Ross Barker v. Iowa Department of Public Safety

• Court: Court of Appeals of Iowa
• Decided: March 21, 2018
• Docket: 17-0488
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-0488 Filed March 21, 2018

ROSS BARKER, Petitioner-Appellant,

vs.

IOWA DEPARTMENT OF PUBLIC SAFETY, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.

Administrative appeal challenging the department of public safety’s

determination regarding the length of time the applicant must register with the sex

offender registry. AFFIRMED.

Philip B. Mears of Mears Law Offices, Iowa City, for appellant.

Thomas J. Miller, Attorney General, and John R. Lundquist, Assistant

Attorney General, for appellee.

Considered by Doyle, P.J., McDonald, J., and Mahan, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018). 2

MCDONALD, Judge.

The question presented in this appeal is whether the department of public

safety committed reversible error within the meaning of the Iowa Administrative

Procedure Act, Iowa Code chapter 17A (2017), when it determined that Ross

Barker must register for life on the sex offender registry. See Iowa Code §

17A.19(10) (setting forth grounds for relief from agency action); Iowa Code

§ 692A.116 (providing for an application for determination related to registration

requirements). The district court concluded not, and Barker timely filed this appeal.

On appeal, Barker concedes the department’s determination was not in violation

of chapter 17A, stating, “The law is/was reasonably clear the length of registration

for Barker’s offense should be lifetime.” We agree with Barker’s concession, and

we thus affirm the judgment of the district court.

Although Barker agrees the department of public safety correctly interpreted

and applied the relevant statutes when it determined he must register for life, he

nonetheless requests relief from that determination. Barker requests the duration

of the registration requirement be limited to a period of ten years. The basis for

Barker’s request is an appeal to the equities. In two prior judicial proceedings, it

was stated Barker was required to register for only ten years. He contends his

plea was thus not knowing and voluntary, and this court should limit the registration

period to ten years as a remedy. He also contends the department should be

precluded or estopped form imposing a lifetime registration requirement because

of the prior representations made to him.

The first instance in which Barker was told his registration period was ten

years occurred at the time of sentencing. In 2008, Barker pleaded guilty to assault 3

with intent to commit sexual abuse, an aggravated misdemeanor, in violation of

Iowa Code section 709.11 (2007). There is no record of the guilty plea other than

the plea forms. At the sentencing hearing, however, the sentencing court told

Barker, “[Y]ou will be required to be on the Sex Offender Registry for a period of

ten years.” The parties agree this statement was incorrect.

The second instance in which it was stated Barker would have to register

for a period of ten years occurred during the resolution of Barker’s application for

postconviction relief. Barker was released from prison on July 9, 2013. At the time

of his release, the county sheriff informed Barker he was required to register for

life rather than ten years. Barker filed a motion to correct an illegal sentence, which

the district court treated as an untimely application for postconviction relief and

dismissed. Barker appealed the decision. In the appeal, appellate counsel argued

postconviction counsel was ineffective in failing to argue Barker’s plea was not

knowing and voluntary because Barker was affirmatively misled about the duration

of the registration requirement. This court denied relief. See Barker v. State, No.

14-1178, 2015 WL 5287142, at *2–3 (Iowa Ct. App. Sept. 10, 2015). In denying

Barker’s claim, this court stated Barker did not suffer prejudice from postconviction

counsel’s alleged failings because “Barker was required to be placed on the Sex

Offender Registry for a period of ten years, not a lifetime as Barker mistakenly

asserted.” Id. at *2. The parties agree this statement was incorrect.

Despite these prior judicial statements, this court is unable to provide Barker

with administrative relief. The only question presented in this appeal is whether

Barker is entitled to relief pursuant to the administrative procedure act. See Iowa

Code § 17A.19(10) (setting forth grounds for relief from agency action). This 4

administrative proceeding is not the correct vehicle for Barker to contest the validity

of his plea or to provide a remedy for any such claim.

Barker’s claims for issue preclusion and collateral estoppel are equally

unavailing. The recent case of Jensen v. State, No. 12-1997, 2016 WL 718798,

at *1 (Iowa Ct. App. Feb. 24, 2016), is directly on point. In that case, the defendant

sought specific performance of a plea agreement that provided he register as a

sex offender for ten years rather than life as determined by the department. See

Jensen, 2016 WL 718798, at *1. In support of his argument, Jensen noted the

district court advised him he was required to register for only ten years and entered

a sentencing order that specifically provided the registration period was for only

ten years. See id. at *2. Relying on State v. Bullock, 638 N.W.2d 728, 735 (Iowa

2002), this court stated “a sentencing court is without authority to determine the

length of time that a criminal defendant has to register as a sex offender.” Id. at 3.

We agree with this reading of Bullock. Bullock makes “apparent that the

determination of the length of any required registration is an administrative

decision initially committed to the department of public safety.” 638 N.W.2d at 735.

Accord Garcia v. State, No. 12-0510, 2013 WL 2368820, at *2 (Iowa Ct. App. May

30, 2013) (“The determination whether a person is subject to chapter 692A and is

required to register as a sex offender is the responsibility of the department of

public safety, not the courts.”). The Code vests exclusive authority in the

department to “determine whether the offense for which the offender has been

convicted requires the offender to register” and “whether the period of time during

which the offender is required to register . . . has expired.” Iowa Code § 5

692A.116(1). The courts are without authority to change the requirement of

registration or length of registration.

Based on our reading of Bullock and Jensen, it is clear Barker is not entitled

to any relief in this proceeding. This is true whether the claim is asserted as a

claim for specific performance, as in Jensen, or as claims of issue preclusion and

collateral estoppel, as in this case. We express no opinion on whether Barker

would be entitled to relief in a subsequent postconviction-relief proceeding or

whether the department’s determination is now a “ground of fact” that could not

have been asserted prior to the expiration of the statute of limitations for

postconviction-relief proceedings. See Iowa Code § 822.3 (providing the

limitations period “does not apply to a ground of fact or law that could not have

been raised within the applicable time period”); Bullock, 638 N.W.2d at 735 (“Until

the department has made a decision on the defendant's term of registration, there

is no concrete controversy. Any adjudication by the district court prior to an

administrative decision and a request for judicial review of that decision is

premature.”). We note, however, our prior opinion did not resolve the question of

whether Barker’s plea was knowing and voluntary because the claim was not

presented in the district court and because, at the time of the decision, there had

not yet been a determination regarding the duration of the registration requirement.

See Barker, 2015 WL 5287142, at *2–3 (“While he claims he was given a lifetime

registry requirement, he has provided no evidence of this assertion.”).

The department of public safety did not commit reversible error within the

meaning of Iowa Code section 17A.19(10) in determining Barker was required to 6

register for life on the sex offender registry. We affirm the judgment of the district

court.

AFFIRMED.