author: KONENKAMP, Justice.

text:
    2001 SD 131
    James G. LEWIS and Carmen E. Lewis, Plaintiffs and Appellees, v. Joan C. ASLESEN, formerly Joan C. Baldwin, and Paul Aslesen, Defendants and Appellants.
    No. 21714.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 28, 2001.
    Decided Oct. 31, 2001.
    Rehearing Denied Nov. 19, 2001.

      Brenda Ask of Frieberg, Rudolph & Nelson, Canton, South Dakota, Attorneys for plaintiffs and appellees.
    John Peterson of Johnson, Eklund, Nicholson & Peterson, Sioux Falls, South Dakota, Attorneys for defendants and appellants.
   KONENKAMP, Justice.

[¶ 1.] In this case, we decide, first, whether the trial court erred in granting title by adverse possession to a portion of a strip of land between neighboring residential lots, and, second, whether the court erred in assessing survey costs. We affirm in part, reverse and remand in part.

Background

[¶ 2.] Although they were neighbors on friendly terms for over a quarter century, the Lewises and the Aslesens came to dispute the ownership of a 16-foot-wide strip of land running between their residential lots in Canton, South Dakota. According to the recorded deeds, the disputed property belonged to the Aslesens. They paid all the property tax on it. Both families used this strip for nonessential purposes since they purchased their adjoining lots in the same year, 1972. The uses differed, however. Where the Asles-ens used the strip for sports, get-togeth-ers, parking, and occasional access to their property, the Lewises planted three trees roughly along a line in the middle of it and a flower garden on a portion of it. Both families mowed it at various times between 1972 and 1999, the year this action was filed, and both shoveled snow from the sidewalk running across it.

[¶ 3.] To complicate the dispute, the Lewis’s predecessor in title (Olson) had already sold the westernmost 9.8 feet of his lot to the Aslesen’s predecessor in title (Robins). The result of this purchase was that the new property line between the lots passed through Olson’s garage. The entrance of the driveway and most of its length lies wholly within the remainder of the Olson lot, but as the driveway curves toward the garage, it crosses over the legal boundary. When Olson sold the lot to the Lewises, he showed them a marker about 6.2 feet on the other side of the former boundary (a line at 86.3 feet). The Lewises believed that the line separating their property from that of the Aslesens was at the 92.5 foot mark, rather than at the 76.5 mark as stated on their deed.

[¶ 4.] Consistent with this belief, the Lewises planted trees and a garden roughly in the middle of the strip between their driveway and the 92.5-foot line, and they sprayed for weeds all the way to that line. The trial court found that the trees had been planted more than twenty years before the start of this action in 1999. The court ruled that the Lewises had established adverse possession of approximately 61% of the disputed strip, defined by a line at the westernmost of the two remaining trees (at the 87.4-foot line and running parallel to the eastern boundary of the Lewis property). The court also assessed against the Aslesens the cost of a new survey to ensure correct placement of the new property line.

[¶ 5.] On appeal, the Aslesens contend that the circuit court erred in concluding that the Lewises met their burden of proof in establishing the required elements for adverse possession. The Aslesens also challenge the award of disbursements.

1. Adverse Possession

[¶ 6.] The sufficiency of the evidence to constitute adverse possession presents a question of law. Jutting v. Hendrix, 2000 SD 25, ¶ 10, 606 N.W.2d 140, 141. We review questions of law under a de novo standard and disbursement awards under the abuse of discretion standard. Zahn v. Musick, 2000 SD 26, ¶ 50, 605 N.W.2d 823, 833. We give the trial court’s factual findings substantial deference, overturning them only when they are clearly erroneous. Bartels v. Anaconda Company, 304 N.W.2d 108, 109 (S.D.1981).

[¶ 7.] Those claiming ownership to land through adverse possession must show that their possession was “actual, open, visible, notorious, continuous, and hostile” for over twenty years. Taylor v. Tripp, 330 N.W.2d 542, 544 (S.D.1983). Under SDCL 15-3-13, adverse possession can be established only if it “has been protected by a substantial enclosure or [if] it has been usually cultivated or improved.” This statute thus provides a prerequisite to a justiciable adverse possession claim. Failure to show either a substantial enclosure or usual cultivation or improvement preempts the claim. Furthermore, adverse possession must be shown by clear and convincing evidence. Cuka v. Janesville Hutterian Mut. Soc., 294 N.W.2d 419, 422 (S.D.1980).

[¶ 8.] According to the expert testimony of Dr. John Ball, the trees planted by the Lewises had been growing on the property for more than twenty years, the period required to establish adverse possession. Planting and maintaining a line of trees on disputed property by those claiming adverse possession constitutes a substantial enclosure of the property under SDCL 15-3-13(1). Jutting, 2000 SD 25, at ¶ 12, 606 N.W.2d at 142 (citing Schultz v. Dew 1997 SD 72, ¶ 13, 564 N.W.2d 320, 323). In reference to the court’s findings, the first prong of SDCL 15-3-13 applies here. In addition to planting and maintaining trees, regular mowing of the property constitutes cultivation under SDCL 15-3-13(2). Id. The court’s findings support the second prong of SDCL 15-3-13. Finally, landscaping is an improvement to land under SDCL 15-3-13(2). Id. Although there was no claim here that the Lewis’s garden planted in the disputed strip had been in existence for twenty years, its presence for a substantial part of that time provides additional evidence that the Lewises were laying open claim to the property. As both alternative prongs of SDCL 15-3-13 have been satisfied, the prerequisites for adverse possession have been met.

[¶ 9.] It remains to decide whether the Lewis’s possession of the disputed strip was actual, open, visible, notorious, continuous, and hostile for the entire twenty year period. Such a decision is highly fact-specific. Cuka, 294 N.W.2d at 423. Here, the line of trees marking a rough boundary line was open, visible, notorious, continuous, and hostile. So were the regular lawn mowing and snow shoveling, the perennial flower garden, and the spraying against weeds. Therefore, we affirm the trial court’s judgment that the Lewises established adverse possession up to the line of trees. We also uphold the court’s ruling that, to avoid future difficulties, it was prudent to set the precise boundary line just beyond the westernmost of the two remaining trees, i.e., at the 87.4-foot line.

2. Award of Disbursements — Survey Costs

[¶ 10.] In considering whether expenses may be awarded to the prevailing party, we look to the applicable statute.

The prevailing party in a civil action or special proceeding may recover expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial. Such expenditures include costs of telephonic hearings, costs of telephoto or fax charges, fees of witnesses, interpreters, translators, officers, printers, service of process, filing, expenses from telephone calls, copying, costs of original and copies of transcripts and reporter’s attendance fees, court appointed experts and other similar expenses and charges. These expenditures are termed “disbursements” and are taxed pursuant to § 15 — 6—54(d).

SDCL 15-17-37. Only those expenses specifically authorized by statute may be taxed as disbursements, and although the trial court has some discretion, it must use cautious restraint within the statutory specifications. Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 906 (S.D.1994) (internal citations omitted). In Atkins v. Stratmeyer, 1999 SD 131, 600 N.W.2d 891, we addressed, as a matter of first impression, the question whether investigation fees can be awarded as disbursements and concluded that such fees are not recoverable because the statute made no allowance for them. We find surveying costs to be in this instance analogous to investigation fees. Consequently, we remand for a reduction in the disbursement award.

[¶ 11.] The court also awarded the cost of a new survey against the Aslesens to be completed after the judgment was final. As the earlier survey expense should have been disallowed, it was an abuse of discretion to award the expense of the new survey. We reverse that disbursement.

[¶ 12.] Affirmed in part, reversed and remanded in part.

[¶ 13.] SABERS, Acting Chief Justice, and AMUNDSON, and GILBERTSON, Justices, concur.

[¶ 14.] MILLER, Retired Chief Justice, was a member of the Court at the time this action was submitted, but was disqualified and did not participate.

      . In the words of the trial court, ''[this is] a case where two families, who, for nearly thirty years, have been neighbors and have gotten along together and grown up on that space for nearly thirty years turn on each other and fight over a few feet of lawn that really neither of them [is] using.”

      . The trial court was unable to determine why Olson thought (or, at least, informed the Lew-ises) that the property line was 6.2 feet west of the original, rather than 9.8 feet east, as the result of his earlier sale of the strip to Robins.

      . They state this argument in two issues, which we combine into one. They also contend in a separate assignment of error that the Lewises disclaimed title to the disputed property. We conclude that the trial court was not clearly erroneous in finding otherwise.

      .An "abuse of discretion” is an unjustified, arbitrary, or clearly unreasonable use of discretion. A common test is whether a judicial mind, in view of the law and circumstances, could reasonably have reached a similar conclusion. Implied within "the exercise of discretion is the requirement that the decision not be arbitrary, meaning it must be within a range of permissible choices and have a rationale based in evidence.” Pellegrin v. Pellegrin, 1998 SD 19, ¶ 31, 574 N.W.2d 644, 650 (Konenkamp, J., concurring in part and dissenting in part).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2001 SD 129
    STATE of South Dakota, Plaintiff and Appellant, v. Robert William BLAKEY, Jr., Defendant and Appellee.
    No. 21790.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 28, 2001.
    Decided Oct. 31, 2001.
    Mark Barnett, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
    Jerry Pollard of Kabeiseman & Pollard, Yankton, South Dakota, Attorneys for defendant and appellee.
   PER CURIAM.

[¶ 1.] The State appeals the dismissal of an indictment charging Robert Blakey Jr. with one count of possession of a controlled substance. We reverse and remand.

FACTS

[¶ 2.] Blakey was arrested for a parole violation for driving with a revoked license. He was taken to jail for the offense and his parole officer was contacted. The parole officer ordered that a urinalysis be conducted and Blakey tested positive for the presence of methamphetamine in his system. Based upon the result of the urinalysis, a grand jury indicted Blakey for one count of possession of a controlled substance. Prior to trial, Blakey’s counsel filed a motion to dismiss the indictment on the basis that it was predicated solely on the urinalysis and that there was “no probative corroborating evidence” to support a conviction. A hearing on the motion was held on November 14, 2000 and Blakey’s counsel and the State entered into a stipulation concerning the foregoing facts. After the hearing, the circuit court entered findings of fact and conclusions of law determining “[t]hat the mere presenee[ ] of a controlled substance in the urine when [taken] alone, does not rise to a prima facie case of unauthorized possession of a controlled substance (SDCL 22-42-5).” Based upon that determination, the circuit court entered an order dismissing the indictment. The State appeals pursuant to SDCL 23A-32-4:

An appeal by a prosecuting attorney in a criminal case may be taken to the Supreme Court, as a matter of right, from a judgment, or order of a circuit court sustaining a motion to dismiss an indictment or information on statutory grounds or otherwise!.]

ISSUE ONE

[¶ 3.] Did the circuit court have authority to dismiss the indictment for insufficiency of the evidence?

[¶ 4.] As its first issue, the State argues the circuit court lacked authority to dismiss the indictment because insufficiency of the evidence is not grounds for pretrial dismissal of an indictment under SDCL 23A-8-2:

Upon motion of a defendant made pursuant to subdivision 23A-8-3 (1), (2) or (3), the court must dismiss an indictment or information in any of the following eases:
(1) When it is not found, endorsed, and presented or filed as prescribed by this title;
(2) When the names of the witnesses are not inserted at the foot of the indictment or information or endorsed thereon;
(3) When it does not substantially conform to the requirements of this title;
(4) When more than one offense is charged in a single count;
(5) When it does not describe a public offense;
(6) When it contains matter which, if true, would constitute a legal justification or excuse of the offense charged, or other bar to the prosecution;
(7) When the grand jury which filed the indictment had no legal authority to inquire into the offense charged because it was not within the jurisdiction of the grand jury or because the court was without jurisdiction of the offense charged;'
(8) When a person was permitted to be present during the session of the grand jury while the charge embraced in the indictment was under consideration, except as provided in § 23A-5-11; or
(9) When a defendant charged by information did not have or waive a preliminary hearing before the information was filed.

[¶ 5.] “Whether the [circuit] court had authority under SDCL 23A-8-2 to dismiss an indictment presents a question of law, which we review de novo.” State v. Cameron, 1999 SD 70, ¶ 7, 596 N.W.2d 49, 51. The circuit court’s lack of authority to dismiss in this case is settled by Cameron, supra. In Cameron, the defendant was indicted for a hit and run resulting in injury. Before trial, the circuit court dismissed the indictment with prejudice on the basis of its interpretation of the statute under which the defendant was charged as applied to the pertinent facts of the case. This Court reversed holding:

The circuit court dismissed the indictment without specifying the statutory basis upon which the motion was granted. This Court has previously stated that, “[bjecause these statutory grounds are exclusive” where the circuit court dismisses an indictment without specifying the statutory basis upon which the motion was granted, the order dismissing the indictment is reversible. Consequently, the order is subject to reversal for this reason alone.
Notwithstanding the trial court’s failure to specify the statutory basis for dismissing the indictment, the trial court also impermissibly considered the facts of the case in making its decision to dismiss. This Court has held that the trial court cannot “inquire into the legality or sufficiency of the evidence upon which an indictment is based when considering a dismissal under SDCL 23A-8-2.” “An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits.” The trial court impermissibly considered facts upon which the indictment was based to arrive at the conclusion the facts did not constitute the crime charged. Accordingly, we reverse and remand for a trial on the merits.

Cameron, 1999 SD 70 at ¶¶ 10, 11, 596 N.W.2d at 52 (citations omitted).

[¶ 6.] Here as well, the circuit court dismissed the indictment without specifying the statutory basis upon which the motion was granted. As in Cameron, “the order is subject to reversal for this reason alone.” Id. Also as in Cameron, the circuit court considered the facts upon which the indictment was based to arrive at its conclusion that the facts did not constitute the crime charged. Id. This also requires a reversal and a remand for a trial on the merits. See id.

[¶ 7.] Blakey seeks to avoid the above result by contending his motion to dismiss was raised and granted as a defense, objection or request capable of determination before trial under SDCL 23A-8-3: “Any defense, objection or request which is capable of determination without the trial of the general issue may be raised before trial by motion.” However, similar contentions have been rejected under the federal counterpart to SDCL 23A-8-3, Federal Rule of Criminal Procedure 12(b). In U.S. v. Ayarza-Garcia, 819 F.2d 1043, 1048 (11th Cir.1987), the U.S. Court of Appeals for the Eleventh Circuit ruled:

Fed.R.Crim.P. 12(b) provides that “[a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.” ... As the language of the rule indicates, when the issue raised involves a question that may not be determined without “trial of the general issue” it is not proper for decision by pretrial motion. The “general issue” has been defined as evidence relevant to the question of guilt or innocence.
It follows that a pretrial motion to dismiss the indictment cannot be based on a sufficiency of the evidence argument because such an argument raises factual questions embraced in the general issue ....
... Therefore, because Appellants’ ... challenge was a challenge to the sufficiency of the government’s evidence which would have involved determination of issues of fact going to the merits of the case, the district court did not err in determining that resolution of the jurisdictional question by pretrial motion to dismiss was not appropriate in this case. The proper procedure for raising Appellants’ challenge to the sufficiency of the government’s evidence ... was by a motion for judgment of acquittal under Rule 29 [SDCL 28A-23-1] and not by a pretrial motion to dismiss, (citations omitted)(emphasis added).

The U.S. Court of Appeals for the Ninth Circuit has similarly reasoned:

[A] Rule 12(b) motion to dismiss is not the proper way to raise a factual defense .... Inasmuch as [the defendant’s] arguments before the district court challenged the government’s ability to prove that her actions affected commerce, her motion to dismiss amounted to a premature challenge to the sufficiency of the government’s evidence tending to prove a material element of the offense....
... Reliance on Rule 29 [ie., a motion for judgment of acquittal] instead of a pretrial motion to dismiss may be less efficient, because Rule 12 serves to help conserve “judicial resources by facilitating the disposition of cases without trial.” However, the unavailability of Rule 12 in determination of general issues of guilt or innocence ... helps ensure that the respective provinces of the judge and jury are respected and that the facts are fully developed before disposition of the case.

U.S. v. Nukida, 8 F.3d 665, 669-70 (9thCir.1993) (citations omitted).

[¶ 8.] Based upon the foregoing, the circuit court’s dismissal of the indictment in this case must be reversed.

[¶ 9.] Reversed and remanded.

[¶ 10.] SABERS, Acting Chief Justice, and AMUNDSON, KONENKAMP, and GILBERTSON, Justices, participating.

[¶ 11.] MILLER, Retired Chief Justice, was a member of the Court at the time this action was submitted, but was disqualified and did not participate.

       We reserve for a time when it is properly presented the issue of whether this state will follow the majority rule in State v. Griffin, 220 Wis.2d 371, 584 N.W.2d 127, 131 (Wis.Ct.App.1998) that a urinalysis result alone is not sufficient evidence to sustain a conviction for possession of a controlled substance.


author: GILBERTSON, Chief Justice.

text:
    2001 SD 132
    C & W ENTERPRISES, INC., a South Dakota Corporation, Plaintiff and Appellee, v. CITY OF SIOUX FALLS, Defendant and Appellant.
    No. 21735.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 1, 2001.
    Decided Nov. 7, 2001.

      Ronald A. Parsons, Jr., Chad Swenson of Johnson, Heidepriem, Miner, Marlow and Janklow, Sioux Falls, for plaintiff and appellee.
    Lon J. Kouri, David A. Pfeifle of May, Johnson, Doyle <& Becker, Sioux Falls, for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] The City of Sioux Falls (City) and Sweetman Construction Company (Sweet-man) entered into a general contract for the construction of an overpass and ramp at the intersection of 1229 and Louise Avenue in Sioux Falls. Sweetman subcontracted the sewer and watermain work to C & W Enterprises, Inc. (C & W), with the approval of City. Problems with the project specifications resulted in necessary repairs, the cost of which was born by C & W. C & W sued City for breach of contract and damages. At trial, the jury found for C & W in the amount of $270,000. City moved for judgment n.o.v. and, in the alternative, a new trial. The trial court denied the motion for a new trial, but granted partial judgment n.o.v. on the verdict amount over $180,000. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On July 9, 1992, the State of South Dakota entered into a contract with Sweet-man for work on a portion of the South Dakota Highway system located at the intersection of 1229 and Louise Avenue in Sioux Falls. This intersection lies in an area of Lincoln County called the Prairie View watershed and is known for its drainage problems. Sweetman subcontracted the construction of the sanitary sewer system and relocation of the watermain, a portion of the project controlled by City, to C & W on November 24, 1992. Both the original contract and the subcontract were subject to the agreement and approval of City.

[¶ 3.] The terms of the subcontract required that C & W complete the sewer and watermain project in accordance with the terms of the general contract, which was jointly prepared by City and the State. The contract included both general conditions, which are standard specifications incorporated into every City contract, and the more detailed specifications for this particular project. The contract specifications for the sewer and watermain projects were designed, drafted and enforced by the Office of the City Engineer. Additionally, a City inspector was assigned to be on site as the work was performed.

[¶ 4.] C & W’s project essentially required 10 inch PVC sewer pipe to be laid inside a 14 inch steel casing. The piping was also to be supported by Type A bedding material, “1/4 to- ¾ inch crushed rock or pea gravel,” which is used to provide support while maintaining the proper grade and water flow. Under particularly wet or unstable ground conditions, however, Type B bedding material is required. Type B bedding material consists of oversized “3/4 to 2 inch rock” and is considerably more expensive. For this reason, the contract provided “[i]f Type B oversized material is necessary to stabilize the trench base, such will be specified by the Engineer .... ” (underlined in original).

[¶ 5.] The first 300 feet of the project progressed normally, with C & W using the Type A bedding material, but with ground conditions continuing to worsen. The City inspector was on site inspecting the work for compliance and providing daily reports to the City engineer. When the crew reached what was approximately the 300-foot mark, they hit an abandoned pipeline, which flooded the trench. The crew’s superintendent officially requested that City authorize Type B bedding material for the remainder of the excavation. The City inspector informed C & W of City’s refusal to authorize the Type B bedding material and the project continued, albeit with some difficulty, until the crew reached the last 355 feet of the excavation.

[¶ 6.] The conditions in the last 355 feet were so wet that C & W’s project superintendent contacted Warren Barse, the company owner, explained the problem and informed him of City’s refusal to authorize and pay for Type B bedding material. Barse instructed the superintendent to go ahead and use the Type B bedding material if the job could not be completed without it. Therefore, the last 355 feet of the project contain the Type B bedding material. This material, however, was not approved until September 14, 1999. The entire project was completed by the end of September.

[¶ 7.] When problems with sagging and bending of the pipe were discovered in the first 300 feet, C & W repaired this damage at its own expense. A second inspection, however, revealed cracking and sagging in the bridge and ramp near the 400 to 500-foot mark, a point beyond the area where C & W had officially requested authorization for use of the Type B bedding material. The steel casing around the water pipe bent, causing the bridge above to crack. City demanded that C & W also correct this problem and rebury the pipe at its own expense. No problems were encountered in the final 355 feet in which Type B bedding material was used. C & W made the repairs and the project was completed.

[¶ 8.] When City refused to pay for the repairs, C & W sued City for breach of contract and sought to recover approximately $180,000 in damages related to repair of the 400 to 500-foot section of the project. C & W also sought damages in the amount of the last installment owing on the contract, which City refused to pay. City filed a Third Party Complaint against Sweetman, but Sweetman was dismissed by stipulation on January 31, 1999. At trial, which was held from September 12 through 14, 2000, the jury found in favor of C & W for damages in the amount of $270,000 and prejudgment interest in the amount of $180,000.

[¶ 9.] On September 25, City filed a motion for judgment notwithstanding the verdict and, in the alternative, a motion for a new trial. At a hearing on October 11, 2000, the trial judge denied the motion for a new trial, but did grant partial judgment n.o.v. to reduce the verdict to $180,000, determining the error was due to jury miscalculation and not to passion, prejudice or mistake of law. City appeals, raising the following issues: ■

1. Whether the trial court erred in holding C & W, as a subcontractor specifically approved by City, is in privity of contract with City such that it may sue City for a breach of contract.
2. Whether the trial court erred in denying City’s motion for a directed verdict and in partially denying city’s motion for judgment notwithstanding the verdict.
3. Whether the trial court erred in denying City’s motion for a new trial.

STANDARD OF REVIEW

[¶ 10.] City challenges the trial court’s denial of its motion for a directed verdict. Our standard of review on motions for directed verdict is well settled:

A motion for a directed verdict under SDCL 15-6-50(a) questions the legal sufficiency of the evidence to sustain a verdict against the moving party. Upon such a motion, the trial court must determine whether there is any substantial evidence to sustain the action. The evidence must be accepted which is most favorable to the nonmoving party and the trial court must indulge all legitimate inferences therefrom in his favor. If sufficient evidence exists so that reasonable minds could differ, a directed verdict is not appropriate. The trial court’s decisions and rulings on such motions are presumed correct and this Court will not seek reasons to reverse.

Veeder v. Kennedy, 1999 SD 23, ¶ 25, 589 N.W.2d 610, 617 (quoting Border States Paving, Inc., v. S.D. Dep’t of Transp., 1998 SD 21, ¶ 10, 574 N.W.2d 898, 901) (citations omitted).

[¶ 11.] City also challenges the trial court’s partial denial of its motion for judgment notwithstanding the verdict. A motion for judgment n.o.v. “is based on and relates back to a directed verdict motion made at the close of all the evidence.” State v. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d 12, 15 (citing SDCL 15-6-50(b)). The grounds for the directed verdict motion are merely brought before the trial court for a second review. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d at 15. “Thus, we apply the abuse of discretion standard when reviewing the trial court’s ruling.” Id. (citing Treib v. Kern, 513 N.W.2d 908, 914 (S.D.1994)). After reviewing the evidence in a light most favorable to the verdict, we determine whether there is sufficient evidence to support it. Perovich, 2001 SD 96, ¶ 11, 632 N.W.2d at 15.

[¶ 12.] City also moved for a new trial on the basis that the jury’s verdict was excessive. “Whether a new trial should be granted is left to the sound judicial discretion of the trial court, and this Court will not disturb the trial court’s decision absent a clear showing of abuse of discretion.” Id. (citing Tunender v. Minnaert, 1997 SD 62, ¶ 9, 563 N.W.2d 849, 851 (citation omitted)). Moreover, the determination of an award amount “is peculiarly a question for the jury.” Maryott v. First Nat’l Bank of Eden, 2001 SD 43, ¶ 26, 624 N.W.2d 96, 105 (citing Berry v. Risdall, 1998 SD 18, ¶ 9, 576 N.W.2d 1, 4). Therefore, “[i]f the jury’s verdict can be explained with reference to the evidence rather than by juror passion, prejudice or mistake of law, the verdict should be affirmed.” Id.

ANALYSIS AND DECISION

[¶ 13.] 1. Whether the trial court erred in holding C & W, as a subcontractor specifically approved by City, is in privity of contract with City such that it may sue City for a breach of contract.

[¶ 14.] This Court has previously held that a subcontractor may proceed in a breach of contract action against the first party where the parties are in privity with one another. See Fisher Sand & Gravel Co. v. State, Dept. of Transp., 1997 SD 8, ¶ 9-10, 558 N.W.2d 864, 867; Sweetman Const. Co., Inc. v. State, 293 N.W.2d 457, 461 (S.D.1980). Privity of contract occurs when: (1) the subcontractor is specifically approved by the first party; and (2) the two parties owe reciprocal duties to one another under the contract. Id. The trial court held that this precedent applies here. We agree.

[¶ 15.] City expressly approved C & W for the sewer and watermain work, a portion of the project designed, drafted and enforced by the Office of the City Engineer. C & W was obliged to complete the work in compliance with City’s specifications and was subject to daily inspection by the City inspector. Likewise, City was required to specify the method and materials used for the project and to pay C & W for its work when the project was completed. Furthermore, the contract specifications themselves recite application to subcontractors as well as general contractors: “These general specifications are hereby made a part of all specifications hereafter issued as if thereto attached and shall apply to all Contractors and Sub-Contractors on all construction projects and shall be fully a part of all Contracts thereby entered into with the City.” City’s own drafting indicates its recognition of being in privity of contract with its subcontractors.

[¶ 16.] City, however, attempts to distinguish the Fisher and Sweetman holdings by relying upon the importance that SDCL 31-2-34 played in their outcome. City claims that these holdings only apply to those instances where a subcontractor is suing the State, not to instances where a subcontractor is suing a municipality. This reliance is misplaced. The jurisdictional implications of SDCL 31-2-34 merely played a role in these holdings because the Eleventh Amendment to the United States Constitution, as well as Article III, Section 27 of the South Dakota Constitution, prohibit lawsuits against the State in the absence of an express abrogation of its sovereign immunity. The South Dakota Legislature has provided express abrogation of immunity for municipalities in this context. See SDCL 9-12-1(1) (providing “[e]very municipality shall have power [ ] to sue and be sued and to contract in its corporate name ....”). The rationale of the Fisher and Sweetman holdings, as applied to municipalities, remains the same. When City enters into a contract with a general contractor, who in turn subcontracts with another party under the express approval of City, it would defy logic to allow City or the subcontractor to be immune from liability to one another, particularly when the contracts give rise to reciprocal duties between them. See City of Lennox v. Mitek Indus., Inc., 519 N.W.2d 330, 333 (S.D.1994) (allowing lawsuit between first party city and subcontractor on breach of contract claim, but affirming summary judgment on other grounds); Wilson v. Hogan, 473 N.W.2d 492, 494 (S.D.1991) (holding city waives immunity by entering into contract); Blue Fox Bar, Inc. v. City of Yankton, 424 N.W.2d 915, 917-18 (S.D.1988) (holding governmental immunity is no defense to contractual liability).

[¶ 17.] City also attempts to argue that the competitive bidding requirements of SDCL chapter 5-18 negate the issue of privity. City cites to Bak v. Jones County, 87 S.D. 468, 210 N.W.2d 65 (S.D.1973), and Hoiten v. City of Canistota, 1998 SD 44, 579 N.W.2d 12, to support its position. These cases, however, do not apply to the facts at hand. Bak addresses the officious in-termeddler who is not required to be compensated for work completed without bidding, without city approval and without any specifications whatsoever. 87 S.D. 468, 210 N.W.2d at 69-70,. Hoiten addresses the unenforceability of an informal oral agreement to change the terms of compensation for a city project, a change that essentially amounted to illegal padding. 1998 SD 44 at ¶ 4-6, 579 N.W.2d at 13-14. C & W, however, did not engage in any informal conversations to alter the terms or specifications of the contract. Nor did C & W perform new or additional work without City’s approval. Thus, City’s argument is without merit.

[¶ 18.] 2. Whether the trial court erred in denying City’s motion for a directed verdict and in partially denying City’s motion for judgment notwithstanding the verdict.

[¶ 19.] City moved for a directed verdict on the basis that C & W breached its contract by failing to substantially perform. City also alleged that C & W failed to establish proximate cause. Given the conflicting testimony and evidence regarding these issues, the trial court determined that they were questions for a jury. See Harms v. Northland Ford Dealers, 1999 SD 143, ¶ 21, 602 N.W.2d 58, 63; Cotton v. Manning, 1999 SD 128, ¶ 6, 600 N.W.2d 585, 589-90; Gilkyson v. Wheelchair Express, Inc., 1998 SD 45, ¶7, 579 N.W.2d 1, 3. Likewise, when considering City’s motion for judgment n.o.v., the trial court concluded, aside from the excessive amount, that there was sufficient evidence to sustain the verdict. We agree.

[¶20.] As explained above, a directed verdict or, in the alternative, a judgment n.o.v., is only justified when the evidence is such that reasonable minds cannot differ as to the outcome. Veeder, 1999 SD 23 at ¶ 25, 589 N.W.2d at 617. Here, conflicting evidence was introduced as to whether C & W used the proper bedding material according to the contract specifications. This evidence was submitted to the jury with appropriate jury instructions explaining the burden of proof, the requirement of substantial performance, what constituted substantial performance, proximate cause and the measure of damages. City did not object to any of these instructions. Nor did City propose alternate instructions. In reviewing the jury’s verdict, we do not reweigh the evidence, pass judgment on the credibility of the witnesses, or substitute our judgment for that of the fact finder. See Berry, 1998 SD 18 at ¶ 10, 576 N.W.2d at 4; Bakker v. Irvine, 519 N.W.2d 41, 49 (S.D.1994). Thus, we cannot say that City was, as a matter of law, entitled to either a directed verdict or judgment n.o.v., aside from the trial court’s reduction in damages.

[¶ 21.] 3. Whether the trial court erred in denying City’s motion for a new trial.

[¶ 22.] A jury’s verdict may be set aside by the trial court only in those rare circumstances where it is patently clear that the verdict was “the result of passion or prejudice or [that] the jury has palpably mistaken the rules of law_” LDL Cattle Co., Inc. v. Guetter, 544 N.W.2d 523, 526-27 (S.D.1996) (quoting Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983)). City moved for a new trial pursuant to SDCL 15-6-59(a)(5), which provides: “A new trial may be granted to all or any of the parties and on all or part of the issues for any of the following causes: ... Excessive or inadequate damages appearing to have been given under the influence of passion or prejudice.” Thus, we must consider whether, in light of the $270,000 verdict, the trial court abused its discretion in denying City’s motion for a new trial. Maryott, 2001 SD 43 at ¶ 26, 624 N.W.2d at 105.

[¶ 23.] While it is true that the $270,000 damage award was excessive, the trial court remedied this error by granting partial judgment n.o.v. and reducing the verdict to an amount supported by the evidence. The trial court attributed the excess award to jury miscalculation, and not to any passion, prejudice or mistake of law. See id. (noting that “[t]he trial court is best able to judge whether the damages awarded by a jury are the product of passion or prejudice.”) (quoting Berry, 1998 SD 18 at ¶ 10, 576 N.W.2d at 4). We do not see that this determination is an abuse of the trial court’s discretion. Therefore, we affirm the trial court’s denial of City’s motion for a new trial.

[¶ 24.] SABERS, AMUNDSON, KONENKAMP, Justices, and GORS, Circuit Judge, Acting Supreme Court Justice, concur.

      . Roger Sorgdrager, the man serving in this capacity, had only recently béen hired by City and had no prior inspection experience.

      . No damages were sought for the repairs on the first 300 feet of the project and no repairs were needed on the final 355 feet. Therefore, the only repairs at issue are those that were required in the middle 360 feet of the project where C & W requested authorization for Type B bedding material.

      . SDCL 31-2-34 is a statutory exception to the sovereign immunity doctrine, which provides that the State may be sued on a construction contract.

      . City introduced evidence challenging C & W's use of "select fill," also ^described as "chalky, dusty gravel.” City asserted that the material used by C & W did not qualify as Type A bedding material, and therefore C & W did not substantially perform under the contract. The trial court, however, found otherwise.

      . C & W admitted in the motion hearing that the evidence only established damages in the amount of $180,000 and not $270,000.


author: LAVORATO, Chief Justice.

text:
    STATE of Iowa, Appellee, v. Sherry Kay KRESS, Appellant.
    No. 00-1173.
    Supreme Court of Iowa.
    Nov. 15, 2001.

      Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Richard R. Phillips, County Attorney, and Dana Christensen, Assistant County Attorney, for appellee.
   LAVORATO, Chief Justice.

The defendant, Sherry Kay Kress, appeals from her conviction and sentence upon her guilty plea to procurement of a prescription drug by forgery. She contends that her counsel was ineffective in permitting her to enter a guilty plea and failing to file a motion in arrest of judgment because the district court misinformed her concerning the application of Iowa Code section 124.413 (1999) (minimum sentence provision). She also asserts the district court erred in imposing the one-third mandatory minimum sentence under section 124.413. We find no error in the court’s ruling on section 124.413 imposing the mandatory minimum sentence. However, because we conclude Kress has established her ineffective-assistance-of-counsel claim, we vacate her conviction and sentence and remand for further proceedings.

I. Background Facts and Proceedings.

On February 16, 2000, Kress presented a prescription for two drugs — Precose and Ritalin — to a pharmacist at Drug Town Pharmacy in Muscatine, Iowa. Ritalin is a schedule II controlled substance. See Iowa Code § 124.206(4)(d). The pharmacist noticed that the prescription appeared altered. He checked with the office of the physician whose name appeared on the prescription. In doing so, the pharmacist discovered that the physician had not signed the prescription and that Kress had only been prescribed Precose. A licensed physician’s assistant in the physician’s office had actually written the prescription for the drug Precose. The physician’s assistant was not legally authorized to prescribe Ritalin.

The pharmacist gave Kress a bottle with only two Ritalin pills (even though the prescription was for ninety) and called the police, who investigated the incident. As a result of the investigation, the State charged Kress with procurement of a prescription drug by forgery. See Iowa Code § 155A.23(l)(b) (providing that a person shall not “[ojbtain or attempt to obtain a prescription drug ... by ... [fjorgery or alteration of a prescription or any written order”), (4) (providing that a person shall not “[m]ake or utter any false or forged prescription or written order”). The State also charged that on April 1, 1997, Kress had been convicted of possession of a controlled substance with intent to deliver, a class “C” felony.

On May 26, District Judge James R. Havercamp took Kress’s plea of guilty. The judge told Kress that she would have to serve a minimum period of confinement equal to one-third of the maximum indeterminate sentence prescribed by the Iowa Code, unless the sentencing court waived the one-third requirement. In addition, the judge told Kress that, because of her prior conviction, the sentencing court would also have the discretion to impose up to three times the maximum sentence. The judge made clear that he was not telling Kress what her sentence would be, but rather what her sentence could be. After the attorneys advised the court that there was no plea agreement, the judge told Kress that the sentencing judge could impose any punishment authorized by law.

Neither Kress nor her attorney objected to or otherwise questioned the judge’s explanation of the possible punishments. After acknowledging she understood these possibilities, Kress pleaded guilty. She admitted that she had someone alter the prescription by adding the drug, Ritalin. She also admitted the prior drug conviction.

Dr. James Yeltatzie, one of Kress’s treating doctors, wrote a letter to Kress’s attorney two months before the plea proceedings. The letter helps explain the circumstances surrounding the incident. Dr. Yeltatzie wrote that Kress had been taking Ritalin, but that he had discontinued Ritalin and changed her medication to Adderal. The doctor explained that Adderal is actually stronger than Ritalin in controlling attention difficulties and problems with concentration. He further explained that Kress was not aware of this and began to panic because she did not have any Ritalin. The doctor concluded his letter, stating that he

would hope that the courts would be able to take into consideration her mental status, her sense of panic and the fact that I already [had] written for a stronger medication for her to receive, yet she could only focus on the fact that she did not have any Ritalin and this was very bothersome to her.

The record shows that Kress is afflicted with a number of health problems and is on numerous medications. Ironically, following the incident giving rise to the criminal charges, Kress’s doctor decided that Adderal was not effective and once again prescribed Ritalin.

On July 7, District Judge David E. Sehoenthaler sentenced Kress. The judge refused to enhance the sentence because of the prior conviction, waived any mandatory minimum requirements applicable to the sentence, and imposed an indeterminate ten-year sentence. The judge also assessed a $1000 fine and suspended Kress’s driver’s license for 180 days.

Minutes later, Judge Sehoenthaler reopened the record. The judge explained that he had no discretion to waive the one-third mandatory minimum sentence and deleted that provision from his sentencing order. Neither Kress nor her attorney objected. Nor did either file a motion in arrest of judgment challenging the validity of the plea.

II. Issues.

On appeal, Kress contends that her trial counsel was ineffective on two grounds. First, he failed to object during the plea proceedings after the district court improperly informed Kress of the range of possible punishments. Second, he failed to file a motion in arrest of judgment to challenge the plea or otherwise object to the correction of the sentence once the court discovered its sentencing error. She asserts that her counsel’s failures were prejudicial because they resulted in a plea that was neither knowingly made nor voluntary. She asks us to set aside her conviction and sentence and remand the case for further proceedings.

In the alternative, Kress contends the district court incorrectly concluded that the mandatory minimum applied in this case. She asks us to vacate her sentence and remand the case for resentencing. We address the latter claim first.

III. One-third Mandatory Minimum Claim.

A. Error preservation and scope of review. As mentioned, Kress contends she was not subject to the one-third mandatory minimum sentence found in Iowa Code section 124.413. If she is correct, the sentence is illegal. An illegal sentence

is one that is not permitted by statute. An illegal sentence is void and “not subject to the usual concepts of waiver, whether from a failure to seek review or other omissions of error preservation.” Because an illegal sentence is void, it can be corrected at any time.

State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000) (quoting State v. Ohnmacht, 342 N.W.2d 838, 842, 843 (Iowa 1983)) (citations omitted).

Because Kress’s contention raises a question of statutory interpretation, our review is for correction of errors at law. State v. Ceron, 573 N.W.2d 587, 589 (Iowa 1997).

B. Analysis. Iowa Code section 155A.23(l)(b) provides:

A person shall not ... [ojbtain or attempt to obtain a prescription drug or procure or attempt to procure the administration of a prescription drug by ... [fjorgery or alteration of a prescription or of any written order.
Iowa Code section 155A.23(4) provides:
A person shall not ... [m]ake or utter any false or forged prescription or written order.

If the prescription drug is a controlled substance, Iowa Code sections 124.401(1) and 124.411 control the punishment of those who violate section 155A.23. See Iowa Code § 155A.24. As mentioned, the prescription drug here was Ritalin, also known as Methylphenidate, a schedule II controlled substance. See Iowa Code § 124.206(4)(d).

A violation of section 124.401(1) (prohibiting manufacture, delivery, or possession with intent to manufacture or deliver a controlled substance) is a class “C” felony, punishable by up to ten years imprisonment and a fine of up to $50,000. See Iowa Code §§ 124.401(l)(c)(8), 902.9(3).

Section 124.411(1) provides additional penalties for second or subsequent offenses:

Any person convicted of a second or subsequent offense under this chapter, may be punished by imprisonment for a period not to exceed three times the term otherwise authorized, or fined not more than three times the amount otherwise authorized, or punished by both such imprisonment and fine.

Iowa Code § 124.411(1).

Section 124.413 provides the following mandatory minimum sentence for certain offenders:

A person sentenced pursuant to section 124.401, subsection 1, paragraph “a”, “b ”, “c ”, “e ”, or “/”, shall not be eligible for parole until the person has served a minimum period of confinement of one-third of the maximum indeterminate sentence prescribed by law.

Iowa Code § 124.413. We have held that this provision means what it says: A person subject to section 124.413 is not eligible for parole until that person has served the minimum period of confinement specified. Luter v. State, 343 N.W.2d 490, 492 (Iowa 1984); State v. Morehouse, 316 N.W.2d 884, 886 (Iowa 1982).

After this court decided Luter and Morehouse, the legislature passed legislation providing that the application of section 124.413 is not mandatory in all cases. 1985 Iowa Acts ch. 41, § 1 (codified at Iowa Code § 901.10 (1999)) (providing that when sentencing for a first conviction under section 124.413, court has discretion to impose a sentence less than provided by statute if mitigating circumstances exist and are stated on the record); State v. Thomas, 547 N.W.2d 223, 225-26 (Iowa 1996). Because of Kress’s previous conviction of possession with intent to deliver, the section 124.413 mandatory minimum sentencing requirement would apply if we determine it is applicable in this case. See Luter, 343 N.W.2d at 492; Morehouse, 316 N.W.2d at 886.

The district court sentenced Kress pursuant to section 124.401(l)(c). Although it could have, the court did not impose the section 124.411(1) triple enhancement for repeat offenders. However, the court did apply the section 124.413 mandatory minimum sentence.

As mentioned, section 155A.24 provides that a person who violates the provisions of section 155A.23 “shall be punished pursuant to section 124.401, subsection 1, and section 124.411” if the drug involved is a controlled substance. See Iowa Code § 155A.24. Kress argues the legislature’s failure to refer to the one-third mandatory minimum of section 124.413 in section 155A.24 makes the mandatory minimum sentencing requirement inapplicable to violations of section 155A.23. If the legislature had intended for the mandatory minimum sentencing requirement to apply to violations of section 155A.23, Kress argues, it would have referred to section 124.413 in section 155A.24.

In countering these arguments, the State points to the differences in the language of sections 124.413 and 124.411. Section 124.411 applies to persons “convicted of a second or subsequent offense under this chapter.” Iowa Code § 124.411 (emphasis added). Because of the quoted language, the State argues that section 124.411 would not apply to violations of section 155A.23 without a specific reference in section 155A.24 to section 124.411. In contrast, the State further argues, section 124.413 applies to a “person sentenced pursuant to” certain provisions of section 124.401(1). Iowa Code § 124.413 (emphasis added). Because Kress was sentenced pursuant to provisions of section 124.401(1), the State concludes, she meets the criteria required for application of the one-third mandatory minimum sentence found in section 124.413.

We agree with the State. A person who violates a provision of section 155A.23 “shall be punished pursuant” to section 124.401(1). See Iowa Code § 155A.24. A person “sentenced pursuant to” section 124.401(l)(c) must serve the one-third mandatory minimum sentence. See Iowa Code § 124.413. The language of these statutes makes clear that Kress, “punished pursuant to” section 124.401(1) and “sentenced pursuant to” section 124.401(l)(c), is subject to the section 124.413 mandatory minimum sentence requirement. See State v. Rodgers, 560 N.W.2d 585, 586 (Iowa 1997) (noting that we apply statutes according to their terms). Because of the clear relationship between sections 124.401(1) and 124.413 found in the language of those sections, there was no need for the legislature to include a reference to section 124.413 in section 155A.24.,

We think the legislature intended the same penalties for violations under Iowa Code chapter 155A and Iowa Code chapter 124 when controlled substances are involved. More specifically, the legislature intended equivalent punishment for those convicted of manufacture, delivery, or procurement of controlled substances by forgery, fraud, or deceit. In plain language, the legislature tied those violations of chapter 155A relating to controlled substances to chapter 124. It would indeed seem absurd and inconsistent with this intent to apply the section 124.411 triple enhancement to violations under chapter 155A without also applying the section 124.413 mandatory minimum sentence. See State v. Byers, 456 N.W.2d 917, 919 (Iowa 1990) (noting that court seeks a “reasonable interpretation that will best effect the legislative purpose and avoid absurd results”). We conclude the plain language of section 124.413 ties it to violations of section 124.401, and that connection renders section 124.413 applicable to violations of chapter 155A.

The district court did not err in applying the section 124.413 one-third mandatory minimum sentence to this case.

IY. Ineffective Assistance of Counsel.

Kress argues her counsel rendered ineffective assistance for two reasons. First, he failed to ensure the court properly followed Iowa Rule of Criminal Procedure 8(2)(b) (providing that court in taking a plea must inform defendant of several matters). Second, he failed to file a motion in arrest of judgment challenging the plea or otherwise object to the correction of the sentence once the sentencing court discovered its sentencing error. Kress further argues that her counsel’s failures were prejudicial because they resulted in a plea that was neither knowing nor voluntary. For reasons that follow, we agree with all of these contentions.

A. Error preservation and scope of review. Iowa Rule of Criminal Procedure 23(3)(a) requires a defendant to file a motion in arrest of judgment if the defendant desires to challenge the adequacy of a guilty plea procéeding on appeal. We read rule 23(3)(a) in conjunction with Iowa Rule of Criminal Procedure 8(2)(d). State v. Boone, 298 N.W.2d 335, 337 (Iowa 1980). Rule 8(2)(d) requires the court to inform a defendant that the defendant’s failure to file a motion in arrest of judgment will preclude the defendant from challenging defects in a guilty plea proceeding on appeal.

Kress does not contend the district court failed to inform her of the necessity to file a motion in arrest of judgment to preserve her challenge to the validity of the plea proceedings. Additionally, the record is clear that Kress did not challenge the validity of her plea by motion in arrest of judgment. However, the rule 23(3)(a) bar does not apply here because of Kress’s claim that her counsel’s ineffective assistance resulted in her failure to file the motion. See State v. Hildebrant, 405 N.W.2d 839, 840 (Iowa 1987) (failure to file motion in arrest of judgment due to the ineffective assistance of counsel did not preclude appellate review of defendant’s contention there was no factual basis for guilty plea).

Because ineffective-assistance-of-counsel claims raise issues under the Sixth Amendment to the Federal Constitution, our review is de novo. State v. Gant, 597 N.W.2d 501, 504 (Iowa 1999).

B. Elements of ineffective-assistance-of-counsel claim. To establish her claim of ineffective assistance of counsel, Kress must show that her trial counsel failed to perform an essential duty and that this failure resulted in prejudice. Id. Kress must prove both elements by a preponderance of evidence. Id. If either element is absent, we affirm. Id.

As to the first element, Kress “must prove [her] trial counsel’s performance was not within the normal range of competence.” Id. We measure the attorney’s performance by standards of reasonableness consistent with “ ‘prevailing professional norms.’ ” Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 694 (1984)).

At the outset, we presume competency and we avoid second-guessing and hindsight. Id. “Miscalculated trial strategies and mere mistakes in judgment normally do not rise to the level of ineffective assistance of counsel.” Id. at 143. In a guilty-plea case, the defendant must show that counsel’s advice was not within the normal range of competency demanded of attorneys in criminal cases. Mott v. State, 407 N.W.2d 581, 582 (Iowa 1987).

To establish the second element, Kress “must prove [her] counsel’s error resulted in an actual and substantial disadvantage, creating a reasonable probability that but for the error the outcome of the proceeding would have been different.” Gant, 597 N.W.2d at 504. “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Ledezma, 626 N.W.2d at 143 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698).

C. Analysis.

1. Iowa Code section 124.413— a sentencing provision. Kress characterizes section 124.413 as a sentencing provision. This is contrary to the holding of several cases. These cases hold that section 124.413 is not a sentencing provision but rather a limitation on eligibility of parole. Kinnersley v. State 494 N.W.2d 698, 700 (Iowa 1993); Luter, 343 N.W.2d at 492; Morehouse, 316 N.W.2d at 886. For reasons that follow, we agree with Kress that section 124.413 is a sentencing provision. We overrule Kinnersley, Luter, and Morehouse to the extent they hold otherwise.

In determining whether section 124.413 is a sentencing provision, we search for an interpretation that reflects legislative intent. See State v. Iowa Dist. Ct. for Monroe County, 630 N.W.2d 778, 781 (Iowa 2001). In searching for that intent, we consider statutes in context and harmonize them with related statutes. State v. Casey’s Gen. Stores, Inc., 587 N.W.2d 599, 601 (Iowa 1998).

The language in Iowa Code section 901.10 gives a clue as to what was the legislature’s intent regarding the nature of section 124.413. In section 901.10, a court “sentencing” a defendant “under section ... 124.413” has discretion to “sentence the person to a term less than provided by the statute [section 124.413].... ” Iowa Code § 901.10(1) (emphasis added). In section 901.10(2), the legislature limits the court’s ability to grant a “reduction of sentence ” in certain cases. Id. § 901.10(2) (emphasis added). This last provision refers to the requirements of section 124.413 repeatedly as a “mandatory minimum sentence.” Id.

The legislature’s choice of title for section 901.10 also throws light on the legislature’s intent regarding the nature of section 124.413. See Iowa Dist. Ct. for Monroe County, 630 N.W.2d at 781 (stating that the title of a statute may be considered in determining legislative intent). Originally, section 901.10 was entitled “imposition of mandatory minimum sentences,” and the act was described as one “relating to the imposition of mandatory minimum sentences. ” 1985 Iowa Acts ch. 41 (emphasis added). In 1999, the legislature amended section 901.10 by adding another subsection. 1999 Iowa Acts ch. 12, § 14. This amendment also changed the title of the section to “reduction of sentences.” /¿(emphasis added).

In addition to the terminology the legislature chose, the statutory scheme for implementation of section 124.413 indicates it is a sentencing provision. Significantly, section 901.10 gives the court, rather than the parole board, the express power to determine the application of section 124.413. That the court determines such application makes clear that section 124.413 is a sentencing statute. See generally State v. Iowa Dist. Ct. for Black Hawk County, 616 N.W.2d 575, 578 (Iowa 2000) (stating that the sentencing of a defendant “is an independent function that is the sole province of the judiciary”).

The mere fact that section 124.413 refers to parole eligibility does not make the statute one that limits the parole board. It is a sentencing statute as evidenced by the power given to the court to determine its applicability. The impact on parole is incidental — an impact that occurs in every case where a mandatory minimum sentence is imposed.

2. Trial counsel’s ineffectiveness regarding the guilty plea and the motion in arrest of judgment. To the extent Kress alleges the district court failed to inform her fully of the consequences of her plea, she implicates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. State v. Carney, 584 N.W.2d 907, 908 (Iowa 1998). A guilty plea results in a waiver of several constitutional rights. Boone, 298 N.W.2d at 337. For the waiver to be valid, there must be an intentional relinquishment of known rights. Id. Due process therefore requires that a defendant enter a guilty plea voluntarily and intelligently. Id. To enter a guilty plea voluntarily and intelligently means the defendant has a full understanding of the consequences of a plea. Id.

Iowa Rule of Criminal Procedure 8(2)(b) governs the acceptance of guilty pleas. Substantial — not strict — compliance with the rule is all that is required. State v. Kirchoff, 452 N.W.2d 801, 804 (Iowa 1990).

Under rule 8(2)(b), we must find that Kress entered her plea “intelligently in the sense that [she] had been informed of, and understood, the matters listed in rule 8(2)(b).” Id. at 805. Among other things, the court must inform the defendant of and determine that the defendant understands “[t]he mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.” Iowa R.Crim. P. 8(2)(b)(2). Failure to substantially comply with rule 8(2)(b) renders the plea involuntary. State v. White, 587 N.W.2d 240, 246 (Iowa 1998). In such circumstances, the remedy is to set aside the conviction and sentence and allow the defendant to plead anew. State v. Fluhr, 287 N.W.2d 857, 868-69 (Iowa 1980).

Because section 124.413 is a sentencing provision, the district court had the obligation to inform Kress, under rule 8(2)(b), of the one-third mandatory minimum sentence. Before accepting Kress’s plea, the court misinformed her that the sentencing court could waive the one-third mandatory minimum sentencing requirement in section 124.413. This was tantamount to a failure to advise her of the maximum possible punishment under that provision. Kress’s trial counsel neither corrected the misinformation nor filed a motion in arrest of judgment raising the issue. Such failure “does not involve trial tactics, strategies, or other judgment calls that we do not ordinarily second-guess. Rather, it concerns counsel’s legal misad-vice resulting from his unfamiliarity with and failure to research applicable statutory provisions” that would make clear the one-third mandatory minimum sentence applied. Meier v. State, 337 N.W.2d 204, 206-07 (Iowa 1983) (citation omitted). That placed counsel below the range of normal competency in his representation of Kress. See id. at 207.

Turning to the prejudice element, we think the prejudice results from what Kress relinquished. Id. at 208. Kress “had an unqualified constitutional right to a trial on the issue of [her] guilt, which she [may have] abandoned on the strength of [the court’s misinformation].” Id. We do not speculate on the outcome of the trial waived by her guilty plea. Id. As mentioned, the remedy called for in these circumstances is to set aside the conviction and sentence and allow the defendant to plead anew.

V. Disposition.

Because we conclude the one-third mandatory sentencing requirement in section 124.413 applied in Kress’s case, the district court committed no error in imposing it. However, because we find Kress has established her ineffective-assistance-of-counsel claim regarding the guilty plea and the motion-in arrest of judgment, we vacate Kress’s conviction and sentence and remand for further proceedings to allow her to plead anew.

CONVICTION AND SENTENCE VACATED; CASE REMANDED WITH DIRECTIONS.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellant, v. Valerie Lynn REEVES, Appellee.
    No. 00-0481.
    Supreme Court of Iowa.
    Nov. 15, 2001.
    As Corrected Dec. 26, 2001.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Michael E. Wolf, County Attorney, for appellant.
    Jon M. Kinnamon and Jerald W. Kinna-mon, Cedar Rapids, for appellee.
   LARSON, Justice.

This defendant, Valerie Reeves, was convicted of second-degree murder and appealed. The court of appeals reversed and remanded for the district court to assess her new-trial motion under the weight-of-the-evidence standard adopted in State v. Ellis, 578 N.W.2d 655, 658-59 (Iowa 1998). On remand the district court, applying this new standard, ordered a new trial. The State appealed. The court of appeals affirmed the new-trial order, and we granted the State’s application for further review. We vacate the court of appeals decision and remand for a new hearing on the defendant’s motion for new trial.

I. Facts and Prior Proceedings.

The following facts are based largely on defendant’s testimony. On September 28, 1997, Reeves left on a hitchhiking trip from her home in Normal, Illinois, to Sa-bula, Iowa. Along with clothing, Reeves packed her husband’s ten millimeter handgun. After her ride dropped her off in Sabula, she went to a tavern to drink and inquire about a place to stay for the night. The bartender called a local bed and breakfast, but there were no rooms available. One of the bar customers, Eugene Malone, offered to let her stay at the house he shared with his mother. Malone and Reeves had never met before, but the female bartender assured Reeves it would be all right, as the bartender knew Malone. Reeves left the bar with Malone. Malone’s autopsy indicated his blood alcohol content was nearly twice the legal limit. Reeves testified she had drunk enough she was blacking out at times and she was “very loaded.”

Malone took Reeves to his home. Reeves testified that once there, Malone made a sexual advance toward her, which she rejected. Malone’s mother later said she heard a female voice saying “no, no, no.” Reeves testified Malone became angry because Reeves had disturbed his mother, and he suggested they leave. Reeves believed Malone was taking her to stay somewhere else.

According to Reeves, Malone drove them in his truck into the country. She testified he stopped the truck and “attacked” her by leaning onto her and pinching her breasts very hard. Reeves testified she panicked, began screaming, and fired the gun although she does not remember retrieving it from her bag. Reeves ran from the truck because she was frightened Malone would follow her. For thirty hours, she wandered through road ditches and fields before entering a nearby town where she was spotted by a sheriffs deputy and arrested. Reeves said she was aware of the search being conducted by law enforcement.

Authorities later found a pile of the defendant’s clothing in a road ditch. Reeves testified she changed out of her clothes because they had blood on them and because, when she was frightened by the event, she had soiled her pants. The gun was found in a stream along with her bag approximately two miles from where the truck was found. The gun had three safeties, designed to prevent accidental discharge by dropping, but on this model all three safeties were disengaged merely by pulling the trigger.

Investigation of the crime scene revealed six shots had been fired, four of which struck Malone. At trial Dr. Peter Stephens, a forensic pathologist, testified for the defendant. He testified that powder burns and marks on Malone’s skin indicated the first shot struck him below the arm and went down into his stomach. The position of this wound was consistent with Malone leaning toward Reeves. The second shot struck the top of Malone’s right shoulder. The third grazed his right check and the tip of his nose. The fourth entered the back of Malone’s skull. As the shots were fired, the muzzle of the gun became increasingly elevated, which frequently occurs with inexperienced shooters and is a natural consequence of the gun’s recoil, according to this witness. He also testified that the sequence of shots was consistent with a struggle, and the progressive elevation of shots indicated Reeves had fired the gun in a continuous operation without having to reacquire the target each time the gun was fired.

In the district court’s ruling on the motion for new trial, it stated “[mjalice aforethought can be inferred from the use of a deadly weapon but must be accompanied by an opportunity to deliberate.” (Emphasis added.) The court concluded, “[tjhere is no credible evidence which shows that the Defendant had an opportunity to deliberate prior to discharging the weapon at the victim.”

II. Issues on Appeal.

A. The malice element. The sole substantive issue on appeal is whether the district court erred in applying the weight-of-the-evidence standard by ruling that the inference of malice in second-degree murder requires an opportunity to deliberate as well as the use of a deadly weapon. The court of appeals correctly noted that our cases are confusing on this question. The court ruled, under a sort of “fairly debatable” rationale, that the district court could not be held in error for choosing one of two parallel lines of cases — one requiring proof of an opportunity to deliberate and the other not. The court of appeals observed:

The law in this area is uncertain. The district court had valid legal support for its ruling. We cannot find, therefore, that it committed error.

Many Iowa cases have cited the proposition stated in State v. Love, 302 N.W.2d 115, 119 (Iowa 1981), that “[t]he use of a deadly weapon, accompanied by an opportunity to deliberate, even for a short time, is evidence of malice.” See State v. Ramirez, 616 N.W.2d 587, 592 (Iowa 2000) (citing Love); State v. Klindt, 389 N.W.2d 670, 676 (Iowa 1986) (citing Love); State v. Walker, 538 N.W.2d 316, 319 (Iowa Ct.App.1995) (citing Love); State v. Nunn, 356 N.W.2d 601, 603 (Iowa Ct.App.1984) (citing Love); see also State v. Brown, 589 N.W.2d 69, 75 (Iowa Ct.App.1998) (citing authority tracing back to Love); State v. Taylor, 516 N.W.2d 38, 41 (Iowa Ct.App.1994) (citing Nunn); State v. Wheeler, 403 N.W.2d 58, 62 (Iowa Ct.App.1987) (citing Nunn). However, Love apparently confused the elements of first- and second-degree murder when it' paraphrased oft-repeated boilerplate language contained in State v. Frazer, 267 N.W.2d 34, 39 (Iowa 1978), which is properly applicable only to our first-degree murder cases.

Malice is required for both degrees of murder. See Iowa Code § 707.1 (1997) (“A person who kills another person with malice aforethought either express or implied commits murder.”). However, first-degree murder requires proof of deliberation and premeditation in addition to malice aforethought. See Iowa Code §§ 707.1, 707.2(1). Second-degree murder, on the other hand, does not require deliberation and premeditation; it requires only proof of malice aforethought. Compare Iowa Code § 707.2(1) with § 707.3. Our first-degree murder cases have long held that the use of a deadly weapon supports an inference of malice, and when accompanied by an opportunity to deliberate, also supports an inference of deliberation and premeditation. See, e.g., Frazer, 267 N.W.2d at 39 (“The use of a deadly weapon accompanied by an opportunity to deliberate, even for a short time, is evidence of malice, deliberation, and premeditation.”); State v. Heinz, 223 Iowa 1241, 1258-59, 275 N.W. 10, 20 (1937).

Love erroneously incorporated an opportunity-to-deliberate requirement into the malice inference because such an opportunity to deliberate actually raises an inference of premeditation and deliberation in first-degree murder cases. Obviously, if deliberation is not required for second-degree, murder, an opportunity to deliberate is irrelevant. This is consistent with the general rule, and Iowa case law prior to Love, that the inference of malice arises simply “from the intentional use of a deadly weapon in a deadly manner” without the requirement of an opportunity to deliberate. See Heinz, 223 Iowa at 1259, 275 N.W. at 20; 40 C.J.S. Homicide § 37, at 397 (1991); see also State v. Smith, 242 N.W.2d 320, 326 (Iowa 1976) (“[Mjalice aforethought may be inferred from defendant’s use of a pistol or revolver, ie., a deadly weapon.”); State. v. Hephner, 161 N.W.2d 714, 720 (Iowa 1968) (“Assault with a deadly weapon implies malice.... ”); State v. Myers, 248 Iowa 44, 56, 79 N.W.2d 382, 390 (1956) (“The use of a deadly and dangerous weapon in a dangerous manner raises a[n] [inference] of malice, and therefore murder in the second degree.”); State v. Woodmansee, 212 Iowa 596, 620, 233 N.W. 725, 736-37 (1930); State v. Phillips, 118 Iowa 660, 677, 92 N.W. 876, 881-82 (1902); State v. Gillick, 7 Iowa 287, 311 (1858) (“Malice is legitimately inferred from the weapon used; and where the killing is with a dangerous weapon, calculated to produce, and actually producing death ... the [inference] is, that the act was voluntary, and with malice aforethought.”)-

We conclude the district court erred in requiring proof of an opportunity to deliberate as a part of the inference arising from the use of a deadly weapon in second-degree murder. We overrule Love and its progeny to the extent they are inconsistent with this holding. This brings us to the issue of disposition.

B. Disposition. We give considerable deference to a trial court’s ruling on a motion for new trial, State v. Atley, 564 N.W.2d 817, 821 (Iowa 1997), and we are more hesitant to interfere with the granting of a new trial than with a refusal. Iowa R.App. P. 14(f)(4). The failure to establish an opportunity to deliberate was the pivotal point of the district court’s ruling. It said:

Malice aforethought can be inferred from the use of a deadly weapon but must be accompanied by an opportunity to deliberate. In other words, there must be something more than the use of a dangerous weapon to support malice aforethought. In most of the cases that decide whether or not there is credible evidence to support malice aforethought, the facts indicate some type of argument, previous relationship, particular display of anger or hatred that occurred prior to the use of the weapon.
In order to succeed, the State must prove beyond a reasonable doubt that the Defendant had an opportunity to deliberate prior to the act of firing the weapon.... There is no credible evidence which shows that the Defendant had an opportunity to deliberate prior to discharging the weapon at the victim.

(Emphasis added.)

While the district court’s weighing of the evidence is entitled to deference, its view of the law is not. Because the test applied here was the basis of the ruling and was erroneous, we reverse and remand to the district court to enter a ruling based on the existing record and without regard to whether the defendant had an opportunity to deliberate.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED WITH INSTRUCTIONS.

All justices concur except STREIT, J., who takes no part.