Hajek v. Iowa State Bd. of Parole, 86-1772

• Decision Date: 21 October 1987
• Docket Number: No. 86-1772,86-1772
• Citation: 414 N.W.2d 122
• Parties: Matthew Q. HAJEK, Appellant, v. IOWA STATE BOARD OF PAROLE, Appellee.
• Court: Iowa Supreme Court

Page 122

414 N.W.2d 122

Matthew Q. HAJEK, Appellant, v. IOWA STATE BOARD OF PAROLE, Appellee.

No. 86-1772.

Supreme Court of Iowa.

Oct. 21, 1987.

Barbara A. Schwartz, Iowa City, and Craig Williams, Student Legal Intern, for appellant.

Thomas J. Miller, Atty. Gen., and Thomas D. McGrane, Asst. Atty. Gen., for appellee.

Considered en banc.

HARRIS, Justice.

The term "prior conviction" has been the subject of interpretation in a number of our cases under the recidivism statute (now Iowa Code section 902.8 (1987)). The term also appears in Iowa Code section 906.5 ¹ which limits parole possibilities for persons serving a criminal sentence. The question here is whether the term should have the same meaning in the parole provision as we have given it under the recidivism statute. We think the legislature intended for the term to be interpreted the same in both statutes.

Defendant Hajek was charged with a robbery which took place in Cedar Rapids on April 21, 1985. While the charge was pending he was released on bond. On August 29th he pled guilty to second-degree robbery, a forcible felony. Sentencing was set for a later date.

On August 30th, while still free on bond, Hajek committed a burglary. On October 16, 1985, he was sentenced to a ten-year indeterminate sentence for the April 21st robbery. On April 4, 1986, Hajek was convicted of second-degree burglary for the August 30th offense. He was given a ten-year indeterminate term with credit for time served, the sentence to run concurrently with the robbery sentence.

When he applied for parole Hajek was advised by the board of parole that his robbery conviction had been construed by the board as a prior conviction for a forcible felony, thus invoking the mandatory minimum term provided by Iowa Code section 906.5.

Hajek unsuccessfully challenged this interpretation by an administrative appeal and then brought this petition for judicial review. The district court affirmed the agency action and Hajek has appealed to us.

I. Inmates may appeal to district court from a parole board determination that section 906.5 is an impediment to their chances for parole. Mead v. Iowa State Bd. of Parole, 331 N.W.2d 102, 103 (Iowa 1983). In reviewing a district court's opinion upon judicial review we determine whether the district court correctly applied the law. Polk County Drainage Dist. Four v. Iowa Natural Resources Council, 377 N.W.2d 236, 239 (Iowa 1985). In order to make that determination we review the agency action as the district court should have pursuant to Iowa Code section 17A.19(8). Mary v. Iowa Dep't of Transp., 382 N.W.2d 128, 131 (Iowa 1986).

II. Iowa Code section 906.5 states, in relevant part:

If the person who is under consideration for parole is serving a sentence for conviction of a felony and has a criminal record of one or more prior convictions for a forcible felony ..., parole shall be denied unless the person has served at least one-half of the maximum term of the defendant's sentence. However, the mandatory sentence provided for by this section shall not apply if the sentence being served is for a felony other than a forcible felony and the sentences for the prior forcible felonies expired at least five years before the date of conviction for the present felony.

(Emphasis added.) The question is whether a person who has entered a guilty plea, but upon whom judgment has not yet been pronounced, has a prior conviction within the meaning of section 906.5.

The general rule is that criminal recidivism statutes which enhance punishment apply only when the second offense occurs after the imposition of judgment and sentence on the first offense. State v. Hollins, 310 N.W.2d 216, 217 (Iowa 1981). See also 4 Wharton's Criminal Procedure, Punishment § 631 (12th ed. 1976 & Supp.1986). The rationale for this rule is that recidivism statutes are intended to punish violators who have not responded to the restraining influence of conviction and punishment. State v. Conley, 222 N.W.2d 501, 503 (Iowa 1974); see also State v. Robinson, 262 N.W.2d 270, 271 (Iowa 1978). Under the rule two or more convictions on the same day cannot be cumulated so as to count as two or more previous convictions within the meaning of habitual criminal statutes. See Hollins, 310 N.W.2d at 218.

The board argues that section 906.5 is not a penal statute and thus is not subject to strict construction....