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IN THE COURT OF APPEALS OF IOWA No. 8-879 / 08-0241 Filed December 31, 2008 STATE OF IOWA, Plaintiff-Appellee, vs. MARK EMERSON WILLEY, Defendant-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Jackson County, John A. Nahra, Judge.

Defendant seeks resentencing arguing his two convictions should be merged. AFFIRMED.

Mark C. Smith, State Appellate Defender, and David Arthur Adams, Assistant State Appellate Defender, for appellant. Mark E. Willey, Anamosa, appellant pro se. Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, and Phil Tabor, County Attorney, for appellee.

Considered by Sackett, C.J., and Eisenhauer and Doyle, JJ.

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EISENHAUER, J. In 2006, a jury convicted Mark Willey of assault with intent to inflict serious injury, first-degree burglary, and willful injury causing serious injury. At

sentencing, the court merged the assault and the willful injury convictions and ordered consecutive sentences for burglary and willful injury. In September

2007, Willeys convictions were affirmed on appeal. In December 2007, Willey filed a motion for resentencing contending his sentence for willful injury causing serious injury should have been merged with his conviction for first-degree burglary.1 The trial court overruled the motion and a motion to reconsider its ruling. Our review is for correction of errors at law. Iowa R. App. P. 6.4.

Because the two crimes have separate and distinct elements and a defendant can commit first-degree burglary without also committing willful injury causing serious injury, we affirm. We first address the States contention the doctrine of res judicata bars this appeal. See Spiker v Spiker, 708 N.W.2d 347, 352 (Iowa 2006). While Willeys request for further review of the September 2007 appellate decision does contain his merger argument, Willeys merger claim was neither listed as an issue nor analyzed by the prior appellate courts. The res judicata doctrine does not bar this appeal. The issue on appeal is whether willful injury causing serious injury is "necessarily included" in first-degree burglary under Iowas merger statute, Iowa

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We do not address Willeys double jeopardy argument since this claim was not argued below and is raised for the first time on appeal. See State v. Halliburton, 539 N.W.2d 339, 343 (Iowa 1995).

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Code section 701.9 (2005). This statute requires the merger of lesser-included offenses and provides: "No person shall be convicted of a public offense which is necessarily included in another public offense." Iowa Code

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