                   IN THE COURT OF APPEALS OF IOWA

                                      No. 16-0308
                                  Filed June 7, 2017


JOHN ARNZEN,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica L.

Ackley, Judge.



      Applicant appeals from an order granting his application for postconviction

relief. REVERSED AND REMANDED.



      Alexander D. Smith of Parrish Kruidenier Dunn Boles Gribble Gentry

Brown & Bergmann L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Benjamin M. Parrott, Assistant

Attorney General, for appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

          This is the fourth time John Arnzen has filed an appeal arising out of or

related to his convictions for indecent contact with a child. In the first appeal, we

reversed the dismissal of Arnzen’s application for postconviction relief,

concluding he had been denied the opportunity to be heard and had received

ineffective assistance of postconviction counsel. State v. Arnzen (Arnzen I), No.

10-1150, 2011 WL 3480977, at *5 (Iowa Ct. App. Aug. 10, 2011). In the second

appeal, Arnzen unsuccessfully challenged his civil commitment as a sexually

violent predator pursuant to Iowa Code chapter 229A (2001).           In re Det. of

Arnzen (Arnzen II), No. 10-1340, 2012 WL 163239, at *6 (Iowa Ct. App. Jan. 19,

2012). In the third appeal, Arnzen challenged the district court’s procedure in

reviewing his status as a sexually violent predator. See In re Det. of Arnzen

(Arnzen III), No. 15-1490, 2016 WL 7403713, at *2 (Iowa Ct. App. Dec. 21,

2016). This appeal arises out of Arnzen’s application for postconviction relief,

which was tried on the merits following remand in Arnzen I. In this case, Arnzen

appeals from the district court’s order granting his application for postconviction

relief.

          To understand the somewhat odd posture of this appeal, it is necessary to

understand the context in which it arises. The relevant procedural posture was

set forth in the second appeal:

                 In 2002, Arnzen pled guilty to three counts of indecent
          contact with a child in violation of Iowa Code sections 709.12(1)
          and 709.12(4) (2001). Arnzen was sentenced to a term of
          imprisonment not to exceed two years on each count, with two
          counts to run concurrently and one count to run consecutively to
          the other counts, for a total effective term of four years. Because
          Arnzen had previously been convicted of indecent contact with a
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       child in 1986, his four-year sentence was doubled to eight years
       and he was required to serve eighty-five percent of his sentence
       before becoming eligible for parole or work release. See Iowa
       Code § 901A.2(1). January 28, 2009, was the date that Arnzen
       was expected to be released from incarceration for that sentence.
       Arnzen was also sentenced to serve an additional two years of
       parole or work release for each of the three counts. Id. §
       901A.2(7).1

               Prior to Arnzen’s release, the department of corrections
       notified the Attorney General and the multidisciplinary team. Id.
       § 229A.3(1)(a) (2007). On July 12, 2007, the multidisciplinary team
       convened and notified the Attorney General of its assessment that
       Arnzen met the criteria for definition as an SVP. Id. § 229A.3(4).

                On December 9, 2008, Arnzen met with the Iowa Board of
       Parole. The next day, the prosecutor’s review committee convened
       and determined that Arnzen met the definition of an SVP. Id.
       § 229A.3(5). The Attorney General filed a petition alleging Arnzen
       to be an SVP on December 17, 2008. Id. § 229A.4(1). The State
       alleged that Arnzen was an SVP because he had been convicted of
       a sexually violent offense and he suffers from “a mental abnormality
       which makes the person likely to engage in predatory acts
       constituting sexually violent offenses, if not confined in a secure
       facility.” Id. § 229A.2(11).

               Despite the two assessments and the petition alleging
       Arnzen to be an SVP, the parole board issued a work release order
       on December 30, 2008, granting Arnzen work release status on his
       anticipated release date. In granting the work release, the parole
       board determined that there was “a reasonable probability” that
       Arnzen could “be released without detriment to the community” and
       was “able and willing to fulfill the obligations of a law abiding
       citizen.” Id. § 906.4.

              The district court held a probable cause hearing on January
       6, 2009. Id. § 229A.5(2). The following day, the district court
       entered an order finding probable cause existed to believe Arnzen
       to be an SVP. Id. § 229A.5(4)(b). The district court ordered that
       upon the date of Arnzen’s scheduled release, he should remain in
       the custody of the department of corrections pending final
       disposition of the SVP matter. Id. § 229A.5(1). The district court
       further ordered that Arnzen be transferred to an appropriate secure

1
  At the time of judgment, the special sentence was codified at Iowa Code section
901A.2(7). It has since been recodified at 901A.2(8). We cite to the older code section
throughout this opinion.
                                          4


       facility to undergo an evaluation to determine whether he is an
       SVP. Id. § 229A.5(5).

               On June 17, 2009, Arnzen moved to dismiss the SVP
       petition arguing pro se that the State had filed the petition for civil
       commitment prematurely because he had not been allowed to
       complete his work release, and the State violated his plea
       agreement by filing the SVP petition. The district court denied the
       motion.

              A bench trial was held on the SVP petition July 7–9, 2010.
       Id. § 229A.7(4). At trial, Arnzen’s counsel did not raise or argue the
       application of collateral estoppel, equitable estoppel, election of
       remedies, or admission by a party-opponent as defenses to the civil
       commitment.

              On July 14, 2010, the district court found Arnzen to be an
       SVP beyond a reasonable doubt and placed him into the custody of
       the Iowa Department of Human Services. Id. § 229A.7(5). Arnzen
       appeals. Id.

Arnzen II, 2012 WL 163239, at *1–2.           Following Arnzen’s adjudication as a

sexually violent predator, Arnzen was placed in the Civil Commitment Unit for

Sexual Offenders (CCUSO) in Cherokee. At some point in 2015, Arnzen was

placed in the transitional release program for sexual offenders. The transitional

release program is a separate unit within the same facility in Cherokee. Arnzen

was in the transitional release program at the time of his postconviction trial.

       At the postconviction trial, Arnzen was very specific in the relief he

requested.    He did not raise a challenge to the special sentence imposed

pursuant to Iowa Code section 901A.2(7).           Instead, he requested his civil

commitment be terminated so he could begin his special sentence on work

release and transition back into the community.

               Q. Okay. So basically what you want is this Court to
       somehow get rid of the civil commitment process, to terminate that
       civil commitment transition process that you are currently in. Is that
       right? A. Um, yes. And when you say that—
                                         5


            Q. No. It’s just a yes or no. Yes? A. Yes.
            Q. And then you want the special sentence that was part of
      your criminal proceeding enforced to that you can start your work
      release here in Dubuque. Is that correct? A. Yes.

Arnzen was under the apparent belief that upon the completion of the transitional

release program he would be required to serve the entirety of his special

sentence, essentially duplicating rehabilitative and community re-entry programs.

      The district court stated it granted Arnzen’s application for postconviction

relief. However, the district court did the opposite of what Arnzen requested.

The district court held that Arnzen should continue in the transitional release

program for sexual offenders but that his special sentence could not be imposed

after completion of the transitional release program:

      IT IS THEREFORE ORDERED that the post-conviction relief action
      is hereby granted. The parole board conditions have been met and
      cannot be imposed on the Applicant as he is moving in a direction
      contrary to the goal of the parole board’s continued confinement
      based on reports available in 2009. . . . The special sentence and
      the work release conditions are in essence antiquated and stale at
      this point due to all that has been accomplished in the civil
      commitment. The Court therefore expects that upon the completion
      of the transitional release program, the Department of Human
      Services will take the necessary steps to arrange for the return of
      the Applicant to the community.

      Arnzen contends the district court erred.         Arnzen contends the district

court should have terminated his civil commitment under chapter 229A and

commenced his special sentence pursuant to Iowa Code section 901A.2(7). Our

review is for the correction of errors at law. State v. Iowa Dist. Ct., 888 N.W.2d

655, 662 (Iowa 2016).

      We begin our discussion by examining the legal status of the special

sentence at the time of the postconviction trial. Iowa Code section 901A.2(7)
                                           6


provided the special “sentence of parole supervision shall commence

immediately upon the person’s release by the board of parole and shall be under

the terms and conditions as set out in chapter 906.” The State concedes Arnzen

was, on July 14, 2010, released by the board of parole to the jurisdiction of the

department of human services. His special sentence commenced on that date

and ran concurrent to his period of commitment as a sexually violent predator.

See State v. Anderson, 782 N.W.2d 155, 159 (Iowa 2010) (holding special

sentence would commence upon discharge of sentence for predicate offense

even where the defendant remained incarcerated or under the supervision and

control of the state for other reasons); State v. Anderson, 836 N.W.2d 669, 673

(Iowa Ct. App. 2013) (holding a person can serve a special sentence “while the

person is subject to civil commitment under chapter 229A, or is being held

pending proceedings under chapter 229A”).2           The special sentence imposed

pursuant to Iowa Code section 901A.2(7) has been discharged due to the

passage of time. The district court thus could not have granted Arnzen the relief

he requested.

       Even assuming Arnzen’s special sentence had not been discharged, the

postconviction court could not have granted Arnzen the relief he requested. In

the latter Anderson case, this court rejected the claim that a defendant subject to



2
  While we recognize there is a difference in the language between the special sentence
at issue in the Anderson cases, see Iowa Code § 903B.2, and the special sentence at
issue in this case, see Iowa Code § 901A.2(7), we do not think the difference in
language warrants a different result from that of Anderson. The critical point in
Anderson was that the statute governing civil commitment procedure was a more
specific provision than general sentencing provisions, and the purpose of the special
sentence can be fulfilled while the defendant is subject to civil commitment pursuant to
chapter 229A.
                                        7


a special sentence was entitled to serve the special sentence on parole prior to

being subject to civil commitment pursuant to chapter 229A.

              To summarize, Mr. Anderson was and is entitled to nothing
      more in this context than the right to have his [ten]–year special
      sentence commence immediately after he discharges the
      underlying prison sentence. This is true regardless of what other
      straits he might be in at the time, i.e., imprisonment on other
      charges or civil commitment pursuant to Chapter 229A.
              In other words, Mr. Anderson has no legal entitlement to a
      temporary respite from incarceration or from potential civil
      commitment for the mere purpose of completing his section 903B.2
      special sentence.

Anderson, 836 N.W.2d at 673. Similarly, Arnzen has no entitlement to have his

civil commitment terminated or delayed upon his request to commence his

special sentence on work release.       The terms and conditions of his civil

commitment are governed by Iowa Code chapter 229A.             The methods for

challenging commitment pursuant to chapter 229A are set forth exclusively in

that chapter.   Nothing in that chapter provides civil commitment should be

terminated or delayed to allow a committed person to complete a special

sentence.

      Policy reasons support our interpretation of the relevant statutory

provisions. Allowing Arnzen to elect to terminate or delay his civil commitment to

commence his special sentence on work release is contrary to the public good.

Civil commitment is an individualized determination the offender poses

heightened risks to society. “[A]llowing Arnzen to switch programs would run

counter to the expressed purpose of the statute [(section 229A)]—treatment and

public protection—and we decline to approve the relief he has requested.”

Arnzen III, 2016 WL 7403713, at *2.
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       Although we have concluded Arnzen is not entitled to the relief he has

requested, we nonetheless vacate the judgment of the district court. As noted

above, the district court stated it granted Arnzen’s application for postconviction

relief while at the same time actually denying Arnzen the relief he requested.

The district court held the special sentence imposed pursuant to section

901A.2(7) could not be applied here because Arnzen was receiving similar

services while in transitional release pursuant to chapter 229A. To the extent the

district court held the special sentence could not, or should not, be imposed

because of the potentially duplicative services offered to the offender, the district

court erred. As noted above, civil commitment as a sexually violent predator is

separate and distinct from the special sentence imposed pursuant to section

901A.2(7). There is nothing in the code that allows the special sentence to be

deferred, suspended, or vacated because the offender might receive similar

programming while committed pursuant to chapter 229A.

       For the foregoing reasons, we vacate the judgment of the district court and

remand this matter for dismissal of Arnzen’s application for postconviction relief.

       REVERSED AND REMANDED.
