### 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 hi s 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.

Thom as J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, and Michael J. Walton, County Attorney, for defendant.2 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. Backgrou nd 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 s exual 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 p hotographic
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 s tate 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

- year

old while he was twenty

- one years old. As part of the plea agreement,3 Jefferson agreed to testify against Grice, an d the s tate agreed to d ismiss 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 th is 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
Jeffers on’s conviction but vacated his sentence and remanded for resentencing based on the s tate’s unauthorized sentencing recommendation in breach of the plea agreement. Jefferson later unsuccessfully raised sim ilar claims in a postconviction

- relief action.
The district court sentenced Jefferson to an indefinite term of imprisonment not to exc eed ten years and ordered his place ment on the sex offender registry for third

- degree sexual abuse in violation o f 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 l aws and ordinances, and Jefferson made verbal threats in a phone call to his former girlfriend. Following a4 parole revocation hearing, a parole judge found the violations were correct, revoked Jefferson’s parole, and ordered Jefferson be placed on the wor k 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 a n 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 require d “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 fo r 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 C onstitutions. Moreover,
Jefferson’s se cond motion claimed the lifetime special sentence violated equal protection; the separation of powers doctr ine; his constitutional rights to freedom of association, to marry and have children, to be free from bodily restraint, an d to travel ; as well as his right against self

incrimination 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 illeg al 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 motio n to amend original filing of correction5 of sentence that raised additional constitutional violations, including a claim that his special lifetime sentence violated the prohibition against cruel and unusual punishment un der the United States and Iowa
C onst itutions. 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 dist rict court’s denial o f 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 ap poi nted 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 hear ing, 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.6 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 disproporti onality 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

er rors, 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 sta tutory 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 court

appointed counsel violated his constitutional r ight to counsel u nder both
the Iowa and F edera l C onstitutions. 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 Cons titution should be interpreted broader than the7

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 cou rt 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 sec tion 903B.1 constitutes cruel an d unusual punishment under the State and Federal C onstitutions.
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 constitutio nal right to counsel under the
State and Federal C onstitutions, 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 C onstitutions. 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 def ined 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 appear ance 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 m otion 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 stage8 of the criminal , postconviction, contempt, commitment under chap ter 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 indig ent 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 p rovided 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 sec t ion 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 restituti on been finalized at sentencing and that he “should not be denied counsel simply because the amount of pe cuniary 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 defe ndant would “ordinarily have no right to appointed counsel” if he initiated a later action to modify the restitution

1 We 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).9 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 rec ognized that
Iowa Code section 815.10 is not self

- contained. It provides a right to counsel “at any stage of the criminal .

. . p roceedings . . . 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 statu tory right to counsel in a post acquittal 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.” I d

. “[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 whi ch the indigent person is entitled to legal assistance

a t public expense.” Iowa Code § 815.10(1)( a ) (2016 ) . Rule 2.28(1),10 meanwhile, is ambiguous. It states that the defendant has a right to counsel “at every stage of the proceed ings . . . through appea l .” 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 appe al 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 s tate is seeking to collect costs of defense from an acquitted defendant because “[t]he State is not requi red 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 tim e. 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 postconvicti on relief), or even a “petition,” s ee 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.11 Furthermore, we believe this interpretation is supported by the princip le 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

s tate could move to correct an indigent defendant’s s entence 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 8 62,
87 1 (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 cou nsel 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 with draw employing a procedure similar to that authorized by rule 6.1005 for frivolous appeals. See Iowa R. App. P. 6.1005.12 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 addres s 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) (“Th e 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 li fetime special sentence under Iowa Code section
903B.1 violates the Cruel and Unusual Punishment Clause s of the State and Federal Constitutions, arguing the sentence is grossly disproportionate to his offense. Under Iowa Code section 903B.1, “ [ a ]
person c onvicted 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 res t of the person’s life, with eligibility for parole as provided in chapter 906.” Iowa Code § 903B.1 (2007) . This

spe cial sentence commences “upon completion of the sentence imposed under any applicable criminal sentencing provisions for the underlying

cr iminal 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 ot her 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 section13
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 statu tory 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
distric t 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.