State v. Wade

• Decision Date: 14 November 2008
• Docket Number: No. 07-0703.,07-0703.
• Citation: 757 N.W.2d 618
• Parties: STATE of Iowa, Appellant, v. Kelly Lee WADE, Appellee.
• Court: Iowa Supreme Court

757 N.W.2d 618

STATE of Iowa, Appellant, v. Kelly Lee WADE, Appellee.

No. 07-0703.

Supreme Court of Iowa.

November 14, 2008.

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.

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 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 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 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.

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 acts of committing the crime of indecent exposure and subsequently violating parole...