Warren Eugene Hardy v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: July 3, 2024
• Docket: 23-0873
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-0873 Filed July 3, 2024

WARREN EUGENE HARDY, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Tod Deck, Judge.

An applicant appeals the denial of his application for postconviction relief.

AFFIRMED.

Michael J. Jacobsma of Jacobsma Law Firm, P.C., Orange City, for

appellant.

Brenna Bird, Attorney General, and Bridget A. Chambers (until withdrawal)

and Genevieve Reinkoester, Assistant Attorneys General, for appellee State.

Considered by Badding, P.J., Bower, S.J.*, and Carr, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2024). 2

BADDING, Presiding Judge.

Warren Hardy pled guilty to operating while intoxicated (OWI), third or

subsequent offense, as a habitual offender, with an offense date in February 2021.

In his written guilty plea to the class “D” felony,1 see Iowa Code

§ 321J.2(2)(c) (2021), Hardy admitted to previously being convicted of two

charges of OWI, plus two felony drug charges. The court sentenced Hardy to a

term of imprisonment not to exceed fifteen years, with a mandatory minimum of

three years. No appeal was taken.

After requests to reconsider his sentence failed, Hardy applied for

postconviction relief, arguing “[t]he sentence exceeds the maximum authorized by

law” or “is otherwise subject to collateral attack.” Citing Noll v. Iowa District Court

for Muscatine County, 919 N.W.2d 232 (Iowa 2018), Hardy asserted the habitual

offender enhancement did not apply to his felony OWI conviction. The State

moved for summary disposition, pointing out that, after the Noll decision, the

legislature amended section 321J.2 to provide that a person charged with the

offense is subject to the habitual offender enhancement. See 2019 Iowa Acts

ch. 5, § 2 (adding section § 321J.2(5)(e), effective July 1, 2019)).

In his pro se resistance to summary disposition,2 Hardy argued the statutory

amendment did not apply because his two prior felonies occurred before its

enactment and therefore “would be a[n] . . . ex post facto violation.” After a hearing

1 Written guilty pleas to felony charges were authorized then by order of the supreme court in response to the COVID-19 pandemic. See State v. Smith, No. 22-1447, 2023 WL 33325993, at *1 n.1 (Iowa Ct. App. May 10, 2023). 2 After Hardy filed this resistance, counsel was appointed to represent him and

raised claims of ineffective assistance of plea counsel. Those claims, which were summarily disposed of by the district court, are not reprised on appeal. 3

on the State’s motion, the district court rejected this claim, concluding the

legislative amendment did not criminalize an act that was not a crime when it

occurred or enhance the penalty after the fact. The court accordingly granted the

State’s motion for summary disposition.

Hardy appeals, claiming his “sentence was illegal because his prior felony

convictions could not be used as a basis to enhance his sentence as a habitual

offender.” He argues that his prior felony convictions—which predated the

statutory amendment to section 321J.2 in response to Noll—cannot be “used as a

basis for enhancing a sentence to habitual offender status” because it “would

violate [his] right to be free from an ex post facto law.”

We typically review the summary disposition of a postconviction-relief

application for errors at law, but “our review is de novo when the basis for

postconviction relief implicates a constitutional violation,” as it does here. Linn v.

State, 929 N.W.2d 717, 729 (Iowa 2019); see also Taylor v. State, 752

N.W.2d 24, 27 (Iowa Ct. App. 2008).

We begin with a refresher on amendments to section 321J.2 in recent

years. In 2018, the supreme court determined that “the habitual offender

provisions in section 902.8 and 902.9 do not apply to OWI, third and subsequent

offenses” because Iowa Code section 321J.2(5) specifically provided for the

maximum and minimum sentence for that offense. Noll, 919 N.W.2d at 233, 235.

While the court observed “this outcome may not have been the actual intent of the

legislature,” it determined—based on the rules of statutory interpretation—that the

legislature’s 2002 amendments to section 321J.2 “took OWI-third-and- 4

subsequent-offense offenders out of the habitual offender option

of section 902.9.”3 Id. at 236.

The legislature swiftly responded to the Noll decision by enacting

section 321J.2(5)(e), which took effect on July 1, 2019 and provides:

“Notwithstanding the maximum sentence set forth in paragraph ‘a’, a person

convicted of a third or subsequent offense may be sentenced as an habitual

offender pursuant to sections 902.8 and 902.9 if the person qualifies as an

habitual offender as described in section 902.8.” 2019 Iowa Acts ch. 5, § 2.

That brings us to Hardy’s conviction and sentence in 2021 as a habitual

offender based on prior felony convictions that predated the enactment of

section 321J.2(5)(e). The question before us is whether that sentence violates the

federal and state constitutional prohibitions against ex post facto laws.

An ex post facto law creates or increases punishment for a particular act

and is applied to the actor after the fact. See State v. Soppe, 374 N.W.2d 649, 652

(Iowa 1985). Two elements must be present for a statute to be in violation of ex

post facto principles: it must (1) “apply to events occurring before its enactment”

and (2) alter the definition of criminal conduct or increase the penalty. State v.

Lopez, 907 N.W.2d 112, 122–23 (Iowa 2018) (citation omitted).

Hardy’s challenge fails from the get-go because the statute does not apply

to his prior convictions that pre-dated the enactment of section 321J.2(5)(e). The

statutory amendment made Hardy’s current conviction subject to enhancement as

3 Prior to those 2002 amendments, the supreme court had held the habitual offender enhancements did apply to third and subsequent OWIs because section 321J.2 did not prescribe a maximum sentence. See Brown v. State, 475 N.W.2d 3, 5–7 (Iowa 1991). 5

a habitual offender. It neither created nor enhanced the punishment for his prior

convictions. As the State argues, an enhancement statute generally “does ‘not

punish the defendant for his or her prior convictions, but instead punish[es] the

defendant as a repeat offender for the latest offense on the basis of his or her

propensity for misconduct.’” State v. Stoen, 596 N.W.2d 504, 507 (Iowa 1999)

(alteration in original) (citation omitted). “In other words, the enhancement of

punishment is for the pending offense, not the previous offenses.” Id.; accord State

v. DeCamp, 622 N.W.2d 290, 294 (Iowa 2001) (“[R]ecidivism laws do not define a

different or separate crime or add elements to existing crimes. . . . They do not

punish for the old offense, but stiffen the punishment for the latest offense.”

(internal citations omitted)); see also State v. Marks, No. 13-1051, 2014

WL 1495023, at *2 (Iowa Ct. App. Apr. 16, 2014) (rejecting claim that “sentence

violate[d] the constitutional prohibition against ex post facto laws because one of

the predicate convictions supporting the habitual offender enhancement was

obtained before the effective date of” statutory amendment, as enhanced

sentencing is outside the scope of retrospective application of statutes).

Finding no ex post facto violation, we affirm the summary disposition of

Hardy’s application for postconviction relief.