                   IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0819
                               Filed May 15, 2019


DARIN GODFREY,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Nancy S. Tabor,

Judge.



      Darin Godfrey appeals the summary dismissal of his application for

postconviction relief. AFFIRMED.




      Eric D. Tindal of Keegan Tindal & Mason, Iowa City, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.



      Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ. Tabor, J.,

takes no part.
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DOYLE, Judge.

         Darin Godfrey appeals the summary dismissal of his application for

postconviction relief (PCR). Godfrey alleges his PCR trial counsel was ineffective

for failing to challenge Iowa Code section 692A.126 (2017) on equal protection

and procedural due process grounds and for failing to request the trial court take

judicial notice of his underlying criminal file. For the reasons stated below, we

affirm the district court.

    I.   Background Facts and Proceedings.

         In July 1993, Godfrey pled guilty to kidnapping in the second degree,

robbery in the first degree, and willful injury. An additional charge of sex abuse in

the first degree was subsequently dismissed by the State. In August 1993, the

district court sentenced Godfrey to consecutive sentences, amounting to a total of

sixty years in prison. Godfrey is currently incarcerated, with a tentative discharge

date in August 2021.

         In 2017, Godfrey filed a pro se application for PCR, arguing that in his

original criminal trial the district court did not determine there was a sexual

component to his crimes and, therefore, he cannot be required to register as a sex

offender under Iowa Code section 692A.126.1 Later, Godfrey’s PCR trial counsel

filed a recast application, asserting that the requirement to register as a sex




1
   Some time prior to Godfrey’s application, the Iowa Department of Public Safety (DPS)
advised the Iowa Department of Corrections (DOC) of its informal finding that Godfrey will
likely be required to register as a sex offender upon his release from incarceration,
however, there was no formal determination made by the DPS. It is not clear from the
record when the informal finding was given to the DOC, if it was in writing or oral, or how
and when Godfrey learned of it.
                                          3


offender violates Godfrey’s right to due process and amounts to an illegal

sentence.

       The State moved for summary disposition based on a showing that Godfrey

is currently incarcerated, no formal determination was issued by the DPS or DOC

regarding his requirement to register as a sex offender, and he failed to pursue

and exhaust his administrative remedies prior to filing his petition in district court.

In support of its motion, the State filed an affidavit from a Public Service Supervisor

for the DPS that stated Godfrey is incarcerated with the DOC and “is not presently

registered as a sex offender in Iowa, nor is he required to do so while incarcerated.”

The affidavit went on to state that if the DPS made a formal determination

regarding his registration status, Godfrey may use the administrative process

provided in Iowa Code section 692A.116 and then he may challenge the agency’s

formal decision through a petition for judicial review pursuant to Iowa Code section

17A.19. Godfrey resisted the motion. The district court granted the State’s motion,

concluding that Godfrey “must wait until there is a formal determination [that

Godfrey must register as a sex offender] and the administrative process has been

exhausted before he can seek judicial review.”

 II.   Standard of Review.

       “Generally, we review a grant of a motion to dismiss a PCR petition for

correction of errors at law.” Allison v. State, 914 N.W.2d 866, 870 (Iowa 2018).

However, if the claim is ineffective assistance of PCR counsel, our review is de

novo. See Goode v. State, 920 N.W.2d 520, 523 (Iowa 2018). Additionally, if the

asserted claims are constitutional in nature, our review is de novo. See Lamasters

v. State, 821 N.W.2d 856, 862 (Iowa 2012).
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    III.   Discussion.

           On appeal, Godfrey makes claims of ineffective assistance of his PCR trial

counsel. First, Godfrey alleges his PCR trial counsel was ineffective for failing to

challenge Iowa Code section 692A.1262 on equal protection and procedural due

process grounds. Currently, Godfrey is incarcerated and the DPS has not issued

a formal determination, pursuant to Iowa Code section 692A.126(2)(b), 3 requiring

him to register as a sex offender when he is released from prison. Accordingly,

Godfrey’s claims on appeal are not yet ripe for adjudication.

           “A case is ripe for adjudication when it presents an actual, present

controversy, as opposed to one that is merely hypothetical or speculative.” State

v. Tripp, 776 N.W.2d 855, 859 (Iowa 2010). The intent of the ripeness doctrine is

“to prevent the courts, through avoidance of premature adjudication, from

entangling themselves in abstract disagreements over administrative policies, and

also to protect [administrative] agencies from judicial interference until an

administrative decision has been formalized and its effects felt in a concrete way

by the challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148–149

(1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105

(1977); see also Barker v. Iowa Dep’t Pub. Safety, 922 N.W.2d 581, 590 (Iowa

2019).




2
  Iowa Code section 692A.126(2)(a)(1) requires a person convicted of kidnapping in the
second degree prior to July 1, 2009 to register as a sex offender “if the department makes
a determination that the offense was sexually motivated.”
3
  Iowa Code section 692A.126(2)(b) specifies that the determination “shall be issued in
writing and shall include a summary of the information and evidence considered in making
the determination that the offense was sexually motivated.”
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         Iowa Code section 692A.116(1) gives the DPS exclusive authority to

“determine whether the offense for which the offender has been convicted requires

the offender to register.” See State v. Bullock, 638 N.W.2d 728, 735 (Iowa 2002).

“Until the Department has made a decision on the defendant’s term of registration,

there is no concrete controversy. Any adjudication by the district court prior to an

administrative decision and a request for judicial review of that decision is

premature.” Id.; see also Murray v. State, No. 17-1770, 2018 WL 4361053, at *2

(Iowa Ct. App. Sept. 12, 2018). “If a claim is not ripe for adjudication, a court is

without jurisdiction to hear the claim and must dismiss it.” State v. Steenhoek, No.

17-1727, 2018 WL 4635696, at *2 (Iowa Ct. App. Sept. 26, 2018) (quoting Iowa

Coal Mining Co. v. Monroe Cty., 555 N.W.2d 418, 432 (Iowa 1996)). Furthermore,

Godfrey has failed to exhaust his administrative remedies pursuant to Iowa Code

section 692A.116 and section 17A.19. Therefore, we affirm the district court’s

finding that “since the DPS has not yet made a formal determination . . . judicial

review is not proper at this time.”

         Second, Godfrey alleges his PCR trial counsel was ineffective for failing to

request the trial court take judicial notice of his underlying criminal file. The district

court stated in its order granting summary disposition that it reviewed “the file and

underlying criminal case.” Accordingly, Godfrey’s second allegation is without

merit.

         For the reasons stated above, we affirm the district court’s ruling dismissing

Godfrey’s PCR application.

         AFFIRMED.
