State of Iowa v. Cameron James Hess

                    IN THE SUPREME COURT OF IOWA

                                       No. 21–0079

          Submitted September 14, 2022—Filed December 29, 2022


STATE OF IOWA,

      Appellee,

vs.

CAMERON JAMES HESS,

      Appellant.


      Appeal from the Iowa District Court for Polk County, Sarah E. Crane,

Judge.

      Defendant prosecuted in district court for felony sex offenses committed

as a juvenile appeals his sex offender registration requirement and special

sentence imposed after he reached adulthood.                 AFFIRMED       IN   PART,

REVERSED IN PART, AND REMANDED.

      Waterman,      J.,   delivered    the   opinion   of   the   court,   in   which

Christensen, C.J., and Mansfield and McDermott, JJ., joined. McDonald, J., filed

an opinion concurring in part and dissenting in part, in which Oxley and

May, JJ., joined.

      Martha J. Lucey, State Appellate Defender, and Josh Irwin (argued),

Assistant State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven (argued),

Assistant Attorney General, for appellee.
                                       2


WATERMAN, Justice.

      In this appeal, a defendant—who at age seventeen confessed to sexually

abusing three children—was prosecuted in district court, convicted on four

class “B” felony counts, and sentenced at age twenty. The district court

suspended his sentence of incarceration and placed him on probation without

suspending his lifetime special sentence under Iowa Code section 903B.1 or his

sex offender registration requirement under chapter 692B. The defendant

argued in district court that the sex offender registration requirement was

unconstitutional under In re T.H., which held that imposing the requirement on

a minor in juvenile court proceedings constitutes punishment. 

 (Iowa 2018). The sentencing court ruled that In re T.H. does not apply to a

defendant in “adult court” who is sentenced while an adult for offenses

committed as a juvenile and instead followed State v. Aschbrenner, 

 (Iowa 2019), which held that the registration requirement imposed on

an adult is nonpunitive.

      The defendant appealed, renewing his constitutional challenge to the sex

offender registration requirement and further arguing that the district court

failed to exercise its discretion under Iowa Code section 901.5(13) to suspend

that registration requirement and his lifetime special sentence. The State argues

that we should distinguish or overrule In re T.H. and that the sex offender

registration and special sentence are mandatory. We retained the case to decide

these questions.
                                        3


      On our review, we hold that In re T.H. applies only to juvenile sex offenders

whose cases are prosecuted and resolved in juvenile court, and we decline the

defendant’s invitation to apply its holding to a juvenile offender prosecuted and

convicted in district court. Sex offender registration protects the public

regardless of the age of the offender and is properly viewed as nonpunitive for

adults as well as juveniles who are prosecuted in district court. As matters of

first impression, we hold that the district court lacks discretion under Iowa Code

section 901.5(13) to suspend the sex offender registration but does have

discretion to suspend the section 903B.1 lifetime special sentence for offenses

committed by a juvenile. Because the district court failed to exercise discretion,

we remand for resentencing.

      I. Background Facts and Proceedings.

      Defendant Cameron James Hess is now twenty-two years old. His parents

separated years ago. Hess has several half- and step-siblings. Hess lived with his

mother and stepfather and attended high school in Van Meter, but he spent

significant time in De Soto with his maternal grandparents and in Des Moines

with his father and stepmother. During his time at those households, Hess

sexually abused children, including his family members.

      Hess began sexually abusing his younger half-sister, A.H., in 2010. Hess

abused A.H. through manual fondling and digital penetration of her genitals

when she was four years old. In 2011, Hess’s parents discovered the abuse and

admonished him to stop. By all accounts, Hess stopped abusing A.H.
                                             4


       In 2016, Hess began abusing M.F., a neighbor in Des Moines. Hess forced

M.F. to kiss him and forced oral sex on her repeatedly. Hess threatened to hurt

her if she told anyone. M.F. was seven years old.

       In early 2018, Hess abused C.H., his younger half-sister. Hess subjected

C.H. to manual fondling of her genitals and forced oral sex. C.H. was five or six

years old.

       In May 2018, when M.F. was nine years old and Hess was seventeen, she

reported his abuse. Des Moines Police officers investigated and discovered that

Hess had also abused A.H. and C.H. Officers referred the three girls for forensic

interviews at the Blank Children’s STAR Center. Hess confessed to two instances

of forced sexual contact with A.H., two with M.F., and two more with C.H.

       The State charged Hess with six counts of second-degree sexual abuse, a

class “B” felony, in 2018—two counts each arising from Hess’s sexual contact

with A.H., M.F., and C.H. 

(1), .1(3), .3(2) (2017).1 At that time,

Hess was seventeen years old. Although he was a juvenile, Hess’s case

commenced in district court because he was over age sixteen and was charged

with a forcible felony. 

 § 232.8(1)(c).

       Hess filed a motion to transfer his case to juvenile court. The district court

denied Hess’s “reverse waiver” motion, noting that “[t]he crimes that the

Defendant is accused of are severe and pervasive” and that “[t]he sexual abuse



       1According
                to the trial information, Hess’s convictions stem from offenses committed
between 2016 and 2018. The substance of the applicable criminal provisions remained
unchanged throughout this period. We cite the 2017 version of the Iowa Code for the sake of
convenience.
                                                 5


alleged in the six counts cover a time period of eight years . . . [with victims] who

were at various times 6, 7, and 10 years of age.” The court relied in part on a

juvenile court officer’s report that Hess, now age eighteen, was “not a good

candidate for placement in Juvenile Court” because he “cannot be placed in any

juvenile treatment facilities due to his age” and was “eligible for supervision by

the Juvenile Court for only 18 months.” The court recognized that “the life

consequences for the Defendant are severe” and that “[t]he consequences to the

public are also severe if the Defendant is not properly deterred, supervised[,] and

treated.”

       Hess waived his right to a jury trial, and the case proceeded to a bench

trial on the minutes when Hess was age nineteen. On September 2, 2020, the

district court found Hess guilty on four of the six counts.2 The district court

conducted a two-day sentencing hearing by GoTo Meeting in January 2021. Hess

was then age twenty. A defense expert, Dr. Luis Rosell, testified about juvenile

recidivism and psychology, Hess’s history and risk assessment scores, and

testing referenced in the presentence investigation report. Dr. Anthony Tatman,

director of the Fifth Judicial District Department of Corrections, testified on the

same subjects. The court also heard from a victim’s stepmother who said, “The




       2The  State conceded that the district court lacked jurisdiction over the other two offenses,
both involving Hess’s abuse of A.H., which were committed before Hess turned fourteen years
old; for that reason, the court found Hess not guilty on those counts. See 

(6)(a); State v. Duncan, 

 (Iowa Ct. App. 2013) (relying on
State v. Bruegger, 

 (Iowa 2009), in holding that a defendant cannot be tried
in district court for offenses committed before fourteen years of age). Although Hess was not
found guilty of criminal sexual abuse of A.H. due to his age at the time, the minutes of testimony
describing that abuse are part of the trial record.
                                         6


emotional damage that this child has received is beyond anything I can describe

to you.” She noted that the child has “severe trust issues [and] mental health

issues” and that their family is “continuously in counseling and therapy.”

      Defense counsel requested a deferred judgment and raised constitutional

objections to imposing the sex offender registration requirement, relying on

In re T.H. Defense counsel otherwise never argued that the court had discretion

under Iowa Code section 901.5(13) to suspend the sex offender registration or

special sentence. The prosecutor argued that the sex offender registration and

section 903B.1 special life sentence were mandatory but recommended

suspended prison sentences and five-year probation. The court denied Hess’s

request for deferred judgment and sentenced Hess to concurrent sentences of

twenty-five years on each count, suspended the prison sentences, placed Hess

on probation for five years, imposed the special sentence of lifetime parole

applicable to class “B” felonies under Iowa Code section 903B.1, and required

Hess to register as a sex offender under section 692A.103(1). The court gave no

indication suggesting that it had discretion to suspend the special sentence or

sex offender registration requirement.

      Hess appealed, renewing his argument that it is unconstitutional under

In re T.H. to require sex offender registration for offenses he committed as a

juvenile. Hess also argues on appeal that the district court had discretion to

suspend the special sentence and sex offender registration requirement and

failed to exercise that discretion. The State argues that we should distinguish or

overrule In re T.H. to reject Hess’s constitutional claim and that the special
                                         7


sentence and sex offender registration are mandatory collateral consequences of

his convictions. We retained the case.

      II. Standard of Review.

      “Our standard of review for rulings on constitutional challenges to a sex

offender registration statute is de novo.” Aschbrenner, 926 N.W.2d at 245–46.

      [W]e must remember that statutes are cloaked with a presumption
      of constitutionality. The challenger bears a heavy burden, because
      [he] must prove the unconstitutionality beyond a reasonable doubt.
      Moreover, “the challenger must refute every reasonable basis upon
      which the statute could be found to be constitutional.” Furthermore,
      if the statute is capable of being construed in more than one
      manner, one of which is constitutional, we must adopt that
      construction.

Id. at 246 (alterations in original) (quoting State v. Seering, 

(Iowa 2005), superseded by statute on other grounds, 2009 Iowa Acts ch. 119,

§ 3 (codified at Iowa Code § 692A.103 (Supp. 2009)), as recognized in In re T.H.,

913 N.W.2d at 587–88)). “[W]e review the district court’s ruling on statutory

interpretation for correction of errors at law.” Maxwell v. Iowa Dep’t of Pub.

Safety, 

 (Iowa 2017).

      “A sentencing court’s decision to impose a specific sentence that falls

within the statutory limits ‘is cloaked with a strong presumption in its favor

. . . .’ ” State v. Wilbourn, 

, 67 (Iowa 2022) (omission in original)

(quoting State v. Davison, 

, 289 (Iowa 2022)). “But when the

sentencing court fails to exercise discretion because it ‘was unaware that it had

discretion,’ we typically vacate and remand for resentencing.” 

 (quoting

Davison, 973 N.W.2d at 289).
                                          8


      III. Analysis.

      Hess raises both constitutional and statutory challenges to his special

sentence and sex offender registration requirement. He argues that the district

court has discretion under Iowa Code section 901.5(13) to suspend the special

sentence and registration requirement. Normally, we would perform the

statutory analysis first to avoid the constitutional question if possible. But as

this case is postured, the constitutional question must be answered regardless

of the district court’s statutory discretion (or lack thereof). If the special sentence

and sex offender registration requirement are mandatory consequences under

the statutory scheme, the constitutional challenge remains. If the court had

discretion to suspend the registration or special sentence and failed to exercise

its discretion, the remedy is resentencing. Wilbourn, 974 N.W.2d at 67. The

question then would arise on remand whether the consequences could be

imposed constitutionally under In re T.H. when Hess was a minor at the time he

committed the sex offenses. We elect to address the constitutional claim first.

      A. Is Sex Offender Registration Cruel and Unusual Punishment for

Crimes Committed as a Juvenile? Hess relies on In re T.H. for the proposition

that requiring a juvenile offender to register as a sex offender is unconstitutional

cruel and unusual punishment. In In re T.H., we held that mandatory sex

offender registration for a juvenile sex offender prosecuted in juvenile court

amounted to punishment but not cruel and unusual punishment for

constitutional purposes. 913 N.W.2d at 596–97. In so doing, we drew a line

between juvenile offenders and adult offenders, for whom mandatory sex
                                                9


offender registration remains nonpunitive. See Aschbrenner, 926 N.W.2d at 248–

49. The State argues that In re T.H. does not apply because Hess was prosecuted

in district court and reached adulthood before his sentencing. Alternatively, the

State urges us to overrule In re T.H. as wrongly decided and difficult to

administer. We resolve Hess’s constitutional claim by distinguishing In re T.H.

      In Aschbrenner, which involved an adult sex offender, we concluded that

“In re T.H. is readily distinguishable based on the unique concerns of juvenile

offenders that are inapplicable to adult offenders.” 

. One factor

we used to distinguish adults from juveniles was the publicity of the proceedings:

“[A]n adult offender’s criminal conviction is already a matter of public record,

unlike juvenile adjudications, which are sealed unless the juvenile’s case is

transferred to adult criminal court.” 

 Here, Hess was tried in district court, so

record of his conviction was never sealed. Hess therefore stands in a position

closer to Aschbrenner than to In re T.H. We decline to apply In re T.H. to juvenile

sex offenders prosecuted in district court and reject Hess’s constitutional

challenge to his sex offender registration requirement.3

      B. Whether the District Court Has Discretion Under Iowa Code

Section 901.5(13) to Suspend the Sex Offender Registration Requirement.

We turn to Hess’s statutory claims. He argues that the district court had

discretion under Iowa Code section 901.5(13) to suspend the sex offender

registration requirement as part of his sentence. The State responds that sex




      3The   State asks us to overrule In re T.H. We do not reach that issue.
                                       10


offender registration is a mandatory collateral consequence of his conviction and

not a part of his “sentence” that can be suspended under section 901.5(13). This

is a question of first impression, but it is easily answered by applying State v.

Richardson, 

 (Iowa 2017). We begin with the text of the

statute:

             13. Notwithstanding any provision in section 907.3 or any
      other provision of law prescribing a mandatory minimum sentence
      for the offense, if the defendant, other than a child being prosecuted
      as a youthful offender, is guilty of a public offense other than a
      class “A” felony, and was under the age of eighteen at the time the
      offense was committed, the court may suspend the sentence in
      whole or in part, including any mandatory minimum sentence, or
      with the consent of the defendant, defer judgment or sentence, and
      place the defendant on probation upon such conditions as the court
      may require.

(13). This provision nowhere mentions sex offender

registration or the sex offender registry chapter, Iowa Code chapter 692A. Hess

nevertheless contends sex offender registration is part of the “sentence” that can

be suspended for juvenile offenders.

      We rejected a similar argument in Richardson, which addressed the same

statute (previously numbered 901.5(14)) to hold that criminal restitution

imposed under chapter 910 is not part of the “sentence” that can be suspended.

. We noted that section 901.5 does not mention restitution or

cross-reference the restitution statute and that restitution “is mandatory, may

be imposed later, and operates independently from the section 901.5 sentencing

options available to a court.” 

. The same is true for sex offender

registration under chapter 692A. See Maxwell, 

 (describing

the sex offender registration requirement as a mandatory, automatic collateral
                                               11


consequence of the judgment of conviction). And as we determine today, for

juvenile offenses prosecuted in adult court, the sex offender registration

requirement is a regulatory measure to protect the public, not punishment. For

these reasons, we hold that registration under chapter 692A is not part of the

“sentence” that can be suspended under section 901.5(13). We reject Hess’s

statutory challenge to his sex offender registration requirement and affirm the

district court’s order requiring registration.

      C. Whether the District Court Has Discretion Under Iowa Code

Section 901.5(13) to Suspend a Special Sentence Under Section 903B.1.

Hess argues that the district court had discretion under Iowa Code

section 901.5(13) to suspend his special sentence of lifetime parole imposed

under section 903B.1.4 We agree. Section 901.5(13) allows the court to suspend

a “sentence” including “a mandatory minimum sentence” when the defendant



      4Iowa   Code section 903B.1 provides:
              A person convicted of a class “C” felony or greater offense under
      chapter 709, a class “B” felony under section 713.3, subsection 1, paragraph “d”,
      or a class “C” felony under section 728.12, shall also be sentenced, in addition to
      any other punishment provided by law, to a special sentence committing the
      person into the custody of the director of the Iowa department of corrections for
      the rest of the person’s life, with eligibility for parole as provided in chapter 906.
      The board of parole shall determine whether the person should be released on
      parole or placed in a work release program. The special sentence imposed under
      this section shall commence upon completion of the sentence imposed under any
      applicable criminal sentencing provisions for the underlying criminal offense and
      the person shall begin the sentence under supervision as if on parole or work
      release. The person shall be placed on the corrections continuum in
      chapter 901B, and the terms and conditions of the special sentence, including
      violations, shall be subject to the same set of procedures set out in chapters 901B,
      905, 906, and 908, and rules adopted under those chapters for persons on parole
      or work release. The revocation of release shall not be for a period greater than
      two years upon any first revocation, and five years upon any second or subsequent
      revocation. A special sentence shall be considered a category “A” sentence for
      purposes of calculating earned time under section 903A.2.
                                       12


committed an offense under the age of eighteen. Although section 901.5(13)

makes no mention of section 903B.1, the immediately preceding subsection

does. See 

(12) (“In addition to any other sentence or other

penalty imposed against the defendant, the court shall impose a special sentence

if required under section 903B.1 or 903B.2.”). We must decide whether

“sentence” in section 901.5(13) includes a “special sentence” imposed under

section 903B.1, as referenced in section 901.5(12).

      The dissent disregards the juxtaposition of subsections 12 and 13 of

section 901.5. We read these related statutes together. Kolzow v. State,

 (Iowa 2012). Textually, a “special sentence” is a subset or

type of a “sentence.” We find telling the use of the phrase “any other sentence”

in section 901.5(12). The phrase “any other” becomes surplusage if the special

sentence that follows in the next clause is not also a sentence. See Star Equip.,

Ltd. v. State, 

 (Iowa 2014) (“[W]e do not interpret statutes

so they contain surplusage.” (quoting Thomas v. Gavin, 

(Iowa 2013))). The dissent’s view—that a “special sentence” is not a “sentence”—

violates the surplusage canon. In our view, a “sentence” that the district court

has discretion to suspend in section 901.5(13) includes the section 903B.1

special sentence referenced in section 901.5(12).

      Indeed, our state’s precedent refers to the chapter 903B special sentences

as part of the defendant’s sentence. See, e.g., Doss v. State, 

, 710

(Iowa 2021) (“Doss’s special sentence of lifetime parole is part of his criminal

sentence and could subject him to additional imprisonment; therefore, he had
                                         13


the right to be informed of it before his guilty plea.”); State v. Hallock, 

 (Iowa Ct. App. 2009) (holding that the chapter 903B special sentence

“is a part of Hallock’s sentence and is not merely collateral”). A Venn diagram of

criminal sentences in the Iowa Code would include within the same circle

chapter 903B special sentences as well as sentences of incarceration imposed

under chapter 907. A special sentence is indeed a sentence or part of the

sentence, and by its terms, section 901.5(13) permits the district court to

suspend any sentence in whole or in part when the offense was committed by a

juvenile.

      The dissent relies on the “shall” language in section 901.5, subsection 12,

which mandates the special sentence for sex offenders. Although subsection 12

generally mandates the special sentence for sex offenses, subsection 13 is the

more specific provision and controls when the defendant, like Hess, committed

offenses when the defendant was under the age of eighteen. See 

(providing that a specific provision controls over a conflicting general provision);

see also Christiansen v. Iowa Bd. of Educ. Exam’rs, 

 (Iowa

2013) (“[T]he more specific provision controls over the general provision.”);

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts

183 (2012) [hereinafter Scalia & Garner] (stating that when a specific provision

in a statute appears to conflict with a general provision, the specific provision is

treated as an exception to the general provision). The dissent is mistaken to find

“strong evidence” against the specific–general relationship just because the

specific provision did not cross-reference the general. We have repeatedly applied
                                               14


the canon to hold a more specific statute controlled without any cross-reference

to the more general statute.5 The dissent’s interpretation violates this canon, too.

       We also note that section 901.5(13) was enacted in 2013, 2013 Iowa Acts

ch. 42, § 14 (originally codified at 

(14) (2014), now codified at

(13) (2017)), after section 901.5(12)’s enactment in 2005, 2005

Iowa Acts ch. 158, § 37 (originally codified at 

(13) (2007), now

codified at 

(12) (2017)). To the extent the provisions conflict,

the subsequent enactment—section 901.5(13)—controls. See 

 (“If

statutes enacted at the same or different sessions of the legislature are

irreconcilable, the statute latest in date of enactment by the general assembly

prevails.”); Schmett v. State Objections Panel, 

, 304 (Iowa 2022)

(per curiam) (“In the end, we believe we must be guided by the legislature’s last

word on the subject.”); see also The Federalist No. 78, at 404 (Alexander

Hamilton) (George W. Carey & James McClellan eds., Gideon ed. 2001) (“The rule

which has obtained in the courts for determining [conflicting statutes’] relative

validity is that the last in order of time shall be preferred to the first.”). The

dissent’s interpretation violates this canon as well.


        5See, e.g., Des Moines Area Reg’l Transit Auth. v. Young, 

 (Iowa 2015)

(concluding that the more specific statute, which does not cross-reference the more general,
controlled over the more general); In re A.M., 

, 372–73 (Iowa 2014) (“[W]e hold
the limited exception to the patient-psychotherapist privilege in CINA adjudicatory hearings in
section 232.96(5) prevails over the general privilege and confidentiality protections for mental
health records codified elsewhere.”); In re Det. of Geltz, 

, 276–77 (Iowa 2013)
(holding that a more specific statute controls over the more general without a cross-reference
between the two); Christiansen, 

 (same); Griffin Pipe Prods. Co. v. Bd. of Rev.,

 (Iowa 2010) (concluding that a later paragraph, without a cross-reference,
created an exemption from a tax imposed in an earlier paragraph); McElroy v. State, 

 (Iowa 2001) (concluding that a more specific rule of civil procedure controls over a more
general one without a cross-reference between the two).
                                        15


      The text of section 901.5 provides further support for our interpretation.

Richardson held that the district court lacked discretion to suspend a juvenile

offender’s victim restitution under section 901.5, subsection 13 in part because

restitution is nowhere mentioned in section 901.5 or its fourteen subsections.

; see also 

. Chapter 903B special sentences,

however, are expressly addressed in subsection 12, immediately preceding

subsection 13. Compare 

(12), with 

 § 901.5(13). Richardson

primarily relied on section 901.5’s introductory clause that precedes all of its

subsections and limits the statute’s scope to matters to be addressed “[a]t the

time fixed by the court for pronouncement of judgment and sentence.”

 (quoting 

). As with sex offender registration

requirements, victim restitution may be imposed later. See 

. By

contrast, special sentences must be imposed and pronounced at sentencing.

      The State and dissent argue we should interpret the statutes in context to

define “sentence” in section 901.5(13) to mean “only a prison sentence,” while

the special sentence in section 903B.1 is served “as if on parole.” The State,

overlooking several statutes discussed below, argues that the Code nowhere

allows the court to “suspend parole.” But other provisions in section 901.5

include fines among the “sentencing options.” See, e.g., 

(3).

Nobody argues that the court is without discretion to suspend fines. And that

statute specifically refers to the court’s power to “sentence the defendant to

confinement.” Id.; see also 

 § 901.7 (referring to “a sentence of confinement”).

If the legislature meant to limit “sentence” in section 901.5(13) to a sentence of
                                              16


confinement, it presumably would have used that term (or “prison,” “jail,” or

“incarceration”). It did not.

       Importantly, section 901.5(13) begins with an introductory phrase that

confirms it trumps conflicting statutes imposing a mandatory minimum

sentence: “Notwithstanding any provision in section 907.3 or any other provision

of law prescribing a mandatory minimum sentence for the offense . . . .” The

special sentence in section 903B.1 imposes a mandatory minimum sentence of

parole. See id. § 903B.1 (incorporating section 906.15(1)’s provisions for

discharging special lifetime sentence); id. § 906.15(1) (requiring a mandatory

minimum period equal to sentence of incarceration before eligibility for discharge

from a section 903B.1 special sentence). Relying on dicta in Richardson, the

dissent argues that a “mandatory minimum sentence” can only be a “sentence

of incarceration.” But that view is belied by State v. Graham, where we recognized

that section 906.15 imposes a mandatory minimum period of parole before the

defendant can be discharged from a section 903B.1 special sentence.

 (Iowa 2017).6 We cannot rewrite the statute by adding the




       6In Richardson, we gave multiple reasons to conclude that “sentence” in section 901.5(13)
did not include victim restitution. 890 N.W.2d at 614–19. Along the way, we contrasted victim
restitution with various sentences of incarceration and concluded that “a mandatory minimum
sentence” in section 907.3 and other Code provisions refers to a “mandatory period of
incarceration.” 

. Richardson did not involve a special sentence or cite section 903B.1,
which, as we subsequently concluded in Graham, imposes a mandatory minimum period of
parole, not incarceration. In our view, section 903B.1 is another provision of law imposing a
mandatory minimum sentence—of parole—that can be suspended under section 901.5(13). To
the extent the dissent reads Richardson as concluding that a mandatory minimum sentence can
only be one of incarceration, that conclusion is dicta and inaccurate as to section 903B.1
                                             17


words “of incarceration” that the legislature chose to omit from section

901.5(13).7

       The “notwithstanding” clause confirms that the district court’s discretion

to suspend a sentence in section 901.5(13) supersedes the otherwise conflicting

mandatory language in sections 901.5(12) and 903B.1. See, e.g., United States v.

Shkreli, 

 (2d Cir. 2022) (“The Supreme Court has indicated that

‘the use of such a “notwithstanding” clause clearly signals the drafter’s intention

that the provisions of the “notwithstanding” section override conflicting

provisions of any other section.’ ” (quoting Cisneros v. Alpine Ridge Grp., 

 (1993))).

       The dissent ignores a practical problem with its interpretation: that some

offenders would be left in limbo. Section 901.5(13) allows deferred sentences for

juvenile offenders in lieu of a prison sentence. Those offenders in effect never

serve a sentence for the underlying sex offense. Yet the section 903B.1 special

sentence “commence[s] upon completion of the sentence imposed . . . for the

underlying criminal offense.” Iowa Code § 903B.1. Under the plain meaning of

section 903B.1, the special sentence would never commence if the juvenile

received a deferred sentence and satisfied its conditions. We are to consider “[t]he

consequences of a particular construction.” Id. § 4.6(5). The dissent’s




       7Even   if the term “mandatory minimum sentence” is construed to mean only a period of
incarceration, the discretion to suspend the “sentence” extends beyond mandatory minimum
sentences. 

(13) (“[T]he court may suspend the sentence in whole or in part,
including any mandatory minimum sentence . . . .”). As discussed above, the “sentence” may
include a special sentence that can be suspended in whole or in part. The discretion to suspend
part of the sentence is not limited to a mandatory minimum sentence or period of incarceration.
                                        18


interpretation violates this canon, among others. By contrast, our interpretation

harmonizes the statutes by allowing the sentencing court to suspend the special

sentence when it grants a deferred sentence for the underlying offense.

      Richardson determined that “sentence” as used in section 901.5(13) is

ambiguous. 890 N.W.2d at 617–18. “We apply the rule of lenity in criminal cases,

but we only do so as a last resort.” State v. Zacarias, 

, 581 (Iowa

2021); see also Scalia & Garner at 197 (“[T]he rule of lenity applies only when a

reasonable doubt persists after the traditional canons of interpretation have been

considered.”). The rule of lenity applies to sentencing statutes. Bifulco v. United

States, 

 (1980) (“In past cases the Court has made it clear that

[the rule of lenity] applies not only to interpretations of the substantive ambit of

criminal prohibitions, but also to the penalties they impose.”). In our view, the

traditional canons and the rule of lenity support our conclusion that “sentence”

in section 901.5(13) includes the “special sentence.”

      We are mindful that the purpose of the special sentence in section 903B.1

is to protect the public from sex offenders. See State v. Wade, 

 (Iowa 2008) (“[T]he legislature simply extended Iowa’s parole supervision

scheme to require additional supervision for sex offenders consistent with the

state’s objective of protecting citizens from sex crimes.”). The plain meaning of

the language codified in section 901.5(13) merely allows the court to suspend

the special sentence in whole or in part; the district court is not required to do

so when considering public safety.
                                       19


      We hold that Iowa Code section 901.5(13) allows the district court to

suspend Hess’s section 903B.1 special sentence in whole or in part. Because the

district court did not exercise its discretion on whether to impose that special

sentence, resentencing is required. Wilbourn, 974 N.W.2d at 67.

      IV. Disposition.

      For the foregoing reasons, we affirm Hess’s sex offender registration

requirement. We remand the case for resentencing consistent with this opinion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      Christensen, C.J., and Mansfield and McDermott, JJ., join this opinion.

McDonald, J., files an opinion concurring in part and dissenting in part, in which

Oxley and May, JJ., join.
                                        20


                                                        #21–0079, State vs. Hess.

McDONALD, Justice (concurring in part and dissenting in part).

      Sentencing is wholly a creature of statute. “The legislature possesses the

inherent power to prescribe punishment for crime, and the sentencing authority

of the courts is subject to that power.” State v. Iowa Dist. Ct., 

(Iowa 1981). Pursuant to that inherent authority, the legislature has prescribed

mandatory terms of incarceration for certain offenses in Iowa Code section 907.3

and mandatory minimum sentences of incarceration for certain offenses in other

provisions of law. In Iowa Code section 901.5(13), the legislature vested the

district court with discretion to not impose what would otherwise be a mandatory

term of incarceration under section 907.3 or a mandatory minimum sentence of

incarceration under any other provision of law for an offender under the age of

eighteen not convicted of a class “A” felony. Iowa Code section 901.5(13),

properly understood, does not vest the district court with discretion with respect

to any other type of sentencing provision, including the sex offender registration

requirement under chapter 692A and the special sentence for sex offenders

under sections 903B.1, 903B.2, and 901.5(12). I respectfully dissent from the

majority’s contrary conclusion.

                                            I.

      The    question    presented    is:        What     additional   authority    does

section 901.5(13) give the district court at the time of sentencing? The inquiry

begins with the language of the statute at issue. Doe v. State, 

,

610 (Iowa 2020). Using traditional interpretive tools, we seek to determine the
                                        21


fair and ordinary meaning of the statutory language at issue. 

 In determining

the fair and ordinary meaning of the statutory language at issue, the court

considers the language’s relationship to other provisions of the same statute and

other provisions of related statutes. See 

(38) (2017); State v. Doe,

 (Iowa 2017).

      With respect to offenders under the age of eighteen not convicted of a

class “A” felony, section 901.5(13) gives the district court sentencing authority it

otherwise would not have. Specifically, the statute gives the district court the

discretion to “suspend the sentence in whole or in part, including any mandatory

minimum sentence.” 

(13). The statute also gives the district

court authority to “defer judgment or sentence, and place the defendant on

probation upon such conditions as the court may require.” 

      The statute does not, however, provide the district court with this

additional sentencing authority as an exception to any and all mandatory

sentencing provisions. Instead, the statute provides the district court with

additional authority “notwithstanding” two particular sentencing provisions:

(1) “any provision in section 907.3,” and (2) “any other provision of law

prescribing a mandatory minimum sentence for the offense.” 

 To understand

the boundaries of the additional authority granted in section 901.5(13), we must

first understand the substantive ground in these two particular sentencing

provisions to which section 901.5(13) is an exception.

      Section 907.3 is entitled “Deferred judgment, deferred sentence, or

suspended sentence.” As the title suggests, section 907.3 “relates to deferred
                                          22


judgments, deferred sentences, and suspended sentences.” State v. Richardson,

 (Iowa 2017). The section relates to sentences of

incarceration    and   “identifies   certain    circumstances[,]   including   forcible

felonies[,] where incarceration is mandatory and the deferred and suspended

options are not available.” 

 Section 907.3 has nothing to do with and nothing

to say about the sex offender registration requirement under chapter 692A or

the   special    sentence   under    sections     903B.1,   903B.2,    or   901.5(12).

Section 901.5(13)’s exception to section 907.3 is thus a grant of additional

authority to defer or suspend what would otherwise be a mandatory sentence of

incarceration.

      Section 901.5(13) grants the district court discretionary authority with

respect to “any other provision of law prescribing a mandatory minimum

sentence for the offense.” 

(13). In State v. Richardson, we

interpreted the phrase “mandatory minimum sentence” as used in (what is now)

section 901.5(13). 

. We explained the phrase commonly refers

to incarceration:

      Notably, Black’s Law Dictionary defines “sentence” as “[t]he
      judgment that a court formally pronounces after finding a criminal
      defendant guilty” or “the punishment imposed on a criminal
      wrongdoer” but defines “minimum sentence” as “[t]he least
      amount of time that a convicted criminal must serve in prison
      before becoming eligible for parole.” Sentence, Black’s Law
      Dictionary (10th ed. 2014); Minimum Sentence, Black’s Law
      Dictionary; see State v. Hoyman, 

 (Iowa 2015)
      (citing Black’s Law Dictionary in interpreting a criminal statute).

            Other provisions of the Iowa Code use “mandatory
      minimum sentence” to refer to a mandatory period of
      incarceration. See 

 (section entitled
      “Mandatory    minimum     sentence”); 

  § 232.45(14)(a)
                                         23


       (cross-referencing section 124.413); id. § 462A.14(3)(a) (“mandatory
       minimum sentence of incarceration”); id. § 901.5(7) (“The court shall
       inform the defendant of the mandatory minimum sentence, if one is
       applicable.”); id. § 901.10(2) (allowing reductions in the “mandatory
       minimum sentence” for certain offenses if the defendant pleads
       guilty or cooperates in the prosecution of other persons); id.
       § 903A.2(5) (addressing the interaction between earned time
       accrued by inmates and “any mandatory minimum sentence”); id.
       § 903A.5(1) (addressing the interaction between earned time and
       certain “mandatory minimum sentence[s]”); id. § 904.902 (“An
       inmate serving a mandatory minimum sentence of one year or more
       . . . .”); id. § 906.5(1)(a) (stating that the board of parole does not
       need to annually review the status of a person “serving a mandatory
       minimum sentence”); id. § 907.3(1)(a)(7) (“a mandatory minimum
       sentence must be served or mandatory minimum fine must be
       paid”); id. § 907.3(2)(a)(3) (“a mandatory minimum sentence must be
       served or mandatory minimum fine must be paid”); id. § 907.3(3)(c)
       (“[a] mandatory minimum sentence of incarceration”); id.
       § 907.3(3)(f) (“[a] mandatory minimum sentence or fine imposed for
       a violation of section 462A.14”).

Id. (alterations and omission in original) (emphases added). The Richardson court

then    concluded    that   “mandatory     minimum      sentence”    as   used   in

section 901.5(13) refers only to the minimum sentence of “incarceration.” Id. at

619. Thus, the phrase “any other provision of law prescribing a mandatory

minimum sentence for the offense” has nothing to do with and nothing to say

about the sex offender registration requirement under chapter 692A or the

special sentence under sections 903B.1, 903B.2, or 901.5(12). The exception

contained in section 901.5(13) is thus a grant of additional authority to defer or

suspend what would otherwise be a mandatory minimum sentence of

incarceration.

       The conclusion that section 901.5(13) relates only to mandatory sentences

of incarceration or mandatory minimum sentences of incarceration is supported

by the text of related statutes. See Griffin Pipe Prods. Co. v. Guarino, 

 (Iowa 2003) (stating that where statute is ambiguous, we look to other

statutes to try to read them as an integrated whole). The related statutes provide

that the registration requirement and the special sentence are mandatory in all

circumstances and discretionary in none. Iowa Code section 692A.103 provides

that a person convicted of a qualifying offense “shall register as a sex offender.”

(Emphasis added.) Iowa code section 903B.1 provides that persons convicted of

qualifying class “B” and “C” felonies “shall” be sentenced “to a special sentence

committing the person into the custody of the director of the Iowa department of

corrections for the rest of the person’s life.” (Emphasis added.) Iowa Code

section 903B.2 provides that persons convicted of qualifying class “D” felonies

and misdemeanors “shall” be sentenced “to a special sentence committing the

person into the custody of the director of the Iowa department of corrections for

a period of ten years.” (Emphasis added.) Iowa Code section 901.5(12) provides

that “[a]t the time fixed by the court for pronouncement of judgment and

sentence, . . . the court shall impose a special sentence if required under section

903B.1 or 903B.2.” (Emphasis added.) Repeated use of the word “shall” imposes

a duty and denies the existence of discretion. See 

(30)(a) (defining

“shall”); State v. Klawonn, 

 (Iowa 2000) (en banc) (“[W]e have

interpreted the term ‘shall’ in a statute to create a mandatory duty, not

discretion.”).

      Given the legislature’s unambiguous instruction that the registration

requirement and special sentence shall be mandatory in all circumstances, a

legislative exception to these mandatory schemes would likely be equally
                                         25


unambiguous.     But   that   is   not   the   case.   As   the   majority   explains,

section 901.5(13) “nowhere mentions sex offender registration or the sex offender

registry chapter, Iowa Code chapter 692A.” Similarly, section 901.5(13) nowhere

uses the term “special sentence.” Section 901.5(13) does not cross-reference or

in any way address chapter 692A or sections 903B.1, 903B.2, or 901.5(12).

      Generally, linked statutes cross-reference each other. See Serv. Emps. Int’l

Union, Loc. 199 v. Iowa Bd. of Regents, 

 (Iowa 2019) (noting

that “[t]he statutes are linked by the cross-reference” in another statute). “The

legislature knows how to cross-reference” related statutes. Des Moines Flying

Serv., Inc. v. Aerial Servs. Inc., 

 (Iowa 2016). If the

legislature intended to grant the district court additional sentencing authority

with respect to the sex offender registry or the special sentence, it would have

cross-referenced chapter 692A and sections 903B.1, 903B.2, and 901.5(12); just

as it did with section 907.3 and other provisions of law regarding mandatory

minimum sentences. The fact that the “legislature did not cross-reference either

statute to the other” is strong evidence that the statutes operate wholly

independently of each other. Des Moines Flying Serv., Inc., 

;

see State v. Sluyter, 

 (Iowa 2009) (divining legislative intent,

in part, from lack of cross-reference to another statute).

      In sum, the text of the relevant statutes can be harmonized into a coherent

whole. The legislature passed a comprehensive scheme to require the registration

of sex offenders commencing upon the date they are no longer incarcerated and

the mandatory monitoring of those convicted of certain qualifying offenses after
                                       26


they have discharged their respective sentences for the underlying offense. This

scheme is set forth in chapter 692A and in sections 903B.1, 903B.2, and

901.5(12). In 2013, the legislature passed section 901.5(13) to afford the

sentencing court some discretion in sentencing offenders under the age of

eighteen. See 2013 Iowa Acts ch. 42, § 14 (originally codified at 

(14) (2014), now codified at 

(13) (2017)). That discretion

exists only with respect to what would otherwise be mandatory sentences or

mandatory minimum sentences of incarceration. This is evident from the

“notwithstanding”    language     in   section 901.5(13)    and    the    specific

cross-references to section 907.3 and other provisions of law relating to

mandatory minimum sentences. This is also evident from the lack of any cross-

references in section 901.5(13) to chapter 692A or sections 903B.1, 903B.2, or

901.5(12). One would expect the legislature, if it intended to pass a significant

exception to its mandatory registration and supervision regime for sex offenders,

to at least cross-reference the statutes it deemed implicated by the grant of

discretionary authority. The fact that the legislature did not do so speaks

volumes about the intended scope of section 901.5(13).

                                       II.

      With that understanding, I circle back to the majority’s discussion of the

registration requirement and the special sentence to highlight points of

disagreement on the question of statutory construction. I address the majority’s

application of section 901.5(13) to both the registration requirement and the

special sentence.
                                       27


                                        A.

      I agree with the majority that section 901.5(13) does not afford the district

court discretion with respect to the sex offender registration requirements set

forth in chapter 692A. As part of its rationale, the majority explains

section 901.5(13) “nowhere mentions sex offender registration or the sex offender

registry chapter, Iowa Code chapter 692A.” I agree with this rationale, and the

majority should stop there.

      But the majority does not stop there. As further justification for its

decision, the majority turns its focus to the meaning of the word “sentence” as

used in section 901.5(13). In the majority’s view, the sex offender registration

requirement is not part of the defendant’s “sentence” because the registration

requirement is not punitive. Thus, in the majority’s view, the nonpunitive

registration requirement is not part of the “sentence” that can be suspended

under section 901.5(13). I disagree with this rationale. This part of the majority

opinion conflates two separate and distinct concepts—punishment and

sentence—and is directly contrary to controlling precedents.

      The majority contends that anything that is not punishment is not part of

a sentence. This contention is contrary to basic sentencing law. The statutory

purpose of sentencing is to “provide maximum opportunity for the rehabilitation

of the defendant, and for the protection of the community from further offenses

by the defendant and others.” 

. Sentences thus frequently

contain many nonpunitive items. Any item addressed at sentencing and

contained in the sentencing order is part of the defendant’s sentence even when
                                        28


the item is not punitive in nature. See State v. Letscher, 

(Iowa 2016) (stating that any “provision of a sentence becomes part of the

sentence”). A bond forfeiture order is part of the defendant’s sentence. See 

(“In this case, however, the district court made forfeiture of the pretrial

appearance bond posted by Letscher into a term of the sentencing order. As a

term of sentence, Letscher was entitled to challenge it as any other term of

sentence.”). An order to repay court costs is part of the defendant’s sentence. See

State v. McMurry, 

 (Iowa 2019). An order to complete sex

offender treatment is part of the defendant’s sentence. See State v. Valin, 

 (Iowa 2006). A no-contact order is part of the defendant’s

sentence. See State v. Sanchez, No. 13–1989, 

, at *5 (Iowa Ct.

App. Aug. 19, 2015). A ten-dollar domestic violence fee is part of the defendant’s

sentence. See State v. Robinson, 

 (Iowa Ct. App. 2013). An

order to provide a DNA sample is part of the defendant’s sentence. See State v.

Sandoval, No. 12–0018, 

, at *1 (Iowa Ct. App. Sept. 19, 2012).

There is no shortage of nonpunitive items that could be part of a defendant’s

sentence.

      Not only is the majority’s rationale contrary to basic sentencing law, but it

is also directly contrary to controlling precedents stating that an order to be

placed on the sex offender registry is part of the defendant’s sentence. See, e.g.,

State v. Goodson, 

, 806 (Iowa 2021) (“Goodson argues that the

district court entered an illegal sentence because the sentence specified a

duration for his sex offender registration. . . . The State agrees that the district
                                         29


court’s sentence is illegal and must be corrected. As a result, we reverse the

illegal portion of Goodson’s sentence.”); State v. Zacarias, 

, 579

(Iowa 2021) (“Zacarias was also required to register as a sex offender as part of

his sentence.”); State v. Chapman, 

, 870–71 (Iowa 2020)

(“Chapman agrees his appeal involves a challenge to that part of his sentence

requiring him to register as a sex offender.”); State v. Petty, 

(Iowa 2019) (“As part of the sentence, Petty was ordered to register with the sex

offender registry for life.”); State v. Graham, 

 (Iowa 2017)

(allowing challenge to sex offender registration requirement on illegal sentence

grounds).

      For these reasons, I join the majority in holding that section 901.5(13) does

not afford the district court discretion with respect to the sex offender

registration requirement under chapter 692A. I cannot, however, join the

majority’s full rationale in support of its holding.

                                         B.

      Although the majority correctly holds that section 901.5(13) does not grant

the district court authority to suspend the sex offender registration requirement,

it also erroneously holds that section 901.5(13) does grant the district court

authority to suspend the special sentence. The difference in the majority’s

treatment of the registration requirement and the special sentence is

inconsistent, contrary to the purposes of all the relevant statutes, and foreclosed

by controlling authority.
                                        30


      The majority’s conclusion is inconsistent. Why would section 901.5(13)

not apply to the registration requirement but apply to the special sentence? The

registration requirement and the special sentence work in tandem to provide a

continuous process of registration and monitoring of sex offenders. For example,

the duration of the registration requirement is determined by the duration of the

special sentence. See Iowa Code § 692A.106(2), (4). By way of another example,

a sex offender on the registry and also placed on a special sentence may be

subject to electronic monitoring. See id. § 692A.124. Because these statutory

regimes work in tandem, section 901.5(13) should apply to neither or both. It

seems clear to me that section 901.5(13) applies to neither. Perhaps a decent

argument could be made it applies to both.

      The majority rejects both of these logically consistent outcomes and

instead splits the difference by concluding that section 901.5(13) applies to one

but not the other. It is odd to conclude that the legislature intended the grant of

additional authority in section 901.5(13) to apply to one and not the other given

that the legislature crafted these statutory regimes to work together. It is even

more odd to conclude that the special sentence—the sentence designed to

provide extended supervision for the most heinous sex offenders like Hess—is

the sentence the legislature intended the sentencing court to have discretion in

imposing.

      The majority justifies this illogical distinction based on its interpretation

of the word “sentence.” In the majority’s view, section 901.5(13) grants the

district court the authority to “suspend the sentence.” In the majority’s view,
                                       31


because the sex offender registration requirement is not punishment, it is not a

“sentence” within the meaning of the statute. As discussed above, this rationale

is incorrect. It is contrary to basic sentencing law and contrary to controlling

precedents. See Goodson, 958 N.W.2d at 806; Zacarias, 958 N.W.2d at 579;

Chapman, 944 N.W.2d at 870–71; Petty, 

; Graham, 

. The majority ignores this and continues on by reasoning that

because the special sentence is a type of sentence, section 901.5(13) grants the

district court the authority to suspend the special sentence.

      I respectfully disagree with the majority’s reasoning. There is no doubt that

section 901.5(13) grants the district court discretion with respect to the

imposition of certain types of “sentences” on offenders under the age of eighteen.

There is also no doubt that section 901.5(13) does not grant the district court

discretion with respect to the imposition of any type of sentence on offenders

under the age of eighteen. For example, in Richardson, we held that

section 901.5(13) does not give the district court discretion to suspend

mandatory restitution under section 910.3B, which is punitive and part of the

defendant’s sentence. See 

. And today the majority holds that

section 901.5(13) does not give the district court the authority to suspend the

sex offender registration requirement even though controlling precedents deem

registration a sentence when part of the sentencing order.

      The relevant question is thus not whether the special sentence is a type of

sentence. The relevant question is whether the special sentence is the type of
                                       32


sentence encompassed in the grant of discretion afforded in section 901.5(13).

By asking the wrong question, the majority gets the wrong answer.

      As discussed in part I, the relevant question is what additional authority

section 901.5(13) gives the district court at the time of sentencing? By asking

the right question, we get the right answer: Section 901.5(13) grants the district

court additional discretion only with respect to what would otherwise be

mandatory sentences of incarceration or mandatory minimum sentences of

incarceration. In addition to the reasons given in part I, this conclusion is

supported by additional statutory authority that provides the special sentence is

separate and distinct from the types of sentences encompassed within

section 901.5(13).

      These separate authorities are the very statutory provisions creating the

special sentence. Iowa Code section 903B.1 provides that “[t]he special sentence

imposed under this section shall commence upon completion of the sentence

imposed under any applicable criminal sentencing provisions for the underlying

criminal offense.” Iowa Code section 903B.2 also provides that “[t]he special

sentence imposed under this section shall commence upon completion of the

sentence imposed under any applicable criminal sentencing provisions for the

underlying criminal offense.” Sections 903B.1 and 903B.2 contemplate that a

sex offender will serve some period of incarceration or supervision prior to

commencing the special sentence. In other words, there is a separate sentence

of incarceration or probation that precedes the special sentence and is distinct

from the special sentence.
                                        33


      This conclusion is also supported by the fact that the relevant statutes

provide that the special sentence is in addition to any other punishments. Both

Iowa Code sections 903B.1 and 903B.2 provide that the special sentence is “in

addition to any other punishment provided by law.” And Iowa Code

section 901.5(12) provides that the “special sentence” is “[i]n addition to any

sentence or other penalty imposed against the defendant.” The phrase “in

addition to” denotes the “special sentence” is separate and distinct from “the

sentence” of incarceration referred to in section 901.5(13). See Faheem–El v.

Klincar, 

 (Ill. 1988) (stating that the “legislature’s use of the

phrase ‘in addition to’ dictates that” a “mandatory parole term” is “separate” from

the sentence of imprisonment). The majority’s construction renders the words

“in addition to” as used in section 901.5(12) wholly superfluous. “As a general

rule of statutory construction, we avoid an interpretation or application of a

statute that renders other portions of the statute superfluous or meaningless.”

Little v. Davis, 

, 75 (Iowa 2022).

      The majority tries to avoid these significant problems with its construction

of section 901.5(13) by taking a fallback position: the special sentence for sex

offenders is encompassed within the phrase “mandatory minimum sentence for

the offense” as used in section 901.5(13). I disagree for three reasons.

      First, the majority’s interpretation of the term “mandatory minimum

sentence” is implausible. The task of statutory interpretation is to determine the

ordinary meaning of the statutory language at issue. See Doe, 943 N.W.2d at

610. The majority’s interpretation does not do that. To anyone who has practiced
                                          34


criminal law, the majority’s interpretation is an inordinary interpretation of the

phrase “mandatory minimum sentence.”

      Second, the majority’s fallback position is foreclosed by Richardson. As

discussed in part I, in Richardson this court looked exhaustively at how the term

“mandatory minimum sentence” was used throughout the Code. 

. Based on that exhaustive analysis, we concluded that the phrase

“mandatory minimum sentence” as used in section 901.5(13) refers only to the

mandatory    minimum      sentence   of    “incarceration.”   

   The   majority’s

interpretation of “mandatory minimum sentence” as covering something other

than a mandatory minimum term of incarceration is the interpretation of the

dissenters in Richardson. 

 at 630–32 (Appel, J., dissenting). The term

“mandatory minimum sentence” has nothing to do with the special sentence

mandated by sections 903B.1, 903B.2, and 901.5(12).

      Third, the majority’s approach is inconsistent with the purpose of

statutory interpretation and construction. In interpreting and construing

statutes, courts should seek to harmonize statutes to effectuate the legislature’s

purpose as evidenced in the text of the statute, but the majority seeks to do the

opposite. The majority goes out of its way to interfere with the statutory scheme:

it misstates basic sentencing law, it ignores controlling authority, and it twists

our precedents to create conflict where no conflict exists. For example, the

majority repeatedly states that the more specific provision controls over the

general, but that canon, and the related canons on which the majority rely,

applies only where there is an actual conflict between statutes. See State v.
                                        35


Lutgen, 

 (Iowa 2000) (en banc) (“If a court can reasonably

harmonize two statutes dealing with the same subject, it must give concurrent

effect to both, even though one is specific, or special, and the other general.”

(quoting 82 C.J.S. Statutes § 355, at 474–75 (1999))). As shown above, there is

no actual conflict between statutes here: sections 903B.1, 903B.2, and 901.5(12)

require the imposition of the special sentence, and section 901.5(13) is simply

silent on the issue. It is unclear to me why the majority goes out of its way to put

a stick in the legislature’s spokes.

                                        III.

      In addition to these interpretive and doctrinal issues, the majority’s

interpretation is at odds with the purpose of the special sentencing regime. “[S]ex

offenders present a special problem and danger to society.” State v. Wade, 

 (Iowa 2008). This is true with respect to juvenile sex offenders

as well. In 2005, recognizing this risk, the general assembly created a special

sentence for certain high-risk sex offenders. See 2005 Iowa Acts ch. 158, §§ 39,

40 (codified at Iowa Code §§ 903B.1, .2 (2007)). The special sentence mandates

extended monitoring of high-risk sex offenders in the community after the

“completion of the sentence imposed under any applicable criminal sentencing

provisions for the underlying criminal offense.” Iowa Code §§ 903B.1, .2. The

purpose of the special sentence is to protect the public by allowing continued

monitoring of certain sex offenders.

      To advance this important public-safety purpose, the general assembly

declined to vest the sentencing court with discretion to determine ex ante
                                        36


whether a sex offender should be subject to the special sentence. Instead, the

general assembly made the special sentence mandatory at the time of sentencing

and vested the board of parole with the discretion to determine ex post when a

sex offender no longer presents a risk and should be discharged from the special

sentence. See 

(12); 

 §§ 903B.1, .2; id. § 906.15.

      Thus, while the district court is required to pronounce and impose the

special sentence at the time of sentencing, the special sentence is separate and

distinct from the sentence of incarceration and serves a different purpose. The

special sentence is an “exten[sion of] Iowa’s parole supervision scheme [that]

require[s] additional supervision for sex offenders consistent with the state’s

objective of protecting citizens from sex crimes.” Wade, 

. The

special sentence does “not involve sentencing functions.” 

 As Justices

Mansfield and Waterman recently explained, the special sentence must be

treated “as a form of parole, which is exactly what the legislature has said it is.”

In re Det. of Wygle, 

 (Iowa 2018) (Mansfield, J., dissenting,

joined by Waterman and Zager, JJ.).

      Administration of the special sentence is textually committed to the

discretion of the other branches of government. Iowa Code sections 903B.1 and

903B.2 provide that the special sentence commits “the person into the custody

of the director of the Iowa department of corrections” for the specified time period

“with eligibility for parole as provided in chapter 906.” Chapter 906 governs

parole and work releases. Sections 903B.1 and 903B.2 further provide that it is

the “board of parole,” and not the district court, that “shall determine whether
                                        37


the person should be released on parole or placed in a work release program.”

Both sections further provide that the terms and conditions of the special

sentence shall be governed by rules adopted “for persons on parole or work

release.” Any violations of the terms and conditions of the special sentence are

determined by an administrative law judge and not a court. See 

. Finally, the Code provides that the board of parole shall determine when

an offender is discharged from the special sentence. See 

 § 906.15. Other than

requiring its imposition at the time of sentencing, no statutory provision allows

the judicial branch to be involved in any way with the parole sentence.

      The majority ignores this and now interjects itself into and interferes with

the board of parole’s administration of the special sentence. This impedes the

public-safety purpose of the statute. The legislature has determined that sex

offender risk assessments should be made with as much information as possible.

To advance that policy, the legislature has determined that the sentencing court

must impose the special sentence at the time of sentencing without making an

ex ante determination of the sex offender’s risk to the public. After more time has

passed and the sex offender has discharged the sentence for the underlying

offense, the sex offender then commences the special sentence. At that time, the

board of parole can begin extended monitoring of the offender and can make an

ex post determination of risk based on the most recent information regarding the

offender.

      To illustrate the problem, just consider the facts of this case. The district

court ordered the defendant to serve four concurrent terms of incarceration not
                                         38


to exceed twenty-five years each, suspended those sentences, and placed the

defendant on probation for five years. The district court then imposed the special

sentence as required by section 903B.1. Under the district court’s sentence, the

defendant is under the district court’s supervision for the five years of probation

and then under the supervision of the Iowa department of corrections until such

time as the board of parole determines the defendant no longer poses a risk to

the public and should thus be discharged from the special sentence. The board

of parole’s information would be based on the most recent and relevant

information regarding the risk posed.

      Under the majority’s remand order, however, the district court is now

supposed to make a speculative determination on whether the defendant should

be subject to the special sentence when he discharges probation five years from

the date of sentencing. The majority’s decision pulls the risk assessment forward

and forces the district court to make the assessment based on speculation about

the defendant’s risk profile five years in the future.

      Consider a different hypothetical. What if the district court had not

suspended Hess’s sentences of incarceration? In that scenario, Hess would have

been sentenced to an indeterminate term of incarceration not to exceed twenty-

five years. What sense does it make to ask the sentencing court to exercise its

discretion at the time of sentencing? Can the district court make a

nonspeculative determination on whether Hess should serve a special sentence

that does not commence until he is released from prison perhaps twenty-five

years in the future? No, which is presumably why the legislature did not grant
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the district court the discretion to make the speculative determination the

majority now orders. Instead, the statute requires the district court to impose

the special sentence and allows the board of parole to look at more relevant

information after the “completion of the sentence imposed under any applicable

criminal sentencing provisions for the underlying criminal offense.” Iowa Code

§ 903B.1.8

                                              IV.

       Because of the high risk to reoffend, the legislature has concluded that sex

offenders like Hess must serve a “special sentence” of parole that is separate

from and “in addition to” the defendant’s sentence and “commence[s] upon

completion of the sentence imposed under any applicable criminal sentencing

provisions for the underlying criminal offense.” Iowa Code § 903B.1. The

legislature concluded that this mandatory extension of “Iowa’s parole

supervision scheme” was necessary to advance “the state’s objective of protecting

citizens from sex crimes.” Wade, 

. Under this scheme, “[t]he

parole board, an executive agency, is vested with the authority to” implement

and supervise the special sentence. 

 The majority has undermined the scheme

and usurped the board of parole’s role with respect to the special sentence of




       8The   majority raises a concern regarding the application of the statute to
deferred-sentence cases. Section 903B.1 applies only where there has been a conviction for the
underlying offense, so perhaps the failure to enter judgment or sentence may never trigger the
special sentence. But there may also be a ready response to the majority’s concern. That response
is not necessary here because the issue is not before us. The question presented in this appeal
is whether the district court can suspend the special sentence after imposing judgment and
sentence for the underlying offense and thereby trigger the special sentence under
section 903B.1.
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parole. This is contrary to the text of the statute and relevant precedents and is

wholly unnecessary. I respectfully dissent.

      Oxley and May, JJ., join this concurrence in part and dissent in part.