State of Iowa v. Christopher Wayne Kackley

IN THE COURT OF APPEALS OF IOWA
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No. 24-1306
Filed January 7, 2026
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State of Iowa,
Plaintiff–Appellee,
v.
Christopher Wayne Kackley,
Defendant–Appellant.
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Appeal from the Iowa District Court for Cerro Gordo County,
The Honorable Adam D. Sauer, Judge.
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AFFIRMED
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Martha J. Lucey, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, attorneys for appellant.

Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, attorneys for appellee.
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Considered without oral argument
by Chicchelly, P.J., Sandy, J., and Doyle, S.J.
Opinion by Doyle, S.J.

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DOYLE, Senior Judge.

Christopher Kackley appeals from the order resentencing him after a
remand. He contends (1) the district court abused its discretion by running
his sentences consecutive to a sentence imposed for a separate offense,
(2) the prosecutor breached the plea agreement by recommending
consecutive sentences, and (3) the imposition of consecutive sentences is
evidence of judicial vindictiveness, violating his right to due process under
the Iowa Constitution. The State contends that the sentencing order for the
separate offense renders Kackley’s claims moot.

I. Background Facts and Proceedings.

In 2023, Kackley pled guilty to third-degree burglary, possession of
burglar’s tools, and possession of methamphetamine in case
number FECR031866. After accepting his pleas, the district court sentenced
Kackley to five years in prison for burglary, two years in prison for possession
of burglar’s tools, and two days in jail for possession of methamphetamine.
The court ordered the sentences to run concurrently.

Kackley appealed his sentences, arguing the district court did not
provide adequate reasons on the record. After the supreme court transferred
the appeal to this court, we agreed with Kackley. State v. Kackley,
No. 23-1031, 2024 WL 1757553, at *3 (Iowa Ct. App. Apr. 24, 2024). We
“vacate[d] the sentence and remand[ed] for resentencing” but “[did] not
express an opinion on what the new sentence will be once the court explains
its rationale.” Id.

While Kackley’s appeal was pending, he pled guilty to one count of
possession of contraband in jail in case number FECR032253. The court
sentenced Kackley to a five-year prison term, which it ordered to run

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consecutive to his sentences in case number FECR031866. Kackley did not
appeal his conviction or sentence in case number FECR032253.

On remand, the district court scheduled a sentencing hearing and
ordered an updated presentence investigation report. The State argued that
the court need not consider whether to run Kackley’s sentences in case
numbers FECR031866 and FECR032253 consecutively because Kackley
never appealed the latter conviction and sentence and, therefore, they stand.
But if the court believed it had the authority to “overrule” the consecutive
sentences imposed in FECR032253, the State asked the court to order
Kackley to serve the sentences consecutively. Kackley argued that vacating
the sentence in FECR031866 rendered the order to run the sentence
in FECR032253 consecutive to it “moot.”

The district court imposed the same sentences it originally imposed in
case number FECR031866 but gave more detailed reasons. The court also
addressed whether it could impose consecutive sentences in FECR031866 to
the sentence in FECR032253. Because the original sentence imposed in
FECR031866 was vacated and resentencing occurred after the imposition of
his sentence in FECR032253, the court concluded it could order the
sentences to run concurrently or consecutively:
Mr. Kackley, I believe because I’m sentencing you today that I have
the ability and the authority to order this sentence to be either concurrent
or consecutive to [the sentence in FECR032253]. Now, I’m doing that just
based on my gut feeling because I can’t find anything in Iowa cases that tell
me I can or can’t do this. . . . I don’t believe that there’s any case law or
direction that I have that says that I can or can’t do this. I believe it’s
efficient to do it this way, and I also believe that because this is a sentence
that is starting today, that I have the ability to order concurrent or
consecutive to any prior judgment and sentences.

So with that being said, when I look at concurrent versus
consecutive, I look at the totality of the circumstances. But ultimately,

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[FECR032253 is a] completely separate incident, different date of offense,
different conviction level, it’s not even the same type of a charge from what
I can gather. And so based on the fact that these are two totally isolated
events, I believe that this sentence should run consecutive to the sentence
[imposed in FECR032253].

And like I said, I do that because I’m looking at the criminal history,
the seriousness of these offenses, and I’m looking at it from the standpoint
of this offense is completely unrelated to the judgment and sentence
[imposed in FECR032253]. They’re not the same. They’re not arising
out of the same fact and scenario.[1]

Kackley appeals the sentencing order. He challenges the district
court’s authority to impose consecutive sentences following remand and
contends the prosecutor breached the plea agreement by recommending
consecutive sentences. He also contends that the imposition of consecutive
sentences evinces the sentencing court’s judicial vindictiveness, which
violates his right to due process under the Iowa Constitution.

II. Motion to Affirm.

After Kackley appealed but before the appeal was submitted, the State
moved to affirm under Iowa Rule of Appellate Procedure 6.1006. That rule
allows the appellee to move the “appellate court to affirm the order or
judgment” being appealed “on the ground that the issues raised by the appeal
are frivolous.” Iowa R. App. P. 6.1006(2). Kackley resisted the motion, and
the supreme court ordered it submitted with the appeal. So we begin our
analysis by addressing the motion.

The State contends that we can affirm on appeal because Kackley’s
claims are moot. “The key in assessing whether an appeal is moot is

1
For ease of reading, we have redacted the transcript to remove affirmative
interjections that indicate active listening but provide no additional value to the reader.

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determining whether the opinion would be of force or effect in the underlying
controversy.” State v. Hightower, 8 N.W.3d 527, 544 (Iowa 2024) (citation
omitted). The State notes that Kackley’s brief acknowledges that the
sentencing court in FECR032253 “had the authority to determine whether
the sentences should run concurrently or consecutively to the sentences
imposed in this matter.” The State then concludes that “it does not matter
whether the district court in FECR031866 had the authority to superfluously
run the sentences consecutively because, regardless of the outcome of this
appeal, the order of judgment in FECR032253 still requires [Kackley] to
serve that sentence consecutively with FECR031866.”

We agree that the district court in FECR032253 could order Kackley’s
sentence in that case to run consecutive to the sentences in FECR031866.
Iowa Code section 901.8 (2024) states that “[i]f a person is sentenced for two
or more separate offenses, the sentencing judge may order the second or
further sentence to begin at the expiration of the first or succeeding
sentence.” Because Kackley was convicted of two or more separate offenses,
the court in FECR032253 could order the sentence for Kackley’s possession-
of-contraband conviction to run consecutive to the sentences imposed in
FECR031866. But after it did so, this court vacated Kackley’s sentence in
FECR031866. This “effectively wiped the slate clean.” Pepper v. United
States, 562 U.S. 476, 507 (2011); accord Hewitt v. United States, 606 U.S. 419,
431 (2025) (“By operation of legal fiction, the law acts as though the vacated
order never occurred.”). The question we must resolve is whether the
portion of the sentencing order requiring Kackley to serve consecutive
sentences remains in effect after vacatur of the sentences originally imposed
in FECR031866.

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The supreme court addressed a similar “procedural tangle” in Cleesen
v. Brewer, 201 N.W.2d 474, 475 (Iowa 1972). There, a defendant serving a
ten-year term in prison for breaking and entering was then convicted of
escape and sentenced to serve a three-year term consecutive to it. Cleesen,
201 N.W.2d at 475. The sentence for breaking-and-entering was later
vacated. Id. At the defendant’s resentencing, the court imposed the same
ten-year sentence originally imposed, but it did not specify whether the term
ran concurrently or consecutively to his sentence for escape. Id. On appeal,
the supreme court faced the question of whether “the sentence for escape
and the second sentence for breaking and entering run concurrently or
consecutively.” Id. at 476. It noted that generally, sentences pronounced at
different times by different courts “run concurrently unless the court
pronouncing the second sentence specifies that the sentences run
consecutively.” Id. at 477. Because the second breaking-and-entering
sentencing order was silent on the question, the court held that the sentences
ran concurrently:
After defendant’s original sentence for breaking and entering was
vacated, the only sentence in effect was the one for escape. When the
second sentence for breaking and entering was pronounced, that escape
sentence was in effect. The general [rule] applied. The sentencing court
did not order the breaking and entering sentence to run consecutively to
the existing escape sentence. Consequently, the sentences run
concurrently.

We cannot accept the warden’s argument that although the original
sentence for breaking and entering was “set aside and vacated,” somehow
it is resurrected for the purpose of making the escape sentence consecutive
as originally ordered. The first breaking and entering sentence either was
set aside or it was not. Actually, it was set aside and a new sentence was
imposed. Because of the new sentence, the warden can validly hold
defendant for breaking and entering as he is now doing.

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Id. In other words, vacating the breaking-and-entering sentence rendered
null the requirement that the defendant serve his escape sentence
consecutively. The question of how to serve the sentences for separate
offenses was left to the resentencing court to decide.

Likewise, Kackley’s first appeal vacated the sentences imposed in
FECR031866. Thus, at the time of resentencing, the only sentence in effect
was the sentence imposed in FECR032253. There were no other sentences
to which the sentence in that case could run consecutively, so that portion of
the sentencing order in FECR032253 is of no effect. As a result, the
imposition of consecutive sentences in the resentencing order is not moot.
We thus deny the State’s motion to affirm.

III. Sentencing Errors.

We turn then to Kackley’s sentencing challenges, which we review for
correction of errors at law. See State v. Cole, 23 N.W.3d 231, 236 (Iowa 2025).
Because there is a strong presumption in favor of sentences that fall within
the statutory limits, we will overturn them only if the sentencing court
abused its discretion or considered inappropriate matters. See State v.
Schooley, 13 N.W.3d 608, 616 (Iowa 2024). The question is whether the
sentencing decision was unreasonable or based on untenable grounds. See id.

A. Authority.

Kackley first contends that the district court exceeded its authority by
ordering his sentences to run consecutive to the sentence imposed in
FECR032253. In Kackley’s view, we remanded for the district court to
expound on the reasons for the sentences it imposed on the three convictions
stemming from FECR031866—nothing more. Although we did remand for
resentencing because the sentencing court failed to give adequate explanation

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for the sentences it imposed, there is nothing in our prior decision that limits
the court to imposing the same sentences on remand. Rather, “[w]e [did] not
express an opinion on what the new sentence will be once the court explains
its rationale.” Kackley, 2024 WL 1757553, at *3. And we suggested that the
court had latitude to impose a different sentence on remand. Id. (citing State
v. Luedtke, 279 N.W.2d 7, 8 (Iowa 1979)).

As noted above, the court had authority to impose consecutive
sentences because it was sentencing Kackley for “two or more separate
offenses.” Iowa Code § 901.8. The authority to impose consecutive
sentences derives from the order in which the sentences are imposed, not the
order of the crimes or convictions. See State v. Sumpter, 438 N.W.2d 6, 9-10
(Iowa 1989) (rejecting a defendant’s challenge to court’s authority to run his
second-degree-murder sentence consecutive to sentences he was serving for
offenses that occurred after the murder, noting that section 901.8 does not
contain “any sort of temporal prohibition on consecutive sentencing”); State
v. Hogge, 420 N.W.2d 458, 460 (Iowa 1988) (“We conclude that when a
sentencing judge is faced with a revocation of probation, the judge is to
proceed as if the revocation hearing were the original sentencing, and may
provide that the sentence imposed be served concurrently or consecutively
to other existing sentences. The district court did not exceed its authority in
ordering that the sentence imposed be served consecutively with the separate
sentence imposed by the Iowa District Court for Scott County.”). The
district court did not exceed its authority by ordering Kackley’s sentences to
run consecutive to the sentence imposed in FECR032253.

B. Breach of the Plea Agreement.

Kackley also contends that the State breached the plea agreement at
resentencing by recommending that the court run his sentences consecutive

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to the sentence imposed in FECR032253. Breach of a plea agreement is a
defect in the sentencing procedure requiring resentencing regardless of its
effect on the sentencing court’s decision. See State v. Patten, 981 N.W.2d 126,
130 (Iowa 2022). The problem is that Kackley cannot show a breach because
the plea agreement was silent on FECR032253, which involves an offense
committed after the plea agreement was reached and the original sentence
was imposed in this case. Thus, Kackley’s claim fails.

IV. Constitutional Violation.

Finally, Kackley contends that the sentencing court violated his due
process rights by imposing consecutive sentences, which constitutes judicial
vindictiveness. Because Kackley’s claim of judicial vindictiveness implicates
his constitutional right to due process, we review it de novo. See State v.
Mitchell, 670 N.W.2d 416, 418 (Iowa 2003).

Kackley bases his claim of judicial vindictiveness on the increased
length of his overall sentence. See id. at 423 (noting that “an increase in
sentence length between a first and second trial is a red flag for possible
judicial vindictiveness in sentencing”). But this case is unlike cases in which
defendants were given harsher sentences as punishment for challenging a
conviction or sentence on appeal. See id. (“[T]he imposition of ‘a harsher
sentence upon reconviction for the purpose of punishing a defendant for
exercising his rights in seeking to have the conviction set aside is a flagrant
violation of due process of law.’” (citation omitted)). The increase in
Kackley’s sentence results from the court running his sentences consecutive
to his sentence for a separate offense that he committed after his conviction
and original sentencing in this case. Nothing in the record shows judicial
vindictiveness.

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V. Conclusion.

Having considered Kackley’s claims and finding they lack merit, we
affirm his sentences.

AFFIRMED.

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