Opinion
No. 5-794 / 04-1950
Filed February 1, 2006
Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.
A defendant appeals from sentences imposed following his guilty pleas to ten counts of sexual exploitation of a minor and one count of lascivious acts with a child. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, John P. Sarcone, County Attorney, and Jeffrey Noble, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Kealoha Crytser appeals from a sentence imposed by the district court following his June 2002 guilty pleas to ten counts of sexual exploitation of a minor, an aggravated misdemeanor, in violation of Iowa Code section 728.12(3) (2001), and one count of lascivious acts with a child, a class "D" felony, in violation of section 709.8. Crytser contends the court imposed an illegal sentence when it ordered him to serve an additional term of parole or work release after expiration of his period of confinement. Upon our review for the correction of errors at law, State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998), we affirm Crytser's sentence.
In February 2004 the district court sentenced Crytser to a two-year indeterminate term of confinement on each sexual exploitation count and a five-year indeterminate term of confinement on the lascivious acts count. Two of the sexual exploitation counts and the lascivious acts count were ordered to run consecutively with each other resulting in a nine-year term of confinement for those three counts. The court ordered that Crytser's terms of confinement on the remaining eight sexual exploitation counts run concurrently with each other and the nine-year term it had already imposed.
In April 2005 the court further ordered that, upon completion of Crytser's confinement, he was sentenced to an additional term of parole or work release not to exceed two years. Crytser asserts this additional term constitutes an illegal sentence because it both (1) exceeds the maximum sentence allowed under section 902.9(5), the general indeterminate sentencing statute, and (2) conflicts with the definitions of "parole" and "work release" found in sections 904.901 and 906.1. We find Crytser's contentions to be without merit.
The court initially sentenced Crytser in August 2002, and Crytser appealed. In April 2003 the supreme court granted a motion by the State and remanded for resentencing, and in December 2003 the court dismissed Crytser's appeal. The district court resentenced Crytser in February 2004. Crytser filed a notice of appeal in December 2004, and in March 2005 the supreme court allowed Crytser to proceed with a delayed appeal. In April 2005 the district court filed an order nunc pro tunc that imposed an additional term of parole or work release following Crytser's release from confinement.
We first note "[a] sentence is not illegal unless it is not authorized by statute." State v. Shearon, 660 N.W.2d 52, 58 (Iowa 2003). Here, the additional term of parole or work release was imposed pursuant to section 709.8, which provides, in relevant part:
A person who violates a provision of this section and who is sentenced to a term of confinement shall also be sentenced to an additional term of parole or work release not to exceed two years. . . . The sentence of an additional term of parole or work release shall be consecutive to the original term of confinement.
Thus, the sentence at issue clearly has been authorized by statute.
Section 709.8 was amended in 2005, and no longer contains the language at issue here. See Iowa Code § 709.8 (Supp. 2005).
Moreover, there is no basis for Crytser's claim that the court imposed a sentence above and beyond the statutorily authorized maximum. Section 709.8, which deals with sentencing for the particular crime of lascivious acts with a child, is more specific than the general sentencing provisions of section 902.9. These statutes "should be read together and harmonized, if possible. However, to the extent of an irreconcilable conflict between them, the specific or special statute ordinarily will prevail over the general one." State v. Lutgen, 606 N.W.2d 312, 314 (Iowa 2000) (citation omitted); see also Iowa Code § 4.7 (same).
We conclude the two provisions can be given concurrent effect. Section 902.9(5) provides that the maximum sentence for a "D" felony conviction is "that prescribed by statute, or if not prescribed by statute, . . . confine[ment] for no more than five years. . . ." It is reasonable to read section 709.8 as creating a distinct statutory maximum for those individuals convicted of lascivious acts with a child and sentenced to a five-year indeterminate sentence. Moreover, even if the two statutes were irreconcilable, the specific provisions of section 709.8 would prevail over the more general provisions of section 902.9. Iowa Code § 4.7; Lutgen, 606 N.W.2d at 314. In either event, the district court did not impose an illegal sentence. Cf. State v. Stephenson, 608 N.W.2d 778, 784 (Iowa 2000) (holding it improper to impose probation in addition to a term of confinement where Code did not provide a specific penalty for the crime in question).
Crytser notes the definitions of "parole" and "work release" indicate that each is a release from actual or current confinement. See Iowa Code §§ 904.901, 906.1. He asserts that, accordingly, a person who has been discharged from his term of confinement cannot be placed on parole or work release. He contends the conflict between the definitions of parole and work release and the use of those terms in section 709.8 creates an ambiguity that must be construed in his favor to void his sentence.
Even if the conflict between the statutes is sufficient to create a latent ambiguity, see Citizens' Aide/Ombudsman v. Miller, 543 N.W.2d 899, 902 (Iowa 1996), that ambiguity alone is not a basis for invalidating the statutory sentencing scheme. It is the role of the legislature to "criminalize commissions or omissions and provide for a variety of penalties for a violation of a criminal statute." State v. Wolford Corp., 689 N.W.2d 471, 474 (Iowa 2004). When faced with ambiguity in statutory enactments, it is our role to employ the rules of statutory construction in order to ascertain legislative intent. Citizens' Aide/Ombudsman, 543 N.W.2d at 902. Even if we could not reconcile the provisions, the disputed portion of section 709.8 is more specific than the general parole and work release provisions and was enacted subsequent to those provisions. Accordingly, it prevails over them. See Iowa Code §§ 4.7, 4.8.
As noted by our supreme court:
It is not for us to consider the wisdom or folly of any legislative act. We lack the power to declare a statute void unless it is plainly and without doubt repugnant to the provisions of the constitution upon which the constitutional challenge is based. . . . Mere difficulty in ascertaining [a statute's] meaning or the fact that it is susceptible of different interpretations would not render it nugatory.
Saadiq v. State, 387 N.W.2d 315, 320 (Iowa 1986) (citations omitted). Crytser offers no argument or supporting authority for the proposition that Iowa Code section 709.8 (2001) is unconstitutionally void. Accordingly, as his sentence was authorized by statute, it must be affirmed.