              IN THE SUPREME COURT OF IOWA
                              No. 08–0805

                         Filed January 8, 2010


STATE OF IOWA,

      Appellee,

vs.

SCHUYLER COLE TRIPP,

      Appellant.



      Appeal from the Iowa District Court for Wapello County, Annette J.

Scieszinski, Judge.



      Defendant appeals the portion of his sentence imposed pursuant to

Iowa Code section 903B.1, following his guilty plea to sexual abuse in the

third degree in violation of Iowa Code section 709.4(2)(c)(4) (2007).

AFFIRMED.



      Victoria R. Siegel, Ottumwa, for appellant.



      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,

Assistant Attorney General, Richard Scott, County Attorney, and Allan

Cook and Lisa Holl, Assistant County Attorneys, for appellee.
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BAKER, Justice.

      The defendant, Schuyler Cole Tripp, appeals following his guilty

plea to sexual abuse in the third degree in violation of Iowa Code section

709.4(2)(c)(4) (2007).   He appeals specifically from that portion of his

sentence imposed pursuant to Iowa Code section 903B.1, committing

him to the Director of the Iowa Department of Corrections for a term of

life, with supervision as if on parole. Defendant alleges that, as applied
to third-degree sexual assault under Iowa law, this special sentence

constitutes   cruel   and   unusual     punishment      in   violation   of   the

prohibitions contained in the United States and Iowa Constitutions, and

because his trial counsel failed to raise this constitutional claim in the

trial proceedings, he was denied effective assistance of counsel. We hold

this challenge to the special sentence provisions under Iowa Code section

903B.1, as applied to third-degree sexual assault under Iowa Code

section 709.4(2)(c)(4), is not ripe for adjudication.

      I. Background Facts and Proceedings.

      On July 19, 2007, Tripp was charged by trial information with

sexual abuse in the third degree in violation of Iowa Code section

709.4(2)(c)(4), for performing a sex act with a person fifteen years of age.
At the time, Tripp was twenty years old, there was more than a four-year

age difference between himself and the victim, and they were not

cohabiting as husband and wife.

      Tripp pled guilty and was sentenced to an indeterminate term of

incarceration not to exceed ten years.           Tripp’s incarceration was

suspended, and he was placed on supervised probation for a period of

five years. Tripp was required to pay a fine and had to register on the

Iowa sex offender registry. Additionally, because Tripp was convicted of a
                                     3

sexual offense, the court imposed the special sentence under Iowa Code

section 903B.1 providing for the imposition of lifetime parole.

      Tripp did not file a motion in arrest of judgment.      Tripp filed a

notice of appeal.

      II. Scope of Review.

      The court reviews challenges to the constitutionality of a statute de

novo. State v. Keene, 629 N.W.2d 360, 363 (Iowa 2001). “ ‘[S]tatutes are
cloaked with a presumption of constitutionality. The challenger bears a

heavy burden, because it must prove the unconstitutionality beyond a

reasonable doubt.’ ” State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005)

(quoting State v. Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002)).

      III. Error Preservation.

      Because Tripp alleges that the sentence is inherently illegal, we

may address it directly and not under the guise of ineffective assistance

of counsel. State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009).

      IV. Discussion and Analysis.

      Tripp pled guilty to third-degree sexual abuse. A person is guilty of

sexual abuse in the third degree when the person performs a sex act with

another individual under fourteen or fifteen years of age, the person is
four or more years older than the other individual, and the individuals

are not cohabitating as husband and wife at the time of the act. See

Iowa Code § 709.4(2)(c)(4).

      Third-degree sexual abuse is a class “C” felony and is punishable

by up to ten years in prison. Iowa Code §§ 709.4, 902.9. For committing

sexual abuse in the third degree, Tripp was sentenced to five years of

supervised probation. He was also required to pay a fine and register as

a sex offender in the state of Iowa. Finally, the court imposed the special
                                     4

sentence under Iowa Code section 903B.1.            This special sentence

provides:

            A person convicted of a class “C” felony or greater
      offense under chapter 709 . . . shall also be sentenced, in
      addition to any other punishment provided by law, to a
      special sentence committing the person into the custody of
      the director of the Iowa department of corrections for the rest
      of the person’s life, with eligibility for parole as provided in
      chapter 906. The special sentence imposed under this
      section shall commence upon completion of the sentence
      imposed under any applicable criminal sentencing provisions
      for the underlying criminal offense and the person shall
      begin the sentence under supervision as if on parole. . . .
      The revocation of release shall not be for a period greater
      than two years upon any first revocation, and five years
      upon any second or subsequent revocation.

Id. § 903B.1.

      Tripp alleges that the imposition of a lifetime parole sentence for

the crime of third-degree sexual abuse constitutes cruel and unusual

punishment in violation of the Eighth Amendment of the United States

Constitution, and article I, section 17 of the Iowa Constitution.

      As a preliminary matter, we must determine if this issue is ripe for

our determination. State v. Wade, 757 N.W.2d 618, 626–27 (Iowa 2008).

Tripp has not served any time in prison. His sentence was suspended,

and he is currently on probation. Under Iowa Code section 903B.1, the

statute commits an offender into the custody of the department of

corrections where “the person shall begin the sentence under supervision

as if on parole.” The type of punishment imposed is parole. Parole is a

lenient form of punishment that monitors a person’s activities to ensure

the person is complying with the law.       See Iowa Code § 906.4.       The

imposition of lifetime parole is not tantamount to a sentence of life

imprisonment. See United States v. Bridges, 760 F.2d 151, 154 (7th Cir.

1985); United States v. Walden, 578 F.2d 966, 972 (3d Cir. 1978).
                                       5

        Tripp is not currently on parole, but rather is on probation. We do
not know the terms of his parole and the extent to which those terms
may be onerous. Although standard parole terms exist, any or even all of
those terms may be deleted. Iowa Admin. Code r. 201–45.2. Further,
the extent of any additional punishment for a violation of the conditions
of parole, if any, is speculative and will only be realized if Tripp violates
the terms of his parole (a state of facts which has not occurred). Walden,
578 F.2d at 972; see also United States v. Rea, 532 F.2d 147, 149 (9th
Cir. 1976).
        It is also significant that the special sentence is not necessarily for
life.   Section 903B.1 provides for the possibility of release from parole
under chapter 906 if the parole board determines that the offender is
“able and willing to fulfill the obligations of a law-abiding citizen without
further supervision.”      Iowa Code § 906.15 (“If a person has been
sentenced to a special sentence under section 903B.1 or 903B.2, the
person may be discharged early from the sentence in the same manner
as any other person on parole.”).
        To analyze the sentence at this time we must assume Tripp will
serve lifetime parole, when in reality Tripp may be released from parole at
any time. We would also be analyzing the sentence without the benefit of
any conditions that may be placed on him in the future. Both issues
involve administrative decisions that have yet to be made. Because of
the foregoing, we do not believe this case is ripe for review. A case is ripe
for adjudication when it presents an actual, present controversy, as
opposed to one that is merely hypothetical or speculative. Wade, 757
N.W.2d at 626–27. The ripeness doctrine is intended

        “to prevent the courts, through avoidance of premature
        adjudication, from entangling themselves in abstract
        disagreements over administrative policies, and also to protect
        the agencies from judicial interference until an administrative
                                     6
      decision has been formalized and its effects felt in a concrete
      way by the challenging parties.”

State v. Iowa Dist. Ct., 616 N.W.2d 575, 578 (Iowa 2000) (quoting Abbott

Labs. v. Gardner, 387 U.S. 136, 148–49, 87 S. Ct. 1507, 1515, 18 L. Ed.

2d 681, 691 (1967), overruled on other grounds by Califano v. Sanders,

430 U.S. 99, 105, 97 S. Ct. 980, 984, 51 L. Ed. 2d 192, 199 (1977)). In a

similar case, the Nebraska Supreme Court held that “any claim [the

defendant] may have concerning the constitutional implications of

[lifetime community supervision] should be raised if and when he

becomes subject to its provisions, but not on a direct appeal from his

underlying sexual assault conviction.”    State v. Schreiner, 754 N.W.2d

742, 765 (Neb. 2008). Thus, until the length of his parole and the extent

of his supervision are determined, Tripp’s challenge is not ripe. State v.

Bullock, 638 N.W.2d 728, 735 (Iowa 2002).

      V. Disposition.

      We hold that, on this record, the issue of whether the imposition of

a lifetime parole sentence to the crime of third-degree sexual abuse

constitutes cruel and unusual punishment in violation of the Eighth

Amendment of the United States Constitution and article I, section 17 of

the Iowa Constitution is not ripe for adjudication.

      AFFIRMED.

      All justices concur except Streit, J., who takes no part.
