State of Iowa v. Scott W. Carter ( 2015 )

IN THE COURT OF APPEALS OF IOWA
No. 14-0061
Filed March 25, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SCOTT W. CARTER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clarke County, Gary G. Kimes,
Judge.
Scott Carter appeals from the denial of his motion to correct an illegal
sentence. AFFIRMED.
Unes J. Booth of Booth Law Firm, Osceola, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney
General, and Michelle Rivera, County Attorney, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
2
DOYLE, J.
This appeal involves the interplay between two drug offense statutes that
prohibit the same conduct but have grossly disparate penalties. One statute
provides for a ninety-nine-year sentence. The other provides for a twenty-five-
year sentence.
Scott Carter pled guilty to delivering methamphetamine to a minor, in
violation of Iowa Code section 124.401D(2) (1999 Supp.).1 He was sentenced to
ninety-nine years of imprisonment. Carter contends that because sections
124.401D(2) and 124.406(1)(a) (1999) provide grossly disparate punishments for
identical conduct, the longer sentence that was imposed upon him is illegal. 2
The fact that Carter’s criminal act was subject to different penalties does not
render his sentence illegal, and we therefore affirm the district court’s denial of
Carter’s motion to correct illegal sentence.
I. Background Facts and Proceedings
The record before us reflects the following. In May 2000, two teenage
girls, fourteen and seventeen years old, ran away from a group home in Des
Moines. They showed up at Carter’s Clarke County farm intending to hide from
law enforcement and juvenile authorities. Carter, then forty-one years old, was a
1
This section is now numbered 124.401D(2)(a) (2015).
2
A section 124.401D(2) violation, delivery of methamphetamine by an adult to a minor,
is subject to a ninety-nine-year sentence. See Iowa Code § 902.9(1) (1999 Supp.) (now
§ 902.9(1)(a) (2015)) (“A felon sentenced for a first conviction for a violation of section
124.401D, shall be confined for no more than ninety-nine years.”). A section
124.406(1)(a) (1999) violation, distribution of schedule I or II controlled substances
(including methamphetamine) by an adult to a minor, a class “B” felony, is subject to a
twenty-five-year sentence. See id. § 902.9(2) (1999 Supp.) (now § 902.9(1)(b) (2015))
(“A class ‘B’ felon shall be confined for no more than twenty-five years.”).
Methamphetamine is classified as a Schedule II controlled substance. Id.
§ 124.206(4)(b).
3
friend of the fourteen-year-old’s family, and Carter had known the girl since her
birth. Carter secretly sheltered the girls in a barn and a camper for three days.
During that time, Carter forced the fourteen-year-old to perform various sex acts.
Carter pointed a gun at her, threatened to drug her, and threatened to restrain
her with duct tape to force her to be a compliant participant in the sex acts
performed. Carter provided methamphetamine to the fourteen-year-old and
marijuana to the seventeen-year-old. The girls stole Carter’s supply of drugs and
when he was unable to locate the drugs, Carter physically assaulted the girls,
and threatened to kill them. The girls then fled on foot, eventually running to a
neighboring property. Law enforcement became involved.
Carter was charged by information with eight offenses: Count I, sexual
abuse in the third degree; Count II, harboring a runaway child; Count III,
harboring a runaway child; Count IV, distribution of a schedule I controlled
substance (marijuana) to a minor; Count V, delivery of a schedule II controlled
substance (methamphetamine) to a minor; Count VI, sexual abuse in the third
degree; Count VII, sexual abuse in the third degree; and Count VIII, sexual
abuse in the third degree. Pursuant to a plea agreement, Carter pled guilty to
Count V, delivery of a schedule II controlled substance (methamphetamine) to a
minor, in violation of Iowa Code section 124.401D(2). As a part of the plea
agreement, the remaining charges were dismissed. Carter was sentenced to
serve an indeterminate term of incarceration not to exceed ninety-nine years,
with no eligibility for parole until having served a minimum term of ten years’
incarceration.
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In 2013, Carter filed a motion to correct illegal sentence arguing the
mandatory ninety-nine-year sentence for violating section 124.401D(2) is illegal
because section 124.406(1)(a) imposes only a twenty-five-year sentence for
identical conduct. The district court denied the motion, and Carter now appeals.
II. Standard of Review
Although we ordinarily review a claim of an illegal sentence for the
correction of errors at law, when the claim is that the sentence is unconstitutional
our review is de novo. State v. Lyle, 854 N.W.2d 378, 382 (Iowa 2014). An
illegal sentence may be corrected at any time. Iowa R. Crim. P. 2.24(5).
III. Discussion
Carter claims that because the two statutes prohibit the same conduct but
have disparate penalties, the longer sentence that was imposed upon him is
illegal. Iowa Code section 124.401D(2) (now 124.401D(2)(a)) provides in part:
It is unlawful for a person eighteen years of age or older to
deliver or possess with the intent to deliver to a person under
eighteen years of age, a material, compound, mixture, preparation,
or substance that contains any detectable amount of
methamphetamine, its salts, isomers, or salts of its isomers, . . . .
Iowa Code section 124.406(1)(a) provides in part:
1. A person who is eighteen years of age of older who:
a. Unlawfully distributes or possesses with intent to distribute a
substance listed in schedule I or II to a person under eighteen
years of age commits a class “B” felony . . . .
Section 124.406(1)(a) is more expansive in scope than section 124.401D(2) as
the former covers distribution3 of any schedule I or II substance, while the latter
only covers delivery of methamphetamine. But the statutory provisions overlap
3
For purposes of our analysis, the terms “distribution” and “delivery” are
interchangeable. See Iowa Code § 124.101(7), (11).
5
because each make it unlawful for a person eighteen years of age or over to
deliver methamphetamine to a person under the age of eighteen.
Carter first argues,
The creation of two statutes with grossly disparate
sentencing provisions for identical conduct defies rational
explanation, furthers no legitimate government interest, permits
arbitrary enforcement of the law by impermissibly granting
prosecutors the power to choose the length of sentence in violation
of the equal protection and due process provisions of the Iowa
Constitution.
Even though the two statutory provisions call for differing punishments for the
same conduct, Carter has no valid complaint. In United States v. Batchelder, the
Supreme Court held:
This Court has long recognized that when an act violates
more than one criminal statute, the government may prosecute
under either so long as it does not discriminate against any class of
defendants. . . . Whether to prosecute and what charge to file or
bring before a grand jury are decisions that generally rest in the
prosecutor’s discretion.
442 U.S. 114, 123-24 (1979) (internal citations omitted). “The prosecutor may be
influenced by the penalties available upon conviction, but this fact, standing
alone, does not give rise to a violation of the Equal Protection or Due Process
Clause.” Batchelder, 442 U.S. at 125. The Batchelder holding has been
embraced by our supreme court. See State v. Tague, 310 N.W.2d 209, 211
(Iowa 1981); see also State v. Perry, 440 N.W.2d 389, 391-92 (Iowa 1989).
Carter urges us to reject Batchelder and rely on our own interpretation of the
equal protection and due process clauses of the Iowa Constitution. As an
intermediate appellate court, we are not at liberty to upend our supreme court
precedent. See State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990)
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(“We are not at liberty to overturn Iowa Supreme Court precedent.”); State v.
Hughes, 457 N.W.2d 25, 28 (Iowa Ct. App. 1990) (citing State v. Eichler, 83
N.W.2d 576, 578 (Iowa 1957) (“If our previous holdings are to be overruled, we
should ordinarily prefer to do it ourselves.”)). We therefore reject Carter’s
argument.
Carter next contends,
By enacting two felony statutes that permit grossly disparate
punishments for identical conduct with no guidance to “effectively
preclude arbitrary or capricious” action in regard to the selection of
the particular statute for prosecution, the legislature
unconstitutionally delegated its authority to the prosecutor to
determine the length of sentence.
Our supreme court has held,
When a single act violates more than one criminal statute,
the prosecutor may exercise discretion in selecting which charge to
file. This is permissible even though the two offenses call for
different punishments.
Perry, 440 N.W.2d at 391-92 (citing Tague, 310 N.W.2d at 211). Furthermore,
this delegation of discretion to a prosecutor does not give rise to a violation of
Carter’s equal protection or due process rights. Id. We therefore reject Carter’s
argument.
Carter further asserts the rule of lenity, a rule of statutory construction,
applies. Our supreme court explained,
The rule of lenity requires that ambiguous statutes imposing
criminal liability be strictly construed in favor of the defendant.
Originally conceived to mitigate the extension of the death penalty
to many criminal acts in England, the modern purposes of the rule
of lenity include providing fair notice that conduct is subject to
criminal sanction, preventing inconsistent and arbitrary enforcement
of the criminal law, and promoting separation of powers by ensuring
that crimes are created by the legislature, not the courts.
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State v. Hearn, 797 N.W.2d 577, 585 (Iowa 2011). When the language of a
statute is clear and unambiguous, we need not resort to rules of statutory
construction. See Perry, 440 N.W.2d at 391 (“When terms of a statute are
explicit, the court normally will not resort to rules of statutory construction.”); see
also State v. Peters, 525 N.W.2d 854, 857-58 (Iowa 1994). The language in both
statutes is clear and unambiguous. We find no positive repugnancy between the
provisions. We therefore conclude the overlap between the statutes does not
require us to invoke the statutory construction rule of lenity. See Batchelder, 442
U.S. at 121. We therefore reject Carter’s argument.
Lastly, Carter claims the ninety-nine-year penalty “violates the cruel and
unusual punishment provision of the Iowa constitution, when compared to others
who are equally culpable and receive only a twenty-five (25) year sentence for
violating § 124.406(1)(a).” The Iowa Constitution prohibits the imposition of cruel
and unusual punishment. See Iowa Const. art I, § 17. But if punishment “falls
within the parameters of a statutorily prescribed penalty,” it generally “does not
constitute cruel and unusual punishment.” State v. Cronkhite, 613 N.W.2d 664,
669 (Iowa 2000). Carter’s ninety-nine-year sentence falls within the statutorily
prescribed penalty. Carter does not argue the ninety-nine-year sentence is cruel
and unusual in and of itself. Instead, he contends “there should be no disparity in
the punishment meted out by two statutes which proscribe identical conduct.”
Unfortunately, Carter fails to fully articulate the nature of his cruel and unusual
punishment challenge. He provides us with no analysis or substantive argument
in support of his claim. A random mention of an issue, without elaboration or
supportive authority, is not sufficient to raise an issue for review. See EnviroGas,
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L.P. v. Cedar Rapids/Linn Cnty. Solid Waste Agency, 641 N.W.2d 776, 785 (Iowa
2002); Soo Line R.R. v. Iowa Dep’t of Transp., 521 N.W.2d 685, 689 (Iowa 1994)
(stating court will not consider issues concerning which an appellant cites no
authority nor offers any substantive argument). Therefore, we do not consider
Carter’s cruel and unusual claim.
IV. Conclusion
For all the above reasons, we reject Carter’s claims on appeal. The fact
that Carter’s criminal act was subject to different penalties does not render his
sentence illegal. We affirm the district court’s denial of Carter’s motion to correct
illegal sentence.
AFFIRMED.