                   IN THE SUPREME COURT OF IOWA
                               No. 11–0488

                           Filed March 9, 2012


STATE OF IOWA,

      Plaintiff,

vs.

IOWA DISTRICT COURT FOR
BLACK HAWK COUNTY,

      Defendant.


      Certiorari to the Iowa District Court for Black Hawk County,

Nathan A. Callahan, District Associate Judge.



      On petition for writ of certiorari, the State contends the district

court misinterpreted Iowa Code section 124.401(5) when sentencing a

defendant for a marijuana accommodation offense. WRIT ANNULLED.



      Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant

Attorney General, Thomas J. Ferguson, County Attorney, and Brad P.
Walz, Assistant County Attorney, for plaintiff.



      Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer,

Assistant Appellate Defender, Andrew Craig, Student Legal Intern, for

Marcus Coleman, defendant below.
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HECHT, Justice.

      In this petition for writ of certiorari we are asked to interpret Iowa

Code sections 124.410 and 124.401(5) (2009) to determine whether a

defendant convicted of possession of marijuana as an accommodation

offense who has previously been convicted of simple possession of

marijuana should be sentenced for a serious misdemeanor or an

aggravated misdemeanor.       We conclude the district court correctly

sentenced the defendant for a serious misdemeanor and annul the writ of

certiorari.

      I. Background Facts and Proceedings.

      In June 2010, Marcus Coleman was charged with possession of

marijuana with intent to deliver as an accommodation offense. The trial

information alleged Coleman was subject to an enhanced sentence

because he had a previous conviction for possession of marijuana. On

October 25, 2010, Coleman submitted a written Alford plea admitting he

“knowingly or intentionally possessed ½ oz. or less of marijuana with the

intent to share some of it.    The marijuana was not offered for sale.”

Coleman requested a sentencing hearing to determine whether he should

be sentenced for a serious misdemeanor or an aggravated misdemeanor.

      At the hearing on January 10, 2011, the court heard arguments

regarding the sentencing issue. Coleman contended the plain language

of sections 124.410 and 124.401(5) controlled and he should be

sentenced for a serious misdemeanor. The State argued Coleman was

not eligible for the ameliorative provisions of section 124.401(5) under

our holding in State v. Rankin, 666 N.W.2d 608 (Iowa 2003), and he

should be sentenced for an aggravated misdemeanor. The court issued a

written ruling on January 13, 2011, concluding the plain language of the
                                            3

relevant    statutes     provided     Coleman      be    sentenced      for   a   serious

misdemeanor.1

       On March 14, 2011, Coleman was sentenced to a suspended

sentence of 365 days in the county jail. The State sought certiorari from

the sentencing order, contending the sentence imposed is illegal because

the district court misapplied section 124.401(5).

       II. Scope and Standards of Review.

       Our review is for errors at law in certiorari cases. Weissenburger v.

Iowa Dist. Ct., 740 N.W.2d 431, 434 (Iowa 2007). We look to whether the

district court “has exceeded its jurisdiction or otherwise acted illegally.”

Id. (citation and internal quotation marks omitted).                   Illegality exists

“when the court has not properly applied the law.”                    Id. (citation and

internal quotation marks omitted).

       III. Discussion.

       This case presents a narrow issue of statutory interpretation. A

person who possesses fifty kilograms or less of marijuana with intent to

deliver is guilty of a class D felony. Iowa Code § 124.401(1)(d). However,

“[i]n a prosecution for unlawful delivery or possession with intent to

deliver marijuana,” if the defendant delivered or possessed with intent to

deliver one-half ounce or less of marijuana which was not intended for

sale, “the defendant is guilty of an accommodation offense.”                           Id.

§ 124.410. Rather than being sentenced for a conviction under section


       1Because     of the disagreement over which sentencing provision applied to
Coleman’s case, the court treated the hearing on January 10 as a hearing on a motion
to adjudicate law points and set another hearing for sentencing. No one objected to this
procedure, but the State asserts in its petition for writ of certiorari that “a motion to
adjudicate law points no longer exists under the rules though it still appears to be used
commonly.” As we noted in State v. Meadows, 696 N.W.2d 593, 595 (Iowa 2005),
“[a]pplications for separate adjudication of points of law are no longer recognized by rule
in civil proceedings but continue to be available in criminal prosecutions by virtue of
the provisions of Iowa Rule of Criminal Procedure 2.11(2).”
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124.401(1)(d), the defendant shall be sentenced “as if” convicted for a

violation of 124.401(5). Id.

      The first   paragraph of section 124.401(5) prohibits simple

possession of controlled substances (not possession with intent to

deliver). A first offense is a serious misdemeanor. Id. § 124.401(5). A

second offense for someone with a previous conviction for violating

chapter 124, 124A, 124B, or 453B is an aggravated misdemeanor. Id. A

third or subsequent offense is a class D felony. Id. However, the second

paragraph of subsection (5) specifically addresses the sentences imposed

for marijuana offenses:
             If the controlled substance is marijuana, the
      punishment shall be by imprisonment in the county jail for
      not more than six months or by a fine of not more than one
      thousand dollars, or by both such fine and imprisonment for
      a first offense. If the controlled substance is marijuana and
      the person has been previously convicted of a violation of
      this subsection in which the controlled substance was
      marijuana, the punishment shall be as provided in section
      903.1, subsection 1, paragraph “b” [a serious misdemeanor].
      If the controlled substance is marijuana and the person has
      been previously convicted two or more times of a violation of
      this subsection in which the controlled substance was
      marijuana, the person is guilty of an aggravated
      misdemeanor.
Id.

      As Coleman was convicted of an accommodation offense, not

simple possession of marijuana, the State contends he should have been

sentenced for an aggravated misdemeanor (under the first paragraph of

subsection (5)) and not a serious misdemeanor (as provided in the

second paragraph of subsection (5)).

      Coleman contends a plain reading of sections 124.410 and

124.401(5) demonstrate the district court correctly sentenced him for a

serious misdemeanor.      He pled guilty to a marijuana accommodation

offense under section 124.410 which required that he be sentenced “as
                                    5

if” convicted of violating 124.401(5). Section 124.401(5) states that “[i]f

the controlled substance is marijuana” the defendant shall be sentenced

for a serious misdemeanor if he has a previous conviction for possession

of marijuana, which Coleman did.

      The State, however, contends the application of the plain language

of the statutes to Coleman’s case directly conflicts with our decision in

Rankin. The facts in Rankin were the inverse of the facts of this case.

Rankin had a previous conviction for the accommodation offense and

was later charged with simple possession of marijuana.        Rankin, 666

N.W.2d at 609.     When he was being sentenced for the possession

conviction, he argued he should be sentenced under the second

paragraph of section 124.401(5) because his possession offense involved

marijuana.    Id. at 609–10.     He contended that although his prior

accommodation conviction was not actually a possession conviction,

because he had been sentenced “as if” convicted of possession of

marijuana, the legislature must have intended his prior conviction be

considered a prior possession conviction for sentencing purposes and he

should receive the more lenient sentencing in the second paragraph of

subsection (5).    Id. at 610.     We, however, concluded the second

paragraph did not apply because his first conviction was under section

124.401(1), not 124.401(5), and he should be sentenced for an

aggravated misdemeanor as provided in the first paragraph of section

124.401(5). Id.

      The State argues that our interpretation of section 124.401(5) in

Rankin controls the result in this case because, like Rankin, Coleman

has a total of two convictions—one for possession and one for

accommodation.      The only difference is the order in which the

convictions were received. The State argues the legislature must have
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intended Coleman and Rankin receive the same sentence, despite the

plain language of the statutes.

      Our goal, when interpreting a statute is to give effect to the

legislature’s intent.   In re Det. of Fowler, 784 N.W.2d 184, 187 (Iowa

2010).   Usually, this intent is determined from the language of the

statute. Id. “We do not search for meaning beyond the express terms of

the statute when the statute is plain and its meaning is clear.”            Id.

(citation and internal quotation marks omitted).

      We    conclude    the   language   of   the   statutes   is   clear   and

unambiguous:       the second paragraph of section 124.401(5) controls

Coleman’s sentencing, and he should be sentenced for a serious

misdemeanor. While this outcome may seem unfair to one standing in

Rankin’s shoes, we are bound to derive legislative intent from the words

chosen by the legislature rather than from what the legislature should or

might have said.

      IV. Conclusion.

      We conclude the district court did not misinterpret or misapply

sections 124.401(5) and 124.410 when it sentenced Coleman for a

serious misdemeanor under the circumstances presented here.

      WRIT ANNULLED.
