal of his motion.

II. Standard of Review

To the extent we are addressing constitutional issues, including 

ineffective-assistance-of-counsel claims, our review is de novo. State v. Hoeck, 

843 N.W.2d 67, 70 (Iowa 2014). A ruling on a motion to correct an illegal 

sentence is reviewed for correction of errors at law. Id.
4

III. Illegal Sentence

Johnson first claims the district court improperly denied his motion to 

correct an illegal sentence. He argues the sentencing court did not properly 

consider his mental illness and the fact he is a chronic substance abuser, and 

should have stated its reasoning as to why it imposed consecutive sentences. 

He also asserts the court should have addressed his pro se claims of merger and 

the alleged Eighth Amendment violation.

We agree with the district court Johnson failed to establish his sentence 

was illegal. A sentence is illegal if the court lacked the power to impose the 

sentence or the sentence is legally flawed, that is, if it fails to comply with 

applicable statutes or is unconstitutional. State v. Bruegger, 773 N.W.2d 862, 

871 (Iowa 2009). Neither applies here. While Johnson offers a vague merger 

argument, this doctrine does not apply to the crimes for which he was 

convicted—robbery, burglary, and criminal mischief—given they each have 

distinct elements. Compare Iowa Code § 711.1, with id. § 713.1, and id. § 716.1. 

See also State v. Lambert, 612 N.W.2d 810, 815 (Iowa 2000) (noting the test for 

whether two crimes should merge is whether the crimes have the same 

elements). Moreover, Johnson’s sentence did not constitute cruel and unusual 

punishment pursuant to the Eighth Amendment because his sentence was 

proportional to his crimes. See State v. Oliver, 812 N.W.2d 636, 640 (Iowa 2012)

(stating the Eighth Amendment prohibits sentences that are disproportional to the 

crime committed).

With regard to Johnson’s other claims—namely, that the sentencing court 

did not consider certain factors and should not have imposed consecutive 
5

sentences—they cannot now be addressed. These claims are procedural in 

nature, and Johnson cannot raise these alleged errors through a challenge to an 

illegal sentence. See Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001). 

Consequently, we decline to address the merits of his arguments.

IV. Right to Counsel 

Johnson further claims he had a right to effective representation at the 

hearing, and the district court should have allowed Johnson to appear personally. 

However, Johnson had no right to counsel, given this was not a “critical stage[] of 

the criminal process.” See State v. Majeres, 722 N.W.2d 179, 182 (Iowa 2006). 

Rather, this was a collateral appeal on a conviction that has long since been 

final, which does not require the presence of counsel. See Fuhrmann v. State, 

433 N.W.2d 720, 722 (Iowa 1988). Consequently, Johnson’s claim is without 

merit.

Furthermore, counsel was not ineffective for failing to seek a continuance 

so Johnson could present his other pro se arguments. Though Johnson asserts 

this was a structural error, which would mean no prejudice need be established 

regarding counsel’s error, we do not agree. The three instances when a 

structural error occurs is when counsel is completely denied at a crucial stage in 

the proceedings, adversarial testing of the prosecution’s case did not occur, or 

surrounding circumstances justify a presumption of ineffectiveness. Lado v. 

State, 804 N.W.2d 248, 252 (Iowa 2011). None of these factors are present in 

Johnson’s case; consequently, no structural error occurred. See id.

For these reasons, we affirm the order of the district court.

AFFIRMED.