Kenneth Waters, Vs. Iowa District Court For Henry County ( 2010 )

IN THE SUPREME COURT OF IOWA
No. 07–0472
Filed June 11, 2010
KENNETH WATERS,
Plaintiff,
vs.
IOWA DISTRICT COURT
FOR HENRY COUNTY,
Defendant.
Certiorari from the Iowa District Court for Henry County, Mary A.
Brown, Judge.
Inmate challenges inability to accrue earned time based on refusal
to participate in sex offender treatment program. WRIT ANNULLED.
Philip B. Mears, Mears Law Office, Iowa City, for plaintiff.
Thomas J. Miller, Attorney General, and Forrest Guddall, Assistant
Attorney General, for defendant.
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STREIT, Justice.
Kenneth Waters was convicted of operating while intoxicated (OWI),
third offense, and assault with intent to commit sexual abuse. The Iowa
Department of Corrections (IDOC) required him to participate in a sex
offender treatment program (SOTP), but the requirement was instituted
after Waters had discharged the sentence for the assault with intent to
commit sexual abuse and while he was serving only the OWI sentence.
Waters refused to participate in the treatment, and as a result, pursuant
to Iowa Code section 903A.2, the department determined he was
ineligible to accrue additional earned time. Waters filed a postconviction
action. We hold the department acted within its statutory authority.
I. Background Facts and Prior Proceedings.
Kenneth Waters was convicted of OWI, third offense, on May 27,
2004, and sentenced to a term of incarceration not to exceed five years.
He pled guilty to assault with intent to commit sexual abuse on August
9, 2004, and was sentenced to a term of incarceration not to exceed two
years, to run concurrently with his OWI sentence, and ordered to
complete sex offender treatment and register as a sex offender.
In January 2005, Waters was reviewed by the Board of Parole.
IDOC had recommended Waters be released to the community and that
he participate in SOTP once released. The Board of Parole denied parole
and stated that Waters needed to go to SOTP, presumably in prison.
On May 22, 2005, while still in prison, Waters discharged his
sentence for assault with intent to commit sexual abuse. IDOC had not
yet classified Waters or placed him in SOTP. In December 2005, Waters
was classified and told he was required to attend SOTP. Waters signed a
refusal form, which explained that Waters would lose the ability to
accrue earned time if he refused. Based on his refusal, Waters’s
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tentative discharge date was changed from July 16, 2006, to March 27,
2007. Waters has since been discharged from prison. 1 The deputy
warden denied Waters’s appeal of the determination that he could no
longer earn a reduction in sentence. He then filed this case seeking
postconviction relief. The district court denied relief.
II. Scope of Review.
Generally, postconviction relief proceedings are reviewed for
correction of errors at law. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa
2002). “We review issues of statutory construction for errors at law.” In
re A.W., 741 N.W.2d 793, 806 (Iowa 2007). Waters’s claims alleging
violations of his constitutional rights are reviewed “ ‘in light of the totality
of the circumstances and the record upon which the postconviction
court’s ruling was made.’ ” Risdal v. State, 573 N.W.2d 261, 263 (Iowa
1998) (quoting James v. State, 541 N.W.2d 864, 869 (Iowa 1995)). This
is the functional equivalent of de novo review. Id.III. Merits.
As set forth in the companion case, Dykstra v. Iowa District Court,
___ N.W.2d ___, ___ (Iowa 2010), section 903A.2, which establishes
inmates’ ability to earn time, was amended in 2000, effective January 1,
2001, and in 2005. IDOC applied the 2005 amendment to Waters.
Waters raises three arguments in his postconviction petition. First,
Waters argues IDOC’s application of the 2005 amendment to him
violated the Ex Post Facto Clauses of the United States and Iowa
Constitutions because he committed the offenses and entered prison
prior to the effective date of the 2005 amendment. Second, Waters
1Although Waters’s postconviction action is moot because he has been released
from prison, Wilson v. Farrier, 372 N.W.2d 499, 501 (Iowa 1985), this court finds that
just as in Wilson the underlying question is one of public importance that is likely to
reoccur.
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argues the 2005 amendment cannot be read retroactively to apply to his
sentence. Third, Waters argues IDOC was without statutory authority to
stop Waters’s ability to earn time towards his OWI conviction because the
requirement that he participate in SOTP was based on Waters’s
conviction for assault with intent to commit sexual abuse.
A. Ex Post Facto Clause. We previously held that IDOC’s
application of amended Iowa Code section 903A.2 to inmates whose
crimes occurred prior to January 1, 2001, the effective date of the 2001
amendment to section 903A.2, violates the Ex Post Facto Clause. State
v. Iowa Dist. Ct., 759 N.W.2d 793, 801 (Iowa 2009). We held in Holm v.
Iowa District Court, 767 N.W.2d 409, 416 (Iowa 2009), that application of
the 2005 amendment to inmates whose crimes occurred after enactment
of the 2001 amendment but before enactment of the 2005 amendment
does not violate the Ex Post Facto Clause because the 2005 amendment
was a clarification of the 2001 amendment. Because Waters was
convicted of OWI, third offense, and assault with intent to commit sexual
abuse in 2004 and does not contend that any of the acts underlying
these convictions took place before 2001, IDOC’s application of the 2005
amendment to Reilly did not violate the Ex Post Facto Clause.
B. Retroactivity. Waters argues section 903A.2, as amended in
2005, cannot be construed to apply retroactively to individuals whose
crimes took place after enactment of the 2001 amendment but before
enactment of the 2005 amendment. We reject Waters’s argument
because, as we determined in Holm, the amendment did not change the
existing law, but merely clarified it. See Holm, 767 N.W.2d at 416 n.3.
C. Application of Section 903A.2 to Non-Sexual Offenses.
Waters does not challenge the authority of IDOC to require SOTP based
on his conviction for assault with intent to commit sexual abuse. Waters
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argues, however, that IDOC inappropriately stopped his ability to earn
time towards reduction of his five-year OWI sentence when he refused to
participate in SOTP.
We held today in Dykstra that Iowa Code section 903A.2 permits
IDOC to stop an inmate’s ability to earn good-time credits towards any
sentence being served if the inmate is categorized as required to
participate in SOTP and refuses or is removed. Dykstra explained that
section 903A.2 does not require that the “sentence” be one that is
connected to the reason IDOC required the inmate to attend SOTP.
Dykstra, ___ N.W.2d at ___. Although at the time he refused to
participate in SOTP Waters was only serving a sentence for OWI, third
offense, he entered prison to serve two sentences: the five-year OWI
sentence and a two-year sentence for assault with intent to commit
sexual abuse. Dykstra declined to address whether there is some
limitation on IDOC’s discretion to rely on a past sexual incident or
conviction that does not demonstrate a “ ‘problem currently suffered.’ ”
See Dykstra, ___ N.W.2d at ___ (quoting State v. Valin, 724 N.W.2d 440,
447 (Iowa 2006)). Here, however, Waters’s most recent conviction was of
a sexual offense, he was required by the sentencing judge to attend SOTP
and register as a sex offender, and he entered prison to serve the
sentence for that offense concurrently with an OWI sentence. IDOC
acted within its statutory authority to stop Waters’s ability to earn good-
time credits toward his OWI sentence.
IV. Conclusion.
The Iowa Department of Corrections acted within its statutory
authority by requiring Waters to participate in a sexual offender
treatment program and such application was not a violation of the Ex
Post Facto Clause or outside IDOC’s statutory authority.
WRIT ANNULLED.