Opinion
No. 5-412 / 04-1221
Filed June 15, 2005
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
Defendant appeals from the sentence imposed by the district court following his guilty pleas to lascivious acts with a child and two counts of assault with intent to commit sexual abuse. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Theresa Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and Susan Cox, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
Yousif Khalil Suliman appeals from the sentence imposed by the district court following his guilty pleas to lascivious acts with a child and two counts of assault with intent to commit sexual abuse. Suliman contends the provisions of Iowa Code section 709.8 (2003) requiring him to serve an additional term of parole or work release following his incarceration amounts to an illegal sentence. We review his claim for corrections of errors at law. State v. Liddell, 672 N.W.2d 805, 815 (2003).
Following his guilty pleas, the district court sentenced Suliman to an indeterminate term of imprisonment not to exceed five years for the offense of lascivious acts with a child, and indeterminate terms of imprisonment not to exceed two years on each of the assault with intent to commit sexual abuse charges. The two assault sentences were ordered to run concurrently with each other, but consecutive to the lascivious acts sentence. The court also sentenced Suliman to an additional two years of parole or work release on the lascivious acts charge, in accordance with section 709.8. Suliman argues the parole or work release component of his sentence is illegal.
Iowa Code section 709.8 states in pertinent part:
Any person who violates a provision of this section shall, upon conviction, be guilty of a class "D" felony. 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 board of parole shall determine whether the person should be released on parole or placed in a work release program. 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. Violations of parole or work release shall be subject to the procedures set out in chapter 905 or 908 or rules adopted under those chapters. The sentence of an additional term of parole or work release shall be consecutive to the original term of confinement.
Suliman argues this provision results in an illegal sentence because it exceeds the maximum sentence allowed under the general indeterminate sentencing statute. We reject his argument. Iowa Code section 902.9 sets forth the maximum sentence for various felonies "if not prescribed by statute." Section 709.8 prescribes a different sentencing scheme for those guilty of lascivious acts with a child. Accordingly, the statute does not provide for an illegal sentence.
Suliman cites to State v. Stephenson, 608 N.W.2d 778, 784 (Iowa 2000), in which our supreme court held it improper to impose probation in addition to a term of incarceration. However, in Stephenson, the appellant was convicted of first-degree harassment in violation of section 708.7(2) (1999). Stephenson, 608 N.W.2d at 784. That section did not provide a specific penalty for harassment in the first degree. Id. Therefore, any sentence beyond the sentence provided in the general indeterminate sentencing statute was illegal. Id. Here, however, the legislature specifically provides for the additional sentence in section 709.8.
Suliman also argues section 709.8 directly conflicts with the statutes regarding parole and work release. Iowa Code section 906.1 (2003) defines the terms "parole" and "work release."
Parole is the release of a person who has been committed to the custody of the director of the Iowa department of corrections by reason of the person's commission of a public offense, which release occurs prior to the expiration of the person's term, is subject to supervision by the district department of correctional services, and is on conditions imposed by the district department.
Work release is the release of a person, who has been committed to the custody of the director of the Iowa department of corrections, pursuant to sections 904.901 through 904.909.
Iowa Code § 906.1. Suliman claims he cannot be sentenced to parole or work release after the expiration of his sentence because it conflicts with the definitions set forth in section 906.1. We disagree. Our supreme court has held "the legislature may be its own lexicographer and write its own definitions of words and terms." Saadiq v. State, 387 N.W.2d 315, 319 (Iowa 1986) (quoting State v. Durgin, 328 N.W.2d 507, 509 (Iowa 1983)). Accordingly, the legislature may define a term differently in one section that it does in another. Saadiq, 387 N.W.2d at 319. That is what the legislature has done here. It does not make the provisions of section 709.8 an illegal sentence. Accordingly, we affirm.