IN THE COURT OF APPEALS OF IOWA
No. 18-0645 Filed October 9, 2019
STATE OF IOWA, Plaintiff-Appellee,
vs.
RAYSHON T.P. RUSHING, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Heather L. Lauber
(probation revocation) and Robert B. Hanson (plea and sentencing), Judges.
A defendant appeals his conviction for being a felon in possession of a
firearm. AFFIRMED.
Seth Harrington of Harrington Law LC, Urbandale, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ. 2
BOWER, Judge.
Rayshon Rushing appeals his conviction for being a felon in possession of
a firearm. Rushing claims the district court did not have the authority to place him
at a residential facility when deferring judgment or to revoke his probation for rule
violations. He also claims the court erred in ordering him to pay the law-
enforcement-initiative surcharge. We find the court had the authority to place
Rushing in the residential facility as a condition of probation and to revoke his
probation. We find the surcharge, although not applicable, was not assessed
against Rushing, making his claim without merit. We affirm.
I. Background Facts & Proceedings
In December 2016, Rushing was charged with criminal gang participation
and being a felon in possession of a firearm. On March 10, 2017, Rushing pleaded
guilty to being a felon in possession of a firearm, in violation of Iowa Code section
724.26 (2016), and the State dismissed the gang-participation charge. The State
and the presentence investigation report preparer recommended imprisonment.
At the sentencing hearing in April, Rushing requested a deferred judgment. The
court deferred judgment and placed Rushing on probation under the supervision
of the department of correctional services (DCS). Rushing was ordered to reside
at a residential facility as a condition of probation. The court also ordered Rushing
to pay restitution and submit a DNA sample, and assessed a law-enforcement-
initiative surcharge, if applicable.
That summer, Rushing violated facility rules and incurred other probation
violations. Rushing’s probation was continued following a revocation hearing in
September. Rushing then incurred additional violations, stipulated to the 3
violations, and agreed to the revocation of his probation and deferred judgment.
In March 2018, the court revoked Rushing’s deferred judgment, adjudicated him
guilty of being a felon in possession of a firearm, and sentenced him to prison.
Rushing appeals, claiming the court did not have the authority to order him
to a residential facility when he had not been convicted and the court erred in
ordering Rushing to pay the law-enforcement-initiative surcharge.1
II. Standard of Review
Rushing challenges the legality of a condition of his probation. Our review
of a defendant’s sentence is for correction of errors at law. State v. Valin, 724
N.W.2d 440, 444 (Iowa 2006). “We may correct an illegal sentence at any time.”
State v. Davis, 544 N.W.2d 453, 455 (Iowa 1996). “When a defendant challenges
the terms of probation, ‘[i]t has long been a well-settled rule that trial courts have
a broad discretion in probation matters which will be interfered with only upon a
finding of abuse of that discretion.’” Valin, 724 N.W.2d at 444 (citation omitted).
III. Analysis
The State argues Rushing waived any error when he stipulated to the
violation of his probation and failed to challenge the district court’s authority at the
time of the revocation hearing. However, Rushing’s claim relates to the authority
of the court to impose the condition the violation of which resulted in the probation
revocation, not the court’s general authority to revoke probation. A claim that a
1 The Iowa legislature amended Iowa Code sections 814.6 and 814.7, effective July 1, 2019, limiting direct appeals from guilty pleas and eliminating direct-appeal ineffective- assistance-of-counsel claims. 2019 Iowa Acts ch. 140, §§ 28, 31 (to be codified at Iowa Code §§ 814.6-.7). The amendments “apply only prospectively and do not apply to cases pending on July 1, 2019,” and therefore do not apply in this case. State v. Macke, ___ N.W.2d ___, ___, 2019 WL 4382985, at *7 (Iowa 2019). 4
sentence or condition of probation is outside statutory bounds goes to the authority
of the court to impose the sentence or condition and is a claim the sentence is
illegal, which can be corrected at any time. State v. Lathrop, 781 N.W.2d 288, 294
(Iowa 2010).
A. Residential facility. Rushing claims the court deprived him of his
liberty by ordering him to a residential facility without a conviction. He further
reasons that if his placement at the facility was an illegal sentence, any probation
violations based on facility rules should not have been counted toward revocation
of his probation and deferred judgment. Because the facility violations should not
have affected his probation, Rushing states the revocation of his probation and
deferred judgment was outside the court’s authority.
Rushing makes only a categorical challenge to the residential facility
probation condition. Rushing interprets Iowa Code section 907.3(1) to say the
court does not have the authority to order a defendant into a residential treatment
facility when it defers judgment. We disagree.
Iowa Code section 907.3(1)(a) provides: “With the consent of the defendant,
the court may defer judgment and may place the defendant on probation upon
conditions as it may require.” The term “conviction” has two definitions under case
law—the establishment of guilt prior to and independent of judgment, or the
consummation of the prosecution including judgment and sentence. State v. Tong,
805 N.W.2d 599, 601 (Iowa 2011). When the purpose of the statute is to protect
the community, a deferred judgment is treated as a conviction. Id. at 602.
The purpose of probation is “to provide maximum opportunity for the
rehabilitation of the defendant and to protect the community from further offenses,” 5
and the court has the authority to impose conditions it deems necessary and within
the statutory parameters to achieve those purposes when deferring judgment. See
Iowa Code §§ 907.3, .7. The conditions of probation include the general conditions
established by the department of corrections and “any additional reasonable
conditions which the court or district department may impose to promote
rehabilitation of the defendant or protection of the community.” Id. § 907.6. Courts
have broad authority in establishing probation conditions as long as they are not
unreasonable, arbitrary, vindictive, vague or overbroad, unreasonable, or not
reasonably related to future criminality. State v.
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IN THE COURT OF APPEALS OF IOWA
No. 18-0645 Filed October 9, 2019
STATE OF IOWA, Plaintiff-Appellee,
vs.
RAYSHON T.P. RUSHING, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Heather L. Lauber
(probation revocation) and Robert B. Hanson (plea and sentencing), Judges.
A defendant appeals his conviction for being a felon in possession of a
firearm. AFFIRMED.
Seth Harrington of Harrington Law LC, Urbandale, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ. 2
BOWER, Judge.
Rayshon Rushing appeals his conviction for being a felon in possession of
a firearm. Rushing claims the district court did not have the authority to place him
at a residential facility when deferring judgment or to revoke his probation for rule
violations. He also claims the court erred in ordering him to pay the law-
enforcement-initiative surcharge. We find the court had the authority to place
Rushing in the residential facility as a condition of probation and to revoke his
probation. We find the surcharge, although not applicable, was not assessed
against Rushing, making his claim without merit. We affirm.
I. Background Facts & Proceedings
In December 2016, Rushing was charged with criminal gang participation
and being a felon in possession of a firearm. On March 10, 2017, Rushing pleaded
guilty to being a felon in possession of a firearm, in violation of Iowa Code section
724.26 (2016), and the State dismissed the gang-participation charge. The State
and the presentence investigation report preparer recommended imprisonment.
At the sentencing hearing in April, Rushing requested a deferred judgment. The
court deferred judgment and placed Rushing on probation under the supervision
of the department of correctional services (DCS). Rushing was ordered to reside
at a residential facility as a condition of probation. The court also ordered Rushing
to pay restitution and submit a DNA sample, and assessed a law-enforcement-
initiative surcharge, if applicable.
That summer, Rushing violated facility rules and incurred other probation
violations. Rushing’s probation was continued following a revocation hearing in
September. Rushing then incurred additional violations, stipulated to the 3
violations, and agreed to the revocation of his probation and deferred judgment.
In March 2018, the court revoked Rushing’s deferred judgment, adjudicated him
guilty of being a felon in possession of a firearm, and sentenced him to prison.
Rushing appeals, claiming the court did not have the authority to order him
to a residential facility when he had not been convicted and the court erred in
ordering Rushing to pay the law-enforcement-initiative surcharge.1
II. Standard of Review
Rushing challenges the legality of a condition of his probation. Our review
of a defendant’s sentence is for correction of errors at law. State v. Valin, 724
N.W.2d 440, 444 (Iowa 2006). “We may correct an illegal sentence at any time.”
State v. Davis, 544 N.W.2d 453, 455 (Iowa 1996). “When a defendant challenges
the terms of probation, ‘[i]t has long been a well-settled rule that trial courts have
a broad discretion in probation matters which will be interfered with only upon a
finding of abuse of that discretion.’” Valin, 724 N.W.2d at 444 (citation omitted).
III. Analysis
The State argues Rushing waived any error when he stipulated to the
violation of his probation and failed to challenge the district court’s authority at the
time of the revocation hearing. However, Rushing’s claim relates to the authority
of the court to impose the condition the violation of which resulted in the probation
revocation, not the court’s general authority to revoke probation. A claim that a
1 The Iowa legislature amended Iowa Code sections 814.6 and 814.7, effective July 1, 2019, limiting direct appeals from guilty pleas and eliminating direct-appeal ineffective- assistance-of-counsel claims. 2019 Iowa Acts ch. 140, §§ 28, 31 (to be codified at Iowa Code §§ 814.6-.7). The amendments “apply only prospectively and do not apply to cases pending on July 1, 2019,” and therefore do not apply in this case. State v. Macke, ___ N.W.2d ___, ___, 2019 WL 4382985, at *7 (Iowa 2019). 4
sentence or condition of probation is outside statutory bounds goes to the authority
of the court to impose the sentence or condition and is a claim the sentence is
illegal, which can be corrected at any time. State v. Lathrop, 781 N.W.2d 288, 294
(Iowa 2010).
A. Residential facility. Rushing claims the court deprived him of his
liberty by ordering him to a residential facility without a conviction. He further
reasons that if his placement at the facility was an illegal sentence, any probation
violations based on facility rules should not have been counted toward revocation
of his probation and deferred judgment. Because the facility violations should not
have affected his probation, Rushing states the revocation of his probation and
deferred judgment was outside the court’s authority.
Rushing makes only a categorical challenge to the residential facility
probation condition. Rushing interprets Iowa Code section 907.3(1) to say the
court does not have the authority to order a defendant into a residential treatment
facility when it defers judgment. We disagree.
Iowa Code section 907.3(1)(a) provides: “With the consent of the defendant,
the court may defer judgment and may place the defendant on probation upon
conditions as it may require.” The term “conviction” has two definitions under case
law—the establishment of guilt prior to and independent of judgment, or the
consummation of the prosecution including judgment and sentence. State v. Tong,
805 N.W.2d 599, 601 (Iowa 2011). When the purpose of the statute is to protect
the community, a deferred judgment is treated as a conviction. Id. at 602.
The purpose of probation is “to provide maximum opportunity for the
rehabilitation of the defendant and to protect the community from further offenses,” 5
and the court has the authority to impose conditions it deems necessary and within
the statutory parameters to achieve those purposes when deferring judgment. See
Iowa Code §§ 907.3, .7. The conditions of probation include the general conditions
established by the department of corrections and “any additional reasonable
conditions which the court or district department may impose to promote
rehabilitation of the defendant or protection of the community.” Id. § 907.6. Courts
have broad authority in establishing probation conditions as long as they are not
unreasonable, arbitrary, vindictive, vague or overbroad, unreasonable, or not
reasonably related to future criminality. State v. Hall, 740 N.W.2d 200, 203–04
(Iowa Ct. App. 2007). “A condition is reasonable when it relates to the defendant’s
circumstances in a reasonable manner and is justified by the defendant’s
circumstances.” Valin, 724 N.W.2d at 446 (citation omitted). The reasonableness
of a condition is evaluated by whether it is related to the relevant crime and whether
it reasonably addresses a statutory goal of probation. Id. at 446–47.
When granting probation, the court orders the defendant into the custody,
care, and supervision of either a resident of the state or the judicial district’s DCS.
Iowa Code § 907.8(2). The DCS is to place a defendant on probation under
section 907.3 “to the sanction and level of supervision which is appropriate to the
individual based upon a current risk assessment evaluation.” Id. § 901B.4(a).2
The sanctions and level of supervision imposed in Rushing’s case were
appropriate and reasonably related to Rushing’s rehabilitation and protection of
2 Rushing’s placement falls within the levels of supervision permitted under the statute. 6
the community. The court had the authority to impose reasonable conditions on
Rushing’s probation and did not impose an illegal sentence.
We note Rushing has not provided an as-applied explanation of why the
condition imposed by the court was not reasonable to promote his rehabilitation or
protect the community. During sentencing, the court specifically noted it
considered a structured setting necessary for Rushing’s rehabilitation and to
protect the community from further offenses by him. The presentence investigator
assessed Rushing using risk-assessment evaluations and stated Rushing met the
criteria for residential facility placement. The condition imposed—placement in a
residential facility—was reasonable, was not arbitrary, and fell within the permitted
range of probation conditions. We find the court’s placement of Rushing in a
residential facility based on the DCS’s recommendations and risk assessments is
within the range of sanction and supervision appropriate to Rushing at the time of
the sentencing hearing and was meant to facilitate his rehabilitation. We find no
abuse of the court’s discretion.
Because the placement in the residential facility was a valid probation
condition, the court’s revocation based on Rushing’s rule violations and absence
from the facility was not in error. We affirm.
B. Surcharge. Rushing asserts the court erred in ordering him to pay the
law enforcement initiative surcharge under Iowa Code section 911.3. The State
concedes the law enforcement surcharge does not apply to his conviction. 3 The
3 Iowa Code section 911.3 specifies on which criminal violations the surcharge can be assessed—Rushing’s conviction for being a felon in possession of a firearm is not included in the list; the surcharge therefore should not have been applied. 7
State claims the challenge is moot because the most recent judgment revoking
probation did not include the surcharge and the clerk has not imposed the
surcharge.
The surcharge was not mentioned in the plea hearing. The State requested
the surcharge at the sentencing hearing, but the court did not specify the surcharge
should be applied, instead applying “applicable surcharges.” The initial sentencing
order applied the surcharge “to each applicable offense.” At the probation
revocation, the State informed the court the surcharge did not apply. The order
revoking Rushing’s deferred judgment simply says Rushing is to pay a fine,
surcharge, and court costs—it does not specify the law enforcement initiative
The record, including the case’s financial summary, does not show the
surcharge was applied to Rushing. Although the court ordered the surcharge on
any applicable offense, the clerk’s office properly determined Rushing’s charge
was not an applicable offense and did not apply the surcharge. We find the
surcharge portion of Rushing’s claims is without merit.
AFFIRMED.