                   IN THE SUPREME COURT OF IOWA
                               No. 07–1095

                           Filed June 19, 2009

JORDAN HOLM,

      Plaintiff,

vs.

IOWA DISTRICT COURT
FOR JONES COUNTY,

      Defendant.


      Certiorari to the Iowa District Court for Jones County, David M.

Remley, Judge.



      Certiorari action brought by inmate to challenge the legality of

district court’s decision in postconviction relief proceeding, holding that

application of Iowa Code section 903A.2(1)(a) (Supp. 2005) to inmate was

not retrospective, did not violate the Ex Post Facto Clauses of the United

States and Iowa Constitutions, and that inmate received sufficient due

process. WRIT ANNULLED.


      Philip B. Mears of Mears Law Office, Iowa City, for plaintiff.



      Thomas J. Miller, Attorney General, and Forrest Guddall, Assistant

Attorney General, for defendant.
                                     2

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

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 years.
                                     3

      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:

      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 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:
                                          4
       [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

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:


      1In 2004, the DOC determined that Holm 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.”
                                     5
      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.

            *The time of treatment is targeted in relation 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.)

      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.
                                      6

       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 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 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 treatment

program shall not be eligible for a reduction in sentence unless the
                                      7

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., 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 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)

retrospective, and (2) more onerous than the law in effect on the date of
                                      8

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); 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); Iowa Dist. Ct.,

759 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 Iowa District Ct., 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 whether a statutory change

alters “the consequences attached to a crime already 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
                                          9

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 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

      2There  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.
                                          10

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 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 their crimes

before the amendment does not violate the Ex Post Facto Clauses of the

United States and Iowa Constitutions.

       B.     Procedural Due Process.              Holm also asserts that the

classification procedure denies him 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




      3Because    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).
                                      11

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 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)). A procedure does

not necessarily violate due process simply “ ‘ “because another method

may seem fairer or wiser.” ’ ” Id. at 666 (quoting Bowers, 638 N.W.2d at

691).
                                      12

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

factor analysis:

      “ ‘First, the private interest that will 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 right to earn such

credits exists. State v. Grimme, 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 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
                                    13

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 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.
