Jose Lopez v. State of Iowa ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-2010
Filed February 3, 2021
JOSE LOPEZ,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Buchanan County, Margaret L.
Lingreen, Judge.
Jose Lopez appeals the denial of his postconviction-relief application.
APPEAL DISMISSED.
Stuart G. Hoover, East Dubuque, Illinois, for appellant.
Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., and Vaitheswaran and Greer, JJ.
2
VAITHESWARAN, Judge.
Jose Lopez appeals the denial of his postconviction-relief application. He
contends the postconviction court erred in “refusing to take up the matter of [his]
illegal sentence.” For reasons that will become apparent, we conclude the issue
is moot.
The complicated procedural history began with a jury finding of guilt on a
charge of stalking.1 The court sentenced Lopez to a prison term not exceeding
five years. In imposing sentence, the court gave Lopez credit for time served on
the stalking charge but not for time served on “underlying charges” involving
violation of a no-contact order. The court reasoned, “The violations of the no
contact order” were “separate and distinct” and Lopez would “be sentenced and
serve that in jail.”
Lopez completed his prison term for stalking in 2018 and he immediately
began serving jail time on the misdemeanor sentences for violation of the no-
contact order. While he was serving those sentences, Lopez filed a
postconviction-relief application alleging that “this no contact order violation
sentencing that [he was] in Buchanan Co[unty] Jail for should have been included
in [his] conviction.” Lopez’s attorney amended the petition to allege in part: “Trial
counsel failed to adequately request that [Lopez’s] sentence be run concurrently
with previously-imposed sentences for numerous violations of a no contact order
1 The jury also found Lopez guilty of indecent exposure. That conviction was
reversed on appeal, as was a surcharge imposed in connection with the stalking
conviction. See State v. Lopez, 907 N.W.2d 112, 121–24 (Iowa 2018).
3
against [him] for conduct which formed part of the basis for the underlying criminal
charge in this case.”
During a break in a hearing on the amended postconviction-relief
application and following a discussion with the court about the misdemeanor
sentences, Lopez’s attorney amended the application a second time. He alleged
(1) Lopez’s “total sentence imposed for the simple misdemeanors was 990 days
(2.71 years)”; (2) on his release from the sentence on the stalking charge, he
began “serving the remaining 2.71 years of incarceration at the Buchanan County
Jail”; (3) “[b]ecause [his] sentence exceeded one year, his sentencing order for the
simple misdemeanors should have committed [him] to the custody of the
department of corrections”; and (4) “[b]ecause the sentencing order did not, it [was]
an illegal sentence.” Postconviction counsel raised the sentencing issue under an
ineffective-assistance-of-trial-counsel rubric. When the postconviction hearing
resumed, the district court orally denied the second amended application on the
ground that the amendment “would change the complexion of” the case, the issue
was not “adequately identified” for the State, and the trial attorney who represented
Lopez on the stalking charge was not the attorney who represented him in the
misdemeanor cases.
Five days after the court’s verbal denial of his second amended
postconviction-relief application, Lopez filed a motion to correct an illegal sentence
in the underlying criminal stalking case. He asserted, “Because [his] sentence
exceeded one year, his sentencing order for the simple misdemeanors should
have committed [him] to the custody of the department of corrections.”
4
Meanwhile, the postconviction court filed a written order on Lopez’s
postconviction-relief application, again denying the claim that his trial attorney was
ineffective in failing to seek “concurrent sentencing” on the misdemeanor
sentences. Lopez filed a notice of appeal.
Two days after the notice of appeal was filed, the criminal court filed a
detailed order taking no action on the stalking case “for lack of jurisdiction” but
granting Lopez’s “motion [to correct illegal sentence] in the following remaining
cases: SMCR080160-184; SMCR080186-193; SMCR080204-227; SMCR080232;
SMCR080300-327; SMCR080328-337; and SMCR080342-356.” The court
explained, “Iowa Code § 901.8 states in part that ‘[i]f consecutive sentences are
specified in the order of commitment, the several terms shall be construed as one
continuous term of imprisonment.’” Based on that provision, the court stated the
sentencing court “should have committed the Defendant to the custody of the
director of the Iowa Department of Corrections.” The court ordered Lopez
“immediately committed to the Iowa Department of Corrections to serve the
remainder of his sentence in these cases.”2
2 The supreme court has considered this issue on several occasions. See, e.g.,
State v. Patterson, 586 N.W.2d 83, 84 (Iowa 1998) (“When Patterson’s
consecutive sentences are added together, as required by section 901.8, they total
420 days. This exceeds the one-year period referred to in section 903.4. Under
section 903.4, Patterson’s sentences should be served in the custody of the
director of the department of corrections.”); State v. Kapell, 510 N.W.2d 878, 880
(Iowa 1994) (concluding consecutive sentences of two years and five days
constituted “one continuous term of imprisonment under section 901.8” and the
district court imposed an illegal sentence by ordering the defendant to serve five
days of his continuous term in the county jail); State v. Morris, 416 N.W.2d 688,
689–90 (Iowa 1987) (holding section 901.8 required that two concurrent terms of
one year each to be served consecutively to a one-year prison term had to be
viewed as one continuous term, requiring commitment to the custody of the
director of the department of corrections).
5
As noted at the outset, we are faced with Lopez’s appeal from the court’s
denial of his postconviction-relief application. Lopez asserts, “[T]he sentence in
[the stalking case] was run consecutive to the sentences in the companion cases
for violation of the no contact order,” and “[s]ince the consecutive sentences are to
be considered continuous, the [d]istrict [c]ourt’s sentence to jail and prison time
consecutive to one another and consecutive to the jail time ordered in the
companion cases is not authorized by statute.” This is the identical issue raised
and decided in Lopez’s successful motion to correct an illegal sentence filed in the
underlying criminal case. That brings us to the mootness doctrine.
“A moot case is one that no longer presents a justiciable controversy
because the issues involved have become academic or nonexistent.” Martin-
Trigona v. Baxter, 435 N.W.2d 744, 745 (Iowa 1989). “[C]ourts do not decide
cases when the underlying controversy is moot.” Rhiner v. State, 703 N.W.2d 174,
176 (Iowa 2005). The doctrine may be raised on our own motion. See Homan v.
Branstad, 887 N.W.2d 153, 159 (Iowa 2016) (requesting statements addressing
possible mootness of appeal on the court’s own motion); Albia Light & Ry. Co. v.
Gold Goose Coal & Mining Co., 176 N.W. 722, 723 (Iowa 1920), on reh’g, 185
N.W. 571 (Iowa 1921) (“It is our duty on our own motion to refrain from determining
moot questions.”).
Having obtained the relief he now seeks, Lopez’s appeal is moot.
Accordingly, we dismiss the appeal.
APPEAL DISMISSED.