State v. White

• Decision Date: 20 March 1996
• Docket Number: No. 95-710,95-710
• Citation: 545 N.W.2d 552
• Parties: STATE of Iowa, Appellee, v. Kenneth WHITE, Appellant.
• Court: Iowa Supreme Court

Page 552

545 N.W.2d 552

STATE of Iowa, Appellee, v. Kenneth WHITE, Appellant.

No. 95-710.

Supreme Court of Iowa.

March 20, 1996.

Michael R. Stowers of Babich, McConnell & Renzo, P.C., Des Moines, for appellant.

Thomas J. Miller, Attorney General, Susan M. Crawford, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kim Griffith, Assistant County Attorney, for appellee.

Considered en banc.

TERNUS, Justice.

Defendant, Kenneth White, was convicted of violating Iowa Code section 453B.12 (1993) when he delivered cocaine that did not have affixed to it the required drug tax stamps. See Iowa Code §§ 453B.3, .7, .12 (1993). White challenges his conviction claiming chapter 453B gives him a reasonable time following his possession of the cocaine to obtain and affix the tax stamps. We disagree with White's interpretation of chapter 453B and so affirm his conviction.

I. Background Facts and Proceedings.

White was charged by trial information with three counts of delivery of cocaine base and two counts of failure to affix a drug tax stamp. See Iowa Code §§ 124.401(1)(c), 453B.12 (1993). He pleaded not guilty.

White then sought dismissal of the tax stamp charges claiming (1) the State failed to allege that White did not "immediately" affix the stamp, and (2) chapter 453B is unconstitutionally vague. He also filed a bill of particulars asking the court to order the State to specify how it intended to prove that White failed to affix the tax stamps "immediately" after he acquired the drugs. The district court denied both motions.

Subsequently, White withdrew his not guilty plea and pleaded guilty to all charges pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The court sentenced him to concurrent terms of ten years for each delivery conviction and five years for each tax stamp conviction. White appeals the district court's rulings on his motion to dismiss and his motion for bill of particulars.

II. Preservation of Error.

We have stated on numerous occasions that a guilty plea waives all defenses "except that the indictment or information charges no offense." State v. Kulish, 260 Iowa 138, 143, 148 N.W.2d 428, 432 (1967); accord State v. Jaeger, 249 N.W.2d 688, 690 (Iowa 1977); State v. Everhart, 243 N.W.2d 574, 575 (Iowa 1976); 21 Am.Jur.2d Criminal Law § 490, at 807 (1981) (plea of guilty does not preclude a defendant from claiming that the facts in the accusatory pleading do not constitute a crime). In Jaeger, the defendant filed a demurrer to a charge of unlawful use of a telephone, claiming Iowa Code section 714.37 (1975) was unconstitutionally vague and overbroad. Jaeger, 249 N.W.2d at 689. After his demurrer was overruled, he pled guilty to the charge and appealed. Id. We held his guilty plea did not waive his constitutionality challenge:

We hold that if an indictment or county attorney's information facially shows a charge on which the State may not constitutionally prosecute, then a plea of guilty subsequent to an adverse ruling on a demurrer does not waive the claimed unconstitutionality as "no offense is stated."

Id. at 690.

This narrow exception to our normal error preservation rule applies to White's motion to dismiss because he claims the trial information did not allege a crime for two reasons: (1) it did not include an essential element of a section 453B.12 offense--that the defendant failed to affix the tax stamps "immediately"; and (2) chapter 453B is unconstitutionally vague. Although White's motion for bill of particulars rested on the same premise, that "immediately" is an element of the offense, we decline to expand prior holdings to encompass this motion. Therefore, we review only the court's ruling on White's motion to dismiss.

III. Scope of Review.

We review a challenge to the sufficiency of the trial information for errors at law. State v. Grice, 515 N.W.2d 20, 22 (Iowa 1994). Issues of statutory construction are also reviewed for errors of law. State v. Ahitow, 544 N.W.2d 270, 272 (Iowa 1996). However, we review White's constitutional claim de novo. State v. Huisman, 544 N.W.2d 433, 436 (Iowa 1996).

IV. Elements of Failure to Affix a Drug Tax Stamp.

White argues an element of the offense of failure to affix a drug tax stamp is that the defendant "failed to affix stamps within a reasonable time." He bases this argument on the assertion that chapter 453B's reference to affixing the tax stamps "immediately" means the stamps need not be affixed instantly but rather at some later time. White claims the trial information failed to include this "within a reasonable time" element and therefore, did not allege a crime under chapter 453B. In considering White's claim, it is necessary to briefly review the statutory scheme of this chapter.

Iowa Code section 453B.7 imposes an excise tax on dealers. Iowa Code § 453B.7 (1993). This tax is "due and payable immediately upon manufacture, production, acquisition, purchase, or possession by a dealer." Id. § 453B.3 (emphasis added). Section 453B.3 also states the dealer "shall not possess, distribute, or offer to sell a taxable substance unless the tax imposed under this chapter has been paid as evidenced by a stamp, label, or other official indicia permanently affixed to the taxable substance." Id. (emphasis added). It also provides that in situations where the stamp has not already been affixed, "the dealer shall have the [stamp] permanently affixed on the taxable substance immediately after receiving the taxable substance." Id. (emphasis added).

Section 453B.12 sets forth the civil and criminal penalties for any violation of chapter 453B:

A dealer who violates this chapter is subject to a penalty equal to the amount of the tax imposed by section 453B.7, in addition to the tax imposed by that section. The dealer shall pay interest on the tax and penalty at the rate in effect under section 421.7, counting each fraction of a month as an entire month, computed from the date of assessment through the date of payment. The penalty and interest shall be collected as part of the tax.

In addition to the civil tax penalty and interest imposed by this section, a dealer distributing, offering to sell, or possessing taxable substances without affixing the appropriate stamps, labels, or other official indicia is guilty of a class "D" felony.

Iowa Code § 453B.12 (1993). To determine the elements of an offense, we examine the statute defining it. State v. Welch, 507 N.W.2d 580, 582 (Iowa 1993). Thus, we look to section 453B.12 to identify the elements of failure to affix a drug tax stamp.

The essential elements of this offense are (1) the defendant is a dealer, ¹ (2) who unlawfully possesses, distributes or offers to sell, (3) a taxable substance, ² (4) without affixing a stamp, label, or other official indicia evidencing the tax imposed by chapter 453B has been paid. See State v. Gallup, 500 N.W.2d 437, 442 (Iowa 1993). As a listing of these elements illustrates, section 453B.12 does not use the word "immediately," nor does the statute give the dealer a grace period after the dealer possesses, distributes, or offers to sell the substance within which to affix the stamp.

Nevertheless, White notes section 453B.3 imposes an obligation upon the dealer to pay the tax "immediately," and requires a dealer receiving a taxable substance without a tax stamp to affix a stamp "immediately after" obtaining the substance. He claims the word "immediately" gives a dealer a reasonable time to pay the tax and affix the stamps after the dealer comes into possession of the substance. In contrast, White points out, section 453B.12 makes the mere possession of a taxable substance without a tax stamp a crime, without considering whether the defendant had a reasonable opportunity to affix the stamp.

White claims these differences create a conflict between sections 453B.3 and 453B.12, resulting in an ambiguity in section 453B.12. Because the statute is ambiguous, he argues, we must construe it narrowly, criminalizing only the failure to pay the tax and affix the stamp within a reasonable time after the regulated transaction. See State v. Byers, 456 N.W.2d 917, 919 (Iowa 1990) ("Statutes that are penal in nature are to be strictly construed, with any doubt resolved against the State and in favor of the accused."). We conclude there is no conflict between section 453B.3 and section 453B.12 because neither statute gives a dealer time after the prohibited transaction to pay the tax and affix the stamp. We base this conclusion on our interpretation of the word "immediately" as used in section 453B.3.

Ambiguity exists when reasonable minds differ or are uncertain as to the meaning of a statute. Ahitow, 544 N.W.2d at 272. To determine whether reasonable minds disagree, we examine the text and structure of the law as a whole, giving effect to its object and purpose. Id.; American Asbestos Training Ctr., Ltd. v. Eastern Iowa Community College, 463 N.W.2d 56, 58 (Iowa 1990); see also Iowa Code § 4.1(38) (1995) ("Words and phrases shall be construed according to the context and the approved usage of the language...."). When examining a statutory term, we give words their ordinary meaning, absent any legislative definition or particular meaning in the law. State v. Romeo 542 N.W.2d 543, 548 (Iowa 1996). The dictionary is an acceptable source for the common meaning of a word. Id.

The word "immediately" is defined as "without interval of time: without delay." Webster's Third New Int'l Dictionary 1129 (1993). We cannot find in the ordinary meaning of the word "immediately" any support for White's argument that it means "within a reasonable time."

Nor does the context within which this word is used imply a different meaning. Section 453B.3 prohibits a dealer from possessing, distributing or offering to sell a taxable substance unless the drug tax "has been paid as evidenced by [the appropriate] stamp." Iowa Code § 453B.3 (1993)...