John Kendall, Applicant-Appellant v. State of Iowa ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0369
Filed June 21, 2017
JOHN KENDALL,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling,
Judge.
John Kendall appeals from the district court’s denial of his application for
postconviction relief. AFFIRMED.
Zeke R. McCartney of Reynolds & Kenline, L.L.P., Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Mullins, P.J., and Bower and McDonald, JJ.
2
MULLINS, Presiding Judge.
John Kendall appeals from the district court’s denial of his application for
postconviction relief (PCR), following his guilty plea to two counts of sexual
abuse in the third degree and one count of lascivious acts with a child. The
district court sentenced Kendall to indeterminate terms of incarceration for no
more than ten years on each count, all to run consecutively. 1
On February 18, 2015, Kendall filed a PCR application. Counsel for
Kendall subsequently amended the application, which the district court denied.
On appeal, Kendall asserts the imposition of a lifetime special sentence of
supervision by the Iowa Department of Corrections, to be served “as if on
parole,” pursuant to Iowa Code section 903B.1 (2011), categorically violates his
constitutional right to be free from cruel and unusual punishment under the
Eighth Amendment of the U.S. Constitution and article I, section 17 of the Iowa
Constitution when imposed for convictions for sexual abuse in the third degree.2
1
On direct appeal, our court affirmed Kendall’s convictions and sentences, finding his
trial counsel did not render ineffective assistance and the district court did not abuse its
discretion in sentencing him. See State v. Kendall, No. 13-0442, 2013 WL 6403074, at
*2–3 (Iowa Ct. App. Dec. 5, 2013).
2
Kendall also claims the district court violated his due process rights by failing to inform
him of the board of parole’s alleged practice of “refus[ing] or severely limit[ing] parole for
sex offenders” before accepting his guilty plea. He claims this alleged practice amounts
to a de facto “mandatory minimum sentence for sex offenders.” Although Kendall raised
this issue in his amended PCR application, the district court did not rule on it, and
Kendall did not file a motion seeking a ruling on this issue. Therefore, this claim is not
preserved for our review. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It
is a fundamental doctrine of appellate review that issues must ordinarily be both raised
and decided by the district court before we will decide them on appeal. . . . When a
district court fails to rule on an issue properly raised by a party, the party who raised the
issue must file a motion requesting a ruling in order to preserve error for appeal.”); see
also State v. Derby, 800 N.W.2d 52, 60 (Iowa 2011) (“Issues not raised before the
district court, including constitutional issues, cannot be raised for the first time on
appeal.” (citation omitted)).
3
A defendant may challenge the legality of a sentence at any time. State v.
Bruegger, 773 N.W.2d 862, 869 (Iowa 2009); see also Iowa R. Crim. P.
2.24(5)(a). We generally review PCR proceedings for correction of errors at law.
Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016). However, when an
applicant raises constitutional claims, we apply a de novo review. See id.After analyzing the possible implications of evolving case law governing
mandatory sentencing provisions for juvenile offenders, and on the record before
it, our supreme court recently reaffirmed that lifetime special sentences under
section 903B.1 do not constitute cruel and unusual punishment when imposed
for sexual abuse in the third degree. State v. Graham, ___ N.W.2d ___, ___,
2017 WL 2291386, at *10 (Iowa 2017) (concluding a lifetime special sentence of
supervision does not constitute cruel and unusual punishment even when
imposed upon criminal defendants who were juveniles at the time they committed
the offense); see State v. Harkins, 786 N.W.2d 498, 507 (Iowa Ct. App. 2009);
State v. Sallis, 786 N.W.2d 508, 517 (Iowa Ct. App. 2009); see also State v.
Cohrs, No. 14-2110, 2016 WL 146526, at *4 (Iowa Ct. App. Jan. 13, 2016).
Thus, we affirm the district court’s denial of Kendall’s PCR application. See Iowa
Ct. R. 21.26(1)(a), (c), (d), (e).
AFFIRMED.