IN THE SUPREME COURT OF IOWA
No. 07–0703
Filed November 14, 2008
STATE OF IOWA,
Appellant,
vs.
KELLY LEE WADE,
Appellee. ________________________________________________________________________ Appeal from the Iowa District Court for Johnson County, Stephen
C. Gerald II, Judge.
The State appeals a district court ruling that the special sentencing
provisions of Iowa Code section 903B.2 are unconstitutional.
JUDGMENT OF CONVICTION AFFIRMED. SENTENCE AFFIRMED IN
PART AND VACATED IN PART; CASE REMANDED FOR
RESENTENCING.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,
Assistant Attorney General, and Janet M. Lyness, County Attorney, for
appellant.
Paul D. Miller of Miller Law Office, Iowa City, for appellee. 2 BAKER, Justice.
The State appeals the district court’s ruling, in which the court
refused to impose the special sentence provisions of Iowa Code section
903B.2 (Supp. 2005) on Kelly Lee Wade, who had been convicted of
indecent exposure under chapter 709. The district court found the
statute was “illegal and unconstitutional.” In this case, the court is
asked to decide whether the special sentencing provisions of Iowa Code
section 903B.2 violate the United States Constitution’s prohibition
against cruel and unusual punishment, the separation-of-powers
doctrine, and the Equal Protection Clauses of the United States and Iowa
Constitutions. Because we find Iowa Code section 903B.2 is neither
illegal nor unconstitutional, we remand this case with instructions that
the sentence under section 903B.2 be imposed.
I. Background Facts and Prior Proceedings.
On May 23, 2006, Wade entered a beauty salon and inquired
about a pubic wax procedure. He unzipped his pants and exposed his
pubic hair to a stylist, then zipped his pants, turned toward another
stylist, placed his hand down his pants, and rubbed himself. On July 5,
Wade was charged by trial information with indecent exposure, a serious
misdemeanor, in violation of Iowa Code section 709.9. Wade initially
entered a plea of not guilty. He later withdrew the not-guilty plea and
entered a guilty plea but resisted the district court’s imposition of a
special sentence under Iowa Code section 903B.2. Pursuant to the guilty
plea, Wade was convicted of indecent exposure. He was sentenced to
serve 365 days in jail, with 355 days of the sentence suspended, and was
placed on probation for two years.
Wade filed a motion to determine the constitutionality of section
903B.2, which imposes a special sentence for a person convicted of a 3 misdemeanor under chapter 709. Pursuant to Iowa Code section
903B.2, A person convicted of a misdemeanor or a class “D” felony offense under chapter 709 . . . shall also be sentenced, in addition to any other punishment provided by law, to a special sentence committing the person into the custody of the director of the Iowa department of corrections for a period of ten years, with eligibility for parole as provided in chapter 906. The special sentence imposed under this section shall commence upon completion of the sentence imposed under any applicable criminal sentencing provisions for the underlying criminal offense and the person shall begin the sentence under supervision as if on parole. The person shall be placed on the corrections continuum in chapter 901B, and the terms and conditions of the special sentence, including violations, shall be subject to the same set of procedures set out in chapters 901B, 905, 906, and 908, and rules adopted under those chapters for persons on parole. The revocation of release shall not be for a period greater than two years upon any first revocation, and five years upon any second or subsequent revocation. Wade asserted the application of the statute is an illegal sentence
and unconstitutional, as violative of the Due Process Clauses of the
United States and Iowa Constitutions and the prohibition against cruel
and unusual punishment contained in the United States Constitution.
Wade later supplemented his motion and asserted section 903B.2 is
overbroad and violates the Equal Protection Clauses of the United States and Iowa Constitutions. He also asserted that the sentence violated the
separation-of-powers doctrine. The district court found the special
sentence provisions of section 903B.2 were “illegal and unconstitutional
under the laws applicable to this case for the reasons set forth in the
defendant’s objections” and refused to impose the special sentence on
Wade. The State appeals.
II. Scope of Review.
This court reviews challenges to the constitutionality of a statute
de novo. State v. Keene, 629 N.W.2d 360, 363 (Iowa 2001). “[W]e must 4 remember that statutes are cloaked with a presumption of
constitutionality. The challenger bears a heavy burden, because it must
prove the unconstitutionality beyond a reasonable doubt.” State v.
Seering, 701 N.W.2d 655, 661 (Iowa 2005) (citing State v. Hernandez-
Lopez, 639 N.W.2d 226, 233 (Iowa 2002)). This court reviews the district
court’s interpretation of a statute for correction of errors at law. Iowa R.
App. P. 6.4; State v. Boggs, 741 N.W.2d 492, 498 (Iowa 2007); State v.
Mott, 731 N.W.2d 392, 394 (Iowa 2007).
III. Issues Waived.
In his brief to this court, Wade does not argue due process or
overbreadth as reasons for upholding the district court’s ruling. He has
therefore waived these issues. See Iowa R. App. P. 6.14(1)(c) (“Failure in
the brief to state, to argue, or to cite authority in support of an issue may
be deemed waiver of that issue.”).
IV. Cruel and Unusual Punishment.
“The United States Constitution prohibits ‘cruel and unusual’
punishment, and this prohibition is applicable to the states through the
Fourteenth Amendment.” State v. Phillips, 610 N.W.2d 840, 843 (Iowa
2000) (citing U.S. Const. amend. VIII; State v. Lara, 580 N.W.2d 783, 784
(Iowa), cert. denied, 525 U.S. 1007, 119 S. Ct. 523, 142 L. Ed. 2d 434
(1998)). “[T]he Eighth Amendment’s protection against excessive or cruel
and unusual punishments flows from the basic ‘precept of justice that
punishment for [a] crime should be graduated and proportioned to [the]
offense.’ ” Kennedy v. Louisiana, ___ U.S. ___, ___, 128 S. Ct. 2641, 2649,
171 L. Ed. 2d 525, 538 (2008) (quoting Weems v. United States, 217 U.S.
349, 367, 30 S. Ct. 544, 549, 54 L. Ed. 793, 798 (1910)). Punishment
may be considered cruel and unusual “because it is ‘so excessively severe 5 that it is disproportionate to the offense charged.’ ” Phillips, 610 N.W.2d
at 843–44 (quoting Lara, 580 N.W.2d at 785). Generally, a sentence that falls within the parameters of a statutorily prescribed penalty does not constitute cruel and unusual punishment. Only extreme sentences that are “grossly disproportionate” to the crime conceivably violate the Eighth Amendment. Substantial deference is afforded the legislature in setting the penalty for crimes. Notwithstanding, it is within the court’s power to determine whether the term of imprisonment imposed is grossly disproportionate to the crime charged. If it is not, no further analysis is necessary. State v. Cronkhite, 613 N.W.2d 664, 669 (Iowa 2000) (quoting Harmelin v.
Michigan, 501 U.S. 957, 1001, 111 S. Ct. 2680, 2705, 115 L. Ed. 2d 836,
869 (1991)) (other citations omitted); see also Rummel v. Estelle, 445 U.S.
263, 272, 100 S. Ct. 1133, 1138, 63 L. Ed. 2d 382, 390 (1980) (“Outside
the context of capital punishment, successful challenges to the
proportionality of particular sentences have been exceedingly rare.”);
Lara, 580 N.W.2d at 785 (“Legislative determinations of terms of
imprisonment are given a strong presumption of constitutionality.”).
Indecent exposure is a serious misdemeanor, punishable by a term
of imprisonment not to exceed one year. Iowa Code § 903.1(1)(b).
Pursuant to Iowa Code section 903B.2, Wade is subject to a ten-year special sentence, whereby if he violates the terms of his parole, he will be
sentenced to additional imprisonment for a term not to exceed two years
for a first offense and not to exceed five years for a second offense. Wade
contends that committing him to the custody of the director of the Iowa
department of corrections for ten years, with mandatory revocation and
imprisonment terms of two or five years for parole violations, is “grossly
disproportionate” to the allowable maximum sentence for a serious
misdemeanor, and therefore violates the cruel-and-unusual clause of the
Constitution. 6 Our analysis begins with application of a threshold test that
measures “ ‘the harshness of the penalty against the gravity of the
offense.’ ” Seering, 701 N.W.2d at 670 (quoting State v. Rubino, 602
N.W.2d 558, 564 (Iowa 1999)); see also State v. Musser, 721 N.W.2d 734,
749 (Iowa 2006) (noting the proportionality test is used only in those rare
cases where “ ‘a threshold comparison of the crime committed to the
sentence imposed leads to an inference of gross disproportionality.’ ”
(quoting Lara, 580 N.W.2d at 785)). The analysis of whether a sentence
is “grossly disproportionate in view of the gravity” of the offense “is
undertaken objectively without considering the individualized
circumstances of the defendant or the victim in this case.” Musser, 721
N.W.2d at 749.
This court has held that a two-year sentence for violating a
residency restriction for sex offenders “is in appropriate proportion with
the crime and thus is not cruel and unusual punishment.” Seering, 701
N.W.2d at 670. Noting that the restriction had “been created to enforce
an important state interest in protecting persons against sexual
offenders,” the court held that “a potential two-year penalty attached to a
violation of the statute is [not] disproportionate when ‘measuring the
harshness of the penalty against the gravity of the offense.’ ” Id. (quoting
Rubino, 602 N.W.2d at 564); see also United States v. Moriarty, 429 F.3d
1012, 1025 (11th Cir. 2005) (holding a term of lifetime supervised release
not grossly disproportionate to child pornography offense).
In this case, the statute commits an offender into the custody of
the department of corrections where “the person shall begin the sentence
under supervision as if on parole.” Iowa Code § 903B.2. Any additional
imprisonment will be realized only if Wade violates the terms of his
parole. Iowa Code section 903B.2 is not grossly disproportionate to the 7 acts of committing the crime of indecent exposure and subsequently
violating parole terms, and thus is not cruel and unusual punishment.
V. Equal Protection.
Wade also contends section 903B.2 violates the equal protection
clauses of the United States and Iowa Constitutions. “Because neither
party in this case has argued that our equal protection analysis under
the Iowa Constitution should differ in any way from our analysis under
the Federal Constitution, we decline to apply divergent analyses in this
case.” Sanchez v. State, 692 N.W.2d 812, 817 (Iowa 2005).
“The Fourteenth Amendment to the United States Constitution and
article I, section 6 of the Iowa Constitution provide individuals equal
protection under the law. This principle requires that ‘similarly situated
persons be treated alike under the law.’ ” Wright v. Iowa Dep’t of Corr.,
747 N.W.2d 213, 216 (Iowa 2008) (quoting In re Det. of Williams, 628
N.W.2d 447, 452 (Iowa 2001)). [T]he Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. The Equal Protection Clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Reed v. Reed, 404 U.S. 71, 75–76, 92 S. Ct. 251, 253–54, 30 L. Ed. 2d
225, 229 (1971) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S.
412, 415, 40 S. Ct. 560, 561, 64 L. Ed. 989, 990 (1920)) (other citations
omitted).
To determine whether a statute violates equal protection, we first
determine whether the statute makes a distinction between similarly
situated individuals. Wright, 747 N.W.2d at 216. While Wade identifies 8 a class of similarly situated persons, we find that under Iowa Code
section 903B.2 those persons are not accorded different treatment.
Further, the legislature could have rationally determined that a
classification imposing a special sentence on all offenders who have
committed sex crimes, whether serious misdemeanors or felonies,
advances the governmental objective of protecting citizens from sex
crimes.
Iowa Code section 903B.2 subjects persons convicted of class “D”
felony offenses or misdemeanors under chapter 709 (sexual abuse),
section 726.2 (incest), or section 728.12 (sexual exploitation of a minor)
to the special sentence. Essentially, section 903B.2 places offenders
who have committed certain sex crimes in a unique class and imposes
upon them a special sentence.
Wade claims that “[p]lacing a person convicted of the serious
misdemeanor Indecent Exposure in the same classification as Class D
felons is not a reasonable classification.” Wade argues that subjecting
serious misdemeanants and felons to the same special sentence is
unreasonable because under the Iowa sentencing and probation
structure, misdemeanants are otherwise treated less harshly than
felons.
Under equal protection, it is the nature of the offense and not its
criminal classification that determines whether offenders are similarly
situated. See People v. Friesen, 45 P.3d 784, 785 (Colo. Ct. App. 2001)
(concluding that different felony classifications merely set forth the
penalty ranges for classes of offenses and do not create classes of
offenders, therefore, a defendant is only similarly situated with
defendants who commit the same or similar acts). Here, the nature of
the offense is a sex crime. Therefore, offenders who commit sex crimes 9 are similarly situated, whether their particular offense is classified as a
misdemeanor or felony.
Even though Wade has identified two classes that are similarly
situated, Wade’s equal protection argument fails because under Iowa
Code section 903B.2 offenders who commit serious misdemeanor sex
crimes and offenders who commit felony sex crimes are not treated
differently. Under equal protection, “all persons similarly circumstanced
shall be treated alike.” Reed, 404 U.S. at 75–76, 92 S. Ct. at 253–54, 30
L. Ed. 2d at 229. Where there is no disparate treatment of similarly
situated individuals, an equal protection claim fails. Section 903B.2
imposes the special sentence upon all sexual offenders, both serious
misdemeanants and felons. Serious misdemeanant sexual offenders
and felony sexual offenders are similarly situated and similarly treated.
Under Wade’s challenged classification, Iowa Code section 903B.2 does
not violate equal protection. See People v. Williams, 89 P.3d 492,
495 (Colo. Ct. App. 2003) (rejecting defendant’s argument that provision
which “provides the same sentence enhancement whether accompanied
by misdemeanor or felony sexual assault,” and therefore unfairly
subjected misdemeanants to the same punishment as felons, violates
equal protection).
The district court held, without elaboration, that section 903B.2
denies offenders who commit sex crimes “the same equal protections of
the laws as other criminal offenders.” We will address this classification
as well. The State has a strong interest in protecting its citizens from sex
crimes. State v. Iowa Dist. Ct. for Scott County, 508 N.W.2d 692,
694 (Iowa 1993) (per curiam); see also Seering, 701 N.W.2d at 665
(noting the strong government interest in preventing sex offenders from
reoffending). Moreover, “[t]he legislature enjoys broad discretion in 10 defining and classifying criminal offenses.” State v. Biddle, 652 N.W.2d
191, 203 (Iowa 2002) (citing State v. Ceaser, 585 N.W.2d 192, 196 (Iowa
1998)).
Because sex offenders present a special problem and danger to
society, the legislature may classify them differently. This court has
previously held, that “[t]he legislature is free to single out sexually violent
predators from other violent offenders. The particularly devastating
effects of sexual crimes on victims . . . provide a rational basis for the
classification.” In re Morrow, 616 N.W.2d 544, 549 (Iowa 2000). This
court has also determined that “the legislature may decide to treat sexual
abuse crimes similarly regardless of whether the abuse was committed
with force.” Iowa Dist. Ct. for Scott County, 508 N.W.2d at 694 (citing
State v. Cobb, 311 N.W.2d 64, 67 (Iowa 1981)) (emphasis added). “[I]t is
up to the legislature to determine the most appropriate method of
punishing and deterring criminal activity.” Biddle, 652 N.W.2d at 203
(citing Ceaser, 585 N.W.2d at 199). “ ‘As long as the classificatory
scheme chosen by [the legislature] rationally advances a reasonable and
identifiable governmental objective, we must disregard the existence of
other methods . . . that we, as individuals, perhaps would have
preferred.’ ” Sanchez, 692 N.W.2d at 818 (quoting Schweiker v. Wilson,
450 U.S. 221, 235, 101 S. Ct. 1074, 1083, 67 L. Ed. 2d 186, 198 (1981)).
The fact that sexual offenders, both serious misdemeanants and felons,
are subject to different sentencing provisions than non-sexual offenders
raises no equal protection issue because it serves the legitimate
government interest of protecting the public from sex crimes.
Other jurisdictions have also come to this conclusion. See In re
Blodgett, 510 N.W.2d 910, 917 (Minn. 1994) (rejecting equal protection
challenge to a similar statute, noting that there are “genuine and 11 substantial distinctions” between the sexual predator and other
criminals because “the sexual predator poses a danger that is unlike any
other”); see also Martin v. People, 27 P.3d 846, 862 (Colo. 2001)
(recognizing “the legislature’s continuing desire to set sex offenders apart
from other offenders”); Friesen, 45 P.3d at 785 (concluding non-sexual
offenders are not similarly situated with sex offenders).
In upholding the constitutionality of the Alaska Sex Offender
Registration Act against an ex post facto challenge, the United States
Supreme Court stated that: Alaska could conclude that a conviction for a sex offense provides evidence of substantial risk of recidivism. The legislature’s findings are consistent with grave concerns over the high rate of recidivism among convicted sex offenders and their dangerousness as a class. The risk of recidivism posed by sex offenders is “frightening and high.” Smith v. Doe, 538 U.S. 84, 103, 123 S. Ct. 1140, 1153, 155 L. Ed. 2d
164, 183–84 (2003) (emphasis added) (quoting McKune v. Lile, 536 U.S.
24, 34, 122 S. Ct. 2017, 2025, 153 L. Ed. 2d 47, 57 (2002)). We
conclude that sex offenders are not similarly situated to other criminal
offenders, and therefore, under this challenged classification, Iowa Code
section 903B.2 does not violate equal protection.
In finding section 903B.2 unconstitutional, the district court also
noted “[t]he statutes concerned make no provision to distinguish parole
violations of a sexual nature with more basic parole violations.”
According to the district court, this failure could result in prison
sentences, for sex offenders only, “for parole infractions such as
consuming alcohol or failing to maintain employment.” Although we
appreciate the district court’s concern, we question whether this issue is
ripe for our determination. A case is ripe for adjudication when it presents an actual, present controversy, as opposed to one that is merely 12 hypothetical or speculative. The basic rationale for the ripeness doctrine is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. State v. Iowa Dist. Ct. for Black Hawk County, 616 N.W.2d 575, 578 (Iowa
2000) (quoting Abbott Lab. v. Gardner, 387 U.S. 136, 148–49, 87 S. Ct.
1507, 1515, 18 L. Ed. 2d 681, 691 (1967), overruled on other grounds by
Califano v. Sanders, 430 U.S. 99, 105, 97 S. Ct. 980, 984, 51 L. Ed. 2d
192, 199 (1977)) (other citations omitted).
We must determine if the issues raised by the district court are
administrative decisions for the department of corrections and board of
parole or a judicial decision for the sentencing court and whether there
has been an administrative decision that has affected the defendant.
Because we conclude in the following section that the issues raised by
the district court regarding minor parole infractions are administrative
decisions and the concerns expressed by the district court have not come
to pass, we find that this issue is not ripe.
VI. Separation of Powers.
Wade also argues that section 903B.2 violates the separation-of-
powers doctrine of the Iowa Constitution because it allows an
administrative parole judge to revoke an offender’s special sentence and
sentence him or her to a prison term for parole violations. The separation-of-powers clause provides: The powers of the government of Iowa shall be divided into three separate departments—the legislative, the executive, and the judicial: and no person charged with the exercise of powers properly belonging to one of these departments shall exercise any function appertaining to either of the others, except in cases hereinafter expressly directed or permitted. 13 Iowa Const. art. III, § 1. The “doctrine is violated ‘if one branch of
government purports to use powers that are clearly forbidden, or
attempts to use powers granted by the constitution to another branch.’ ”
Klouda v. Sixth Judicial Dist. Dep’t of Corr. Servs., 642 N.W.2d 255,
260 (Iowa 2002) (quoting Phillips, 610 N.W.2d at 842).
“Judicial power vested in the courts by the Iowa Constitution is the
power to decide and pronounce a judgment and carry it into effect. Any
encroachment upon that power is a violation of the separation-of-powers
doctrine.” Id. at 261. “[T]here is no encroachment on judicial power
when the legislature prescribes certain acts as crimes, provides penalties
for their violation, and authorizes or withholds probation.” Id. To the
extent a statute transfers sentencing functions to another branch of
government, it violates the separation-of-powers doctrine. Id. at 262.
Bearing these principles in mind, in Klouda this court determined
that statutes which allowed administrative law judges to revoke or
continue probation encroached on judicial power. Id. at 262–63.
“Although suspending a sentence and granting probation do not
constitute imposing a sentence . . . they are akin to sentencing in that
they represent a sentencing alternative.” Id. at 262 (citing State v.
Wright, 202 N.W.2d 72, 76 (Iowa 1972)). The court held that to the
extent the statutes involved sentencing functions, which “are clearly
reserved to the judiciary,” they violated the separation-of-powers
doctrine. Id. The question in this case, then, is to what extent does the
special sentencing statute involve sentencing functions.
The State argues that section 903B.2 does not violate the
separation-of-powers doctrine because the special sentence is not a
“sentencing alternative.” See id. Iowa Code section 903B.2 states an
offender “shall also be sentenced . . . to a special sentence . . . for a period 14 of ten years . . . as if on parole.” (Emphasis added.) Thus, the ten-year
sentence is mandatory, but upon commencement of the sentence, the
offender is immediately and automatically placed on parole. This court
has previously noted that “[p]robation ‘relates to judicial action taken
before the prison door is closed.’ In contrast, parole ‘relates to executive
or administrative action taken after the door has been closed on the
convict.’ ”. Klouda, 642 N.W.2d at 262 (quoting Wright, 202 N.W.2d at
76) (emphasis added); see also Doe v. State, 688 N.W.2d 265, 271 (Iowa
2004). The parole board, an executive agency, is vested with the
authority to determine which prisoners are released on parole. Iowa
Code § 906.3. “Historically, corrections officials have been given broad
discretion with respect to the role parole rightly plays in an individual
prisoner’s constructive reintegration into society.” Larsson v. Iowa Bd. of
Parole, 465 N.W.2d 272, 275 (Iowa 1991). In Iowa, most parole decisions
are legitimately within the discretion of the executive branch. Doe, 688
N.W.2d at 271.
Pursuant to Iowa Code section 908.5, if a parole violation is
established, an administrative parole judge may continue the parole with
or without modification or revoke the parole and require the parolee to
serve the sentence originally imposed. “As part of its power the legislature can grant to the parole board the exclusive power to determine if a parole permit shall be revoked and any such revocation by the parole board made within the limits of the legislative authority given to it cannot be attacked.” Larsson, 465 N.W.2d at 276 (quoting State v. Fazzano, 194 A.2d 680,
684 (R.I. 1963)). Clearly parole continuance, modification, and
revocation decisions are considered parole decisions rather than
sentencing decisions. 15 Here, the legislature simply extended Iowa’s parole supervision
scheme to require additional supervision for sex offenders consistent
with the state’s objective of protecting citizens from sex crimes. The
sentence is automatic. To the extent there are consequences from a
parole violation, such decisions are executive or administrative decisions
and no judicial function is involved. The consequences of a parole
violation under Section 903B.2 do not involve sentencing functions and
therefore the statute does not violate the separation-of-powers doctrine.
VII. Illegal Sentence/Conflict of Law.
Wade also argues that imposition of the special sentence “is an
illegal sentence as it conflicts with and violates the maximum period of
confinement” and length of probation provisions of Iowa Code sections
907.7 and 907.11. The district court ruled the special sentence
provisions of section 903B.2 were “illegal and unconstitutional under the
laws applicable to this case for the reasons set forth in the defendant’s
objections.” An illegal sentence is one which is not authorized by
statute. Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001). Here, the
special sentence would be imposed pursuant to section 903B.2 and is
specifically authorized by that statute.
Wade argues that imposition of the special sentence conflicts with
and violates the Iowa Code sections regarding sentencing for
misdemeanors and should therefore be declared unconstitutional.
Compare Iowa Code § 903B.2 (“A person convicted of a misdemeanor or a
class “D” felony offense under chapter 709, section 726.2, or section
728.12 shall also be sentenced, in addition to any other punishment
provided by law, to a special sentence committing the person into the
custody of the director of the Iowa department of corrections for a period
of ten years, with eligibility for parole as provided in chapter 906.”), with 16 id. § 903.1(1)(b) (“For a serious misdemeanor, there shall be a fine of at
least three hundred fifteen dollars but not to exceed one thousand eight
hundred seventy-five dollars. In addition, the court may also order
imprisonment not to exceed one year.”). We do not see any
constitutional implications.
The sole issue is whether there is an impermissible conflict
between sections 903B.2 and 903.1(1)(b). We find this argument to be
simply disingenuous. Wade was convicted of a serious misdemeanor.
Section 903.1 provides the sentences for misdemeanors and provides
different penalties for each class of misdemeanor. In the introductory
section of the statute, however, it states that the court shall determine
the sentence under this section, if a person is convicted of a “serious
misdemeanor and a specific penalty is not provided for.” Iowa Code §
903.1 (emphasis added). Under section 907.7, the length of probation for
a misdemeanor shall not exceed two years. Pursuant to section 906.15,
“a person released on parole shall be discharged when the person’s term
of parole equals the period of imprisonment specified in the person’s
sentence. . . .” The district court found: There is no way to reconcile the provisions of section 906.15 with section 903B.2. The maximum period of incarceration for a serious misdemeanor is one year which would require discharge from parole after a maximum of one year. Section 903B.2 provides for a “parole” of ten years. Where a general statutory provision conflicts with a special
provision, and the conflict “is irreconcilable, the special . . . provision
prevails as an exception to the general provision.” Iowa Code § 4.7.
Section 903.1(b) is specifically limited to those circumstances where “a
specific penalty is not provided for.” The specific provisions of section
903B.2 prevail over the more general provisions of section 903.1(1)(b). 17 The district court erred in finding section 903B.2 imposes an illegal
sentence.
VIII. Conclusion and Disposition.
The special sentence imposed under Iowa Code section 903B.2 is
not grossly disproportionate to the acts of committing the crime of
indecent exposure and subsequently violating parole terms, and thus is
not cruel and unusual punishment. The State has a strong interest in
protecting its citizens from sex crimes, and the legislature could
rationally determine that imposing a special sentence on sex offenders
for parole violations advances the State’s interest. Therefore, the statute
does not violate equal protection. Because the decision of whether a
parole violation has occurred under section 903B.2 is an executive or
administrative decision, such decisions do not involve sentencing
functions and therefore do not violate the separation-of-powers doctrine.
Because the specific provisions of section 903B.2 prevail over the more
general provisions of section 903.1(1)(b), section 903B.2 does not impose
an illegal sentence. For these reasons, we vacate the district court’s
holding that “the special sentence under Iowa Code section 903B.2 is
illegal and unconstitutional and shall not be imposed” upon Wade. We
remand this case with instructions that the sentence under section
903B.2 be imposed.
JUDGMENT OF CONVICTION AFFIRMED. SENTENCE
AFFIRMED IN PART AND VACATED IN PART; CASE REMANDED FOR
All justices concur except Streit, J., who takes no part.