Opinion
No. 6-137 / 05-1034
Filed March 29, 2006
Appeal from the Iowa District Court for Buchanan County, K.D. Briner, Judge.
A defendant appeals from the sentence imposed following his guilty plea to one count of lascivious acts with a child. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Allan W. Vander Hart, County Attorney, and Karl Moorman, Assistant County Attorney, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Wayne Eugene King appeals from a sentence imposed by the district court following his guilty plea to one count of lascivious acts with a child, a class "D" felony, in violation of Iowa Code section 709.8 (2003). King 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 King's sentence.
Following entry of his guilty plea, King was sentenced to an indeterminate five-year term of confinement, to be followed by "two years of special release." King asserts the two-year additional term constitutes an illegal sentence because it (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. Upon review of the relevant statutory provisions, we conclude his contentions are without merit.
The court also imposed a $750 fine and a thirty-percent surcharge.
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 supervision shall commence immediately upon the expiration of the preceding sentence and shall be under the terms and conditions as set out in chapter 906. . . . 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 has clearly been authorized by statute.
In 2005, the legislature amended section 709.8 and removed the language at issue here. See Iowa Code § 709.8 (Supp. 2005).
Moreover, there is no basis for King'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 the Code did not a provide a specific penalty for the crime in question).
Finally, King 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. Accordingly, he asserts that 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 at issue here, 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). King does not assert that Iowa Code section 709.8 (2003) is unconstitutionally void, much less offer argument or authority in support of such a position. Accordingly, as his sentence was authorized by statute, it must be affirmed.