State of Iowa v. Richard Osmond McLachlan Jr.

IN THE COURT OF APPEALS OF IOWA

No. 15-1449
Filed April 6, 2016

STATE OF IOWA,
Plaintiff-Appellee,

vs.

RICHARD OSMOND McLACHLAN JR.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.

Richard McLachlan Jr. appeals from a revised sentencing order.

AFFIRMED.

Jamie L. Hunter and Gary D. Dickey of Dickey & Campbell Law Firm,

P.L.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2

MULLINS, Judge.

Richard McLachlan Jr. has appealed from a revised sentencing order

entered by the district court on remand from our court. He claims (1) his prior

conviction was vacated and could not be used to impose the second-or-

subsequent-offender enhancement when resentencing him, and (2) the sentence

imposed by the district court could not run consecutive to a prior vacated

sentence. McLachlan has mischaracterized the status of the prior conviction and

has misunderstood the legal significance of a revised sentencing order. For

reasons explained below, we affirm.

This is McLachlan’s second appeal from district court case number FECR

258620 (marijuana case), a case in which McLachlan was originally sentenced to

incarceration in March 2013. See State v. McLachlan, No. 13-0487, 2014 WL

4930441, at *2 (Iowa Ct. App. Oct. 1, 2014). The issues presented require us to

also consider the history and current status of district court case number FECR

244838 (cocaine case), for which he was originally sentenced to incarceration in

October 2012. See generally State v. McLachlan, No. 12-2040, 2013 WL

5498059 (Iowa Ct. App. Oct. 2, 2013). A chronological review of these two cases

and their several appeals is set forth below.

McLachlan was a juvenile when he entered an Alford plea1 to possession

of crack cocaine with intent to deliver. See State v. McLachlan, No. 14-0257,

2015 WL 1332336, at *1 (Iowa Ct. App. Mar. 25, 2015). The district court

granted him a deferred judgment and placed him on supervised probation. In

1
An Alford plea allows a defendant to “voluntarily, knowingly, and understandingly
consent to the imposition of a prison sentence” without admitting “participation in the
acts constituting the crime.” North Carolina v. Alford, 400 U.S. 25, 37 (1970).
3

October 2012, the district court revoked the deferred judgment and probation

after McLachlan, then an adult, was charged with new crimes. He was

sentenced to a term of incarceration.2 McLachlan, 2013 WL 5498059, at *3.

In March 2013, the district court adjudged McLachlan guilty of possession

of marijuana with intent to deliver and a drug tax stamp violation, and sentenced

him to prison terms of ten years and five years respectively. Those sentences

were ordered to be served concurrent to each other and consecutive to the

sentence previously imposed in the cocaine case. McLachlan, 2014 WL

4930441, at *2.

In October 2013, our court affirmed McLachlan’s conviction in the cocaine

case, but vacated his sentence as a result of the district court’s failure to grant

him the right of allocution and remanded for resentencing. McLachlan, 2013 WL

5498059, at *4. Pursuant to that remand, in February 2014, McLachlan was

resentenced in the cocaine case. See McLachlan, 2015 WL 1332336, at *1. The

district court imposed an indeterminate ten-year sentence and ran it

consecutively to the marijuana conviction, and ordered McLachlan to serve a

mandatory one-third of his sentence before being eligible for parole per Iowa

Code section 124.413 (2013).3 See id.

In October 2014, our court affirmed McLachlan’s conviction for possession

of marijuana, vacated the drug tax stamp conviction, and remanded for entry of a

revised sentencing order. McLachlan, 2014 WL 4930441, at *3.

2
Each sentencing order referenced in this opinion contained other sentencing provisions
not at issue in this appeal. For simplification, we are listing only the sentencing
provisions relevant to the contested issues.
3
For ease of reference and because there have been no substantive relevant changes,
all citations are to the 2013 Iowa Code.
4

In March 2015, our court vacated McLachlan’s February 2014

resentencing for the cocaine offense because the district court had not

considered the factors identified in State v. Lyle, 854 N.W.2d 378, 404 n.10 (Iowa

2014).4 We again remanded the case to the district court for resentencing under

Lyle. McLachlan, 2015 WL 1332336, at *3.

In August 2015, pursuant to our October 2014 remand, the district court

entered a revised sentencing order in the marijuana case, ordering a ten-year

term of incarceration on the marijuana conviction to run consecutive to the

sentence imposed in the cocaine case. Prior to entry of the order, the court gave

the parties an opportunity to be heard. At that time, the second resentencing in

the cocaine case ordered by this court in March 2015 had not yet occurred.

McLachlan’s current appeal in the marijuana case focuses on the meaning

of our decisions entered in October 2014 and March 2015, and the correctness

of the district court order of August 2015, summarized above. He claims the

August 2015 revised sentencing order for the marijuana offense resulted in an

illegal sentence because (1) the March 2015 appellate court remand for

resentencing in the cocaine case set aside or vacated his conviction in that case,

thus removing the prior conviction from consideration for enhancement of the

sentence in the marijuana case, and (2) the sentence imposed after the October

2014 remand in the marijuana case could not now run consecutive to the

vacated—but pending—resentence for the cocaine offense.

4
Our supreme court decided Lyle after McLachlan’s February 2014 resentencing, and
made it applicable to all juvenile offenders then serving mandatory minimum sentences
of imprisonment.
5

On the first issue, McLachlan’s argument is premised on his conclusion

that the remand for resentencing under Lyle in the cocaine case, opened the

door for the district court to consider deferring judgment. Thus, he argues, if the

court could consider granting a deferred judgment on the remand, his conviction

was set aside, leaving no prior conviction for enhancement purposes in the

marijuana case.

Our court’s remand for resentencing in the cocaine case was for

consideration of the factors required by Lyle. McLachlan, 2015 WL 1332336, at

*3. The discussion in our March 2015 opinion, which made reference to a

sentencing court’s discretion to consider a deferred judgment for a juvenile, was

limited to options available to a court before deciding to impose a prison term. Id.

at *2. It is only when a district court decides to impose a prison term on a

juvenile—and that term includes a mandatory minimum sentence—that the Lyle

factors are implicated. Id. Our decision reviewed the status of the case and

determined McLachlan had been sentenced to prison with a mandatory minimum

sentence, thus requiring remand for consideration of the Lyle factors. Id. at *2–3.

Iowa Code section 907.1(1) (2015) provides in relevant part: “‘Deferred

judgment’ means a sentencing option whereby both the adjudication of guilt and

the imposition of a sentence are deferred by the court.”5 In 2012, the court

revoked McLachlan’s deferred judgment, adjudicated him guilty of possession of

crack cocaine, and sentenced him for that offense. Our second remand order to

consider the Lyle factors did not vacate or set aside the adjudication of guilt (i.e.,

5
For ease of reference and because there have been no substantive relevant changes,
we cite to the current 2015 Iowa Code.
6

the judgment of conviction), it only vacated the sentence of incarceration and

remanded for resentencing. Therefore, the district court is—or was, if sentencing

on the cocaine case has by now occurred, a fact not in our record on this

appeal—not authorized to consider a deferred judgment under Iowa Code

section 907.1. See Kurtz v. State, 854 N.W.2d 474, 479–80 (Iowa Ct. App. 2014)

(concluding a defendant’s successful challenge of an illegal sentence does not

render the judgment of conviction unenforceable). Accordingly, McLachlan

cannot prevail on his first issue.

McLachlan’s second issue is premised on his argument that the revised

sentencing order in the marijuana case resulted from a resentencing. When the

district court entered its revised sentencing order, it repeated and left intact all

provisions originally ordered in the marijuana case, except that it removed all

references to the drug tax stamp conviction, which we vacated in our October

2014 ruling. The district court entered its order on remand as directed by our

court. It did not resentence McLachlan. It did not have the authority to

resentence him. See State v. Pearson, ___ N.W.2d ___, ___, 2016 WL 851994,

at *6–7 (Iowa 2016) (finding “the district court exceeded its mandate in

resentencing the defendant anew” after the appellate court vacated the sentence

and remanded to the district court to enter an order amending the judgment).

At the hearing, which culminated in issuance of the revised sentencing

order, McLachlan argued he was entitled to a resentencing hearing. The district

court heard arguments from the State and from McLachlan’s attorney, and

correctly concluded that its authority on remand was limited to issuance of a

revised sentencing order that removed any sentence for the vacated drug tax
7

stamp violation.6 The district court was correct to refuse to engage in a

resentencing. As no resentencing occurred, McLachlan’s argument on the

second issue must and does fail.

AFFIRMED.

6
Some may question why a revised sentencing order is necessary if an appellate court
has finally resolved the issue. We recognize that final sentencing orders are relied upon
by many people, agencies, and organizations, including the Iowa Department of
Corrections, the Iowa Board of Parole, probation and parole personnel, law enforcement
agencies, other government agencies, the business community, and others. It is
unrealistic and administratively unwieldy for a copy of an appellate opinion to be sent to
or appended to any prior sentencing order that was altered by an appellate opinion. A
revised sentencing order provides a final, complete memorialization of the sentence
imposed and that must be enforced.