IN THE COURT OF APPEALS OF IOWA

No. 13

- 1850 Filed November 26, 2014

ERIC ANTONIO WAYMAN , Applicant

- Appellant,

vs. STATE OF IOWA, Respondent

- Appellee.

________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, James D. Scott , Judge.

Eric Antonio Wayman appeals the district court ’ s grant of summary judgment on his application for postconvi ction relief. AFFIRMED.

Matthew R. Metzgar of Rhinehart Law, P.C. , Sioux City , for appellant. Thomas J. Miller, Attorney General, Mary A. Triick , Assistant Attorney General, Patrick Jennings , County Attorney, and Drew Bockenstedt , Assistant County Attorney, for appellee State.

Considered by Danilson, C.J., and Vogel and Bower, JJ. Scott, S. J. , takes no part.2

DANILSON, C.J. Eric Antonio Wayman appeals from summary judgment dismissing his application for postconviction relief. Because a work release facility is a “detention facility or penal institution” for purposes of Iowa Code section 901.8 (2011) , the sentencing court did not err in ordering his sentence for the drug offense to be served consecutively to his prior sentence for which he was on

work release. I. Background Facts and Proceedings. Wayman pled guilty in 2001 to several charges for which he was sentenced to a term not to exceed twenty

- five years. He was paroled in 2007, but his parole was revoked that same year. He was paroled in 2012. His parole was again revoked in June 2012 for a parole violation. Subsequently, W ayman was placed on work release status at a residential treatment facility . I n August 2012, h e left the facility without permission.
O n October 4, 2012, law enforcement o fficers observed Wayman and another person enter a suspected drug house and depart in a vehicle. Officers attempted to initiate a traffic stop , but Wayma n le d law enforcement on a high speed chase, ultimately abandoning the vehicle and fleeing on foot. W ayman eluded apprehension that day. However , the duffle bag he was observed carrying was recovered and was found to contain a large quantity of marijuana. Way man was apprehended on February 5, 2013.
O n March 6, 2013 , Wayman filed a written plea of guilty to the crime of absence from custody , in violation of Iowa Code section 719.4(3) (the complaint3

alleged he signed out of the residential treatment facility o n August 23, 2012 , and failed to return)

. 1
Also on March 6, 2013, Wayman entered a written guilty ple a to possession with intent to d eliver a controlled substance ar ising from the October

4 , 2012 events. He requested immediate sentenc ing. The court entered judgment and sentence on the conviction , sen tencing Wayman to a term not to exceed five years, which was to be served concurrently with the sentence remaining on the 2001 convictions.
The State filed a motion to correct an illegal sentence on Ap ril 11, stating the “parties were informed by the Department of Corrections [(DOC)] that Iowa Code section 901.8 requires a crime committed while confined in a detention facility to run consecutive to the work release violation.” An April 22 , 2013 hearing was held, at which Wayman “ reaffirm[ed] his decision to plead guilty ” t o possession with intent to deliver “ and to be sentenced consecutively. ” Wayman did not appeal. In July 2013, Wayman filed an application for postconviction relief , alleging

the reco nsidered sentence was illegal

. The State filed a motion for summary judgment. In an amended application, Wayman asserted :

9. The grounds upon which this Application is based is pursuant to Iowa Code § 814. 7 which provides that ineffective assistance of counsel, the conviction or sentence was in violation of the U.S. and Iowa Constitutions and the laws of this state, the court was without jurisdiction to impose sentence, the sentence exceeds the maximum allowed by law. 10. The Applicant was sentenced pu rsuant to a plea agreement that provided that his sentence in this matter would be concurrent to the sentence that he was serving at the time of his

1 On March 7, Wayman was sentenced on this charge to ten days in jail.4

conviction. Thereafter the state filed a motion to correct an illegal sentence citing Iowa Code § 901.8 as the grounds. The Applicant ’ s prior sentence was legal and the court had no jurisdiction or authority to change a sentence that was already imposed. The Applicant ’ s trial attorney was ineffective in failing to resist or otherwise challenge the motion to correct the illegal sentence or the court ’ s resentencing of the Applicant. 11. The Applicant was not “ confined ” to a detention facility or penal institution at the time of the commission of the crime in this matter pursuant to Iowa Code § 901.8. 12. The Applicant was not confined to a “ detention center or penal institution ” at the time of the commission of the crime in this matter. 13. Based upon these facts, the court was not required to provide for a consecutive sentence and has no authority to resentence the Applicant. Furth er, Applicant ’ s trial counsel was ineffective for failing to contest the resentencing in some manner. Wayman resisted the motion for summary judgment , challenging the claim that a residential treatment facility is a “deten tion facility or penal institution

. ” Following a hearing, the district court wrote, Applicant argues the court lacked jurisdiction to change his previous sentence, because it was not i ll egal for the sentences to run concurrently. He concedes that if his sentence was illegal, then the court would have had the proper authority to correct an illegal sentence. Therefore, Applicant’s claim entirely rests on the merits of whether his sentence was illegal under section 901.8. Since there are no disputed fa cts, no genuine issue of material fact remains, and the Court is left to determine the legal outcome based on the undisputed facts.

The court concl u ded Wayman committed the offense of possession with intent to

deliver a controlled substance while he was c onfined in a detention center , and sustained the State’s motion for summary judgment. Wayman appeals , contending the sentencing court was not required to order his sentence for possession with intent to d eliver be served consecutively to his prior sentence for which he was on work release.5

II. Standard of Review

. We ordinarily review postconviction relief decision for errors of law.
Castro v

. State , 795 N.W.2d 789, 792 (Iowa 2011). We review constitutional challenges, such an ineffective assistance of counsel, de novo. State v

. Showens , 845 N.W.2d 436, 440 (Iowa 2014). We review the application of pertinent sentencing statutes for correction of errors of law. State v

. Liddell , 672 N.W.2d 805, 815 (Iowa 20 03).

III. Discussion

. To pr evail on a claim of ineffective assistance of counsel, Wayman must establish both deficient assistance and prejudice. Ledezma v. State , 626 N.W.2d
134, 14 2 (Iowa 2001) . Counsel cannot be found ineffective in failing to raise a

meritless motion. See State v. Dudley , 766 N.W.2d 606, 620 (Iowa 200 9 ) (explaining that counsel has no duty to raise an issue that has no merit)

. Section 901.8 requires consecutive sentences when a person is sentenced for a crime committed while the person is “ confined in a detention facility or penal institution. ” None of these terms are defined by c hapter 901. In
State v

. Jones , 298 N.W.2d 296, 298 (Iowa 1980), our supreme court defined

“ confined ” to mean “ committed ” under the statute. Defendants who escape a detention facility or penal institution, and accordingly are not confined within the usual meaning of the term, are still committed to the institution despite a physical separation from the facility o r institution. 2 See State v

. Knipe , 349 N.W.2d 770,

771

– 72 (Iowa 1984) ( finding an inmate was still committed to the institution despite being free o n furlough).

2 Wayman’s appeal does not challenge the definition of confinement.6

Wayman claims consecutive sentences were not required and, there fore , the district court could have imposed the concurrent sentences , and improperly

reconsidered the sentences . He argues work release is not confinement “ in a penal institution or detention facility. ” For the consecutive sentences mandate to apply, Wayman m ust have been committed to a specific type of institution. He

claims work release is neither a detention facility nor penal institution

. In Knipe , our supreme court found “ detention facility or penal institution ” includes, at a minimum, the institutions listed in section 904.102. Id

. at 771. T he language employed indicates the institutions enumerated in section 904.102 are not

exclusive or exhaustive.
Section 901B.1 establishes a “ corrections continuum ” , including “ work
release facilities. ” Iowa Co de § 901B.1(1)(c)(3). Work release is statutorily
defined as “ quasi

- incarceration, ” which is also defined as being “ supported by a residential facility. ” Id

. The work release program is established by section 904.901, which requires the DOC to create a program for “ inmates sentenced to an institution under the jurisdiction of the department, ” giving the individual “ the privilege of leaving actual confinement ” for the purpose of working. Id

. § 904.901 (emphasis added). The nature of work re lease is further clarified by the fact time spent in work release from “ the institution ” applies towards the criminal sentence.

Id

. § 906.16. Reviewing each of these sections together, we find Wayman was

“ confined ” to a “ detention facility or penal insti tution ” while on work release. Work
release itself is defined as quasi

- incarceration. The program is created for people sentenced to DOC “ institutions ” in place of “ actual confinement. ” Here,7

Wayman absconded whe n he was “confined” to a specific institution despite his physical separation from the facility as permitted by the work release program. As such, the district court was required, under section 901.8, to sentence Wayman to consecutive sentences. See Knipe , 349 N. W.2d at 772. Wayman ’ s
counsel was not ineffective in failing to object to the re sentencing for possession

with intent to deliver a controlled substance . We therefore affirm the dismissal of his application for postconviction relief.

AFFIRMED.