                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1079
                               Filed March 7, 2018


PABLO BENAVIDEZ,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, David M. Porter,

Judge.



      An inmate challenges the penalty imposed upon the dismissal of his third

application for postconviction relief.   REVERSED AND REMANDED WITH

DIRECTIONS.




      Erin M. Carr of Carr & Wright, P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and William A. Hill, Assistant Attorney

General, for appellee State.




      Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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DANILSON, Chief Judge.

      Pablo Benavidez appeals the sanction imposed by the district court for the

summary dismissal of his third application for postconviction relief (PCR).

Specifically, Benavidez asserts the district court misinterpreted the available

statutory sanctions.

      We review claims involving the interpretation of statutes for correction of

errors at law. State v. Harrington, 893 N.W.2d 36, 41 (Iowa 2017).

      Pursuant to Iowa Code section 610A.2 (2016), if the district court finds an

inmate has filed a frivolous civil action, the court may dismiss the action. See

Maghee v. Iowa Dist. Ct., 712 N.W.2d 687, 691 (Iowa 2006).            If the court

dismisses the action, the inmate is subject to penalties pursuant to Iowa Code

section 610A.3. Id. Section 610A.3 provides:

             (1) If an action or appeal brought by an inmate or prisoner in
      state court is dismissed pursuant to section 610A.2, or, if brought in
      federal court, is dismissed under any of the principles enumerated
      in section 610A.2, the inmate shall be subject to the following
      penalties:
                     (a) The loss of some or all of the earned time credits
             acquired by the inmate or prisoner. Previous dismissals
             under section 610A.2 may be considered in determining the
             appropriate level of penalty.
                     (b) If the inmate or prisoner has no earned time
             credits to deduct, the order of the court or the disciplinary
             hearing may deduct up to fifty percent of the average
             balance of the inmate account under section 904.702 or of
             any prisoner account.

      A penalty appears to be mandatory. See Iowa Code § 610A.3(1) (stating

“the inmate shall be subject to” penalties (emphasis added)); Kopecky v. Iowa

Racing & Gaming Comm’n, 891 N.W.2d 439, 443 (Iowa 2017) (“When the term

‘shall’ appears in a statute, it generally connotes the imposition of a mandatory
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duty.” (citation omitted)). The court has the discretion to order “[t]he loss of some

or all of the earned time credits acquired by the inmate or prisoner.” Iowa Code

§ 610A.3(1)(a); see Maghee, 712 N.W.2d at 695 (“Because this provision does

not mandate a set penalty, the sanction must rest in the discretion of the district

court.”). But “[i]f the inmate . . . has no earned time credits to deduct,” the statute

allows deducting “up to fifty percent of the average balance of the inmate

account.” Id. § 610A.3(1)(b).

          Here, the district court concluded Benavidez’s PCR application was

frivolous and “[a]ccordingly, fifty percent (50%) of the average balance of

[Benavidez’s] inmate account shall be deducted pursuant to Iowa Code [section]

610A.3(1)(a), (b).” The court makes no mention of Benavidez’s earned time

credit.

          Benavidez asserts he has earned time credit, which the district court

ignored. The State does not deny Benavidez has earned time credit. See id.

§ 903A.2(1)(a) (“To the extent provided in subsection 5, category ‘A’ sentences

also include life sentences imposed under section 902.1.            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 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.”).     The State asserts, however, that because

Benavidez is serving a life sentence without the possibility of parole, earned time

credits are effectively meaningless, and the court was within its authority to find a

sanction that would deter additional frivolous filings. The State’s argument is
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contrary to the plain language of the statute, and the State’s concern is a matter

to be addressed through legislation.

      We therefore reverse the court’s order deducting a portion of the inmate’s

account, and we remand for a determination as to the appropriate sanction under

section 610A.3(1)(a).

      REVERSED AND REMANDED WITH DIRECTIONS.
