State of Iowa v. Joshua Alan Richardson

IN THE COURT OF APPEALS OF IOWA

No. 22-1202
Filed March 8, 2023

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JOSHUA ALAN RICHARDSON,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clay County, Andrew J. Smith,

District Associate Judge.

Joshua Alan Richardson appeals the sentence imposed after pleading

guilty to possession of methamphetamine. APPEAL DISMISSED.

Jack Bjornstad of Jack Bjornstad Law Office, Spirit Lake, for appellant.

Brenna Bird, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., and Greer and Chicchelly, JJ.
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CHICCHELLY, Judge.

Joshua Alan Richardson appeals the sentence imposed on his serious-

misdemeanor conviction for possession of methamphetamine, first offense. He

contends the sentence is illegal because the district court ordered him to serve it

in the custody of the Iowa Department of Corrections (IDOC). The State moved to

dismiss Richardson’s appeal on mootness grounds.1 After ordering the parties to

address the issue in their briefs, the supreme court transferred the appeal to this

court. Because we agree the case is moot, we grant the State’s motion to dismiss.

The challenged sentence stems from a plea agreement reached in June

2022. At the time, Richardson faced multiple criminal charges in different counties.

In a written plea agreement entered on June 22, Richardson stated he was

pleading guilty to possession of a controlled substance, first offense, in exchange

for the State dismissing charges in two separate Clay County cases. The district

court sentenced Richardson for possession the same day. In accordance with the

plea agreement, the court sentenced Richardson to serve “a term of incarceration

1 To the point that Richardson asks us to vacate his guilty plea, the State contends
he has not established good cause to appeal. See Iowa Code § 814.6 (2022)
(stating a defendant has no right to appeal a conviction stemming from a guilty
plea unless the defendant establishes good cause). Good cause to appeal exists
when a defendant challenges a sentence rather than the plea itself. See State v.
Damme, 944 N.W.2d 98, 105 (Iowa 2020). Although Richardson challenges his
sentence, he asks us to vacate his plea by claiming he was misled about his
sentence and therefore his plea was not knowing and voluntary. But Richardson
never moved in arrest of judgment to challenge his plea despite being informed
that failing to do so would preclude his ability to appeal. He has not established
good cause to challenge the knowing and voluntary nature of his plea. See State
v. Tucker, 959 N.W.2d 140, 153–54 (Iowa 2021) (rejecting a claim that “the
concept of good cause” should be expanded to “hold that a claim that a plea is not
intelligently or voluntarily made constitutes good cause to appeal as a matter of
right” and noting the defendant “waived his right to file a motion in arrest of
judgment,” which “preclude[d] appellate relief”).
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of one (1) year in the custody of . . . [IDOC],” which “shall be concurrent to the term

imposed in Dickinson County No. FECR023970.” But at the time of sentencing,

Richardson had not been convicted or sentenced in No. FECR023970. It was not

until eight days later, on June 30, that the Dickinson County District Court accepted

Richardson’s guilty plea2 on one count of domestic abuse assault, second offense,

and sentenced him to a two-year term of incarceration.

Richardson contends the possession sentence is illegal because it is not

authorized by statute and thus void. See State v. Louisell, 865 N.W.2d 590, 597

(Iowa 2015). Although the one-year term of incarceration falls within the

sentencing limits for a serious misdemeanor, see Iowa Code § 903.1(b),

Richardson argues the sentence is illegal because the court ordered him to serve

it in IDOC custody.

Iowa Code section 903.4 prescribes the place of confinement for

incarcerated defendants. For terms of incarceration of one year or less, the

confinement must be “in a place to be furnished by the county where the conviction

was had.” Id. § 903.4. For terms of incarceration lasting longer than one year, the

person “shall be committed to the custody of the director of the [IDOC].” Id. But

when a person sentenced to a term of incarceration of one year or less is already

committed to the custody of the director of the [IDOC], “the sentence shall be

2The June 30 order entering judgment and sentence on Richardson’s plea to the
domestic-abuse-assault charge states that Richardson pled guilty on June 21, one
day before he pled guilty to the possession charge. It appears the discrepancy
here occurred because the judgment and sentence were entered on the
possession charge the same day as the plea agreement was entered, while nine
days passed before the domestic-abuse-assault charge resolved.
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served at the facility or institution in which the person is already confined.” Id.

§§ 901.8, 903.4.

The court sentenced Richardson on the possession charge as though he

was already committed to IDOC custody. He was not. It was eight days later that

a different court sentenced him to a two-year term of incarceration in IDOC custody

for domestic abuse assault. Because the provision of section 903.4 related to

those already in IDOC custody did not apply at the time the court sentenced him

on the possession charge, Richardson argues his possession sentence is illegal.

The State concedes that the court imposed an illegal sentence for

possession, but it contends the sentence imposed on Richardson’s domestic-

abuse-assault conviction renders this appeal moot. An appeal is moot when it no

longer presents a justiciable controversy because the issues involved are

academic or nonexistent. See Perkins v. Bd. of Supervisors of Madison Cnty., 636

N.W.2d 58, 64 (Iowa 2001). The question is “whether the opinion would be of force

or effect in the underlying controversy.” Id.

This case is most like State v. Liendo, No. 10-0920, 2011 WL 446550, at *1

(Iowa Ct. App. Feb. 9, 2011). In Liendo, the court sentenced the defendant to one

year in county jail and ordered the sentence to run concurrent with the sentence

imposed in an unresolved criminal case. 2011 WL 446550, at *1. Because the

defendant was later acquitted of the charges in that case, there was nothing for

the sentence to run concurrent to. The defendant appealed the illegal sentence.

Id. This court agreed the sentence was illegal because “the court cannot order a

sentence to run concurrently with a sentence that has neither been earlier imposed

nor is contemporaneously imposed.” Id. at *3. But we found no reason to reverse
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and remand for resentencing there was nothing to correct; the defendant never

claimed or showed “that he has been or will be adversely affected by the court’s

action.” Id.

As in Liendo, the sentence was illegal when it was imposed, but there is

nothing to correct. As the State notes, we cannot “unwind time” to correct the eight

days of the possession sentence Richardson illegally served in IDOC custody

before he was sentenced on the domestic-abuse-assault charge. See Christensen

v. Iowa Dist. Ct. for Polk Cnty., 578 N.W.2d 675, 680 (Iowa 1998) (“[I]t would be

futile to remand this case because the district court cannot correct that portion of

the sentence we have found illegal; Steven has already served that part of his

sentence.”). And there is nothing to correct now because Richardson is serving a

term of incarceration in IDOC custody on his domestic-abuse-assault conviction.

If we were to vacate his sentence and remand, section 903.4 requires that the

court resentence Richardson to serve his possession sentence at the same facility

he is now serving, which is in IDOC custody. In other words, resentencing would

lead to imposition of the same sentence he appeals from. Because an opinion

remanding for resentencing would have no force or effect, the appeal is moot.

APPEAL DISMISSED.