State of Iowa v. Salvador Cruz, Jr. ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1390
Filed June 3, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SALVADOR CRUZ, JR.,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, David Porter, Judge.
Salvador Cruz Jr. appeals the sentence entered by the district court
following his convictions of possession of methamphetamine, failure to possess a
tax stamp, and going armed with a concealed weapon. AFFIRMED.
Susan R. Stockdale, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
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VAITHESWARAN, Presiding Judge.
A Polk County jury found Salvador Cruz Jr. guilty of possession of
methamphetamine, failure to possess a tax stamp, and going armed with a
concealed weapon. Cruz filed a “post-trial motion for judgment of acquittal and
sentencing memorandum,” asserting in part that the possession and tax stamp
convictions merged. The district court denied the motion. The court adjudged
Cruz guilty of possession of methamphetamine third or subsequent offense as an
habitual offender, failure to affix a drug tax stamp as an habitual offender, and
carrying weapons. The court sentenced him to prison terms not exceeding fifteen,
fifteen, and two years respectively, to be served concurrently to each other but
consecutive to parole matters.
On appeal, Cruz argues the district court should have merged “the
convictions for failure to possess a tax stamp and possession of a controlled
substance.” The supreme court has held otherwise. In State v. Stage, 596 N.W.2d
503, 504 (Iowa 1999), the court stated: “[T]he legislature intended that drug tax
stamp offenses be punished separately from the underlying drug offenses. This
intention is clear from the statutory scheme of Iowa Code chapter 453B [(1997)],
the chapter dealing with drug tax stamp offenses.” Accord State v. Gallup, 500
N.W.2d 437, 445–46 (Iowa 1993) (finding no merger of a delivery offense with a
drug-tax-stamp offense); see also State v. Halliburton, 539 N.W.2d 339, 344 (Iowa
1995) (concluding the legislature intended multiple punishments for possession of
an offensive weapon by a felon and possession of an offensive weapon). We
discern no error in the district court’s refusal to merge the two offenses. See State
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v. West, 924 N.W.2d 502, 504 (Iowa 2019) (“Review of an illegal sentence for lack
of merger is for correction of errors at law.”).
AFFIRMED.