IN THE SUPREME COURT OF IOWA

No. 16–1544

Filed April 12, 2019

MICHAEL JEFFERSON,

Plaintiff,

vs.

IOWA DISTRICT COURT FOR SCOTT COUNTY,

Defendant.

On review from the Iowa Court of Appeals.

Certiorari to the Iowa District Court for Scott County, Marlita A. 

Greve, Judge.

The plaintiff seeks further review of a court of appeals decision 

upholding the district court denial of his motion to correct an illegal 

sentence and his application for appointment of counsel. DECISION OF 

COURT OF APPEALS VACATED; WRIT SUSTAINED.

Les M. Blair III (until withdrawal) of Blair & Fitzsimmons, P.C., 

Dubuque, then Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, 

for plaintiff.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant 

Attorney General, and Michael J. Walton, County Attorney, for defendant.
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CHRISTENSEN, Justice.

A defendant filed a motion to correct an illegal sentence. He applied 

for appointment of counsel. The district court not only denied 

appointment of counsel, but also summarily dismissed his motion. The 

defendant filed a petition for writ of certiorari. The court of appeals 

annulled the writ. On further review, we find Iowa Rule of Criminal 

Procedure 2.28(1) requires the court to appoint counsel when an indigent 

defendant files a motion to correct illegal sentence under Iowa Rule of 

Criminal Procedure 2.24(1). Therefore, we sustain the writ and remand 

the case for appointment of counsel.

I. Background Facts and Proceedings.

In 2007, Michael Jefferson, then twenty-one years old, engaged in 

nonconsensual sexual contact with a fourteen-year-old female in a 

Davenport motel alongside another adult male, Arnold Grice. Jefferson 

forced the victim to have sexual intercourse with him against her will by 

placing his penis into her vagina while Grice forced his penis into the 

victim’s mouth. During this time, the victim was under the influence of 

cocaine and alcohol. The victim later identified Grice from a photographic 

line-up, and Grice’s girlfriend implicated Jefferson based on admissions 

made to her. Upon further investigation, law enforcement was able to lift 

Jefferson’s fingerprints from a condom wrapper found in the motel room. 

Consequently, the state charged Jefferson with sexual abuse in the second 

degree in violation of Iowa Code section 709.3 (2007), a class “B” felony, 

and sexual abuse in the third degree in violation of Iowa Code section 

709.4(2)(c)(4), a class “C” felony.

Jefferson entered into a plea agreement in which he pled guilty to 

third-degree sexual abuse based on his sexual assault of a fourteen-yearold while he was twenty-one years old. As part of the plea agreement, 
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Jefferson agreed to testify against Grice, and the state agreed to dismiss 

the charge of second-degree sexual abuse against Jefferson, file no 

additional charges, and make no sentencing recommendation. In 

conditionally accepting Jefferson’s guilty plea, the district court found that 

there was a factual basis to support this plea and that Jefferson entered 

into the plea knowingly and voluntarily.

Jefferson subsequently filed a timely motion in arrest of judgment 

seeking permission to withdraw his guilty plea based on his alleged 

innocence, fear of further prosecution due to his inadequate testimony 

against Grice, and his belief that the district court failed to properly inform 

him of the duration he would spend on the sex offender registry. The 

district court denied Jefferson’s motion. The court of appeals affirmed 

Jefferson’s conviction but vacated his sentence and remanded for 

resentencing based on the state’s unauthorized sentencing 

recommendation in breach of the plea agreement. Jefferson later 

unsuccessfully raised similar claims in a postconviction-relief action.

The district court sentenced Jefferson to an indefinite term of 

imprisonment not to exceed ten years and ordered his placement on the 

sex offender registry for third-degree sexual abuse in violation of Iowa Code 

section 709.4. The district court also imposed a special lifetime sentence 

pursuant to Iowa Code section 903B.1, committing Jefferson into the 

custody of the director of the Iowa Department of Corrections with parole 

eligibility as set forth in chapter 906. Approximately two years after 

Jefferson was discharged from prison, the board of parole filed a notice of 

parole violation claiming Jefferson violated three conditions of parole. The 

violations alleged Jefferson provided false information to the sex offender 

registry, thereby failing to obey all laws and ordinances, and Jefferson 

made verbal threats in a phone call to his former girlfriend. Following a 
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parole revocation hearing, a parole judge found the violations were correct, 

revoked Jefferson’s parole, and ordered Jefferson be placed on the work 

release list or at the work release center in Davenport. Soon thereafter, 

another parole judge found Jefferson in violation of four parole conditions 

and ordered Jefferson to serve up to five years in prison.

Jefferson filed a motion for correction of an illegal sentence on May 

19, 2016, challenging the discharge date for his special lifetime sentence 

under 903B.1 and claiming an ex post facto violation. The district court 

denied Jefferson’s motion in its entirety, explaining Jefferson’s offense 

required “the imposition of the special sentence of lifetime parole pursuant 

to Iowa Code [s]ection 903B.1 . . . [and] this court has no control or 

authority over when Defendant is to be released or when his parole should 

end.” Jefferson filed a second motion for correction of an illegal sentence 

on August 9, 2016, maintaining his lifetime special sentence was 

unconstitutionally vague and the result of an illegal bill of attainder in 

violation of the United States and Iowa Constitutions. Moreover, 

Jefferson’s second motion claimed the lifetime special sentence violated 

equal protection; the separation of powers doctrine; his constitutional 

rights to freedom of association, to marry and have children, to be free 

from bodily restraint, and to travel; as well as his right against selfincrimination under the Fifth Amendment of the United States 

Constitution. Jefferson also filed an application for appointment of 

counsel on August 9, 2016.

The district court denied Jefferson’s second motion for correction of 

an illegal sentence “for all the same reasons” the district court denied his 

first motion for correction of an illegal sentence. The district court also 

denied Jefferson’s motion to have counsel appointed. Prior to receiving 

this denial, Jefferson mailed a motion to amend original filing of correction 
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of sentence that raised additional constitutional violations, including a 

claim that his special lifetime sentence violated the prohibition against 

cruel and unusual punishment under the United States and Iowa 

Constitutions. The district court denied this motion, noting it was “denied 

for all of the same reasons the previous two motions were denied.” 

Jefferson filed a petition for writ of certiorari followed by a notice of 

appeal from the district court’s denial of his second motion to correct an 

illegal sentence “and from all adverse rulings and orders inhering therein.” 

We denied Jefferson’s petition for writ of certiorari, noting he had a “related 

appeal still pending before this court . . . in which” he had appointed 

counsel to represent him.

We then determined Jefferson was not entitled to an appeal as a 

matter of right from a denial of a motion to correct an illegal sentence. It 

was proper for Jefferson to seek permission to appeal by filing a petition 

for a writ of certiorari.

Jefferson filed a statement in support of granting certiorari review 

on July 27, 2017, reasoning review was warranted because our “guidance 

is necessary on the questions of whether and under what circumstances 

a defendant may be entitled to counsel, a hearing, and/or a statement of 

findings on a motion to correct illegal sentence.” Jefferson proclaimed we 

also needed to provide guidance as to when a gross disproportionality cruel 

and unusual punishment claim involving a section 903B.1 special 

sentence “may lie, specifically including the question of whether the 

threshold inquiry is satisfied under the circumstances of the present case.” 

Pursuant to Iowa Rule of Appellate Procedure 6.108, we treated all 

of Jefferson’s filings as a petition for a writ of certiorari. We graned 

certiorari review.
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The court of appeals annulled the writ of certiorari. It determined 

Jefferson had no constitutional or statutory right to counsel in his 

challenge to his alleged illegal sentence because the right to counsel does 

not apply to “a collateral attack on the conviction that has been finalized 

long ago.” Additionally, the court of appeals rejected Jefferson’s claim that 

his sentence was cruel and unusual, noting Jefferson could not show an 

inference of gross disproportionality between the gravity of his offense and 

his challenged sentence. Jefferson sought further review, which we 

granted.

II. Standard of Review.

We review questions of statutory interpretation for correction of 

errors at law. State v. Coleman, 907 N.W.2d 124, 134 (Iowa 2018). 

Moreover, “[w]e may review a challenge that a sentence is illegal at any 

time.” State v. Zarate, 908 N.W.2d 831, 840 (Iowa 2018). Finally, “[t]hough 

we typically review challenges to illegal sentences for correction of legal 

errors, our standard of review for an allegation of an unconstitutional 

sentence is de novo.” State v. Harrison, 914 N.W.2d 178, 187–88 (Iowa 

2018).

III. Analysis.

Jefferson presents a number of claims. First, he argues the district 

court violated his statutory right to counsel in denying his request for 

court-appointed counsel to represent him on his motion for correction of 

an illegal sentence. Next, Jefferson contends this denial of courtappointed counsel violated his constitutional right to counsel under both 

the Iowa and Federal Constitutions. Should we hold Jefferson does not 

have a federal constitutional right to counsel, Jefferson maintains the Iowa 

Constitution still provides him with a state constitutional right to counsel 

because the Iowa Constitution should be interpreted broader than the 
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United States Constitution. Similarly, he argues he has a right to counsel 

based on considerations of due process and fundamental fairness under 

the Iowa Constitution. Jefferson also claims the district court violated his 

procedural due process rights by summarily dismissing his motion for 

correction of an illegal sentence without providing him an evidentiary 

hearing or detailed findings. Finally, he asserts his lifetime special 

sentence under Iowa Code section 903B.1 constitutes cruel and unusual 

punishment under the State and Federal Constitutions.

A. The Right to Counsel on a Motion to Correct Illegal 

Sentence. Jefferson contends the district court violated his statutory 

right to counsel, as well as his constitutional right to counsel under the 

State and Federal Constitutions, in declining his request for appointed 

counsel to represent him on his motion to correct an illegal sentence. 

Additionally, he argues this denial of appointed counsel violates his due 

process rights as a matter of fundamental fairness under the State and 

Federal Constitutions. Jefferson asks us to hold that a motion to correct 

an illegal sentence is a stage of the criminal proceeding for which a right 

to counsel applies.

Iowa Rule of Criminal Procedure 2.28(1) provides, 

Every defendant who is an indigent person as defined in Iowa 

Code section 815.9 is entitled to have counsel appointed to 

represent the defendant at every stage of the proceedings from 

the defendant’s initial appearance before the magistrate or the 

court through appeal, including probation revocation 

hearings, unless the defendant waives such appointment.

Iowa R. Crim. P. 2.28(1). Additionally, Iowa Code section 815.10 

states,

The court, for cause and upon its own motion or upon 

application by an indigent person or a public defender, shall 

appoint the state public defender’s designee pursuant 

to section 13B.4 to represent an indigent person at any stage 
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of the criminal, postconviction, contempt, commitment under 

chapter 229A, termination under chapter 600A, detention 

under section 811.1A, competency under chapter 812, parole 

revocation if applicable under section 908.2A, or juvenile 

proceedings or on appeal of any criminal, postconviction, 

contempt, commitment under chapter 229A, termination 

under chapter 600A, detention under section 811.1A, 

competency under chapter 812, parole revocation under 

chapter 908, or juvenile action in which the indigent person is 

entitled to legal assistance at public expense. However, in 

juvenile cases, the court may directly appoint an existing 

nonprofit corporation established for and engaged in the 

provision of legal services for juveniles. An appointment shall 

not be made unless the person is determined to be indigent 

under section 815.9.

Iowa Code § 815.10(1)(a) (2016) (emphasis added).

In State v. Alspach, we read rule 2.28(1) (then rule 26(1)) and Iowa 

Code section 815.10(1) together and concluded that they provided a right 

to court-appointed counsel when a defendant is challenging restitution 

“imposed as part of the original sentencing order, or supplemental orders, 

under Iowa Code section 910.3,” but not when a defendant is later bringing 

an action under section 910.7. 554 N.W.2d 882, 883–84 (Iowa 1996).1 We 

noted in Alspach that the defendant would have had a statutory right to 

counsel had the restitution been finalized at sentencing and that he 

“should not be denied counsel simply because the amount of pecuniary 

damages was unavailable on the day of sentencing.” Id. at 884. 

Nevertheless, we limited our holding “to challenges to restitution imposed 

as part of the original sentencing order, or supplemental orders.” Id. In 

doing so, we maintained the defendant would “ordinarily have no right to 

appointed counsel” if he initiated a later action to modify the restitution 

 1We subsequently clarified in State v. Blank that a petition under Iowa Code 

section 910.7 filed within thirty days of a court’s restitution order would be “considered 

an extension of the criminal proceedings.” 570 N.W.2d 924, 926 (Iowa 1997). Hence, a 

right to counsel would attach. See State v. Dudley, 766 N.W.2d 606, 619 n.5 (Iowa 2009).
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order because a later action would “not [be] part of the criminal 

proceedings.” Id.

In State v. Dudley, 766 N.W.2d 606 (Iowa 2009), we recognized that 

Iowa Code section 815.10 is not self-contained. It provides a right to 

counsel “at any stage of the criminal . . . proceedings . . . in which the 

indigent defendant is entitled to legal assistance at public expense.” Id. at 

617 (quoting Iowa Code § 815.10(1) (2005)). Therefore, Dudley looked to 

other sources to determine when the defendant is “entitled to legal 

assistance at public expense.” Id. at 617–18. In Dudley, we pointed out 

that the Iowa Constitution guarantees the right to counsel “in all criminal 

prosecutions,” and that section 801.4(13) defines a “prosecution” as 

ending at “final judgment on behalf of the state.” Id. at 617–18. Hence, 

in Dudley, we concluded “the legislature intended to extend the right to 

counsel enjoyed by a defendant charged with a criminal offense through 

the conclusion of the criminal proceeding by judgment.” Id. at 618. 

However, we did not discuss rule 2.28(1) (or 26(1)) in Dudley, beyond 

noting that Alspach had relied on it. Id. at 619. Thus, we held that an 

acquitted defendant had a statutory right to counsel in a postacquittal 

proceeding for a judgment against him for the costs of his legal assistance 

as part of his defense since the judgment “was entered in the criminal 

proceeding, not in a separate action by the State.” Id. “[B]y definition,” 

the defendant’s “criminal case did not end . . . until the cost judgment had 

been entered against [him] and in favor of the State.” Id. at 620.

We must now decide in what category a motion to correct illegal 

sentence belongs. The text of Iowa Code section 815.10 does not answer 

the question; instead, it simply redirects us to whether this is a stage of 

the proceeding “in which the indigent person is entitled to legal assistance 

at public expense.” Iowa Code § 815.10(1)(a) (2016). Rule 2.28(1), 
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meanwhile, is ambiguous. It states that the defendant has a right to 

counsel “at every stage of the proceedings . . . through appeal.” Iowa R. 

Crim. P. 2.28(1). Does this mean that the right to counsel drops out once 

the defendant has been through his or her direct appeal? Or does it mean 

that as long as one is talking about a stage of the original criminal case,

including any appeal within that original criminal case, the right to 

counsel remains?

In Alspach and Dudley we appear to have opted for the second of 

these two possible readings. That is, in Alspach we declined to find a right 

to counsel when the defendant files “a later action” under Iowa Code 

section 910.7, which is “civil in nature and not part of the criminal 

proceedings.” 554 N.W.2d at 884. Yet in Dudley we found that there is a 

right to counsel when the state is seeking to collect costs of defense from 

an acquitted defendant because “[t]he State is not required to initiate a 

separate suit.” 766 N.W.2d at 618. “This process takes place entirely in 

the context of the criminal case.” Id. 

A motion to correct illegal sentence is a stage of the original criminal 

case. It “takes place entirely in the context of [that case].” Id. Such a 

motion is not filed as a separate action. Indeed, rule 2.24(1) authorizes it 

as one of the “[p]ermissible motions after trial.” It is true that such a 

motion may be filed at any time. See Iowa R. Crim. P. 2.24(5)(a). Still, it 

is not filed as a separate action but within the original criminal case. It is 

merely a “motion,” not an “application,” see Iowa Code § 822.3 (application 

for postconviction relief), or even a “petition,” see id. § 910.7 (petition to 

modify plan of restitution or restitution plan of payment). Thus, we believe 

that under rule 2.28(1), Alspach, and Dudley, a right to counsel is 

triggered.
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Furthermore, we believe this interpretation is supported by the 

principle that “we strive to avoid constitutional problems when we 

interpret our rules.” State v. Jones, 817 N.W.2d 11, 17 (Iowa 2012). 

Needless to say, serious constitutional problems would be raised if the 

state could move to correct an indigent defendant’s sentence and have that 

defendant sent to prison without the defendant having a right to counsel. 

Likewise, serious constitutional problems would be raised if an indigent 

defendant who sought a correction of his or her sentence in light of a case 

like State v. Lyle, 854 N.W.2d 378 (Iowa 2014) (holding all mandatory 

minimum sentences of imprisonment for juvenile offenders violate article 

I, section 17 of the Iowa Constitution), did not have a right to counsel at 

the resentencing.

We are aware that the motion to correct an illegal sentence has the 

potential to be abused. There are tools to address such abuse. To begin 

with, a motion challenging a defendant’s underlying conviction is not a 

motion to correct an illegal sentence. State v. Bruegger, 773 N.W.2d 862, 

871 (Iowa 2009). Additionally, “a defective sentencing procedure does not 

constitute an illegal sentence . . . .” Tindell v. State, 629 N.W.2d 357, 360 

(Iowa 2001) (emphasis omitted). In those events, rule 2.28(1) does not 

require appointment of counsel because the motion is not a rule 2.28(1) 

motion.

Furthermore, a motion to correct an illegal sentence may be 

frivolous, for example, if it claims that a routine sentence was cruel and 

unusual or that two convictions should have merged when it is abundantly 

clear they do not. In that event, counsel should be appointed, but may 

ask to withdraw employing a procedure similar to that authorized by rule 

6.1005 for frivolous appeals. See Iowa R. App. P. 6.1005. 
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Because we have concluded that rule 2.28(1) affords a right to 

counsel on a motion to correct an illegal sentence, we need not address 

Jefferson’s arguments that such a right is mandated by the Sixth and 

Fourteenth Amendments to the United States Constitution or article I, 

sections 9 and 10 of the Iowa Constitution. See, e.g., State v. Iowa Dist. 

Ct., 843 N.W.2d 76, 85 (Iowa 2014) (“The doctrine of constitutional 

avoidance suggests the proper course in the construction of a statute may 

be to steer clear of ‘constitutional shoals’ when possible.”). 

B. The Constitutionality of Jefferson’s Sentence. Jefferson asks 

us to find that his lifetime special sentence under Iowa Code section 

903B.1 violates the Cruel and Unusual Punishment Clauses of the State 

and Federal Constitutions, arguing the sentence is grossly 

disproportionate to his offense. Under Iowa Code section 903B.1, “[a]

person convicted of a class ‘C’ felony or greater offense under chapter 709,” 

including the offense Jefferson pled guilty to, is subject “to a special 

sentence committing the person into the custody of the director of the Iowa 

department of corrections for the rest of the person’s life, with eligibility 

for parole as provided in chapter 906.” Iowa Code § 903B.1 (2007). This 

special sentence commences “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.” Id. At that point, the person serving the 

special sentence is placed on the corrections continuum outlined in 

chapter 901B and subject to the same procedures as other parole and 

work release violations in ordinary sentencing. Id. Any revocation of 

release due to parole violations “shall not be for a period greater than two 

years upon any first revocation, and five years upon any second or 

subsequent revocation.” Id. Finally, pursuant to Iowa Code section 
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906.15, a person convicted of a crime against a child under section 709.4,

who is serving a special sentence pursuant to section 903B.1, is eligible 

for early release from parole once “the person’s term of parole equals the 

period of imprisonment specified in the person’s sentence, less all time 

served in confinement.” Id. § 906.15. Jefferson claims his “lack of prior 

criminal history, young age, and relatively lower culpability[,] comparing 

the offense of statutory rape versus the other possible felonies that would 

give rise to a 903B.1 lifetime special sentence[,]” create an inference that 

his sentence is grossly disproportionate to his underlying crime.

As described above, Jefferson is raising a claim that his sentence is 

illegal. Accordingly, he was entitled to the appointment of counsel in the 

district court. We sustain the writ and remand for the district court to 

appoint counsel and consider the merits of Jefferson’s claims.

IV. Conclusion.

For the aforementioned reasons, we sustain the petition for writ of 

certiorari and remand for further proceedings.

DECISION OF COURT OF APPEALS VACATED; WRIT 

SUSTAINED.

All justices concur except McDonald, J., who takes no part.