                    IN THE COURT OF APPEALS OF IOWA

                                       No. 17-2101
                                   Filed June 6, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOHN DOE,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Winnebago County, Karen Kaufman

Salic, District Associate Judge.



       The defendant appeals the district court’s denial of his second application

to expunge the record of a criminal case. REVERSED AND REMANDED.



       Shaun A. Thompson of Newman Thompson & Gray P.C., Forest City, for

appellant.

       Thomas J. Miller, Attorney General, and Katie M. Krickbaum, Assistant

Attorney General, for appellee.



       Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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POTTERFIELD, Judge.

       John Doe appeals the district court’s denial of his second application to

expunge the record of a criminal case. Doe maintains the court should have

granted his second application because a recent decision by our supreme court,

State v. Doe, 903 N.W.2d 347, 351 (Iowa 2017), establishes that the district court’s

denial of his first application was in error. The State responds that even if Doe was

properly entitled to relief in his first application, claim preclusion prevents him from

obtaining relief by filing a second application.

I. Background Facts and Proceedings.

       On March 1, 2015, Doe was charged with operating while intoxicated (OWI),

second offense, in case number OWCR******. On the same day, under a different

case number, Doe was charged with domestic abuse assault (case number

SMCR******).

       On March 10, the State filed a motion to dismiss the OWI charge, stating

“there is insufficient evidence to prove that defendant was operating a motor

vehicle and/or that he was under the influence of alcohol and/or controlled

substances while operating a motor vehicle.” That same day, the district court

dismissed the charge.

       In April, the State asked the court to amend the charge of domestic abuse

assault to a charge of simple assault. In support of the motion, the State said:

       [T]he victim in this matter is currently living with Defendant and would
       like to see this case resolved without going to trial. Further, the
       evidence in this case would support a finding that Defendant hit a
       cell phone out of the victim’s hand, and a requirement for Defendant
       to complete the Batterers’ Education Program for this incident is
       unnecessary.
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Doe entered a guilty plea to the amended charge and was sentenced to a term of

incarceration of fourteen hours.

       Over a year later, in August 2016, Doe filed a petition to have the record of

the OWI charge in case OWCR****** expunged. The district court denied the

petition without a hearing, ruling, “A dismissal or acquittal did not enter for every

criminal charge in the criminal case and therefore expungement is not permitted.

Defendant was convicted in the related case of SMCR****** of assault.”

       Doe filed a motion asking the court to reconsider.           In it, he claimed

“SMCR****** is a different criminal case where [Doe] was charged under Iowa Rule

of Criminal Procedure 2.54 based on a separate complaint and affidavit from this

matter.”    The court denied Doe’s motion, stating, “[T]he related simple

misdemeanor charge is part of the same incident and therefore all of the criminal

charges were not dismissed.”

       Doe did not appeal.

       In October 2017, our supreme court decided Doe, in which the court

interpreted the meaning of “criminal case,” as used in Iowa Code section 901C.2

(2016)—the statute that controls the expungement of criminal charges.             903

N.W.2d at 351. The court concluded “criminal case” refers to a single numbered

legal proceeding. Id. at 348–49. In contrast, a “criminal case” is not “all the charges

arising out of a single transaction or set of circumstances.” Id. at 349, 351.

       In December 2017, Doe filed his second petition to expunge the record of

the OWI charge in case OWCR******. As in his first petition, Doe asserted the

State had indicated it would not object on the ground that one or more of the

relevant conditions under section 901C.2(1)(a) had not been established. Without
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the State filing a resistance to the petition, the district court denied Doe’s second

petition, stating:

              The Court finds that Defendant is not eligible to have this
       charge expunged. This was already addressed in an earlier denial
       of an identical motion. This was also already addressed in denial of
       Defendant’s motion to reconsider the denial of the first motion to
       expunge. Defendant does not meet the statutory requirements
       necessary to be able to expunge this charge. Persistence cannot
       override the legal requirements for expungement.
              It is therefore ordered that the motion to expunge is denied
       again, and will continue to be denied unless the legislature amends
       the statute.

Doe filed a motion to reconsider, which the district court denied. The court ruled

“that the cited case is factually distinct from this situation. In Doe, the dismissed

charge was a simple misdemeanor and the conviction an indictable. The reverse

situation exists here and based on the discussion in the ruling, the Court finds it

inapplicable.”

       Doe appeals.

II. Discussion.

       The parties disagree as to what conclusions the district court reached in

denying Doe’s second petition for expungement. The State maintains the district

court denied the petition on the basis of claim preclusion without considering the

merits, while Doe claims the court ruled on the merits based on its understanding

of Doe.

       We do not believe the district court denied the petition based on the doctrine

of claim preclusion. We understand the court’s ruling to be a reiteration of its first

ruling—that Doe does not meet the statutory requirements for expungement. Our

reading of the ruling is informed by the fact that no party raised the issue of claim
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preclusion, and it is not clear the district court has the power to raise the issue sua

sponte. See In re Marriage of Ginsberg, 750 N.W.2d 520, 522 (Iowa 2008) (“We

need not decide whether a court may raise claim preclusion sua sponte because

we find the doctrine inapplicable in this case.”). Additionally, the district court’s

ruling does not provide any indication that it considered the presence of the factors

necessary to support a finding of claim preclusion. See, e.g., Arnevik v. Univ. of

Minn. Bd. of Regents, 642 N.W.2d 315, 319 (Iowa 2002).

       Moreover, we will not sua sponte raise the issue of claim preclusion now on

appeal. As noted above, it is not clear a court may do so. See Ginsberg, 750

N.W.2d at 522; contra Sullins v. Iowa Dist. Ct., No. 16-0958, 2017 WL 5178987,

at *4 n.5 (Iowa Ct. App. Nov. 8, 2017) (stating the court was “persuaded” a court

can raise the issue of claim preclusion on its own but also noting that the issue had

been raised before the district court in the present case). And neither party has

asked us to do anything other than consider whether the district court’s ruling was

proper. We believe the more prudent alternative is to fall back on one of our

foundational rules: “[I]ssues must be raised and decided by the trial court before

they may be raised and decided on appeal.” Peters v. Burlington N. R.R. Co., 492

N.W.2d 399, 401 (Iowa 1992).

       We now consider whether the district court erred in its determination that

Doe did not meet the requirements under section 901C.2(1)(a) to have record

OWCR****** expunged. In doing so, we note that the State has not—either before

the district court or in its appellate brief—objected to or resisted Doe’s petition for

expungement. “We review issues of statutory interpretation for correction of errors

at law.” Doe, 903 N.W.2d at 350 (citation omitted).
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       Pursuant to section 901C.2(1)(a):

       [T]he court shall enter an order expunging the record of such criminal
       case if the court finds that the defendant has established that all of
       the following have occurred, as applicable:
               (1) The criminal case contains one or more criminal charges
       in which an acquittal was entered for all criminal charges, or in which
       all criminal charges were otherwise dismissed.
               (2) All court costs, fees, and other financial obligations
       ordered by the court or assessed by the clerk of the district court
       have been paid.
               (3) A minimum of one hundred eighty days have passed since
       the entry of the judgment of acquittal or of the order dismissing the
       case relating to all criminal charges, unless the court finds good
       cause to waive this requirement for reasons including but not limited
       to the fact that the defendant was the victim of identity theft or
       mistaken identity.
               (4) A case was not dismissed due to the defendant being
       found not guilty by reason of insanity.
               (5) The defendant was not found incompetent to stand trial in
       the case.

(Emphasis added.)

       Here, the sole charge in OWCR****** was the OWI, which the State

dismissed for “insufficient evidence.” While Doe entered a guilty plea to an assault

charge that stemmed from events occurring the same evening as the OWI charge,

the two charges formed separately numbered legal proceedings. Thus, according

to Doe, the charges were different cases for the purposes of expungement. 903

N.W.2d at 349. Although the district court found the ruling in Doe “inapplicable,”

we disagree. Doe states, in part:

       [T]he State has not persuaded us that it would necessarily be unfair
       for the public to be deprived of information about a dismissed simple
       misdemeanor that was factually related to a charge on which a
       defendant was convicted. Simple misdemeanors are, by legislative
       determination, the least serious crimes, and a dismissed
       misdemeanor is one that was never proved.
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903 N.W.2d at 354. But this does not limit the court’s ruling regarding the meaning

of “criminal case” as used in the statute to apply only to the factual situation where

the court is asked to expunge information about a simple misdemeanor when a

defendant has been convicted of a related indictable crime. Such a limitation has

no basis in the statute and would be untenable.

       As to the second requirement, it does not appear there were any applicable

“court costs, fees, and other financial obligations ordered by the court or assessed

by the clerk of the district court” to be paid, as the court ordered the costs

“assessed to the State” when it dismissed the underlying OWI charge. Moreover,

in his petition for expungement, which the State did not resist, Doe claimed all such

fees had been paid. As to the third requirement, Doe filed the petition to expunge

the record more than a year after the court dismissed the OWI charge. And finally,

nothing in the record suggests the final two requirements are applicable.

       Based on the foregoing, the district court erred in its determination that Doe

failed to meet the requirements for expungement of record OWCR******. And as

Doe met the requirements, “the court shall enter an order expunging the record of

such criminal case.” Iowa Code § 901C.2(1)(a).

       We reverse the ruling of the district court and remand for further

proceedings consistent with this opinion. See Doe, 903 N.W.2d at 355.

       REVERSED AND REMANDED.
