               IN THE SUPREME COURT OF IOWA
                              No. 16–1290

                         Filed October 20, 2017


BRIAN JAMES MAXWELL,

      Appellant,

vs.

IOWA DEPARTMENT OF PUBLIC SAFETY,

      Appellee.



      Appeal from the Iowa District Court for Polk County, Lawrence P.

McLellan, Judge.



      Defendant convicted of sex offense appeals district court ruling

requiring him to register as a sex offender while he appealed his

conviction after posting an appeal bond. AFFIRMED.



      Brandon Brown and Gina Messamer of Parrish Kruidenier Dunn

Boles Gribble Gentry Brown & Bergmann L.L.P., Des Moines, for

appellant.



      Thomas J. Miller, Attorney General, and John R. Lundquist,

Assistant Attorney General, for appellee.
                                          2

WATERMAN, Justice.

       This appeal raises a question of first impression: whether a

defendant convicted of a sex offense must register as a sex offender

under Iowa Code chapter 692A (2015) during his direct appeal of the

conviction. The defendant argues he had no obligation to register after

posting an appeal bond to stay execution of the underlying criminal

judgment and before he began serving any prison sentence or was placed

on probation.      The Iowa Department of Public Safety (DPS), however,

construed the statute to require his registration upon his conviction for

the sex offense, notwithstanding his appeal.            He challenged the DPS’s

legal conclusion in a petition for judicial review under Iowa Code chapter

17A. The district court ruled he was required to register as of the date

he was sentenced to prison for the sex offense and was released on the

appeal bond.      His conviction for the underlying sex offense was later

affirmed on direct appeal.          Meanwhile, he now faces new criminal

charges for violating chapter 692A’s sex offender residency restrictions

before his conviction was affirmed.           The parties urge us to decide the

registration issue through this chapter 17A appeal under the public-

interest exception to the mootness doctrine. We retained this appeal to

do so. 1

       On our review, we hold the defendant was required to register as a

sex offender under section 692A.103(1) upon his conviction of the sex


       1We   reach the merits because “the underlying question is one of public
importance that is likely to reoccur.” Dykstra v. Iowa Dist. Ct., 783 N.W.2d 473, 477
n.2 (Iowa 2010); see also Breeden v. Iowa Dep’t of Corr., 887 N.W.2d 602, 604 n.3 (Iowa
2016) (applying public-interest exception to mootness doctrine to decide earned-time
credit issue after offender’s release from prison). Moreover, Maxwell argues the
outcome of this appeal still has practical consequences for him because an appellate
reversal would lead to dismissal of the pending criminal charges against him for
violating chapter 692A’s residency restrictions.
                                      3

offense and release on bond, notwithstanding his appeal.       The stay of

execution on his criminal judgment during his appeal did not delay the

automatic administrative registration requirement for convicted sex

offenders, and his release on the appeal bond constituted a “release from

incarceration” within the meaning of section 692A.103(1). Accordingly,

we affirm the decision of the district court.

      I. Background Facts and Proceedings.

      On May 11, 2015, Brian James Maxwell was convicted in a

nonjury trial of lascivious conduct with a minor, in violation of Iowa Code

section 709.14. The court of appeals decision affirming his conviction

gave this summary of the evidence:

             Maxwell was hired March 1, 2014, to serve as a youth
      coordinator for two churches in the Winterset area. During
      his introduction to the youth group, Maxwell met the
      complaining witness, then age sixteen, and he and his wife
      decided to mentor her after she approached them with some
      of her personal struggles. . . .
            The complaining witness testified Maxwell assaulted
      her on March 17 in the downstairs youth room at one of the
      churches by undoing her bra and having her lift up her
      shirt. She asserted Maxwell then touched, kissed, and
      licked her breasts, and rubbed her between her legs over her
      clothing . . . .
             A week after the incident, the complaining witness
      broke down at home and disclosed the events of March 17 to
      her father and other members of her family. The police were
      called, and the complaining witness underwent a forensic
      interview with Mikki Hamdorf at the Blank Children’s
      Hospital Regional Child Protection Center.            After the
      interview and the investigation were completed, charges were
      filed against Maxwell that proceeded to trial to the court on
      April 21, 2015. After hearing testimony from the victim and
      her family, the investigating officer, the pastor and other
      staff and members of the church, another member of the
      youth group, and Maxwell’s wife and his two sons, the court
      issued its verdict finding Maxwell guilty as charged. The
      court stated in its ruling that it found “the State’s witnesses
      to be credible and the Defendant’s witnesses to not be
      credible.”
                                          4

State v. Maxwell, No. 15–1392, 2016 WL 6652361, at *1 (Iowa Ct. App.

Nov. 9, 2016).

        Maxwell was never incarcerated while his criminal case was

pending.      On August 18, 2015, the district court imposed a one-year

sentence, to begin immediately, and ordered that “after Defendant has

served one hundred twenty (120) days of the sentence, the remainder is

suspended and Defendant is placed on probation for a period of two (2)

years.”    Maxwell was also sentenced to a ten-year special sentence

pursuant to Iowa Code section 903B.2. The same day, however, Maxwell

filed a notice of appeal and posted an appeal bond. He remained free on

bond.

        Two    days   later,   the   Fifth    Judicial   District   Department   of

Correctional Services (DCS) informed Maxwell that he would not be

required to report for probation or register with the sex offender registry.

However, a month later, the DPS informed Maxwell by letter that he was

required to report to the Madison County sheriff to register as a sex

offender. The letter explained that “unless the attendant conviction has

been ‘reversed or otherwise set aside’ as per IA §692A.101(7), the

conviction qualifies for registration under Iowa Code Chapter 692A.”

Maxwell reported to the Madison County sheriff’s office to complete the

registration process on October 12. Maxwell is currently registered as a

sex offender.

        After registering, Maxwell commenced an administrative appeal

through an “Application for Determination” to the DPS.                Maxwell also

filed a “Petition for Judicial Review and Application for Injunctive Relief,”

to enjoin the DPS from placing him on the sex offender registry during

his criminal appeal.
                                      5

      The DPS issued a “Decision of Determination” on December 30,

concluding that Maxwell was required to register despite his pending

appeal because the conviction had not been “overturned or otherwise set

aside.” DPS identified August 18, 2015, as the date of his placement on

probation.

      On April 7, 2016, the district court entered its ruling. The court

initially incorrectly found that Maxwell had served 120 days of his

sentence and was placed on probation.        The court concluded Maxwell

had been “released” from incarceration, which triggered his duty to

register. Maxwell filed a “Motion to Enlarge or Amend Findings and to

Reconsider” to address the court’s mistaken assumption that he had

already served time behind bars.       DPS agreed that the court’s factual

assumption was mistaken. The district court entered an amended order

acknowledging that Maxwell had not yet served any prison time and was

not yet on probation. The court further noted that DPS had made the

same factual error when it determined that Maxwell was placed on

probation on August 18, 2015—the date of his sentencing. Nevertheless,

the district court reaffirmed that Maxwell was required to register as of

that date notwithstanding his pending appeal of the underlying

conviction while he remained free on bond.

      Maxwell filed a “Second Motion to Enlarge or Amend Findings and

to Reconsider.” On July 26, the district court denied the motion, and

Maxwell timely appealed.    Meanwhile, the State charged Maxwell with

three counts of “Failure to Comply Sex Offender Registry, Exclusion

Zones,” in violation of Iowa Code section 692A.113. These charges are

set for trial on November 13, 2017.

      The court of appeals ultimately affirmed Maxwell’s sex-offense

conviction in his direct appeal.      Maxwell, 2016 WL 6652361, at *13.
                                        6

Maxwell applied for further review, which we denied on January 17,

2017. We retained this separate appeal from Maxwell’s judicial review

action.

      II. Standard of Review.

      This appeal turns on the interpretation of Iowa Code section

692A.103(1) and related provisions. Chapter 692A codifies definitions of

key terms and does not clearly vest the DPS with interpretive authority.

Accordingly,   we     review   the   district   court’s   ruling   on   statutory

interpretation for correction of errors at law.       SZ Enters., LLC v. Iowa

Utils. Bd., 850 N.W.2d 441, 449 (Iowa 2014); Hawkeye Land Co. v. Iowa

Utils. Bd., 847 N.W.2d 199, 208–09 (Iowa 2014); see also Iowa Code

§ 17A.19(10)(c).

      III. Analysis.

      We must decide whether Maxwell was required to register as a sex

offender before serving any time while free on bond during his appeal of

the underlying conviction.      Iowa Code chapter 692A is entitled “Sex

Offender Registry.”    We construe the statute “in light of the legislative

purpose.” In re A.J.M., 847 N.W.2d 601, 605 (Iowa 2014) (quoting State

v. Erbe, 519 N.W.2d 812, 815 (Iowa 1994)). “[T]he purpose of the registry

is protection of the health and safety of individuals, and particularly

children, from individuals who, by virtue of probation, parole, or other

release, have been given access to members of the public.” State v. Iowa

Dist. Ct., 843 N.W.2d 76, 81 (Iowa 2014).

      Criminal liability can be imposed on a sex offender who violates

chapter 692A. See Iowa Code § 692A.111(1) (“A sex offender who violates

any requirement[] . . . commits an aggravated misdemeanor for a first

offense and a class ‘D’ felony for a second or subsequent offense.”). We

strictly construe the penal provisions of chapter 692A, requiring fair
                                          7

warning of the conduct prohibited, with doubt resolved in favor of the

accused.      See State v. Reiter, 601 N.W.2d 372, 373 (Iowa 1999)

(per curiam). We interpret chapter 692A “by considering all parts of the

enactment.” In re A.J.M., 847 N.W.2d at 605.

       We begin our analysis with the text of section 692A.103(1), which

provides,

       A person who has been convicted of any . . . tier I, tier II, or
       tier III [sex] offense . . . shall register as a sex offender as
       provided in this chapter if the offender resides, is employed,
       or attends school in this state. A sex offender shall, upon a
       first or subsequent conviction, register in compliance with
       the procedures specified in this chapter, for the duration of
       time specified in this chapter, commencing as follows:
              a. From the date of placement on probation.
              b. From the date of release on parole or work release.
              c. From the date of release from incarceration.
              ....
               f. From the date of conviction for a sex offense
       requiring registration if probation, incarceration, or
       placement ordered pursuant to section 232.52 in a juvenile
       facility is not included in the sentencing, order, or decree of
       the court, except as otherwise provided in this section for
       juvenile cases. 2

Iowa Code § 692A.103(1).

       The statute defines “convicted” to mean “found guilty of, pleads

guilty to, or is sentenced or adjudicated delinquent for an act which is an

indictable offense in this state.”       Id. § 692A.101(7).      But “ ‘[c]onvicted’

does not mean a plea, sentence, adjudication, deferred sentence, or

deferred judgment which has been reversed or otherwise set aside.” Id.

(emphasis omitted). The parties agree that Maxwell was convicted of an



       2Paragraphs   d and e are inapplicable because those provisions expressly apply
only to minors adjudicated delinquent in juvenile court. Maxwell is an adult who was
tried and convicted as an adult.
                                             8

offense that requires registration.            See id. § 692A.102(1)(b)(10) (listing

conviction for “[l]ascivious conduct with a minor in violation of section

709.14” as a tier II offense). Based on this conviction and the ten-year

special sentence he received, Maxwell is required to register for ten

years. 3 His conviction was never reversed or set aside. To the contrary,

Maxwell’s conviction was affirmed on his direct appeal.                      The fighting

issue is whether Maxwell was required to register during his appeal after

posting an appeal bond and before his incarceration.

       Maxwell argues registration should be delayed during his appeal

that challenged the very conviction requiring registration. He notes “[t]he

appeal process exists . . . to weed out error” and that “registration on the

sex offender registry is a severe collateral consequence.”                   DPS argues

registration is automatically required upon the conviction of a sex offense

and that to delay registration while the defendant is free on bond

pending appeal would leave a convicted sex offender at large without

alerting the community. We conclude, based on the statutory language,

that the legislature has resolved these competing policy choices in favor

of registration.

       Unlike other enactments imposing collateral consequences for

criminal convictions, chapter 692A does not require that the conviction

become “final” or otherwise provide for a stay of the registration

requirements pending an appeal of the conviction. To the contrary, the

definition of “convicted” excludes those that are “reversed or otherwise


          3See Iowa Code § 692A.106(2) (“A sex offender who has been sentenced to a

special sentence under section 903B.1 or 903B.2, shall be required to register for a
period equal to the term of the special sentence, but in no case not less than the period
specified in subsection 1.”); see also id. § 692A.106(1) (“Except as otherwise provided
. . . , the duration of registration required under this chapter shall be for a period of ten
years.”).
                                      9

set aside.” Id. § 692A.101(7). Neither Maxwell’s appeal nor his appeal

bond   reversed   or   set   aside   his   judgment   of   conviction.   See

Iowa R. App. P. 6.601(4) (governing appeal bonds and stating that “[n]o

appeal shall vacate or affect the judgment or order appealed from”); cf.

Emp’rs Mut. Cas. Co. v. Van Haaften, 815 N.W.2d 17, 25 (Iowa 2012)

(“[J]udgments are given res judicata effect during appeals.”); Peterson v.

Eitzen, 173 N.W.2d 848, 850 (Iowa 1970) (“The judgment of the trial

court is res judicata until set aside, modified or reversed.”).          The

legislature knows how to delay collateral consequences of a conviction

pending an appeal, as shown in several provisions requiring revocation of

driver’s licenses. See, e.g., Iowa Code § 321.209 (“The department . . .

shall revoke the license or operating privilege of an operator upon

receiving a record of the operator’s conviction for any of the following

offenses, when such conviction has become final . . . .”           (Emphasis

added.)); Schilling v. Iowa Dep’t of Transp., 646 N.W.2d 69, 73 (Iowa

2002) (“A conviction is final if the defendant has exhausted or waived any

postorder challenge.”); Maguire v. Fulton, 179 N.W.2d 508, 512 (Iowa

1970) (“[W]hen an appeal is taken the conviction is not final until the

avenues of review are exhausted.”); see also Iowa Code § 321J.13(4)

(providing for stay of license revocation pending judicial review). If the

legislature had intended to delay the obligation to register as a sex

offender during an appeal of the sex-offense conviction, presumably it

would have said so by providing for a stay of registration or requiring the

sex-offense conviction to first become final.     See State v. Beach, 630

N.W.2d 598, 600 (Iowa 2001) (“Intent may be expressed by the omission,

as well as the inclusion, of statutory terms.”); Farmers Coop. Co. v.

DeCoster, 528 N.W.2d 536, 539 (Iowa 1995) (“[W]here a statute with

respect to one subject contains a given provision, the omission of such
                                      10

provision from a similar statute is significant to show a different

intention existed.”).

      Under the plain meaning of Iowa Code section 692A.103(1), read

together with the statutory definition of “convicted,” registration is

automatically required for an Iowa resident upon the conviction of the

sex offense unless and until that conviction is reversed or set aside. See

Kruse v. Iowa Dist. Ct., 712 N.W.2d 695, 699 (Iowa 2006) (“[I]t is the

operative command of [Iowa Code chapter 692A] that impose[s] the

registration requirement on the convicted party rather than the judgment

of the court.”).

      The parties disagree whether one of the events listed in section

692A.103(1)(a)–(f) such as placement on probation or release from

incarceration must occur to trigger the defendant’s obligation to register

as a sex offender or, rather, whether those events merely start the clock

running to measure “the duration of time specified” in the statute to

remain registered.      The DPS argues Maxwell’s conviction and Iowa

residency triggered his duty to register while he was released on the

appeal bond.       See Iowa Code § 692A.103(1) (“A person who has been

convicted of any [specified] sex offense . . . shall register as a sex offender

. . . if the offender resides, is employed, or attends school in this state.”

(Emphasis added.)). The qualifying conviction and local residency plainly

are prerequisites to registration under section 692A.103(1). The question

is whether Maxwell, who had not yet been incarcerated or placed on

probation, had to register while free on bond pending his appeal.          We

agree with the district court’s conclusion that Maxwell’s release on bond

the day of his sentencing constituted a “release from incarceration”

under section 692A.103(1)(c) that required him to register at that time.
                                         11

       Chapter 692A codifies this definition:

       “Incarcerated” means to be imprisoned by placing a person in
       a jail, prison, penitentiary, juvenile facility, or other
       correctional institution or facility or a place or condition of
       confinement or forcible restraint regardless of the nature of
       the institution in which the person serves a sentence for a
       conviction.

Id. § 692A.101(14). The statute does not define “release.” Black’s Law

Dictionary defines “release” as “[t]he action of freeing or the fact of being

freed from restraint or confinement.”         Release, Black’s Law Dictionary

(10th ed. 2014).        Maxwell     argues    he    was    not    “released    from

incarceration” because he had not yet been incarcerated when he

appealed and posted his appeal bond to remain free. We disagree. We

previously rejected a similar argument and stated,

              The purpose of chapter 692A is clear: to require
       registration of sex offenders and thereby protect society from
       those who because of probation, parole, or other release are
       given access to members of the public. This, we believe, is
       the sense in which “release” is used in section 692A.2(1); it is
       simply the antithesis of incarceration.

In re S.M.M., 558 N.W.2d 405, 408 (Iowa 1997) (construing the 1995

Code, which required registration on “the date of placement on

probation, parole, work release, or other release from custody” (emphasis
omitted) (quoting Iowa Code § 692A.2(1) (Supp. 1995))). In that case, we

held registration was required for a juvenile sex offender who was

allowed to remain with his parents and never incarcerated or placed on

probation, parole, or work release. Id. We reach the same conclusion

under section 692A.103(1)(c) (2015)—release means the antithesis of

incarceration and includes release on an appeal bond. 4


       4Maxwell devotes four pages in his appellate reply brief to arguing that In re
S.M.M. was abrogated by the 2009 amendments to chapter 692A. See generally 2009
Iowa Acts ch. 119 (rewriting Iowa Code ch. 692A). We see no indication that the 2009
                                           12

       The statute distinguishes between incarceration and release

because an incarcerated offender is not required to register, and time

behind bars does not count towards the ten-year period of registration.

Iowa Code § 692A.103(2) (“A sex offender is not required to register while

incarcerated. However, the running of the period of registration is tolled

pursuant to section 692A.107 if a sex offender is incarcerated.”). This

makes sense in light of the purpose of the registry to protect the public




_______________________
amendment abrogated our holding equating release with the antithesis of incarceration.
The 2009 amendment repealed a provision that triggered registration upon placement
on probation, parole, work release, or “other release from custody,” Iowa Code
§ 692A.2(1) (2007) (emphasis added), and replaced that language with section
692A.103(1), including the phrase “release from incarceration,” Iowa Code
§ 692A.103(1)(c) (2015).    Incarceration is a form of custody, so a “release from
incarceration” constitutes a “release from custody.” The 2009 amendment does not aid
Maxwell.
        Moreover, the 2009 amendment was intended to more closely conform Iowa’s sex
offender registry law to the Federal Sex Offender Registration and Notification Act
(SORNA), Title I of the Adam Walsh Child Protection and Safety Act of 2006. See Div. of
Criminal & Juvenile Justice Planning, Iowa Dep’t of Human Rights, Iowa Sex Offender
Research    Council     Report  to   the   Iowa     General   Assembly     5   (2013),
https://humanrights.Iowa.gov/sites/default/files/media/SORC_1-15-13_Final_Report_
%5B1%5D.pdf [https://web.archive.org/web/20170323233135/https://humanrights.iowa.gov
/sites/default/files/media/SORC_1-15-13_Final_Report[1].pdf]; see also Iowa Code
§ 692A.101(32). Congress enacted the 2006 legislation “based on its conclusion that
existing sex-offender registration and reporting requirements were too readily
circumvented . . . .” United States v. Yelloweagle, 643 F.3d 1275, 1277 (10th Cir.
2011).
       [T]he purpose of SORNA was to “strengthen and increase the
       effectiveness of sex offender registration and notification for the
       protection of the public, and to eliminate potential gaps and loopholes
       under the pre-existing standards by means of which sex offenders could
       attempt to evade registration requirements or the consequences of
       registration violations.”
Starkey v. Okla. Dep’t of Corr., 305 P.3d 1004, 1032 n.4 (Okla. 2013) (Winchester, J.,
dissenting) (quoting Applicability of the Sex Offender Registration and Notification Act, 72
Fed. Reg. 8894, 8895 (interim rule Feb. 28, 2007)). Against that backdrop, we see no
indication the Iowa legislature intended the 2009 amendment to avoid registration for
convicted sex offenders free on bond.
                                          13

from sex offenders living nearby.              No protection is needed from an

offender who is behind bars. 5

       Thus, other provisions of chapter 692A consistently implement the

immediate registration requirement when the sex “offender is convicted

but not incarcerated.” Id. § 692A.109(2)(a) (The “court shall verify that

the person has completed initial or subsequent registration forms, and

accept the forms on behalf of the sheriff of the county of registration.”);

see also id. § 692A.103(1)(f) (requiring registration from the date of

conviction if no period of probation or incarceration is included in the

sentencing     order).      Maxwell’s     interpretation      conflicts   with    those

provisions.    No provision delays registration pending an appeal of the

sex-offense conviction.

       The sentencing order committed Maxwell to the custody to the

Madison County sheriff the same day, to begin serving his sentence in

the jail there.      Maxwell delayed his 120-day term of incarceration

through the appeal bond—that is, he was “released on bail.” See Iowa

Code § 814.13 (“An appeal or application for discretionary review taken

by the defendant does not stay the execution of the judgment unless the

defendant is released on bail or otherwise as provided by law.”); Iowa

R. Crim. P. 2.26(2)(a) (“A sentence of confinement shall be stayed if an

appeal is taken and the defendant is released pending disposition of

appeal pursuant to Iowa Code chapter 814.”). Put another way, Maxwell,

“by posting the bond, obtained his liberty” until his appeal was

concluded. State v. Friend, 212 Iowa 136, 142, 236 N.W. 20, 23 (1931).

       5Maxwell   argues that requiring registration before his incarceration would
extend the ten-year registration period. Not so. The ten-year clock stops while he is
incarcerated, but his time on the registry while free on the appeal bond before he serves
time counts day-for-day toward his ten-year period on the registry. Iowa Code
§§ 692A.103(2), .107(1).
                                    14

But his registration as a sex offender is an administrative matter

committed to the DPS, not the sentencing court. See State v. Bullock,

638 N.W.2d 728, 735 (Iowa 2002) (“[T]he length of any required

registration [under chapter 692A] is an administrative decision initially

committed to the Department of Public Safety.”). Thus, no execution on

the judgment of conviction is necessary to trigger placement on the sex

offender registry.   For that reason, the appeal bond that delayed

execution of the criminal judgment and sentence had no effect on the

registration requirement automatically triggered by his conviction. See

Iowa Code § 692A.103(1); see also Kruse, 712 N.W.2d at 699 (registration

automatically   required   under   chapter   692A   upon    a    sex-offense

conviction). We found no cases applying equivalent sex offender registry

statutes that allow an appeal bond to delay registration.

      IV. Disposition.

      For those reasons, we affirm the ruling of the district court

upholding the DPS determination that Maxwell was required to register

as a sex offender while free on bond during his direct appeal.

      AFFIRMED.
