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IN THE COURT OF APPEALS OF IOWA No. 8-122 / 07-0723 Filed March 26, 2008

JERRY LEE COLE JR., Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Lawrence H. Fautsch, Judge.

Jerry Lee Cole Jr. appeals from the district court's denial of postconviction relief from his convictions for two counts of attempted murder and two counts of willful injury. AFFIRMED.

Mark C. Smith, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney General, and Ralph Potter, County Attorney, for appellee State.

Considered by Huitink, P.J., and Zimmer and Miller, JJ.

2 ZIMMER, J. Jerry Lee Cole Jr. appeals from the district court's denial of postconviction relief from his convictions for two counts of attempted murder and two counts of willful injury. He contends the district court erred in denying his claim of an illegal sentence because his convictions for willful injury should have merged with his convictions for the greater offense of attempted murder. We affirm. I. Background Facts and Proceedings. On April 11, 2001, Ron Mormann and Deanna Johnson were sitting in Mormann's truck in Dubuque County. A blue van drove alongside Mormann's vehicle. Cole got out of the van and exchanged some words with Mormann. Cole then turned Mormann around and shot him in the back of the head. Mormann dropped to the ground and pretended to be dead. Cole then walked around to the passenger side of Mormann's truck and shot Johnson in the back of the head and chest. Cole stood near the passenger side of Mormann's truck for a while and then left. Mormann was able to call for help on his cell phone after Cole left the area. On April 20, 2001, the State charged Cole with two counts of attempted murder in violation of Iowa Code section 707.11 (1999), first-degree robbery in violation of section 711.2, and two counts of willful injury in violation of section 708.4(1). The State and Cole eventually reached a plea agreement. 1 Cole agreed to enter a guilty plea to two counts of attempted murder and two counts of willful

1

The agreement was reduced to writing and signed by Cole, his attorneys, and the prosecuting attorney.

3 injury. In return, the State agreed to dismiss the charge of robbery in the first degree. The terms of the plea agreement provided that Cole would receive a specific combination of concurrent and consecutive sentences for the two counts of willful injury and the two counts of attempted murder. The parties agreed his total sentence would be forty years. The agreement was conditioned on the trial court's agreement to be bound by the terms of the negotiated agreement. Cole appeared before a district court judge on April 26, 2002, and tendered pleas of guilty to two counts of attempted murder and two counts of willful injury. The district court agreed to be bound by the parties' plea agreement, accepted the pleas of guilty entered by Cole, and scheduled sentencing. On May 28, 2002, Cole appeared in district court for sentencing. The court sentenced Cole to a term not to exceed twenty-five years on both counts of attempted murder to run concurrently, up to ten years for one count of willful injury to run consecutively, and up to five years for one count of willful injury to run consecutively for a total sentence of forty years. The sentences imposed were consistent with the parties' plea agreement, and Cole made no claim that his sentences should merge. As provided in the parties' plea agreement, the court dismissed the charge of robbery in the first degree. Cole did not appeal from his convictions. On November 16, 2006, Cole filed a pro se motion to correct an illegal sentence. The district court treated Cole's motion as an application for

postconviction relief and appointed counsel to represent Cole in that proceeding. His counsel filed an application for postconviction relief, which challenged the

4 legality of Cole's sentence and also raised a number of other claims. On

March 28, 2007, a postconviction hearing was held. Cole withdrew all grounds for postconviction relief except the original challenge to the legality of his sentence. No witnesses were called at the hearing. On April 3, 2007, the district court entered its ruling denying Cole postconviction relief from his convictions. In its ruling, the court concluded that willful injury was not a lesser-included offense of attempted murder and therefore, the sentences originally imposed were not illegal. Cole now appeals from the postconviction court's decision. II. Scope and Standards of Review. An illegal sentence may be corrected at any time. Iowa R. Crim. P.

2.24(5); State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995). To the extent Cole presents a constitutional double jeopardy claim, our review is de novo. State v. Godbersen, 493 N.W.2d 852, 854 (Iowa 1992). To the extent he claims a violation of Iowa Code section 701.9, our review is on error. Iowa R. App. P. 6.4. III. Discussion. Cole argues that his convictions for attempted murder and willful injury of Mormann, as charged in Counts I and IV of the trial information, should have merged and that his convictions of attempted murder and willful injury of Johnson, as charged in Counts II and V, should have merged. His brief on appeal acknowledges that his claim raises a "potential challenge to established precedent," and he argues "there is a conflict among the decisions of the Iowa Supreme Court" regarding the issue he presents. For the following reasons, we

5 conclude the district court was correct in concluding Cole is not entitled to merger of his willful injury and attempted murder convictions. Iowa Code section 701.9 codifies the double jeopardy protection against multiple punishments for the same offense. That section provides: No person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty of the greater of the offenses only. Iowa Code

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