State of Iowa v. Erin Macke

• Court: Supreme Court of Iowa
• Decided: September 13, 2019
• Docket: 18-0839
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 18–0839

Filed September 13, 2019

STATE OF IOWA,

Appellee,

vs.

ERIN MACKE,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, Carol S. Egly,

District Associate Judge.

Defendant alleging State breached plea agreement seeks further

review of court of appeals decision affirming her conviction and sentence

for child endangerment. DECISION OF COURT OF APPEALS VACATED;

DISTRICT COURT CONVICTION AFFIRMED, SENTENCE VACATED,

AND CASE REMANDED FOR RESENTENCING WITH INSTRUCTIONS.

Angela L. Campbell of Dickey & Campbell Law Firm, PLC,

Des Moines, for appellant.

Thomas J. Miller, Attorney General, Thomas J. Ogden, Assistant

Attorney General, John P. Sarcone, County Attorney, and Nan Horvat,

Assistant County Attorney, for appellee. 2

WATERMAN, Justice.

This case is among dozens of pending appeals presenting the

question whether amendments to Iowa Code sections 814.6 and 814.7

enacted in Senate File 589 (the Omnibus Crime Bill) govern our review of

an appeal from a final judgment and sentence entered before the new

statute’s effective date of July 1, 2019. Amended section 814.6 limits

direct appeals from guilty pleas, and amended section 814.7 requires

ineffective-assistance claims to be brought in postconviction proceedings

rather than by direct appeal.

In 2018, defendant, Erin Macke, entered an Alford plea to four counts

of child endangerment pursuant to an alleged plea agreement she

contends obligated the State to jointly recommend a deferred judgment.

At the sentencing hearing, the State instead recommended, and the court

imposed, a two-year suspended prison sentence without objection from

defense counsel. The defendant appealed with new counsel, claiming the

State had breached the plea agreement and her defense counsel was

ineffective for failing to object. On March 20, 2019, the court of appeals

affirmed her conviction and sentence while preserving her ineffective-

assistance claim for postconviction proceedings. Senate File 589

subsequently was signed into law and became effective July 1 of this year.

We granted Macke’s application for further review and directed the parties

to file supplemental briefs on whether the new law applies. The State

argues Senate File 589 forecloses relief in this direct appeal while Macke

argues the amendments are inapplicable.

On our review, we hold Iowa Code sections 814.6 and 814.7, as

amended, do not apply to a direct appeal from a judgment and sentence

entered before July 1, 2019. We have long held that “unless the legislature

clearly indicates otherwise, ‘statutes controlling appeals are those that 3

were in effect at the time the judgment or order appealed from was

rendered.’ ” James v. State, 479 N.W.2d 287, 290 (Iowa 1991) (quoting

Ontjes v. McNider, 224 Iowa 115, 118, 275 N.W. 328, 330 (1937)). Senate

File 589 lacks language indicating the legislature intended the

amendments to sections 814.6 or 814.7 to apply to appeals from

judgments entered before its effective date. We decline the State’s

invitation to overrule James or follow arguably contrary federal authority.

On the merits, we determine the State breached the plea agreement and

Macke’s original counsel was ineffective for failing to object. We vacate her

sentence and remand the case for the State’s specific performance of the

plea agreement and resentencing by a different judge.

I. Background Facts and Proceedings.

In 2017, Erin Macke, age thirty-one, lived with her four children, ages

six, seven, and twelve (twins), in their Johnston apartment. On

September 20, Macke departed for Germany. Macke had arranged for her

building’s maintenance technician to check on the children at bedtime.

The next day, Matt McQuary, Erin’s ex-husband and father of the twins,

called Johnston police from his home in Texas and requested a welfare

check, reporting to the dispatcher that the children “were left alone by

their mother with an unsecured firearm in the residence” after she left for

Germany without arranging for adult supervision. The responding police

officer found the four children alone in the apartment that evening. They

said their mother was in Germany, and when asked about guns, the oldest

boy led the officer “to his mother’s bedroom and pointed to a pink pistol

case sitting on a shelf” containing an unloaded Glock pistol next to two

magazines holding “9 mm Speer hollow point bullets.” A department of

human services child protective assessment worker placed the children in 4

temporary custody with nearby relatives and later with their respective

fathers.

On October 31, the State charged Erin Macke by trial information

with four counts of child endangerment in violation of Iowa Code section

726.6(1)(a) (2018) and one count of violating section 724.22(2) (transfer of

pistol to a minor). On February 26, 2018, Macke’s defense attorney filed

a “Petition to Plead Guilty (Alford),” which recited a plea agreement with

the State as follows: “Alford plea to Counts 1–4 of TI; joint

Recommendation of Deferred Judgment and Probation. State will dismiss

Ct. 5.” The document was signed by Macke and her counsel but lacked a

signature line for the State and was not signed by the prosecutor. The

district court conducted a plea hearing the same morning. Defense

counsel stated on the record that the plea agreement included dismissal

of “the gun charge, in this case, as well as the recommendation—joint

recommendation of a deferred judgment to the charges” of child

endangerment. The State did not object to that description of the plea

agreement or assert different terms. The court did not ask the State to

confirm the terms of the plea agreement recited by defense counsel. The

court on the record accepted Macke’s Alford plea to the four counts of child endangerment and ordered a PSI (presentence investigation). Within

minutes, the court entered a written order accepting the Alford plea, which

set forth an inconsistent plea agreement.

Barring any new criminal activity or violation of this order, at sentencing the parties will recommend: The Defendant will ask for a deferred judgement and probation. The State reserves its recommendations until it has an opportunity to review the PSI. The State will recommend dismissal of Count V. On any new criminal charge or violation of this order, established by a preponderance of evidence, the State is not bound by this agreement. 5

This order, on a form apparently provided by the Polk County Attorney’s

Office, was not read aloud in court, nor was Macke questioned about its

terms during the plea hearing. Macke’s counsel filed no objection.

The department of correctional services completed the PSI on

April 10 and included a sentencing recommendation of “supervised

probation.” The same judge who accepted Macke’s Alford plea conducted

the sentencing hearing on April 19. Macke attended with her counsel, and

the same prosecutor represented the State. Macke’s counsel requested a

deferred judgment. When the court asked for the State’s sentencing

recommendation, the prosecutor responded by criticizing Macke’s conduct

and recommending a suspended sentence and probation, not a deferred

judgment.

As you recall, this is the case where four children were left alone for a period of time while the defendant left the country and went to Germany. And although there was a superintendent of the building where the children lived asked by the defendant to check on them, at the end of the day, they really had no supervision. They were required to make meals, get on the school bus, get dressed, and take care of themselves. The hazard to the children is immense. Aside from the fact that it’s a dangerous world, there was no adult living in the house that could have been available should there have been a medical emergency, a fire, or the possibility of an injury. It’s just a dangerous situation for children. The children have been removed from the defendant. They have dads who are protective. Two went to live in Texas. Two have lived in Cedar Rapids. And their dads are very protective of them. And it’s the State’s position that those children are in settings where their best interests will be watched, because of how precious they are, Your Honor. Our position is that the defendant should receive a suspended sentence and probation, that as a condition of probation, and in accordance with what the PSI sets out, she should have whatever therapy and/or counseling is available to her through the Department of Corrections, and that she’d agree to do — at least with the children in Cedar Rapids, that she and her ex-husband in Cedar Rapids have agreed to counseling for these children in a setting that would be best 6 for them. But I think she needs counseling too. Her behavior was immature and reckless. The State has agreed to dismiss Count V. So, Your Honor, we’re asking that she receive a suspended sentence and probation. I’m not arguing for consecutive sentences, Your Honor. I think it’s okay for these counts to run concurrently. But to do something less than place her on probation and give a suspended sentence, I think, would diminish the nature of this crime.

Macke’s counsel asked to “take a break for a moment” to step into

the hallway before the court resumed the hearing with a victim-impact

statement. Macke’s defense counsel never objected to the State’s

sentencing recommendation. The sentencing judge stated, “I will follow

the State’s recommendation in this circumstance” and sentenced Macke

to two-year concurrent suspended sentences and two years’ probation.

The sentencing order and judgment of conviction was entered April 19,

2018, over a year before Senate File 589 was enacted.

Macke, through new counsel, filed this direct appeal on May 14,

2018. Her appellate counsel argued that the State breached the plea

agreement by recommending a suspended sentence instead of a deferred

judgment and that Macke’s prior counsel was ineffective in failing to object

to the State’s breach of the plea agreement. We transferred the case to the

court of appeals. On March 20, 2019, a three-judge panel of the court of

appeals affirmed Macke’s convictions and sentences but preserved her

ineffective-assistance claims for postconviction relief. The court of appeals

determined the record was insufficient to resolve the ineffective-assistance

claims on direct appeal. The legislature subsequently enacted Senate File

589, which the Governor signed into law on May 16, 2019. The law went

into effect on July 1, 2019. We granted Macke’s application for further

review and ordered the parties to file supplemental briefs on whether the

new legislation governed this appeal. 7

II. Standard of Review.

“We review de novo claims of ineffective assistance of counsel arising

from the failure to object to the alleged breach of a plea agreement.” State

v. Lopez, 872 N.W.2d 159, 168 (Iowa 2015).

III. Do the Amendments to Iowa Code Sections 814.6 and 814.7 in Senate File 589 Apply to This Direct Appeal from a Judgment and Sentence Entered Before July 1, 2019?

We must decide whether the 2019 statutory amendments to Iowa

Code sections 814.6 and 814.7 enacted in Senate File 589 govern our

review of Macke’s direct appeal from her 2018 judgment and sentence.

The parties agree that the effective date of Senate File 589 is July 1, 2019, 1

but they disagree whether its amendments circumscribe our subsequent

review of Macke’s appeal pending on that date. This is a question of

statutory interpretation.

Macke, relying on James, argues that her appeal is governed by the

statutes in effect at the time of the district court judgment at issue. 479

N.W.2d at 290. The State responds that James should be overruled. The

State, relying on federal authority, argues the amendments to those Code

provisions are “jurisdiction stripping” and, therefore, govern pending appeals decided after July 1. We begin with the statutory text.

Iowa Code section 814.6, as amended this year, limits appeals from

guilty pleas:

1“An act of the general assembly passed at a regular session of a general assembly

shall take effect on July 1 following its passage unless a different effective date is stated in an act of the general assembly.” Iowa Const. art. III, § 26. The parties do not contend the enactment’s effective date of July 1, 2019, means it applies to appeals from rulings entered previously. “A statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date.” Landgraf v. USI Film Prods., 511 U.S. 244, 257, 114 S. Ct. 1483, 1493 (1994). 8 1. Right of appeal is granted the defendant from: a. A final judgment of sentence, except case of in the following cases: .... (3) A conviction where the defendant has pled guilty. This subparagraph does not apply to a guilty plea for a class “A” felony or in a case where the defendant establishes good cause.

2019 Iowa Acts ch. 140, § 28 (to be codified at Iowa Code § 814.6(1)(a)

(2020)).

Section 814.7 as amended in Senate File 589 eliminates the ability

to pursue ineffective-assistance claims on direct appeal:

An ineffective assistance of counsel claim in a criminal case shall be determined by filing an application for postconviction relief pursuant to chapter 822. The claim need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconviction relief purposes, and the claim shall not be decided on direct appeal from the criminal proceedings.

Id. § 31 (to be codified at Iowa Code § 814.7).

As noted, our long-standing precedent holds that “unless the

legislature clearly indicates otherwise, ‘statutes controlling appeals are

those that were in effect at the time the judgment or order appealed from

was rendered.’ ” James, 479 N.W.2d at 290 (quoting Ontjes, 224 Iowa at 118, 275 N.W. at 330). Roger James was an inmate found guilty of

violating prison disciplinary rules. Id. at 288. He filed an application for

postconviction relief after exhausting his administrative remedies. Id. at

288–89. The district court denied his application on June 20, 1990. Id.

at 289. At that time, “a postconviction applicant had a right of direct

appeal from adverse prison disciplinary rulings.” Id. But a statutory

amendment effective July 1, 1990, abrogated the right of direct appeal

from prison disciplinary rulings and limited such a challenge to a writ of

certiorari. Id. James filed his notice of appeal on July 16, and the State 9

moved to dismiss his appeal based on the statutory amendment, which

fits the State’s description today of a jurisdiction-stripping enactment. Id.

at 289–90. James resisted, arguing his right to appeal “became fixed at

the time of the postconviction court’s final judgments.” Id. at 290. We

agreed with James and concluded that he had “the right to direct appeal

in accordance with the pre-amended version of Iowa Code section 663A.9.”

Id.

James is controlling here and dictates the same result. Macke had

a right of direct appeal of her ineffective-assistance claim at the time of her

guilty-plea based sentence from which she appeals, and her pending

appeal is governed by the preamendment versions of Iowa Code sections

814.6 and 814.7. See id. The holding of James applies to both section

814.6 and section 814.7.

The State urges us to overrule James. Stare decisis dictates that we

decline the State’s invitation to overrule our precedent. See Book v.

Doublestar Dongfeng Tyre Co., 860 N.W.2d 576, 594 (Iowa 2015) (“Stare

decisis alone dictates continued adherence to our precedent absent a

compelling reason to change the law.”); Ackelson v. Manley Toy Direct,

L.L.C., 832 N.W.2d 678, 688 (Iowa 2013) (“We are slow to depart from stare

decisis and only do so under the most cogent circumstances.”). The State

has not provided us with a compelling reason to overrule James.

James honors the canons of construction codified by the legislature.

“A statute is presumed to be prospective in its operation unless expressly

made retrospective.” Iowa Code § 4.5 (2018); see also Iowa Beta Chapter

of Phi Delta Theta Fraternity v. State, 763 N.W.2d 250, 266 (Iowa 2009)

(“Generally, a newly enacted statute is presumed to apply prospectively,

unless expressly made retrospective.”). The State concedes that neither

section 814.6 nor section 814.7 are expressly retroactive. 10

The State’s position on retroactivity conflicts with Iowa Code section

4.13(1), which provides, “The . . . amendment . . . of a statute does not

affect . . . [t]he prior operation of the statute or any prior action taken

under the statute . . . [or] [a]ny . . . right . . . previously acquired . . . under

the statute.” Macke held a right to a direct appeal from her judgment of

conviction and sentence in 2018, and applying Senate File 589

retroactively to her appeal would eliminate that right, contrary to Iowa

Code section 4.13(1)(a–b). See State v. Soppe, 374 N.W.2d 649, 652–53

(Iowa 1985) (applying Iowa Code section 4.13(1) to hold that statutory

amendment enhancing punishment “could not take [away a] right” a

defendant acquired earlier); see also In re Daniel H., 678 A.2d 462, 466–

68 (Conn. 1996) (holding “the removal of a right to a direct appeal [of a

juvenile transfer order] is also a substantive change in the law” that applies

only prospectively and not retroactively to cases predating statutory

amendment).

The State contends James is no longer good law after Hannan v.

State, 732 N.W.2d 45 (Iowa 2007). We disagree. These cases are easily

harmonized: the statute in James applied only prospectively because it

eliminated a right to appeal, while the statute in Hannan applied

retroactively because it created a new remedy. “[W]e do allow a statute to

apply retroactively when the statute provides an additional remedy to an

already existing remedy or provides a remedy for an already existing loss.”

Iowa Beta Chapter, 763 N.W.2d at 267. Conversely, “we have refused to

apply a statute retrospectively when the statute eliminates or limits a

remedy. In the latter situation, we have found the statute to be

substantive rather than procedural or remedial.” Id. (citation omitted).

In Hannan, the defendant’s conviction for second-degree sexual

abuse was affirmed on direct appeal in 1999. State v. Hannan, 11

Nos. 9–312, 98–0343, 1999 WL 710813, at *1 (Iowa Ct. App. July 23,

1999). He then brought a postconviction action alleging, for the first time,

ineffective assistance of trial counsel. Hannan, 732 N.W.2d at 49. The

State argued he failed to preserve error on his ineffective-assistance claim

because he failed to bring it in his direct appeal, as our law previously

required. Id. at 50. Hannan relied on a statutory amendment enacted in

2005 that “allows a defendant to raise ineffective-assistance-of-counsel

claims for the first time in [postconviction relief] PCR proceedings.” Id.

The State argued that the 2005 statutory amendment did not benefit

Hannan because the criminal judgment he challenged “occurred long

before the effective date of the statute.” Id. Hannan argued the new

statute controlled his appeal from the PCR judgment entered after the new

statute’s effective date. Id. at 51. We acknowledged the James rule that

“statutes controlling appeals are those that were in effect at the time the

judgment or order appealed from was rendered.” Id. at 50 (quoting Wal-

Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003)). We did

not retreat from the James rule but, instead, decided Hannan by applying

the new remedy enacted in 2005 retroactively.

The State argues the amendment to section 814.7 merely changes

the forum for ineffective-assistance claims, without eliminating the right

to relief altogether. This statutory change, however, results in significant

disadvantages to some defendants and can mean the difference between

freedom and incarceration while the case proceeds. A direct appeal is

typically a much faster vehicle for relief and allows for release on appeal

bond for certain offenses. See Iowa Code § 811.5 (governing appeal bonds).

By contrast, postconviction proceedings often take much longer while

defendants remain incarcerated without a right to release on bond.

Summage v. State, 579 N.W.2d 821, 823 (Iowa 1998) (per curiam) (holding 12

appeal bonds are not available in postconviction proceedings); see also

State v. Brubaker, 805 N.W.2d 164, 170–71 (Iowa 2011) (“[P]reserving

ineffective-assistance-of-counsel claims that can be resolved on direct

appeal wastes time and resources.” (quoting State v. Truesdell, 679 N.W.2d

611, 616 (Iowa 2004)).

The State also argues that applying the 2019 statutory amendments

to pending appeals furthers the legislative goals of curtailing frivolous

appeals and ensuring ineffective-assistance-of-counsel claims are heard in

a forum where the necessary record can be developed. But we must apply

the new enactment as written, not by what the legislature might have said

or intended. Missing from the amendments to Iowa Code sections 814.6

and 814.7 is any language stating the provisions apply retroactively to

cases pending on direct appeal on July 1, 2019, or to guilty pleas accepted

before that date. The clear indication of intent for retroactive application

must be found in the text of the statute; legislative history is no substitute.

See Landgraf v. USI Film Prods., 511 U.S. 244, 288, 114 S. Ct. 1522, 1522

(1994) (Scalia, J., concurring in the judgment) (“No legislative history can

[supply the clear statement required for retroactive application], only the

text of the statute.”).

We presume the legislature is aware of our cases interpreting its

statutes and the rules established within them. See Ackelson, 832 N.W.2d

at 688. We made clear in James that unless the legislature clearly provides

otherwise, an enactment restricting a right to appeal will only apply

prospectively. If the legislature wanted the amendments to Iowa Code

sections 814.6 and 814.7 to apply retroactively, it had to say so expressly.

It did not. See Brewer v. Iowa Dist. Ct., 395 N.W. 2d 841, 843 (Iowa 1986)

(“If it had been the purpose of the 1984 amendment [adding a three-year

statute of limitations to the postconviction-relief statute] to abate pending 13

proceedings as well as to limit the time for commencing new proceedings,

we believe the legislature would have made that intention clear.”). Given

the absence of an express legislative directive to apply the amended

sections 814.6 and 814.7 to pending appeals, we decline to change the

rules after the game is played.

The State turns to federal law to argue we should revisit James in

light of a discussion in the subsequent United States Supreme Court

Landgraf decision, noting federal courts have “regularly applied

intervening statutes conferring or ousting jurisdiction, whether or not

jurisdiction lay when the underlying conduct occurred or when suit was

filed.” 511 U.S. 244, 274, 114 S. Ct. 1483, 1501–02 (1994) (majority

opinion) (citing cases dating back to 1870). Justice Scalia’s concurrence

elaborated, “[T]he purpose of provisions conferring or eliminating

jurisdiction is to permit or forbid the exercise of judicial power—so that

the relevant event for retroactivity purposes is the moment at which that

power is sought to be exercised.” Id. at 293, 114 S. Ct. at 1525 (Scalia, J.,

concurring in the judgment). Landgraf did not actually interpret a

jurisdiction-stripping statute. Rather, Landgraf held that a 1991

amendment adding money damage remedies and a right to a jury trial in

Title VII of the Civil Rights Act did not apply to cases arising before its

enactment. Id. at 283, 286, 114 S. Ct. at 1506, 1508 (majority opinion).

The State contends the 2019 amendments to Iowa Code sections

814.6 and 814.7 are jurisdiction-stripping and govern appellate

adjudications after July 1 of this year regardless of the date of the district

court judgment or guilty plea at issue. The State cites no Iowa precedent

following this federal jurisdiction-stripping canon, and the State’s effort to

apply it here conflicts with James and our prior precedent. See Frink v.

Clark, 226 Iowa 1012, 1017, 285 N.W. 681, 684 (1939) (“This court has 14

expressly recognized that, after the commencement of an action, the

question of jurisdiction is purely judicial and a legislative act, which

attempts to deprive the court of jurisdiction, is unconstitutional.”);

McSurely v. McGraw, 140 Iowa 163, 167, 118 N.W. 415, 418 (1908) (“When

action is once commenced the question of jurisdiction s purely a judicial

one, and the Legislature should not attempt to usurp the functions of the

judiciary by such an act as is now under consideration. These principles

are so fundamental as scarcely to need the citation of authorities in their

support.”). Under James, the relevant “event” for determining the

governing law is the entry of the district court judgment being appealed,

not the appellate court’s adjudication. 479 N.W.2d at 290. In any event,

the State exaggerates the force of the jurisdiction-stripping canon.

More recently, in Hamdan v. Rumsfeld, the Supreme Court

emphasized that jurisdiction-stripping provisions do not necessarily

“apply to cases pending at the time of their enactment.” 548 U.S. 557,

577, 126 S. Ct. 2749, 2765 (2006). “ ‘[N]ormal rules of construction,’

including a contextual reading of the statutory language, may dictate

otherwise.” Id. (alteration in original) (quoting Lindh v. Murphy, 521 U.S.

320, 326, 117 S. Ct. 2059, 2063 (1997)). Unlike Landgraf, Hamdan

actually interpreted a jurisdiction-stripping statute, the Detainee

Treatment Act (DTA). Salim Ahmed Hamdan, a Yemeni national, was

captured during hostilities with the Taliban in Afghanistan and

transported to Guantanamo Bay in 2002. Id. at 566, 126 S. Ct. at 2759.

His petition for a writ of certiorari was pending in the Supreme Court when

the DTA was signed into law in 2006, and the United States moved to

dismiss his petition on grounds the DTA deprived the Court of jurisdiction.

Id. at 572, 126 S. Ct. at 2762. The Court denied the motion, noting the

“presumption” that a jurisdiction-stripping statute applies to pending 15

appeals “is more accurately viewed as the nonapplication of another

presumption . . . against retroactivity—in certain limited circumstances”

such as when “the change in the law does not ‘impair rights a party

possessed when he acted.’ ” Id. at 576–77, 126 S. Ct. at 2764–65 (quoting

Landgraf, 511 U.S. at 280, 114 S. Ct. at 1505). As noted, the amendments

to Iowa Code sections 814.6 and 814.7, if applicable, would impair Macke’s

existing right to a direct appeal of her guilty plea and ineffective-

assistance-of-counsel claims, such that the presumption against

retroactivity applies.

The Hamdan Court rejected retroactive application of the DTA under

a different canon, the “familiar principle of statutory construction . . . that

a negative inference may be drawn from the exclusion of language from

one statutory provision that is included in other provisions of the same

statute.” Id. at 578, 126 S. Ct. at 2765. Noting other provisions of the

DTA were expressly made applicable to pending cases, the omission of

such language in the jurisdiction-stripping section meant it did not apply

to pending appeals. Id. at 579–80, 126 S. Ct. at 2766. 2

We apply the same canon here and reach the same result. We, too,

have recognized that legislative intent is expressed through selective placement of statutory terms. Oyens Feed & Supply, Inc. v. Primebank,

808 N.W.2d 186, 193 (Iowa 2011). As such, when the legislature includes

particular language in some sections of a statute but omits it in others, we

presume the legislature acted intentionally. Id. In other sections of Senate

File 589, the legislature expressly states the section applies prospectively

2The State cites no contrary authority decided after Hamdan (and we found none) applying the jurisdiction-stripping canon to hold that a statutory amendment governs pending appeals when the provision at issue lacks language requiring that result while other provisions in the same amendment do contain an express statement of retroactivity or applicability to pending cases. 16

or retrospectively or both. Compare 2019 Iowa Acts ch. 140, § 2 (to be

codified at Iowa Code § 901C.3(7) (2020)) (“This section applies to a

misdemeanor conviction that occurred prior to, on, or after July 1, 2019.”),

id. § 8 (to be codified at Iowa Code § 902.12(2A)) (“A person serving a

sentence for a conviction for robbery in the first degree in violation of

section 711.2 for a conviction that occurs on or after July 1, 2018, shall

be denied parole or work release until the person has served between one-

half and seven-tenths of the maximum term of the person’s sentence as

determined under section 901.11, subsection 2A.”), and id. § 39 (to be

codified at Iowa Code § 902.12(4)) (“A person serving a sentence for a

conviction for arson in the first degree in violation of section 712.2 that

occurs on or after July 1, 2019, shall be denied parole or work release until

the person has served between one-half and seven-tenths of the maximum

term of the person’s sentence as determined under section 901.11,

subsection 4.”), with id. § 28 (to be codified at Iowa Code § 814.6)

(providing no specific effective date), and id. § 31 (to be codified at Iowa

Code § 814.7) (same). We conclude the absence of retroactivity language

in sections 814.6 and 814.7 means those provisions apply only

prospectively and do not apply to cases pending on July 1, 2019.

Our decision in James placed the legislature on notice that it must

clearly specify when a provision limiting a right to appeal is to apply to

pending cases. James, 479 N.W.2d at 290. As the Landgraf Court

observed,

Requiring clear intent assures that Congress itself has affirmatively considered the potential unfairness of retroactive application and determined that it is an acceptable price to pay for the countervailing benefits. Such a requirement allocates to Congress responsibility for fundamental policy judgments concerning the temporal reach of statutes, and has the additional virtues of giving legislators a predictable background rule against which to legislate. 17

511 U.S. at 272–73, 114 S. Ct. at 1501. We agree.

Because we hold Senate File 589’s amendments to Iowa Code

sections 814.6 and 814.7 do not govern this appeal, we do not reach

Macke’s constitutional claim that retroactive application of those laws

would violate state and federal due process. Nor do we reach her argument

that the breach of her plea agreement constituted “good cause” allowing

an appeal of her guilty plea under section 814.6, as amended.

IV. Did the State Breach the Plea Agreement?

We now address the merits of Macke’s appeal. “[B]ecause a plea

agreement requires a defendant to waive fundamental rights, we are

compelled to hold prosecutors and courts to the most meticulous

standards of both promise and performance.” Lopez, 872 N.W.2d at 171

(quoting State v. Bearse, 748 N.W.2d 211, 215 (Iowa 2008)). We must

decide whether the State’s sentencing recommendation breached the

parties’ plea agreement. If so, Macke’s counsel was ineffective for failing

to object to the breach, we presume prejudice, and her remedy is to be

“resentence[d] by a different judge, with the prosecutor obligated to honor

the plea agreement and sentencing recommendation.” Id. at 180–81. Our

threshold question is whether the record in this direct appeal is sufficient

to resolve that question. The court of appeals concluded the record was

insufficient and preserved Macke’s ineffective-assistance-of-counsel claim

for postconviction proceedings. On our de novo review, we find the record

is sufficient under the rules governing guilty pleas. We find the parties’

plea agreement included a term to jointly recommend a deferred judgment,

and the State breached that agreement, requiring a remand for

resentencing. 18

Macke’s petition to plead guilty (Alford), signed by Macke and her

counsel, stated, “The plea agreement is Alford plea to Counts 1-4 of [Trial

Information]; joint Recommendation of Deferred Judgment and Probation.

State will dismiss Ct. 5 [the gun charge].” Macke’s counsel during the plea

hearing represented to the court on the record that the plea agreement

was for dismissal of “the gun charge in this case, as well as the

recommendation—joint recommendation of a deferred judgment to the

charges” of child endangerment. The State did not object to that

description of the plea agreement or assert different terms, nor did the

court ask the State to confirm the terms of the plea agreement in open

court. The court accepted Macke’s plea, but within minutes issued a

written order on a form apparently provided by the Polk County Attorney’s

Office reciting a plea agreement with different terms: “The Defendant will

ask for a deferred judgement and probation. The State reserves its

recommendations until it has an opportunity to review the PSI.” The

written order, however, was not read or shown to Macke during the

hearing. So what were the terms of the parties’ plea agreement, if any, as

to a sentencing recommendation?

We view the record in light of the governing rules. Iowa Rule of Criminal Procedure 2.10(2) provides, “If a plea agreement has been

reached by the parties the court shall require the disclosure of the

agreement in open court at the time the plea is offered.” Accord Iowa R.

Crim. P. 2.8(2)(c) (“The terms of any plea agreement shall be disclosed of

record as provided in rule 2.10(2).”). The purpose of requiring disclosure

“in open court” is to allow a colloquy to ensure that the defendant’s plea is

knowing, intelligent, and voluntary. Id. r. 2.8(2)(b); State v. Loye, 670

N.W.2d 141, 150–51 (Iowa 2003). The controlling terms, therefore, are

those described on the record during the plea hearing rather than the 19

conflicting terms of the written order because the written order was never

reviewed with Macke in open court. See Loye, 670 N.W.2d at 153–54 (“A

written plea agreement is not a substitute for the in-court colloquy

required by rule 2.8(2)(b) in felony cases.”).

In Loye, the court accepted the defendant’s guilty plea to multiple

offenses and transferred her case to drug court for supervision. Id. at 144.

She was unsuccessful in drug court, and the court then imposed

consecutive prison sentences totaling sixty-four and one-half years. Id.

She appealed her sentence, and the State contended she had waived her

right to appeal in her plea agreement. Id. at 147. We rejected the State’s

waiver argument because the plea agreement was not in the record and

was not reviewed with Loye in open court during her guilty plea hearing,

as required by rule 2.8(2)(b). Id. at 153–54; see also Baker v. United States,

781 F.2d 85, 90 (6th Cir. 1986) (“It is impossible for a trial judge to properly

administer a plea agreement if it consists of secret terms known only to

the parties.”). The record of the proceedings in open court controls our

analysis, not any off-the-record side deals.

Here, we lack an affirmative statement by the prosecutor on the

record that the State agreed to jointly recommend a deferred judgment and

probation for Macke. We urge judges conducting plea hearings to ensure

that counsel for the defendant and the State orally confirm the terms of

any plea agreement in open court. In any event, on our de novo review,

we infer the State’s acceptance from the prosecutor’s silence when Macke’s

counsel recited their plea agreement with that term in open court. Macke

entered her Alford plea with the express understanding that the State

would jointly recommend a deferred judgment, and the court accepted her

plea on that record. If defense counsel misstated the terms of the plea

agreement, the prosecutor should have said so in open court. We are 20

unwilling to assume the plea agreement was later modified or waived off

the record. To be enforceable against the defendant, a change in the terms

of the plea agreement must be made in open court with a colloquy to

confirm the defendant’s guilty plea is knowing and voluntary.

The State at the sentencing hearing recommended a two-year prison

sentence, suspended. The State thereby breached the parties’ plea

agreement to jointly recommend a deferred judgment and probation.

Defense counsel “was duty-bound to object.” Lopez, 872 N.W.2d at 169.

His failure to object constitutes ineffective assistance of counsel, with

prejudice to Macke presumed. Id. at 169–70. Macke requests

resentencing. We have noted that “violations of either the terms or the

spirit of the agreement require reversal of the conviction or vacation of the

sentence.” Id. at 171 (quoting Bearse, 748 N.W.2d at 215). We remand

the case for resentencing by a different judge. See id. at 181. On remand,

the prosecutor is required to honor the plea agreement by jointly

recommending a deferred judgment. See id.

V. Disposition.

For the foregoing reasons, we vacate the decision of the court of

appeals. We affirm Macke’s conviction but vacate her sentence and

remand the case for resentencing before a different judge consistent with

this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

CONVICTION AFFIRMED, SENTENCE VACATED, AND CASE

REMANDED FOR RESENTENCING WITH INSTRUCTIONS.

All justices concur except Mansfield, J., who concurs in part and

dissents in part, and McDonald, J., who dissents. 21 18–0839, State v. Macke MANSFIELD, Justice (concurring in part and dissenting in part).

I concur in Division III of the court’s opinion. I dissent from Division

IV. I believe the record is inadequate to determine what the parties’ plea

agreement was.

The parties apparently reached a plea agreement. From the record

it is unclear whether it involved a joint recommendation of a deferred

judgment, which is what defense counsel said in the petition to plead guilty

and in open court at the change of plea hearing; or whether the State had

the right to make an independent sentencing recommendation, which is

what the order entered at the plea hearing stated. I note that the plea

hearing commenced at 9:06 a.m. and concluded at 9:12 a.m. on

February 26, 2018, whereas the order was efiled at 9:11 a.m. on the 26th.

In other words, it appears the court was finalizing the order during the

change of plea hearing itself. And they contradict each other.

Defense counsel never objected to the court’s order. Moreover, a

fairly lengthy sentencing proceeding occurred nearly two months later on

April 19. The proceeding took approximately forty minutes of court time,

and there was considerable discussion and debate regarding the sentence.

Yet defense counsel—while asking for a deferred judgment on behalf of his

client—never claimed there was an agreement to jointly recommend a

deferred judgment.

Reasonable people can wonder, therefore, what the deal was.

Two possibilities exist here. One is that the parties actually had an

agreement to jointly recommend a deferred judgment. In that event, the

State breached the plea agreement and it should be enforced.

The other possibility, however, is that the parties’ plea agreement

did not include a joint sentencing recommendation. In that event, we 22

should not enforce something the parties didn’t actually agree to. Instead,

because the colloquy on February 26 was defective if that was the

agreement, the plea should be set aside.

The majority confuses what is a necessary condition of court

approval of a plea agreement (i.e., recital of the plea agreement in open

court on the record) with what constitutes the actual agreement. Whatever

the parties agree to has to be recited. However, the converse is not always

true: whatever a party says in open court is not necessarily the agreement.

Something that one party recited but that wasn’t actually agreed to should

not be controlling. Plea bargains are akin to contracts. Rhoades v. State,

880 N.W.2d 431, 449 (Iowa 2016) (“A plea bargain also may be regarded

as a contract where both sides ordinarily obtain a benefit.”). Would anyone

say it is clear on this record what the parties’ contract was?

I would reverse Macke’s conviction and sentence and remand for the

court to conduct a hearing to determine whether there was an agreement

to jointly recommend a deferred judgment. If so, the agreement should be

enforced and there should be a resentencing before a different judge on

that basis. If not, there was no valid plea and the parties should be

restored to their pre-plea positions.

For the foregoing reasons, I respectfully concur in part and dissent

in part. 23

#18–0839, State v. Macke

McDONALD, Justice (dissenting).

Effective July 1, 2019, this court lost the authority to decide a claim

of ineffective assistance of counsel on direct appeal. See 2019 Iowa Acts

ch. 140, § 31 (to be codified at Iowa Code § 814.7 (2020)) (providing “[a]n

ineffective assistance of counsel claim . . . shall not be decided on direct

appeal from the criminal proceedings”). Nonetheless, in this direct appeal,

the majority decides the defendant’s claim of ineffective assistance of

counsel after the effective date of the statute. I respectfully dissent.

I.

Whether a statute applies retrospectively, prospectively, or both is

simply a question regarding the correct temporal application of a statute.

See Landgraf v. USI Film Prods., 511 U.S. 244, 291, 114 S. Ct. 1522, 1524

(1994) (Scalia, J., concurring in the judgment) (stating this is a “mundane

question” regarding the “temporal application of a statute”). The

determination of the correct temporal application of a statute is three-part

inquiry.

First, the court must determine whether application of a statute is

in fact retrospective. Application of a statute is in fact retrospective when the statute applies a new rule, standard, or consequence to a prior act or

omission. See Frideres v. Schiltz, 540 N.W.2d 261, 264 (Iowa 1995) (“A law

is retroactive if it affects acts or facts which occurred, or rights which

accrued, before the law came into force.”). The prior act or omission is the

event of legal consequence “that the rule regulates.” Landgraf, 511 U.S.

at 291, 114 S. Ct. at 1524. In other words, the event of legal consequence

is the specific conduct regulated in the statute.

Second, if the court determines operation of a statute is in fact

retrospective, the court must determine whether the statute should be 24

applied retrospectively. This is straight-forward inquiry. “Our legislature

has provided a statutory general rule that determines the applicability of

its laws.” Frideres, 540 N.W.2d at 264. Iowa Code section 4.5 (2018)

provides “[a] statute is presumed to be prospective in its operation unless

expressly made retrospective.” In my view, this requires an assessment of

statutory text to determine whether there is an express statement making

the statute retrospective. End of inquiry.

Third, if the court determines the text of the statute authorizes

retrospective application of the statute, the court must then determine

whether any other rule of law prohibits retrospective application of the

statute. For example, the defendant might argue the retrospective

application of a statute violated her right to due process or violates the

Ex Post Facto Clause.

II.

At issue is the temporal application of amendments to Iowa Code

sections 814.6 and 814.7 enacted in Senate File 589 (the Omnibus Crime

Bill). I address each in turn.

A.

Iowa Code section 814.6 governs the criminal defendant’s right to

appeal. At the time judgment of sentence was entered in this case, section

814.6 provided, with minor exceptions not applicable here, a defendant

was authorized to pursue a direct appeal from any final judgment of

sentence. See Iowa Code § 814.6(1)(a) (“Right of appeal is granted the

defendant from . . . [a] final judgment of sentence . . . .”). The Omnibus

Crime Bill changed this provision. The statute now provides, with

exceptions not applicable here, a criminal defendant does not have an

appeal as a matter of right from judgment of sentence if the judgment of

sentence was entered pursuant to a conviction following a guilty plea. See 25

2019 Iowa Acts ch. 140, § 28 (to be codified at Iowa Code § 814.6(1)(a)(3)

In determining whether this amendment governs the defendant’s

right to appeal in this case, the first inquiry is whether application of the

amendment is in fact retrospective. It seems clear to me it is. The event

of legal consequence is the entry of judgment of sentence. Judgment of

sentence was entered in April 2018. The defendant timely appealed as a

matter of right from the entry of judgment of sentence. The application of

the amendment to an event of consequence antedating the effective date

of the amendment is in fact a retrospective application of the statute.

Having concluded the application of the amendment to this case is

in fact retrospective, the second inquiry is whether the legislature

authorized retrospective application of the statute. See Iowa Code § 4.5

(2018). Here, there is no statutory language authorizing the retrospective

application of the statute. Thus, the statute operates only prospectively

and cannot change the legal consequence of the entry of judgment and

sentence. See id. Because the text of the statute does not provide for

retrospective application, there is no need to proceed to the third step of

the test. I thus concur in the majority’s holding that the defendant can

pursue this appeal as a matter of right.

B.

Iowa Code section 814.7 governs the presentation and disposition of

a claim of ineffective assistance of counsel on direct appeal. At the time

the defendant filed her notice of appeal in this case, the Code authorized

the defendant to present a claim of ineffective assistance of counsel. See

Iowa Code § 814.7(2) (“A party may, but is not required to, raise an

ineffective assistance claim on direct appeal from the criminal proceedings

. . . .”). The Code also authorized this court to “decide the claim” or 26

“preserve the claim for determination” in postconviction-relief proceedings.

Id. § 814.7(3). The Omnibus Crime Bill changed this provision. The

amendment restricted this court’s authority to decide claims of ineffective

assistance of counsel on direct appeal, providing “the claim shall not be

decided on direct appeal from the criminal proceedings.” 2019 Iowa Acts

ch. 140, § 31 (to be codified at Iowa Code § 814.7 (2020)).

In determining whether this amendment governs the defendant’s

right to bring this claim in this case, the first inquiry is whether application

of the amendment is in fact retrospective. With respect to this

amendment, the event of legal consequence is this court’s exercise of

judicial power—specifically, this court’s authority to decide a claim of

ineffective assistance of counsel on direct appeal. As Justice Scalia

explained in Landgraf, applying a statute to prevent the exercise of judicial

power after the effective date of a statute is in fact a prospective application

of a statute:

Our jurisdiction cases are explained, I think, by the fact that the purpose of provisions conferring or eliminating jurisdiction is to permit or forbid the exercise of judicial power—so that the relevant event for retroactivity purposes is the moment at which that power is sought to be exercised. Thus, applying a jurisdiction-eliminating statute to undo past judicial action would be applying it retroactively; but applying it to prevent any judicial action after the statute takes effect is applying it prospectively.

Landgraf, 511 U.S. at 293, 114 S. Ct. at 1525.

While this case does not involve the court’s jurisdiction, it does

involve the court’s authority to exercise judicial power. Thus, properly

understood, application of the amendment is not in fact a retrospective

application of the statute. Instead, it is a prospective application of the

statute to this court’s exercise of judicial power occurring after the effective

date of the amendment. See Republic Nat’l Bank of Miami v. United States, 27

506 U.S. 80, 100, 113 S. Ct. 554, 565 (1992) (Thomas, J., concurring in

part and concurring in the judgment) (“But not every application of a new

statute to a pending case will produce a ‘retroactive effect.’ ‘[W]hether a

particular application is retroactive’ will ‘depen[d] upon what one considers

to be the determinative event by which retroactivity or prospectivity is to

be calculated.’ ” (alterations in original) (quoting Kaiser Aluminum & Chem.

Corp. v. Bonjorno, 494 U.S. 827, 857–58, 857 n.3, 110 S. Ct. 1570, 1587–

88, 1588 n.3 (1990) (Scalia, J., concurring in the judgment))); State v.

Blank, 930 P.2d 1213, 1223 (Wash. 1997) (en banc) (“A statute operates

prospectively when the precipitating event for [its] application . . . occurs

after the effective date of the statute . . . .” (alterations in original) (quoting

Aetna Life Ins. v. Wash. Life & Disability Ins. Guar. Ass’n, 520 P.2d 162,

170 (Wash. 1974) (en banc))). Because this amendment does not in fact

operate retrospectively, there is no need to analyze the question under the

second and third parts of the test.

The majority opinion’s conclusion that James v. State, 479 N.W.2d

287 (Iowa 1991), precludes application of the amendment to section 814.7

is a misreading of James. At issue in James was whether the applicants

had the right to appeal from prison disciplinary rulings. See id. at 290.

“The statute controlling appeals from prison disciplinary rulings which

was in effect on that date provided for a right of direct appeal.” Id. The

court held “[b]ecause statutes controlling appeals are those that were in

effect at the time the judgment or order appealed from was rendered,” the

applicants had the right to appeal. Id. James was limited to the question

of whether the applicants had the ability to pursue an appeal as a matter

of right. The event of legal consequence in that case was the entry of the

rulings in the prison disciplinary cases. There is nothing in James that

addresses the question presented in this case—what statute controls the 28

exercise of judicial power at the time the power is exercised. James is

simply inapplicable to the question regarding the correct temporal

application of the amendment to section 814.7.

Contrary to the majority’s interpretation of James, the general rule

is that statutes eliminating or restricting the exercise of judicial power after

the date of enactment do not raise concerns regarding retroactivity. See,

e.g., St. Cyr v. INS, 229 F.3d 406, 420 (2d Cir. 2000), aff’d, 533 U.S. 289,

290–91, 121 S. Ct. 2271, 2274–75 (2001) (“It is true that a change in law

that ‘speak[s] to the power of the court rather than to the rights or

obligations of the parties’ may be applied in a case without raising

concerns that it is impermissibly retroactive.” (alteration in original)

(quoting Landgraf v. USI Film Prods., 511 U.S. 244, 274, 114 S. Ct. 1483,

1502 (1994) (majority opinion))); Turkhan v. Perryman, 188 F.3d 814, 826

(7th Cir. 1999) (stating present law applies because it “speak[s] to the

power of the court” (quoting Landgraf, 511 U.S. at 274, 114 S. Ct. at

1502)); In re Resolution Tr. Corp., 888 F.2d 57, 58 (8th Cir. 1989) (“[T]he

general rule is otherwise with respect to new enactments changing

procedural or jurisdictional rules. If a case is still pending when the new

statute is passed, new procedural or jurisdictional rules will usually be

applied to it.”); Henry v. Ashcroft, 175 F. Supp. 2d 688, 693 (S.D.N.Y. 2001)

(stating that statutes “that ‘speak to the power of the court’ . . . generally

do not raise concerns about retroactivity” (quoting Landgraf, 511 U.S. at

274, 114 S. Ct. at 1502)); DeGroot v. DeGroot, 939 A.2d 664, 670 n.5 (D.C.

2008) (stating “a court may apply new laws to pending cases when those

laws ‘speak to the power of the court’ ” (quoting Coto v. Citibank FSB, 912

A.2d 562, 566 n.4 (D.C. 2006)); State v. Barren, 279 P.3d 182, 185 (Nev.

2012) (stating present law governs and that “a retroactivity analysis is

unnecessary because [it] is a jurisdictional statute”); Univ. of Texas Sw. 29

Med. Ctr. at Dallas v. Estate of Arancibia ex rel. Vasquez-Arancibia, 324

S.W.3d 544, 548 (Tex. 2010) (stating that statutes that speak to the power

of the court “may be applied to cases pending at the time of enactment”).

Because the presumption against the retrospective application of a

statute cannot work to bar the prospective application of a statute affecting

this court’s authority, I respectfully dissent from the majority’s decision to

resolve the defendant’s claim of ineffective assistance of counsel in this

direct appeal. The amendment to the statute clearly prohibits this exercise

of judicial authority after July 1, 2019. I would follow the plain language

of the statute and preserve the defendant’s claim of ineffective assistance

of counsel for postconviction-relief proceedings.

III.

The three-part test set forth and applied above is not explicitly set

forth in our caselaw. However, our caselaw in this area is a Rorschach

test of immaterial distinctions, unhelpful declarations, and result-oriented

decisions. The majority opinion does its best to defend the old doctrine,

but when the presumption against the retrospective application of a

statute can be used to bar the prospective application of a statute, it is

time to reconsider the doctrine.

The primary deficiency in our caselaw (and the majority opinion) is

it ignores the initial inquiry of whether a statute is in fact retrospective.

Instead of creating workable doctrine and corresponding vocabulary to

resolve the threshold question of when the operation of statute is in fact

retrospective, our caselaw has instead substituted a complex taxonomy

and corresponding rules to determine when a statute should be applied

retrospectively. Except these are wholly separate questions; substituting

one for the other merely confuses the issues. See Landgraf, 511 U.S. at

291–92, 114 S. Ct. at 1524 (Scalia, J., concurring in the judgment) (“The 30

critical issue, I think, is not whether the rule affects ‘vested rights,’ or

governs substance or procedure, but rather what is the relevant activity

that the rule regulates.”).

In addition to confusing the issues, the taxonomy and rules are

opaque and largely unworkable in any meaningful sense. Our cases have

identified at least five different categories of statutes: remedial, procedural,

substantive, curative, and emergency. See Iowa Beta Chapter of Phi Delta

Theta Fraternity v. State, 763 N.W.2d 250, 266 (Iowa 2009) (“In the absence

of a legislative declaration that the statute applies retrospectively, the

second step of the analysis is to determine whether the statute is

procedural, remedial, or substantive.”); Bd. of Trs. of Mun. Fire & Police Ret.

Sys. v. City of West Des Moines, 587 N.W.2d 227, 230 n.4 (Iowa 1998) (“We

have also determined curative legislation or emergency legislation may be

given retrospective application.”). Depending upon the categorization of

the statute, our caselaw provides different rules, exceptions, and

exceptions to exceptions that govern the temporal application of the

statute.

Take, for example, remedial statutes. “A remedial statute intends to

correct ‘existing law or redress an existing grievance.’ ” Iowa Beta Chapter,

763 N.W.2d at 266 (quoting Baldwin v. City of Waterloo, 372 N.W.2d 486,

491 (Iowa 1985)). A remedial statute is one which “regulates conduct for

the public good.” Iowa Comprehensive Petrol. Underground Storage Tank

Fund Bd. v. Shell Oil Co., 606 N.W.2d 370, 375 (Iowa 2000).

[It] affords a private remedy to a person injured by a wrongful act, corrects an existing law or redresses an existing grievance, gives a party a mode of remedy for a wrong where none or a different remedy existed, or remedies defects in the common law and in civil jurisprudence generally. 31

Bd. of Trs. of Mun. Fire & Police Ret. Sys., 587 N.W.2d at 231. Our caselaw

sets forth “a three-part test to determine” whether the legislature intended

retrospective or prospective application of a remedial statute. Anderson

Fin. Servs., LLC v. Miller, 769 N.W.2d 575, 579 (Iowa 2009); Emmet Cty.

State Bank v. Reutter, 439 N.W.2d 651, 654 (Iowa 1989).

First, we look to the language of the new legislation; second, we consider the evil to be remedied; and third, we consider whether there was any previously existing statute governing or limiting the mischief which the new legislation was intended to remedy.

Iowa Comprehensive Petrol., 606 N.W.2d at 375 (quoting Emmet Cty. State

Bank, 439 N.W.2d at 651). Depending upon how the court assesses those

three factors, our cases generally allow retrospective application of a

remedial statute. See Iowa Beta Chapter, 763 N.W.2d at 267 (“[W]e do

allow a statute to apply retrospectively when the statute provides an

additional remedy to an already existing remedy or provides a remedy for

an already existing loss . . . .”). Except if the remedial statute eliminates

a remedy. See id. (“[W]e have refused to apply a statute retrospectively

when the statute eliminates or limits a remedy.”). In that case, our caselaw

simply reclassifies as substantive what it had previously classified as

“procedural” or “remedial.” Groesbeck v. Napier, 275 N.W.2d 388, 390–91

(Iowa 1979) (en banc) (classifying a statute as substantive because it

eliminated a remedy). Why does the reclassification matter? Because

substantive statutes are not applied retrospectively. See Vinson v. Linn-

Mar Cmty. Sch. Dist., 360 N.W.2d 108, 121 (Iowa 1984) (holding a statute

was substantive because it took away a right of recovery and holding the

statute thus could not be applied retrospectively).

I need not discuss any of the other categories or corresponding rules

to flesh out the issue. The rules governing the temporal application of the 32

additional categories of statutes are equally opaque. The main point here

is the categorical scheme is subject to numerous, apparent shortcomings.

First, the categorical scheme is contrary to section 4.5 of the Code,

which provides a statute shall have prospective operation only unless the

legislature expressly provides to the contrary. Nowhere does the Code

provide for the categorical scheme set forth in our caselaw.

Second, the categorical scheme is in tension with our caselaw, which

provides legislative intent controls. See, e.g., Dindinger v. Allsteel, Inc., 860

N.W.2d 557, 563 (Iowa 2015) (“It is well established that a statute is

presumed to be prospective only unless expressly made retrospective.”

(quoting Anderson Fin. Servs., 769 N.W.2d at 578)); Iowa Comprehensive

Petrol., 606 N.W.2d at 375 (“Absent an expressed indication to the

contrary, statutes are generally presumed to apply prospectively.”); Emmet

Cty. State Bank, 439 N.W.2d at 654 (“The determination instead boils

down to whether the legislature intended to give the amendment here

retrospective or prospective application.”); Barad v. Jefferson County, 178

N.W.2d 376, 378 (Iowa 1970) (“The question of retrospectivity is one of

legislative intent. Where the legislature has clearly expressed its intent we

do not resort to rules of statutory construction.” (citation omitted)).

Third, our categorical approach is a rhetorical device to justify

results-oriented decisions rather than an analytical device to actually

decide cases. The classification of any statute as remedial, procedural,

substantive, curative, or emergency is largely guesswork. While there

might be straight-forward cases at either end of the spectrum, for the great

number of cases, the classification is likely to turn on the court’s whim.

For example, as noted above, our cases specifically state that a remedial

statute should be reclassified as a substantive statute if the statute

eliminates a remedy. That exception seems wholly arbitrary to me. We 33

have an adversarial legal system. Any statute that works a debit in the

ledger of one party puts a credit in the ledger of the adverse party. It is

thus unclear to me why the elimination of a remedy makes a remedial

statute substantive but the addition of a remedy keeps a remedial statute

remedial. “The seemingly random exceptions to the Court’s ‘vested rights’

(substance-vs.-procedure) criterion must be made, I suggest, because that

criterion is fundamentally wrong.” Landgraf, 511 U.S. at 291, 114 S. Ct.

at 1524.

Because of the deficiencies in our existing caselaw, I would move

away from the categorical distinctions and instead adopt the three-part

test set forth in this opinion.

IV.

For these reasons, I respectfully dissent.