759 N.W.2d 793, *; 2009 Iowa Sup. LEXIS 4, **

STATE OF IOWA, Plaintiff, vs. IOWA DISTRICT COURT FOR HENRY COUNTY, Defendant.

No. 07-1226

SUPREME COURT OF IOWA

759 N.W.2d 793; 2009 Iowa Sup. LEXIS 4


January 23, 2009, Filed

OPINION


[*794] TERNUS, Chief Justice.

Inmate Denny Propp brought a postconviction relief action challenging a determination by the department of corrections (DOC) that he was ineligible to receive earned-time credits after he was removed from a sex offender treatment program for misconduct. See generally Iowa Code § 903A.2 (2005) (providing for reduction in sentence for good conduct and satisfactory participation in specified programs). Propp claimed this application of the governing statute, as amended in 2001 and 2005, violated the Ex Post Facto Clause because the offense for which Propp was incarcerated was committed prior to the amendments. The district court held the DOC's application [**2] of amended section 903A.2 to Propp violated the Ex Post Facto Clauses of the United States and Iowa Constitutions. The State brought this original certiorari action to challenge the legality of the district court's decision. Because we conclude the district court's ruling was correct, we annul the writ of certiorari.

I. Background Facts and Proceedings.

Propp is currently incarcerated at the Mount Pleasant Correctional Facility on a twenty-five-year sentence for his 1997 conviction [*795] of third-degree sexual abuse. 1 At the time of his sentencing, section 903A.2 allowed Propp to reduce his sentence through good-time credits. See Iowa Code § 903A.2 (Supp. 1997). 2 Pursuant to the 1997 statute, Propp was eligible for a sentence reduction of one day for each day of good conduct and, in addition, could earn a further reduction of up to five days per month for satisfactory participation in a variety of activities and programs, including treatment programs established by the director of the DOC. Id. The director of the DOC was authorized to establish rules specifying what constituted "satisfactory participation" in employment, treatment, and other programs for purposes of sentence reduction. Id. [**3] § 903A.4 (1997).

FOOTNOTES

1 The record does not reveal the date of Propp's offense that resulted in this sentence.

2 In pertinent part, the 1997 version of section 903A.2 provided:

903A.2 Good time.

1. Each inmate committed to the custody of the director of the department of corrections is eligible for a reduction of sentence for good behavior in the manner provided in this section. For purposes of calculating the amount of time by which an inmate's sentence may be reduced, inmates shall be grouped into the following two sentencing categories:

a. . . . An inmate of an institution under the control of the department of corrections who is serving a category "A" sentence is eligible for a reduction of sentence equal to one day for each day of good conduct while committed to one of the department's institutions. In addition, each inmate who is serving a category "A" sentence is eligible for an additional reduction of up to five days per month if the inmate participates satisfactorily in any of the following activities:

(1) Employment in the institution.

(2) Iowa state industries.

(3) An employment program established by the director.

(4) A treatment program established by the director.

(5) An inmate educational [**4] program approved by the director.

Iowa Code § 903A.2 (Supp. 1997) (emphasis added). Propp had a category "A" sentence.


In 2000, while Propp was still serving his sentence, the legislature amended section 903A.2. 2000 Iowa Acts. ch. 1173, § 4. Under the new statute, "[a]n inmate . . . serving a category "A" sentence is eligible for a reduction of sentence equal to one and two-tenths days for each day the inmate demonstrates good conduct and satisfactorily participates in any program or placement status identified by the director to earn the reduction." Iowa Code § 903A.2(1)(a) (2001) (emphasis added). Thus, effective January 1, 2001, inmates like Propp with category "A" sentences were eligible to earn a reduction in their sentence only by demonstrating good conduct and satisfactorily participating in any program identified by the director. Id. In other words, good conduct alone was no longer enough to qualify an inmate for a reduction in sentence under amended section 903A.2; earned-time credits, as they were now labeled, were also contingent on satisfactory participation in programming.

In 2005, the statute was amended once again, this time with respect to sex offenders. See 2005 Iowa [**5] Acts ch. 158, § 32. This amendment, effective July 1, 2005, added the following provision to section 903A.2: "However, an inmate required to participate in a sex offender treatment program shall not be eligible for a reduction of sentence unless the inmate participates in and completes a sex offender treatment program established by the director." 3 Iowa Code § 903A.2 (Supp. [*796] 2005). To implement this legislation, the DOC adopted a policy providing that inmates required to participate in sex offender treatment programs (SOTP) who refused treatment, were removed from treatment, or failed program completion criteria would not be eligible for earned-time credits.

FOOTNOTES

3 The practice of the DOC is to allow an inmate required to participate in a sex offender treatment program to earn credits while awaiting placement in the program rather than being deemed ineligible until completion of the program. This interpretation of the statute is not challenged in this case.


Based upon his conviction for third-degree sexual abuse, Propp was required to participate in the SOTP. Propp began the treatment program, but was removed from the SOTP for misconduct in April 2006. Although Propp did not lose credits he [**6] had already earned, he was deemed ineligible to receive further earned-time credits until he was reinstated to the program. Prior to his removal from the SOTP, his tentative date of discharge was January 27, 2009; after his removal, his new tentative discharge date was June 12, 2012. In October 2006, Propp was reinstated to the SOTP, resulting in a new tentative date for discharge of May 20, 2009. Thus, Propp's time in prison was extended by approximately four months due to his temporary ineligibility to accumulate earned-time credits.

After exhausting his administrative remedies, Propp filed a postconviction relief action, claiming his loss of earned-time eligibility violated the Ex Post Facto and Due Process Clauses of the United States and Iowa Constitutions. 4 Propp requested that his original tentative discharge date of January 27, 2009, be reinstated. After hearing, the district court ruled application of the amended version of section 903A.2 to Propp violated the prohibition against ex post facto laws. The court ordered the DOC to reinstate Propp's original tentative discharge date. The court rejected Propp's contention that his due process rights had been violated.

FOOTNOTES

4 Propp does [**7] not claim that requiring him to participate in the SOTP is itself a violation of the Ex Post Facto Clause. Cf. Schreiber v. State, 666 N.W.2d 127, 130 (Iowa 2003) (holding statute requiring inmates to submit blood specimens for DNA profiling did not violate the prohibition against ex post facto laws). Nor does he claim he could not be disciplined in some manner for unsatisfactory participation. Cf. id. (holding imposition of discipline for refusal to supply blood specimen did not violate Ex Post Facto Clause). Propp only claims his unsatisfactory performance cannot, consistent with the Constitution, lengthen his sentence by reducing his ability to earn credits that he could have earned under the statutory scheme in effect at the time he committed his offense. This claim was not asserted in Schreiber.


The State then filed this certiorari action. Because we agree with the well-reasoned decision of the district court, we annul the writ of certiorari.

II. Scope of Review.

The issue in this case involves a constitutional provision, the Ex Post Facto Clause. Therefore, "we review the case de novo in light of the totality of the circumstances and record upon which the postconviction court ruling [**8] was made." Rushing v. State, 382 N.W.2d 141, 143 (Iowa 1986). Because neither party suggests a basis to distinguish the Federal Ex Post Facto Clause from the Iowa ex post facto clause, we will limit our discussion to the federal provision with the understanding that our analysis applies equally to the state provision.

III. Governing Legal Principles.

The United States Constitution provides: "No State shall . . . pass any . . . ex post facto Law . . . ." U.S. Const. art. I, § 10. For constitutional purposes, an ex post facto law is

any statute which punishes as a crime an act previously committed, which was innocent when done, which makes more [*797] burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed . . . .

Beazell v. Ohio, 269 U.S. 167, 169, 46 S. Ct. 68, 68, 70 L. Ed. 216, 217 (1925); accord Schreiber v. State, 666 N.W.2d 127, 129 (Iowa 2003). It is the second type of law--one that makes the punishment for a crime more burdensome after its commitment--that is of concern here.

The purposes of the prohibition against ex post facto laws is "to assure legislative Acts [**9] give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed." Weaver v. Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 23 (1981). This prohibition also "restricts governmental power by restraining arbitrary and potentially vindictive legislation." Id. at 29, 101 S. Ct. at 964, 67 L. Ed. 2d at 23. In Weaver, the Court stated that "two critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." Id. An offender is disadvantaged when the law "makes more onerous the punishment for crimes committed before its enactment." 5 Id. at 36, 101 S. Ct. at 968, 67 L. Ed. 2d at 27.

FOOTNOTES

5 Subsequent to its decision in Weaver, the Court clarified that not any disadvantage to the offender satisfies the second element of the ex post facto analysis:

After Collins [v. Youngblood, 497 U.S. 37, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990)], the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of "disadvantage," nor . . . on whether [**10] an amendment affects a prisoner's "opportunity to take advantage of provisions for early release," . . . but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.

Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 506 n.3, 115 S. Ct. 1597, 1602 n.3, 131 L. Ed. 2d 588, 595 n.3 (1995).


In Weaver, the issue was "whether a Florida statute altering the availability of . . . 'gain time for good conduct' [was] unconstitutional as an ex post facto law when applied to [Weaver], whose crime was committed before the statute's enactment." Id. at 25, 101 S. Ct. at 962, 67 L. Ed. 2d at 20-21. The state statute in place at the time of Weaver's offense and sentencing provided a formula for deducting gain-time credits from the sentences of prisoners who had no disciplinary infractions and who satisfactorily performed " 'the work, duties and tasks assigned to him.'" Id. at 26, 101 S. Ct. at 962-63, 67 L. Ed. 2d at 21 (quoting Fla. Stat. § 944.27(1) (1975)). Gain-time credits were calculated every month and at an increasing rate: five days per month for the first two years of sentence, ten days per month for the third and fourth years, [**11] and fifteen days per month for the fifth and subsequent years of sentence. Id. at 26, 101 S. Ct. at 963, 67 L. Ed. 2d at 21.

In 1978, after Weaver's crime and sentencing, the Florida legislature enacted a new formula for monthly gain-time credits: three days per month for the first two years, six days per month for the third and fourth years, and nine days per month for the fifth and subsequent years. Id. at 26, 101 S. Ct. at 963, 67 L. Ed. 2d at 21. Weaver objected to the application of the new formula to him, claiming the reduced accumulation of monthly gain-time credits under the new statute extended his time in prison by over two years in violation of the prohibition against ex post facto laws. Id. at 27, 101 S. Ct. at 963, 67 L. Ed. 2d at 22.

In determining whether the new statute was retrospective, the Court stated "[t]he [*798] critical question is whether the law changes the legal consequences of acts completed before its effective date." Id. at 31, 101 S. Ct. at 965, 67 L. Ed. 2d at 24. For purposes of Weaver's claim, the Court recast this question to ask whether the Florida statute "applies to prisoners convicted for acts committed before the provision's effective date." Id. Because [**12] the State conceded it was using the new statute to calculate gain time available to Weaver, whose crime was committed before the new statute was enacted, the Court concluded the law changed the legal consequences attached to Weaver's crime. Id. The Court rejected the State's argument the statute was not retrospective because gain time was not part of Weaver's original sentence. Id. at 31-32, 101 S. Ct. at 965-66, 67 L. Ed. 2d at 24-25. Regardless of whether gain time is technically part of a sentence, the Court noted, "it is in fact one determinant of [Weaver's] prison term," and therefore, "his effective sentence is altered once this determinant is changed." Id. at 32, 101 S. Ct. at 966, 67 L. Ed. 2d at 25. The Court pointed out "a prisoner's eligibility for reduced imprisonment is a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of the sentence to be imposed." Id. See generally Meier v. State, 337 N.W.2d 204, 206-07 (Iowa 1983) (reversing defendant's conviction based on counsel's failure to advise defendant prior to guilty plea to reduced charge that sentence for charged offense could be shortened through good-conduct time). [**13] The Court concluded the statute "substantially alters the consequences attached to a crime already completed," and therefore was a retrospective law. Weaver, 450 U.S. at 33, 101 S. Ct. at 966, 67 L. Ed. 2d at 25.

The Court then considered whether the statute made "more onerous the punishment for crimes committed before its enactment." Id. at 33-36, 101 S. Ct. at 966-68, 67 L. Ed. 2d at 25-27. The Court observed:

On its face, the statute reduces the number of monthly gain-time credits available to an inmate who abides by prison rules and adequately performs his assigned tasks. By definition, this reduction in gain-time accumulation lengthens the period that someone in petitioner's position must spend in prison.

Id. at 33, 101 S. Ct. at 967, 67 L. Ed. 2d at 26. The Court concluded, because "the new provision constricts the inmate's opportunity to earn early release," it violates the prohibition against ex post facto laws. Id. at 35-36, 101 S. Ct. at 968, 67 L. Ed. 2d at 27.

The Weaver case is helpfully contrasted with the Court's decision in California Department of Corrections v. Morales, 514 U.S. 499, 115 S. Ct. 1597, 131 L. Ed. 2d 588 (1995). In the latter case, an inmate, Morales, claimed [**14] a statute changing parole hearing procedures violated the Ex Post Facto Clause. Morales, 514 U.S. at 503-04, 115 S. Ct. at 1600, 131 L. Ed. 2d at 593. At the time of Morales's crime and sentencing, inmates eligible for parole were entitled to annual hearings before the board of parole on their suitability for release. Id. at 503, 115 S. Ct. at 1600, 131 L. Ed. 2d at 593. After his sentencing, however, the statute was changed to authorize the board to defer hearings after the initial one for a period of up to three years under specified conditions. Id. Morales had a hearing before the board and was found unsuitable for parole. Id. The board then deferred a subsequent hearing for three years pursuant to the new statute. Id.

Morales claimed the new law effectively increased his sentence in violation of the Ex Post Facto Clause. Id. at 504, 115 S. Ct. at 1600, 131 L. Ed. 2d at 593. The [*799] Court disagreed, distinguishing Weaver and other similar cases. It noted these cases "held that the Ex Post Facto Clause forbids the States to enhance the measure of punishment by altering the substantive 'formula' used to calculate the applicable sentencing range." Id. at 505, 115 S. Ct. at 1601, 131 L. Ed. 2d at 594. [**15] In Morales, by contrast, the statute had no effect on the standards for fixing a prisoner's eligibility for parole and did not change the substantive formula for securing any reductions in sentence. Id. at 507, 115 S. Ct. at 1602, 131 L. Ed. 2d at 595.

In a subsequent case, Lynce v. Mathis, 519 U.S. 433, 117 S. Ct. 891, 137 L. Ed. 2d 63 (1997), the Court considered whether a statute that retroactively canceled an inmate's provisional early release credits violated the Ex Post Facto Clause. 519 U.S. at 436, 117 S. Ct. at 893, 137 L. Ed. 2d at 69. Relying on its decision in Weaver, the Court determined the application of the statute, which had been enacted after the inmate was sentenced, violated the prohibition against ex post facto laws. Id. at 442-45, 117 S. Ct. at 896-98, 137 L. Ed. 2d at 73-75. The Court distinguished Morales, noting that in Morales it was speculative whether the change in parole hearing policy would have any effect on any prisoner's actual term of confinement. Id. at 443-44, 117 S. Ct. at 897, 137 L. Ed. 2d at 73-74. The Court concluded it was unnecessary to speculate in the case before it whether the new statute had a detrimental effect on the inmate:

Unlike the [**16] California amendment at issue in Morales, the [amended] statute [here] did more than simply remove a mechanism that created an opportunity for early release for a class of prisoners whose release was unlikely; rather, it made ineligible for early release a class of prisoners who were previously eligible--including some like petitioner, who had actually been released.

Id. at 447, 117 S. Ct. at 898, 137 L. Ed. 2d at 75-76. We turn now to the case before us.

IV. Discussion.

A. Retrospective Application. Our first task in determining whether amended section 903A.2 violates the Ex Post Facto Clause is to ascertain whether the law has retrospective effect. In the context of the present case, the question is whether the amended statute applies to prisoners convicted for offenses committed before the provision's effective date. See Weaver, 450 U.S. at 31, 101 S. Ct. at 965, 67 L. Ed. 2d at 24. Clearly, it does. The DOC has implemented a policy making any inmate required to participate in the SOTP who refuses treatment, is removed from treatment, or fails to meet program completion criteria ineligible for earned time. Therefore, the amended statute applies to prisoners such as Propp who were convicted [**17] for an offense committed before the amendment's effective date. The amendment is, therefore, retrospective. See Stansbury v. Hannigan, 265 Kan. 404, 960 P.2d 227, 235-36 (Kan. 1998) (holding similar statutory amendment was retrospective when applied to inmate who committed his crime before amendment's enactment).

The State argues this conclusion is inconsistent with the purpose of the ex post facto prohibition, which is to give fair warning of the effect of statutory provisions and permit individuals to rely on those provisions until they are changed. See Weaver, 450 U.S. at 28-29, 101 S. Ct. at 964, 67 L. Ed. 2d at 23. It argues, "Propp was on notice since July 1, 2005 that he had to stay in the SOTP to collect his good time credits." But the focus of the State's analysis is misplaced. The question is not whether Propp was on notice when he committed the misconduct that resulted in his dismissal from the SOTP that he would lose his eligibility to earn a reduction in his [*800] sentence. The question, as the Court made clear in Weaver, is whether Propp knew when he committed his crime and was sentenced that he would not be eligible for a reduction in his sentence by merely following prison rules, but would [**18] also have to successfully participate in sex offender treatment.

B. Impact on Punishment. We next consider whether the amended statute increases the penalty by which Propp's crime is punishable or, stated differently, whether it makes the punishment for his crime more onerous. Lynce, 519 U.S. at 442, 117 S. Ct. at 896, 137 L. Ed. 2d at 72; Morales, 514 U.S. at 506 n.3, 115 S. Ct. at 1602 n.3, 131 L. Ed. 2d at 595 n.3. We think the statute at issue here has the same prohibited effect as did the statute in Weaver. At the time Propp was sentenced, 6 he could earn a one-day reduction in his sentence for each day of good conduct, and he could earn an additional reduction of up to five days per month for participation in various programs. See Iowa Code § 903A.2 (Supp. 1997). Thus, if Propp behaved, he received good-time credits. If he refused to participate in available programs, he did not receive any additional credits, but he still earned his one day of credit for each day of good conduct.

FOOTNOTES

6 We focus on the date of Propp's sentencing because the record does not reveal the date of his crime.


In contrast, by virtue of the subsequent amendments in 2001 and 2005, Propp can no longer earn credits [**19] merely by following institutional rules. Now he must follow the rules and satisfactorily participate in any programs required by the director. Thus, if Propp does not participate in the SOTP, but behaves in every other way, he will have a longer period of incarceration under the amended statute than he would have had under the statute in effect at the time of his sentencing.

The State argues the amended statute did not make Propp's punishment for his crime more onerous, however, because "[t]he formula that is used to compute earned time has been changed only in a way that actually benefits him." While it is true that an inmate can now earn 1.2 days of earned-time credits per day rather than one day of good-time credits as under the old formula, as we have already explained, the requirements to qualify for this credit have changed considerably. The United States Supreme Court was unpersuaded by a similar argument in Weaver. In Weaver, the state argued the net effect of the new statute was to increase availability of gain-time reductions because the new statute provided for discretionary grants of additional gain time that were unavailable under the former statute. 450 U.S. at 34-36 & n.18, 101 S. Ct. at 967-68, 67 L. Ed. 2d at 26-27. [**20] The Court was not convinced by this argument:

[N]one of these provisions for extra gain time compensates for the reduction of gain time available solely for good conduct. The fact remains that an inmate who performs satisfactory work and avoids disciplinary violations could obtain more gain time per month under the repealed provision . . . than he could for the same conduct under the new provision . . . . To make up the difference, the inmate has to satisfy the extra conditions specified by the discretionary gain-time provisions. . . . In contrast, under both the new and old statutes, an inmate is automatically entitled to the monthly gain time simply for avoiding [*801] disciplinary infractions and performing his assigned tasks.

Id. at 35, 101 S. Ct. at 967-68, 67 L. Ed. 2d at 27.

This passage aptly describes the situation presented by Propp's challenge to amended section 903A.2. Under the old statute, Propp was automatically entitled to one day of good-conduct time for each day he avoided a disciplinary violation. Now, he has to satisfy extra conditions--satisfactory participation in programming--to receive any earned-time credits. [**21] Stated differently, under the original statute, Propp lost eligibility for five days of good-time credit each month he did not satisfactorily participate in a treatment program, but he remained eligible for thirty days of good-conduct credit, assuming a thirty-day month, notwithstanding his unsatisfactory participation. Under the new statute, his failure to satisfactorily participate renders him ineligible to earn any reduction in his sentence, even if he has no disciplinary infractions. We are convinced this difference is a substantive change in the formula used to calculate a reduction in sentence because, as in Weaver, it "retroactively decreas[ed] the amount of [earned]-time awarded for an inmate's good behavior." Lynce, 519 U.S. at 441, 117 S. Ct. at 896, 137 L. Ed. 2d at 72 (characterizing issue in Weaver). Therefore, application of the amended statute to Propp violates the Ex Post Facto Clause. See Stansbury, 960 P.2d at 236 (holding similar statutory amendment violated Ex Post Facto Clause when applied to inmate who committed his crime before enactment of amendment). 7

FOOTNOTES

7 The facts of Stansbury are remarkably similar to this case. Under the statutory scheme in effect when Stansbury [**22] committed his crime, inmates could earn eighty percent of the available good-time credits by avoiding any disciplinary violations. Stansbury, 960 P.2d at 231-33. The remaining twenty percent was awarded on a discretionary basis based on several factors, including the inmate's participation in programs. Id. at 231. An amendment enacted after Stansbury's crime provided that an inmate's refusal to participate in assigned programs would result in the withholding of 100% of the available good-time credits. Id. at 232. Stansbury refused to sign a sex abuse treatment program (SATP) agreement, and as a result, his good-time credits were withheld. Id. at 230. The Kansas Supreme Court concluded the effect of the amendment upon Stansbury "was to extend his conditional release date based upon his failure to earn good time credits because of his refusal to participate in the SATP." Id. at 235. The court held the application of the amended statute to Stansbury violated the prohibition against ex post facto laws. Id. at 236.

We acknowledge there are decisions from other states that are contrary to Stansbury and our holding in this case. These cases are either factually distinguishable, are not consistent [**23] with Supreme Court precedent, or are simply unpersuasive.


For the same reasons, we reject the State's argument that the statute merely changed the conduct that was required to earn credits. As the State correctly points out, prison officials have the ability to change institutional rules without violating the prohibition against ex post facto laws. See Gilbert v. Peters, 55 F.3d 237, 239 (7th Cir. 1995); Jones v. Murray, 962 F.2d 302, 309 (4th Cir. 1992). In Jones, the court rejected a challenge to a statute requiring inmates to give blood specimens for DNA analysis, stating:

The Ex Post Facto Clause does not prevent prison administrators from adopting and enforcing reasonable regulations that are consistent with good prison administration, safety and efficiency. . . .

It is precisely because reasonable prison regulations, and subsequent punishment for infractions thereof, are contemplated as part of the sentence of [*802] every prisoner, that they do not constitute additional punishment and are not classified as ex post facto. Moreover, since a prisoner's original sentence does not embrace a right to one set of regulations over another, reasonable amendments, too, fall within the anticipated [**24] sentence of every inmate.

962 F.2d at 309-10.

The flaw in the State's attempt to categorize the amendment at issue here as a mere change in prison regulations is that the statutory scheme in effect in 1997 clearly treated compliance with institutional rules and participation in treatment programs distinctly: an inmate was rewarded for good behavior separately from the good-time credits he received for participating in programming. Analyzing the present situation from the aspect of notice, we think a person in Propp's position who was sentenced under the earlier version of section 903A.2 would have been on notice that institutional rules change over time. Accordingly, someone in Propp's position would also have been on notice that the precise conduct required to qualify for good-conduct credits may also vary over time. Nevertheless, a person in Propp's position would have had the expectation that, if he simply complied with institutional rules, he could cut his sentence in half. That is not the case under the current statutory scheme for earned-time credits. Even if Propp complies with institutional rules, he will not earn any reduction in his sentence unless he also satisfactorily participates [**25] in the SOTP. We think this case is indistinguishable from Weaver, in which the Court found an ex post facto violation because "an inmate who performs satisfactory work and avoids disciplinary violations could obtain more gain time per month under the repealed provision . . . than he could for the same conduct under the new provision." 450 U.S. at 35, 101 S. Ct. at 967, 67 L. Ed. 2d at 27. Because this description is equally true for Propp, we conclude the punishment for his crime has been made more onerous in violation of the Ex Post Facto Clause.

V. Disposition.

The district court correctly determined the DOC's application of amended section 903A.2 to inmates whose crimes predated the amendments violates the constitutional prohibition of ex post facto laws. Therefore, the court did not act illegally in ordering the State to reinstate Propp's original tentative discharge date of January 27, 2009. We annul the writ of certiorari.

WRIT ANNULLED.

767 N.W.2d 409, *; 2009 Iowa Sup. LEXIS 55, **

JORDAN HOLM, Plaintiff, vs. IOWA DISTRICT COURT FOR JONES COUNTY, Defendant.

No. 07-1095

SUPREME COURT OF IOWA

767 N.W.2d 409; 2009 Iowa Sup. LEXIS 55


June 19, 2009, Filed

OPINION


[*412] BAKER, Justice.

Inmate Jordan Holm brought a postconviction relief action challenging a determination by the department of corrections (DOC) that he was ineligible to accrue earned-time credits after he refused to attend a sex offender treatment program (SOTP). See generally Iowa Code § 903A.2 (Supp. 2005). Holm claimed that, as applied to inmates convicted before 2005, a 2005 amendment to Iowa Code section 903A.2(1)(a) does not apply to him, and if it does, it is a violation of the prohibition against ex post facto laws under both the United States and [**2] the Iowa Constitutions. He further alleged that he received insufficient due process from the DOC classification process. The district court held that the Iowa legislature intended to remedy former Iowa Code section 903A.2(1)(a) so that all sex offenders, without regard to date of conviction, could receive earned-time credits only by completing SOTP, the amendment was not an ex post facto violation, and that because Holm was provided notice and opportunity to be heard by the deputy warden, his right to due process was protected. Holm then filed a petition for writ of certiorari with the Iowa Supreme Court. We granted his petition. We conclude that the statute does not violate the prohibitions against ex post facto laws contained in the United States and Iowa Constitutions, and that Holm received sufficient due process. We annul the writ of certiorari.

I. Background Facts and Proceedings.

The parties have stipulated to the following facts. Jordan Holm is serving a sentence for third-degree sexual abuse in violation of Iowa Code section 709.4 (2001). His offense occurred in 2002. Holm was sentenced on November 7, 2003, and received a mandatory sentence of incarceration not to exceed ten [**3] years.

Holm appealed his conviction. On December 21, 2005, the Iowa Court of Appeals affirmed his conviction. Holm has always maintained his innocence of the sexual abuse charge.

Iowa Code chapter 903A, entitled "Reduction of Sentences," was passed in 1983. It provided that inmates were "eligible for a reduction of sentence of one day for each day of good conduct . . . while committed to one of the department's institutions." The chapter also provided for up to five extra days of sentence reduction a month if the inmate satisfactorily participated in a work or educational program established by the director. In addition, section 903A.4 of the chapter stated that:

[*413] The director of the Iowa department of corrections shall develop policy and procedural rules to implement sections 903A.1 through 903A.3. The rules may specify disciplinary offenses which may result in the loss of good conduct time, and the amount of good conduct time which may be lost as a result of each disciplinary offense.

Iowa Code § 903A.4 (Supp. 1983).

In 2000, the legislature amended Iowa Code section 903A.2. 2000 Iowa Acts ch. 1173, § 4. The amended statute provided that certain inmates would be "eligible for a reduction [**4] of sentence equal to one and two-tenths days for each day the inmate demonstrates good conduct and satisfactorily participates in any program or placement status identified by the director to earn the reduction." Iowa Code § 903A.2(1)(a) (2001) (emphasis added). The amendment also added a non-exhaustive list of programs. This list included a "treatment program established by the director." Id. § 903A.2(1)(a)(4). In 2005, the statute was again amended, this time specifically with respect to sex offenders. See 2005 Iowa Acts ch. 158, § 32. This amendment became effective July 1, 2005. It provides:

[A]n inmate required to participate in a sex offender treatment program shall not be eligible for a reduction of sentence unless the inmate participates in and completes a sex offender treatment program established by the director.

Iowa Code § 903A.2(1)(a) (Supp. 2005).

In accordance with Iowa Code section 903A.4, the DOC implemented the 2005 amendment in 2006 by adopting a rule stopping the accrual of earned time for a sex offender who refused treatment, was removed from treatment, or failed to meet program completion criteria. Despite the statute's provision, under the DOC policy prior to this [**5] amendment, a refusal to participate in SOTP did not completely stop the accrual of earned time. A refusal only resulted in the loss of up to ninety days of earned time.

Holm had two separate classification meetings with prison officials on August 8 and August 10 of 2006. A classification meeting in this context is a meeting with the inmate wherein he is told that he is expected to undergo treatment. It was at one of these meetings that the DOC told Holm that the new provision (prison policy adopting amended section 903A.2(1)(a)) would be applied to him. He was also told that there was a treatment bed for SOTP available, and he must decide whether to undergo treatment. 1 Holm refused SOTP treatment. At the close of the August 10 meeting, Holm signed the prison's treatment refusal form. The "Sex Offender Treatment Program Refusal Form" provides:

Offenders that meet any or all of the following criteria will be required to participate in the Sex Offender Treatment Program (SOTP) offered by the Department of Corrections:

*The offender's present sexual offense conviction.

*The offender is required to register with the Iowa Sexual Offender Registry.

[*414] *The time of treatment is targeted in relation [**6] to the projected release of the offender.

*There is treatment space available and the offender is offered a SOTP treatment bed.



For offenders that meet the above criteria, the following is applicable:

*Per Iowa Code section 903A.2(1)(a) any offender . . . [who] refuses to participate in the required SOTP will not be eligible for earned time. This affects any offender who refuses the required SOTP or is removed from required SOTP on, or after July 1, 2005. . . .

I, Offender Holm, Jordan # 6016946A refuse to participate in the Mt. Pleasant Correctional Facility Sex Offender Treatment Program.

My refusal . . . from SOTP has been discussed with me by staff and I understand that by signing this form, I am going against recommended programming and/or have been removed for failing to fully cooperate with outlined treatment guidelines set up for me by the staff of the Mt. Pleasant Correctional Facility and/or the Iowa Board of Parole. The consequences of this decision which are outlined above have been discussed with me. . . .

This is a classification action and may be appealed to the Deputy Warden within 24 hours of the decision date.

(Emphasis in original.)

FOOTNOTES

1 In 2004, the DOC determined that Holm [**7] should undergo SOTP while serving his sentence. In February of 2004, Holm alleges that the DOC told him he would not be allowed to attend sex offender treatment because he denied he was guilty of the sexual abuse charge. He was also told he would therefore be denied consideration for early release because he had not undergone treatment. A generic note in his file dated February 2, 2004, states that Holm "is denying guilt to his crime and will not be provided SOTP due to this."


Holm's sentence reduction or earned time stopped accruing when he signed the treatment refusal form on August 10, 2006. Holm did not lose any credits he had earned prior to that date. Before his refusal to attend treatment, Holm's tentative discharge was April 9, 2008. After his refusal, Holm's tentative discharge date is now April 9, 2010.

After exhausting his administrative remedies, Holm applied for postconviction relief, claiming that his loss of eligibility for earned time violated the Ex Post Facto and Due Process Clauses of the United States and Iowa Constitutions. The district court issued a ruling denying Holm relief. Holm then filed an application for writ of certiorari with the Iowa Supreme Court. We [**8] granted his application.

II. Scope of Review.

This is an original certiorari action challenging the legality of the district court's decision in a postconviction relief application. We are asked to determine if the 2005 amendment to Iowa Code section 903A.2(1)(a) is retroactive as applied to Holm. We review issues of statutory construction for errors at law. In re A.W., 741 N.W.2d 793, 806 (Iowa 2007) (citing Callender v. Skiles, 591 N.W.2d 182, 184 (Iowa 1999)). Generally, postconviction relief proceedings are reviewed for correction of errors at law. De Voss v. State, 648 N.W.2d 56, 60 (Iowa 2002). However, Holm's ex post facto and due process claims allege violations of his constitutional rights; therefore, we review his claims "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). This is the functional equivalent of de novo review. Id. Because neither party suggests a basis to distinguish the Federal Ex Post Facto Clause from the Iowa ex post facto clause, we will limit our discussion to the federal provision with the understanding that our analysis applies equally to [**9] the state provision.

III. Discussion and Analysis.

The 2005 amendment to Iowa Code section 903A.2(1)(a) declares that "an inmate required to participate in a sex offender [*415] treatment program shall not be eligible for a reduction in sentence unless the inmate participates in and completes a sex offender treatment program established by the director." Iowa Code § 903A.2(1)(a).

We recently held that the DOC's application of amended Iowa Code section 903A.2 to inmates whose crimes predated the 2001 amendment violates the constitutional prohibition of ex post facto laws. State v. Iowa Dist. Ct. for Henry County, 759 N.W.2d 793, 802 (Iowa 2009). In the case before us, we are only faced with the application of the 2005 amendment to inmates whose crimes predated the 2005 amendment but occurred after the 2001 amendment of section 903A.2.

A. Ex Post Facto Law. Under the DOC policy in effect in 2001, a refusal to attend SOTP resulted in a loss of ninety days earned time but did not affect the inmate's ability to accrue time in the future. See Div. of Institutions, Dep't of Corrs., Disciplinary Policy and Procedure, Policy No. IN-V-36 (2004) [hereinafter Policy No. IN-V-36]. Under the DOC policy in [**10] effect after the 2005 amendment to Iowa Code section 903A.2(1)(a), Holm could no longer accrue any earned time after refusing to attend SOTP, but he did not lose any previously accrued earned time.

The United States Constitution declares that "No State shall . . . pass any . . . ex post facto Law." U.S. Const. art. I, § 10. The Iowa Constitution states, "No bill of attainder, ex post facto law . . . shall ever be passed." Iowa Const. art. I, § 21. These clauses "forbid the application of a new punitive measure to conduct already committed." State v. Corwin, 616 N.W.2d 600, 601 (Iowa 2000) (citing State v. Klindt, 542 N.W.2d 553, 554 (Iowa 1996)). These clauses are also violated when a statute increases the severity of the punishment for a crime after its commission. Id.

A statute violates the Ex Post Facto Clause only if it is: (1) retroactive, and (2) more onerous than the law in effect on the date of the offense. Weaver v. Graham, 450 U.S. 24, 30-31, 101 S. Ct. 960, 965, 67 L. Ed. 2d 17, 24 (1981). We consider whether the amended statute increases the penalty by which Holm's crime is punishable or, stated differently, whether it makes the punishment for his crime more onerous. Lynce v. Mathis, 519 U.S. 433, 442, 117 S. Ct. 891, 896, 137 L. Ed. 2d 63, 72 (1997); [**11] Cal. Dep't. of Corr. v. Morales, 514 U.S. 499, 506 n.3, 115 S. Ct. 1597, 1602 n.3, 131 L. Ed. 2d 588, 595 n.3 (1995); Henry County, 795 N.W.2d at 800.

1. The statute's retrospective effect. The first step in determining whether, as applied by the DOC, amended Iowa Code section 903A.2(1)(a) violates the Ex Post Facto Clause is to ascertain whether the law has retrospective effect. As we noted in Henry County, to the extent an amendment applies to a crime that occurred prior to its enactment, it does apply retrospectively.759 N.W.2d at 799 ("[T]he amended statute applies to prisoners such as [the inmates] who were convicted for an offense committed before the amendment's effective date. The amendment is, therefore, retrospective."). The first prong of the test has been met as the amendment is applied to inmates whose offense occurred before the amendment's effective date.

2. The statute's impact on punishment. Next we must consider whether the 2005 amendment makes the punishment for Holm's crime more onerous. Id. at 800 (citing Lynce, 519 U.S. at 442, 117 S. Ct. at 896, 137 L. Ed. 2d at 72) (other citations omitted). In the context of ex post facto analysis, the essential question is [**12] whether a statutory change alters "the consequences attached to a crime already [*416] completed." Weaver, 450 U.S. at 33, 101 S. Ct. at 966, 67 L. Ed. 2d at 25; accord Lindsey v. Washington, 301 U.S. 397, 401, 57 S. Ct. 797, 799, 81 L. Ed. 1182, 1186 (1937) ("The Constitution forbids the application of any new punitive measure to a crime already consummated, to the detriment or material disadvantage of the wrongdoer.").

The 2005 amendment was merely a clarification of the 2001 amendment and did not create any new obligations or duties; under the 2001 amendment, sex offenders could be required to participate in SOTP to accrue earned time. The 2001 amendment provided that an inmate was "eligible for a reduction of sentence . . . for each day the inmate . . . satisfactorily participates in any program or placement status identified by the director to earn the reduction." Iowa Code § 903A.2(1)(a). Under the language of the statute, inmates were ineligible to receive any future earned time unless they "satisfactorily participate[d]" in any program identified by the director, including SOTP. Id. (emphasis added).

There is virtually no difference between what is required of inmates under the language [**13] of the 2001 amendment and what is required of them under the language of the 2005 amendment. 2 "An amendment to a statute does not necessarily indicate a change in the law." State v. Guzman-Juarez, 591 N.W.2d 1, 3 (Iowa 1999). There is no ex post facto violation where a court merely clarifies the law without making substantive changes. See Thompson v. Nagle, 118 F.3d 1442, 1449 (11th Cir. 1997) ("When a court clarifies but does not alter the meaning of a criminal statute, the Ex Post Facto Clause is not implicated."); see also United States v. Brennan, 326 F.3d 176, 197 (3rd Cir. 2003); Smith v. Scott, 223 F.3d 1191, 1194-96 (10th Cir. 2000). The DOC has erroneously applied the 2001 amendment by only providing for a loss of 90 days earned time rather than ineligibility to accrue any future earned time as prescribed by the statute. If the amendment was nothing more than "the correction of a misapplied existing law," then there is no retroactive application, and the Ex Post Facto Clause is not implicated.3 Stephens v. Thomas, 19 F.3d 498, 500 (10th Cir. 1994). The Ex Post Facto Clause does not prohibit the correction of a misapplied existing law which disadvantages one in reliance on [**14] its continued misapplication. Id. Because the 2005 amendment did not result in more onerous punishment and because the loss of future earned time under the correct interpretation was foreseeable, the application of the 2005 amendment to Iowa Code section 903A.2(1)(a) to prisoners who committed [*417] their crimes before the amendment does not violate the Ex Post Facto Clauses of the United States and Iowa Constitutions.

FOOTNOTES

2 There is one difference between the 2001 amendment and the 2005 amendment. Under the 2001 amendment, the inmate had to participate in treatment, including SOTP, when "identified by the director," whereas the 2005 amendment applied to "inmate[s] required to participate in [SOTP]." Treatment for an inmate could be identified for some period of time prior to the inmate actually being required to participate, whereas the 2005 amendment made it clear that an inmate for whom treatment was identified did not lose his eligibility for earned-time credits until the inmate was actually required to participate. This difference is actually beneficial to Holm, and therefore, has no impact on this case.

3 Because we determine the amendment did not change the existing law, but merely clarified and corrected the department's application of existing law, we conclude Holm's argument based upon statutory construction has no merit. Cf. Bd. of Trustees of Mun. Fire & Police Retirement Sys. v. City of W. Des Moines, 587 N.W.2d 227,230 (Iowa 1998) (where the amendment did not clarify the existing statutory scheme, court proceeded to determine whether change in law to be applied retrospectively or prospectively only).


B. Procedural Due Process. Holm also asserts that the classification procedure denies him [**15] due process. He had two meetings wherein he was offered placement at SOTP. He refused. Holm signed the SOTP refusal form. The SOTP refusal form signed by Holm contained language notifying him of the basis for the classification, notice of the penalties for refusal, and notice that "a classification action may be appealed to the Deputy Warden within 24 hours of the decision date." According to prison policy, Holm had the right to appeal the DOC's classification decision to remove him from SOTP and the subsequent cessation of his earned time.

Holm states that "[d]ue process requires that any loss of earned time be accompanied by appropriate procedural protection." He claims that the procedures provided him by the DOC were not sufficient in three respects: (1) he was given no advance notice that the charges or penalties for his prior offense were going to change; (2) he was not given a sufficient written statement of reasons and findings for the DOC's determination that he was to lose his right to earned time; and (3) there was no neutral or impartial fact finder involved in the procedural process the DOC provided, as the determination of whether he required SOTP treatment was made by [**16] the prison treatment director.

The due process provisions of the United States and the Iowa Constitutions are "nearly identical in scope, import and purpose." State v. Seering, 701 N.W.2d 655, 662 (Iowa 2005) (citing State v. Hernandez-Lopez, 639 N.W.2d 226, 237 (Iowa 2002)). Therefore, we usually "interpret both in a similar fashion." Id.

Procedural due process "'act[s] as a constraint on government action that infringes upon an individual's liberty interest, such as the freedom from physical restraint.'" Id. (quoting Hernandez-Lopez, 639 N.W.2d at 240). We have stated that "[a]t the very least, procedural due process requires 'notice and opportunity to be heard in a proceeding that is 'adequate to safeguard the right for which the constitutional protection is invoked.''" Id. at 665-66 (quoting Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 691 (Iowa 2002)) (other citation omitted). A procedure does not necessarily violate due process simply "''because another method may seem fairer or wiser.''" Id. (quoting Bowers, 638 N.W.2d at 691) (other citation omitted).

To determine what process is due, the court undertakes a three factor analysis:

"First, the private interest that will [**17] be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement[s] would entail."

Id. at 665 (quoting Bowers, 638 N.W.2d at 691).

"[T]he first step in any procedural due process inquiry is the determination of 'whether a protected liberty or property interest is involved.'" Id. (quoting Bowers, 638 N.W.2d at 691). In Sanford v. Manternach, 601 N.W.2d 360, 364 (Iowa 1999), we declared that a liberty interest in accrued credits is created by Iowa's law providing for earned-time credits. We conclude a similar interest in the [*418] right to earn such credits exists. "State v Gramme, 274 N.W.2d 331,336 (Iowa 1979) ("Even a prisoner's interest in earning good time credit is a protected liberty."). Therefore, the first prong is met.

The second prong assesses the risk of an erroneous deprivation of a protected interest and the value of additional or substitute procedural safeguards. The only issue to be determined in the classification action was whether Holm's offense was one which required participation in SOTP. It is undisputed that he was convicted [**18] of third-degree sexual abuse in violation of Iowa Code section 709.4, that he would be required to register with the Iowa Sex Offender Registry, and that SOTP treatment space was available. By signing the Sex Offender Treatment Program Refusal Form, Holm acknowledged that he was aware that the consequence of his failure to attend SOTP was the loss of the ability to accrue earned time. Given the procedures employed by the DOC and the notices that were provided Holm, we find that the risk of erroneous deprivation of his future right to accrue earned time was minimal.

Finally, we assess the impact of additional safeguards on the state's interests. Holm had a right to appeal the decision to the deputy warden. Replacing the deputy warden with an administrative law judge would increase the state's fiscal and administrative burdens, while providing little, if any, additional safeguard to the process. Holm was given notice and an opportunity to be heard through the DOC classification appeal procedure. There was no due process violation.

IV. Disposition.

We find that the statute does not violate the prohibitions against ex post facto laws contained in the United States and Iowa Constitutions when [**19] applied to prisoners whose crimes were committed prior to the effective date of the 2005 amendment. We also find that Holm received sufficient due process. We, therefore, annul the writ of certiorari.

WRIT ANNULLED.