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IN THE COURT OF APPEALS OF IOWA No. 7-903 / 07-0258 Filed December 28, 2007

STATE OF IOWA, Plaintiff-Appellee, vs. MARK RANDALL TOVAR, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.

Mark Randall Tovar appeals the lifetime parole provision of his sentence for sexual abuse in the third degree. RESENTENCE VACATED AND

REMANDED FOR REINSTATEMENT OF ORIGINAL SENTENCE.

Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellee.

Considered by Vogel, P.J., and Mahan and Zimmer, JJ.

2 MAHAN, J. Mark Randall Tovar appeals the lifetime parole provision of his sentence for sexual abuse in the third degree. He argues that resentencing him to lifetime parole under Iowa Code section 903B.1 (Supp. 2005) was an illegal sentence and was also a violation of the Constitution's prohibition of ex post facto laws and that his trial counsel was ineffective in failing to object. We vacate Tovar's

resentencing and remand to the district court for reinstatement of the original sentence. I. Background Facts and Proceedings

On August 4, 2006, Tovar pled guilty to one count of third-degree sexual abuse and one count of lascivious acts with a child. The amended trial

information alleged that the acts occurred between June 1, 2005, and August 27, 2005. The charges were brought after Tovar's girlfriend, Sara, reported to the

police on August 27, 2005, that she believed Tovar had sexually assaulted her seven-year-old daughter, K.C. Sara stated that she had found Tovar and K.C. in the bathroom together with the door shut. She thought it was strange and asked K.C. what happened in the bathroom. At the time, K.C. denied that anything inappropriate had happened. However, on August 27, 2005, K.C. told Sara that Tovar had her touch and run her hands up and down his penis while she was in the bathroom with him. The exact date of the incident was not definitively established. Sara told the police on August 27, 2005, that she caught Tovar and K.C. in the bathroom together about one to one-and-one-half months ago. On that same date, after Tovar was questioned, he signed a statement denying any wrongdoing and

3 indicating that he was in the bathroom with K.C. about one to two months ago running bath water for K.C. when Sara walked in. In the victim's interview at St. Luke's Hospital she indicated the incident happened before she started second grade. After entering an Alford plea 1 on August 4, 2006, Tovar was sentenced to a period not to exceed ten years for sexual abuse in the third degree and not to exceed five years for lascivious acts with a child. On August 21, 2006, the

department of corrections sent a letter to Judge Bauch asking if Tovar should have also been sentenced to a special life sentence of parole for the sex abuse charge in accordance with section 903B.1. The State then filed a motion for resentencing asserting the special sentence was mandatory. Tovar resisted. He argued that he entered his plea with the understanding that he would only be sentenced to the prison term, and not lifetime parole. However, he declined to withdraw his guilty plea. Tovar also argued that the resentencing was placing him in double jeopardy but did not argue the law was an illegal ex post facto law at the resentencing hearing. The district court resentenced Tovar to add the lifetime parole provision in accordance with section 903B.1. Tovar appeals. II. Standard of Review

We review a claim that a district court has imposed an illegal sentence for errors at law. State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005). Normal

error preservation requirements do not apply to void, illegal, or procedurally

An Alford plea allows a defendant to voluntarily and intelligently plead guilty even if he is unwilling or unable to admit his participation in the acts constituting the crime. North Carolina v. Alford, 400 U.S. 25, 32-38, 91 S. Ct. 160, 164-68, 27 L. Ed. 2d 162, 168-72 (1970).

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4 defective sentences. State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994). III. Merits

Iowa Code section 903B.1 provides that: A person convicted of a class "C" felony or greater offense under chapter 709, or a class "C" felony under section 728.12, shall also be sentenced, in addition to any other punishment provided by law, to a special sentence committing the person into the custody of the director of the Iowa department of corrections for the rest of the person's life, with eligibility for parole as provided in chapter 906. Because sexual abuse in the third degree is a class "C" felony, the district court is required to impose a lifetime parole sentence on third-degree sex abuse offenders. Iowa Code

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