IN THE COURT OF APPEALS OF IOWA
No. 14

- 0034 Filed February 11, 2015

STATE OF IOWA, Plaintiff

- Appellee,

vs. JOHNNY TERRELL CLAYTON , Defendant

- Appellant.

________________________________________________________________ Appeal from the Iowa District Court for Scott County, Mark D. Cleve , Judge.

Johnny Clayton appeals from the district court’s dismissal of h is motion to correct an illegal sentence. AFFIRMED.

Clayton Grueb , Davenport , until withdrawal, and then Lauren Phelps, Dvenport, for appellant. Thomas J. Miller, Attorney General, Kelli Huser , Assistant Attorney General, Michael J. Walton , County Attorney, and James Cosby and Amy
Devine , Assis tant County Attorney s , for appellee.

Considered by Danilson, C.J., and Potterfield and Bower, JJ.2

POTTERFIELD, J. Johnny Clayton appeals from the district court’s dismissal of his motion to correct an illegal sentence. Because at t he time of the 2010 sentencing Clayton had been convicted twice previously of a felony, qualifying him as an h abitual offender , t he district court did not err in denying his motion to correct an ille gal
sentence. I. Background Facts and Proceedings. On November 24, 2009, Johnny Clayton grabbed a man from behind , saying “don’t make a sound unless you want to die, I just want your money.” Clayton took the man’s wallet from his rear pocket and attempted to put his hand in the man’s front pocket. In the process, Clayton inflict ed a cut to the man’ s finger and a laceration to his neck. On January 5, 2010, the State charged Clayton with one count of r obbery in the f irst d egree , in violation of Iowa Code section 711.2 (2009), and one count of a ssault w hile p articipating in a f elony , in violation of s ection 708.3. On August 25, 2010, a notice of additional minutes of testimony was filed, stating the clerk of the circuit court for Milwaukee County, Wisconsin, would testify that Clayton had been convicted a nd sentenced for two felony offense s of burglary (2000CF003684 and 1990CF01025)

. On September 2, 2010, an amended trial information added a third
count

— first degree theft, in violation of section 714.2(1)

— and asserted Clayton

was a n habitual offender. W ith respect to the habitual offender allegations , however, the amended trial information list two convictions

— 1990CF01025 and3

2004CF006384

— the last having been charged as a felony, but Clayton having pled guilty to a serious misdemeanor. C layton entered into a plea agreement in which he agreed to plead guilty
to a lesser

- included offense of r obbery in the s econd d egree as a habitual offender and a ssault while p articipating in a f elony as a habitual offender. In
retur n, the State would dismiss the first

- degree

- theft count and would recommend that the sentences on the two c onvictions would run concurrently. A special condition of the agreement provided:

Should the Defendant have a criminal history more extensive than that revealed in the pleadings , or should the Defendant fail to cooperate with Correctional Services in preparing the [presentence investigation] P.S.I. , . . . the State may withdraw any recommendation previously made. . . . The Defendant understands that incarceration is mandatory. The Defendant understands that this recommendation will result in a sentence of 15 years of incarceration. The Defendant understands that he must serve seventy (70%) of his sentence before he is eligible for parole.
At the plea hearing , Clayton asked the court , “I’m not understanding how this time is being ran. . . . I mean, is it 15 years or is it 10 years?” The court responded: It’s 15 years because you’re pleading

— normally it’s 10 years, but since you’re pleading guilty as habitual offender, whic h means you have two prior felonies, the penalty is enhanced or increased because of your prior felonies to imprisonment for not to exceed 15 years, not 10. Do you understand? THE DEFENDANT: And I would have to serve 70 percent of 15 years? THE COURT: Y es. Is there anything else you don’t understand that I’ve read? THE DEFENDANT: No. On September 29, 2010, a sentencing hearing was held. The PSI set forth Clayton’ s criminal history, including two prior felony convictions. At the4

hearing, both the State and Clayton agreed that the report was accurate. The court sentenced Clayton to two terms of imprisonment not to exceed fifteen years, to be served concurrently. On direct appeal, Clayton raised an ineffective

- assistance

- of

- counsel claim, arguing counsel failed to move in arrest of judgment because a record of his prior convictions was not made during the plea proceeding. State v. Clayton , No. 10

- 1736, 2011 WL 256 5658 8 , at *1 ( Iowa Ct. App. June 29, 2011)

. This court noted Clayton ma de no argument as to how a defect in procedure and his
counsel ’ s alleged failure resulted in prejudice

— we preserve d his “general and conclusory” ineffectiveness claim for possible post conviction relief proceedings. Id. at *2. On September 13, 2013, Clayton filed a motion to correct illegal sentence asserting the State had improperly relied upon a conviction that was not a felony

. The State filed a resistance asserting Clayton wa s a n habitual offender as defined in Iowa Code section 902.8 because he had been twice previously convicted of felony offenses at the time of sentencing. The State attached records showing Clayton had been convicted of a felony in Wisconsin in 1990 and again in 2000 (which convictions had been not iced in the August 25, 2010 additional minutes of testimony ). After a hearing, the district court dismissed the motion, concluding that at the time of Clayton’s plea and sentencing, “the State had provided notice, via the minutes of testimony, of two prior and sequentially appropriate felony
convictions , ” and , “[t]o date, Defendant has not alleged or demonstrated that either such prior offense is not in fact a felony co nviction.” The court concluded5

“the applicatio n of the habitual offender enhancement in this case cons titu ted a valid sentence supported by a statute and was not an illegal sentence.” Clayton appeals. II. Scope and Standard of Review. Our review of challenges to the illegality of a sentence is for errors at law. Tindell v. State , 629 N.W.2d 357, 359 (Iowa 2001). III. Discussion. An illegal sentence is one not authorized by statute. See id. ; see also
Iowa R. Crim. P. 2.24(5)(a) (“The court may correct an illegal sentence at any time.”). Iowa Code section 902.8 provides:

An habitual offender is any person convicted of a class “C” or a class “D” felony, who has twice before been convicted of any felony in a court of this or any other state, or of the United States. An offense is a felony if, by the law under which the person is convicted, it is so class ified at the time of the person’ s conviction. A person sentenced as an habitual offender shall not be eligible for parole until the person has served the minimum sentence of confinement of thre e years. Clayton does not argue that the sentence s imposed w ere outside the sentence authorized by statute. The record here supports the habitual offender
status and Clayton did not at sentencing and does not no w deny that he is an habitual offender with two prior felony convictions. Cf. State v. Gordon , 7 32
N.W

. 2d 41, 43 (Iowa 2007) (f inding that where the defendant’ s prior convictions were not sufficient to classify him as a habitual offender, he could challenge the imposition of an habitual

- offender status as an illegal sentence); State v. Woody, 613 N.W.2d 215, 2 17 ( 2000) ( same). His reliance on State v. Albee , No.
13

- 0321, 2014 WL 1245329 (Iowa Ct. App. Mar. 26, 2014), is misplaced . There,6

the defendant was not an habitual offender because the two prior convictions to which he admitted did not qualify, that is, the defendant had not been convicted and sentenced on the first offense before committing the second offense. See
Albee , 2014 WL 1245329, at *3. We held, “ The convictions to which Allbee admitted were not sufficient to classify him as a third offender or as a habitual offender. Consequently, his enhanced sentence was illegal. ” Id. Here, however, the record supports Clayton’s classification as a habitual offender. T he district court did not err in denying his motion to correct an illegal
sentence. We therefore affirm.
AFFIRMED.