                    IN THE COURT OF APPEALS OF IOWA

                                    No. 17-0539
                               Filed August 15, 2018


MICHAEL WEBSTER,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.



      Michael Webster appeals the summary dismissal of his application for

postconviction relief. AFFIRMED.




      Alfredo Parrish and Adam C. Witosky of Parrish Kruidenier Dunn Boles

Gribble Gentry Brown & Bergmann, LLP, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney

General, for appellee State.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                             2


DOYLE, Judge.

         Michael Webster appeals the summary dismissal of his application for

postconviction relief. Upon our de novo review, we affirm.

         I. Background Facts and Proceedings.

         In 2010, Michael Webster pled guilty to three counts of robbery in the

second degree, in violation of Iowa Code section 711.3 (2010).1 He was sentenced

to ten years on each count, two of which were to run consecutively, resulting in a

total sentence of twenty years of incarceration. At that time, the sentencing statute

for second-degree robbery required those convicted of that offense to serve seven-

tenths, or seventy percent, of the maximum term of their sentence before

becoming eligible for parole or work release. See Iowa Code § 902.12(5) (2010);

Clayton v. Iowa Dist. Ct., 907 N.W.2d 824, 826 (Iowa Ct. App. 2017).

         Section 902.12 was amended by the legislature in 2016, changing the

mandatory-minimum sentence for second-degree robbery from seventy percent to

“between one-half and seven-tenths” of the maximum term of the defendant’s

sentence. Compare Iowa Code § 902.12(5) (2010), with Iowa Code § 902.12(3);

see also Clayton, 907 N.W.2d at 826. Thus, the amendment granted a sentencing

court some discretion to reduce a mandatory minimum sentence from 70% to 50%.

See Iowa Code § 902.12(3); Clayton, 907 N.W.2d at 826; see also Robert R. Rigg,

4 Iowa Practice Series: Criminal Law § 8:6 (2017-2018 ed.) (discussing the penalty

for a second-degree-robbery conviction).          However, the section as amended




1
    All references are to the 2016 Code of Iowa unless otherwise noted.
                                          3


explicitly limited its application to convictions “that occur[red] on or after July 1,

2016.” Iowa Code § 902.12(3).

       After the amended section went into effect, Webster filed an application for

postconviction relief (PCR), based upon the change in section 902.12. He claimed

under the due process and equal protection clauses of the United States and Iowa

Constitutions, he should be resentenced in light of the amendment to section

902.12(3).     Thereafter, the State filed a motion for summary judgment and

dismissal, see id. § 822.6, contending his PCR application was time-barred and

the new sentencing requirements in section 902.12 were inapplicable to Webster.

Webster resisted, arguing the amendment to section 902.12 was “a new

substantive rule of constitutional law” that should be applied retroactively because

of case law and in the interests of “fairness, justice, and Iowa and U.S.

Constitutional rights of Due Process and Equal Protection.” Following a hearing,

the district court granted the State’s motion for summary judgment, concluding the

new statute does not apply retroactively, and the court dismissed Webster’s PCR

application.

       II. Discussion.

       Webster now appeals the summary dismissal, arguing the district court

erred in concluding the change in section 902.12 did not apply retroactively. He

asserts the amendment creates classes of defendants that undermine the purpose

of the amendment—“to reduce racial disparity in incarceration.” He contends a

strict-scrutiny constitutional analysis applies based upon the alleged racial-

disparity statutory purpose and that higher standard of review necessitates
                                            4

retroactive application of the amendment. Our review is de novo. See Clayton,

907 N.W.2d at 826; see also Moon v. State, 911 N.W.2d 137, 142 (Iowa 2018).

       “Both the Fourteenth Amendment to the United States Constitution and

article I, section 6 of the Iowa Constitution provide all citizens equal protection

under the law.” Nguyen v. State, 878 N.W.2d 744, 757 (Iowa 2016) (citing U.S.

Const. amend. XIV; Iowa Const. art. I, § 6).2 “A fundamental principle of equal-

protection law is ‘that similarly-situated persons be treated alike.’” State v. Dudley,

766 N.W.2d 606, 615 (Iowa 2009) (citation omitted). Specifically, “‘the equal

protection guarantee requires that laws treat all those who are similarly situated

with respect to the purposes of the law alike.’” Nguyen, 878 N.W.2d at 757 (citation

omitted). This does not mean states are denied

       the power to treat different classes of people differently. It does,
       however, deny states
             the power to legislate that different treatment be
             accorded to persons placed by a statute into different
             classes on the basis of criteria wholly unrelated to the
             objective of that statute. A classification “must be
             reasonable, not arbitrary, and must rest upon some
             ground of difference having a fair and substantial
             relation to the object of the legislation . . . .”

State v. Mitchell, 757 N.W.2d 431, 436 (Iowa 2008) (quoting Reed v. Reed, 404

U.S. 71, 75-76 (1971)). “The guarantee of equal protection does not require

identical treatment as long as the distinctions between classes of people or classes

of crimes are not arbitrarily drawn.”           16B C.J.S. Constitutional Law § 1316



2
 Although we have discretion to consider a different standard under our state constitution,
see Nguyen, 878 N.W.2d at 757, Webster does not suggest a divergent analysis or offer
any reasons for a separate analysis. Consequently, we decline to consider a different
state standard under the circumstances and resolve Webster’s state and federal equal
protection claims under the existing federal standards. See, e.g., State v. Dewitt, 811
N.W.2d 460, 467 (Iowa 2012); Sanchez v. State, 692 N.W.2d 812, 817 (Iowa 2005).
                                            5


(Westlaw 2018). Only where it is established a statute treats similarly situated

persons differently do we move to the second step of the analysis—“what level of

review is required—strict scrutiny or rational basis.” Wright v. Iowa Dep’t of Corr.,

747 N.W.2d 213, 216 (Iowa 2008).

       A. Similarly Situated.

       “The first step in our equal protection analysis under the Iowa Constitution

is to determine whether there is a distinction made between similarly situated

individuals.” Nguyen, 878 N.W.2d at 758.3 Webster argues amended section

902.12 creates two classes of persons—those convicted of second-degree

robbery before July 1, 2016 and those convicted on or after July 1, 2016. He

concludes:

       Everyone in each group is similarly situated in that each has been
       convicted of the exact same crime. The level of offense has not
       changed, only how it is being punished. The difference in the time
       of the conviction is not a sufficient reason to string out the racial
       disparity any longer.

However, this court has previously determined that criminals convicted of second-

degree robbery before July 1, 2016 are not similarly situated to those convicted of

second-degree robbery on or after July 1, 2016. See, e.g., Clayton, 907 N.W.2d

at 826;4 see also Kelly v. State, 17-0895, 2018 WL 2230554, at *2 (Iowa Ct. App.

May 16, 2018) (citing Clayton, 907 N.W.2d at 822-30, and noting the Iowa

Supreme Court denied further review of the case); Monroe v. State, 17-1266, 2018


3
  But see State v. Biddle, 652 N.W.2d 191, 202 (Iowa 2002) (“The first step in an equal-
protection analysis is to determine the appropriate standard of review.”); see also Clayton,
907 N.W.2d at 826 (citing Biddle, 652 N.W.2d at 202).
4
  As a published opinion, Clayton is controlling legal authority. Compare Iowa R. App. P.
6.904(2)(a) (2018) (referencing published opinions as “legal authorities,” with Iowa R. App.
P. 6.904(2)(c) (“Unpublished opinion or decision shall not constitute controlling legal
authority.”).
                                         6

WL 2230724, at *2 (Iowa Ct. App. May 16, 2018) (citing Clayton, 907 N.W.2d at

828). As the Clayton court explained:

       “Our supreme court and the U.S. Supreme Court have both upheld
       classifications of litigants based on the status of their case—i.e.,
       whether a litigant’s direct appeal was made final before or after—a
       change in the law.” Hillman v. State, No. 14-0158, 2015 WL
       5278929, at *3 (Iowa Ct. App. Sept. 10, 2015). More specifically, our
       case law recognizes finality as a material distinction between classes
       of defendants for the purposes of determining whether a change in
       law should be made retroactive. See Nguyen, 878 N.W.2d at 758;
       Everett v. Brewer, 215 N.W.2d 244, 247 (Iowa 1974) (“[T]here is a
       rational basis for classifying appellants in accordance with whether
       their claim previously has been fully considered and adjudicated.”).
       Because Clayton is not similarly situated to those defendants
       convicted on or after July 1, 2016, his equal protection argument
       fails. See Varnum[ v. Brien, 763 N.W.2d 862, 882 (Iowa 2009)] (“[I]f
       plaintiffs cannot show as a preliminary matter that they are similarly
       situated, courts do not further consider whether their different
       treatment under a statute is permitted under the equal protection
       clause.”).

907 N.W.2d at 828; see also State v. Harrison, 914 N.W.2d 178, 205 (Iowa 2018)

(stating “[i]t is a well-settled law that substantive amendments to criminal statutes

do not apply retroactively,” citing Nguyen, 878 N.W.2d at 754-56, and stating

parenthetically it held in Nguyen that “both the Iowa and Federal Constitutions only

require ‘retroactive application of clarifications to existing substantive law, not

changes to substantive law”). Consequently, Webster’s assertion that the two

groups are similarly situated merely because both groups contain persons

convicted of second-degree robbery is erroneous. Because Webster has not

shown the two groups are similarly situated, he has not shown the protections

afforded under the equal protection clauses are implicated. His claim fails as a

matter of law, and summary dismissal was appropriate. See Iowa Code § 822.6;

see also Moon, 911 N.W.2d at 142 (“We apply our summary judgment standards
                                          7


to summary disposition of [PCR] applications. Therefore, on further review we will

apply our summary judgment/disposition standards.”); Manning v. State, 654

N.W.2d 555, 560 (Iowa 2002) (noting “the principles underlying summary judgment

procedure apply to motions of either party for disposition of an application for [PCR]

without a trial on the merits”).

       B. Level of Review Required.

       We also find, like in Clayton, that even if Webster was similarly situated to

persons convicted of second-degree robbery on or after July 1, 2016, his equal

protection claim would still fail. See 907 N.W.2d at 828. Only where a statute

“classifies individuals ‘in terms of their ability to exercise a fundamental right or

when it classifies or distinguishes persons by race or national origin’” is the statute

“subject to strict-scrutiny analysis.” Wright, 747 N.W.2d at 216 (citation omitted).

“All other statutory classifications are subject to rational-basis review in which case

the defendant must show the classification bears no rational relationship to a

legitimate government interest.” Id.

       Here, the disparate treatment complained of applies equally to all criminals

convicted of second-degree robbery before July 1, 2016, regardless of race,

gender, or national origin. See Clayton, 907 N.W.2d at 830. Consequently, a

rational-basis review of the statute is required to determine its constitutionality.

See Wright, 747 N.W.2d at 216; see also Clayton, 907 N.W.2d at 828-29. This

review “defers to the legislature’s prerogative to make policy decisions by requiring

only a plausible policy justification, mere rationality of the facts underlying the

decision and, again, a merely rational relationship between the classification and

the policy justification.” Clayton, 907 N.W.2d at 828-29.
                                           8

         Webster argues the legislature’s decision not to make the amendment apply

retroactively renders it irrational because the “classes created by the amendment

undermine[] the purpose of the amendment,” which he asserts was “to reduce the

disproportionate incarceration of African Americans.” Webster does not cite, nor

do we find, any explicit legislative history of the amendment stating that was its

purpose. In fact, the amendment to section 902.12 originated as H.F. 2064, “[a]n

Act relating to the criminal offense of child endangerment resulting in the death of

a child or minor, and providing penalties.” See The Iowa Legislature BillBook,

www.legis.iowa.gov/legislation/BillBook?ga=86&ba=HF2064 (last visited Aug. 13,

2018);     see    also   Iowa    H.J.   91,    www.legis.iowa.gov/docs/publications/

HJNL/20160120_HJNL.pdf#page=3 (last visited Aug. 13, 2018). The March 3,

2016 Fiscal Note provided to the legislature on the initial bill estimated the

amendment would minimally impact minorities. See Holly Lyons, Fiscal Note,

Legislative Services Agency at 1 (Mar. 3, 2016), www.legis.iowa.gov/docs/

publications/FN/770094.pdf. H.F. 2064 was subsequently amended in the house

and the senate, and the March 17, 2017 Fiscal Note, which included analysis of

the amendment including changes to the robbery penalties, stated:

                 [C]urrently Iowa Code section 902.12 requires a 70.0%
         minimum sentence be served before a person convicted of robbery
         in the second degree is eligible for parole or work release. The bill,
         as amended, will allow persons convicted of robbery in the second
         degree to be eligible for parole or work release if they have served
         between 30.0% and 70.0% of their sentence. This will become
         effective for individuals convicted after July 1, 2016.
                 Assumptions
                 ....
                 New admissions after July 1, 2016, for robbery in the second
         degree convictions will be released at a mid-point between 30.0%
         and 70.0% of their sentence. A decrease in the prison population
         will not occur until FY 2022.
                                          9


              ....
              Minority Impact
              ....
              The minority impact to change a 70.0% minimum sentence to
       a 30.0%-70.0% minimum sentence for robbery second degree will
       be favorable for the African-American community. It is estimated that
       the prison population will be reduced beginning in year six, and
       approximately 49.0% of those released earlier would be African
       American.

Holly Lyons, Fiscal Note, Legislative Services Agency at 1-2 (Mar. 17, 2016),

www.legis.iowa.gov/docs/publications/FN/770356.pdf. The final Fiscal Note dated

April 18, 2016 included fiscal analysis of the new additions to the bill, which allowed

“nonviolent drug offenders (not evaluated as high-risk) to be eligible for parole after

serving at least 50.0% of their mandatory minimum sentence as sentenced under

Iowa Code section 124.401(1), paragraph a, b, or c.” See Holly Lyons, Fiscal Note,

Legislative Services Agency at 1 (Apr. 18, 2016), www.legis.iowa.gov/docs/

publications/FN/782436.pdf. That part of the bill was to “be retroactive and impact

current inmates as well as new prison admissions.” Id.           The change to the

mandatory-minimum sentences for nonviolent drug offenders was expected to

“reduce the disproportionate impact on minorities in the criminal justice system,”

explaining:

       As of 2014, 3.4% of Iowa’s population was African American.
       Approximately 11.5% of new prison admissions of drug offenders
       sentenced to mandatory minimum terms is African American. Of
       those drug offenders currently in prison serving mandatory minimum
       terms, 17.8% are African American. Given this, it is estimated 14.6%
       of the inmates released under this proposal will be African American.

Id. at 2.     It appears there were no further references to the robbery-penalty

amendment. See id. 1-3. On May 12, 2016, the Governor signed into law H.F.

2064, “an Act relating to the criminal offenses of child endangerment and robbery
                                         10


and criminal drug offenses, and providing penalties.” 2016 Iowa Acts ch. 1104,

§ 8.

       Webster cites the Correctional Policy Project’s annual Iowa Prison

Population Forecast, prepared by the Iowa Department of Human Rights, Division

of Criminal & Juvenile Justice Planning. Webster points out that in the 2016

forecast for fiscal years 2016 to 2026, when the legislation was pending, the

proposed change to the section was referenced in its brief discussion of racial

disparity:

                It should be noted that, African-Americans are over
       represented in Iowa’s prison population, but particularly so for
       § 902.12, 70 percent crimes. The total prison population is
       approximately 25.3% African-American. Of the 7,027 non-70
       percent offenders in prison on June 30th 2015, 23.6% were African-
       American. Of the 1,169 70 percent offenders, 36.7% were African-
       American. In FY 2016, 42.6% of the new admissions for 70 percent
       crimes were African-American. Of the offenders entering prison to
       serve 70 percent sentences for Robbery, 56.3% were African-
       American (including 59.1% of the Robbery-1st admissions). It is also
       noteworthy that the percentage of African-Americans incarcerated
       from FY 2007-FY 2016 has increased by approximately 1.0% . . . .
                It has been mentioned in previous forecasts that it will be
       difficult to reduce the racial disparity in Iowa’s prison population
       without somehow modifying 70-percent sentences. During the 2015
       legislative session, HF2064 was passed which reduced the floor for
       Robbery-2nd offenders and established a Robbery-3rd offense,
       which is not subject to a mandatory term. The effects of this provision
       are expected to decrease the prison population in the coming years;
       however the effects are not yet realized in the current projected
       forecast.

Iowa Dep’t of Human Rights, Div. of Crim. & Juvenile Justice Planning, The

Correctional Policy Project: Iowa Prison Population Forecast FY 2016-FY 2026

(2016) (hereinafter “Forecast”), at 3-4, 13, 18, www.humanrights.iowa.gov/sites/

default/files/media/Iowa%20Prison%20Population%20Forecast%20FY%202016-

FY%202026.pdf.
                                           11


       We do not find this sufficient to establish that the purpose of the amendment

was only to reduce the disproportionate incarceration of African Americans. There

can be no doubt, based upon the fiscal analyses and Forecast, the amendment

may result in the reduction of the racial disparity. Nevertheless, the goal of the

overall legislation, if there were just one, would appear to be a reduction in the

overall incarceration of persons, race notwithstanding. Clayton discusses other

plausible policy justifications for the legislature choosing to make the sentencing

provision at issue prospective only:

       Sentencing is a legislative function. We afford broad deference to
       the legislature in setting the penalties for criminal conduct and in
       determining when the penalties are to go into effect. See State v.
       Cronkhite, 613 N.W.2d 664, 669 (Iowa 2000) (“Substantial deference
       is afforded the legislature in setting the penalty for crimes.”); State v.
       Jackson, 204 N.W.2d 915, 917 (Iowa 1973); State v. Stanley, 344
       N.W.2d 564, 567 (Iowa Ct. App. 1983). There is a strong policy
       justification for making ameliorative sentencing provisions
       prospective only. Beyond the administrative and financial burden of
       resentencing offenders, the State has a strong policy interest both in
       maintaining the integrity of sentences that were valid when imposed
       and in promoting the finality of sentences. See Nguyen, 878 N.W.2d
       at 758; see also People v. Mora, 214 Cal. App. 4th 1477, 154
       Cal.Rptr.3d 837, 842 (2013); Burch v. Tennessee Dep’t of Corr., 994
       S.W.2d 137, 139 (Tenn. Ct. App. 1999). Clayton has not carried his
       burden in negating these plausible policy justifications for the
       legislature choosing to make the sentencing provision at issue
       prospective only.

Clayton, 907 N.W.2d at 828-29. Webster has not negated these plausible policy

justifications to show there is not rational basis for the legislature choosing to make

the sentencing provision at issue prospective only.

       Finally, even assuming that the only reason for the legislative changes to

902.12 relating to the robbery penalties was to reduce the racial disparity in Iowa’s

prison population, the Fiscal Notes show the amendment was statistically likely to
                                         12


reduce the racial disparity over time. There is no requirement that the efficacy of

the legislation is immediate. As stated in Clayton,

       the mere fact that the legislature might not have extended as much
       relief as possible does not mean the failure to extend such relief
       makes the law irrational and in violation of the right to equal
       protection. Legislation is the progeny of the perfect policy and the
       politically possible. We will not hold legislation unconstitutional
       merely because it was not perfect.

907 N.W.2d at 830. Webster’s claim that the statute must be applied retroactively

because it does not meet the requirements of equal protection fails as a matter of

law, and summary dismissal of his PCR application was appropriate. See Iowa

Code § 822.6; see also Moon, 911 N.W.2d at 142.

       III. Conclusion.

       Upon our de novo review, we conclude Webster failed to establish he was

similarly situated to persons convicted of second-degree robbery on or after July

1, 2016. Moreover, Webster did not show a heightened-scrutiny analysis applied

to his claim, nor did he establish there was no rational basis for the legislature’s

determination not to make the sentencing provision at issue prospective only. For

all these reasons, we affirm the district court’s summary dismissal of Webster’s

PCR application.

       AFFIRMED.
