                    IN THE COURT OF APPEALS OF IOWA

                                      No. 19-0048
                                  Filed May 13, 2020


DAVID MICHAEL JOHNSTON,
     Plaintiff-Appellant,

vs.

IOWA DEPARTMENT OF TRANSPORTATION,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.



       The Iowa Department of Transportation revoked driving privileges pursuant

to a habitual-offender statute. An appeal follows from the district court’s denial of

a petition for judicial review. AFFIRMED.



       Christopher Stewart of Parrish Kruidenier Dunn Boles Gribble Gentry Brown

& Bergmann L.L.P., Des Moines, for appellant.

       Thomas J. Miller, Attorney General, and Michelle E. Rabe, Assistant

Attorney General, for appellee.



       Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
                                             2


SCHUMACHER, Judge.

       David Michael Johnston appeals from a district court’s denial of his petition

for judicial review, which he filed after the Iowa Department of Transportation

(IDOT) revoked his driving privileges due to the commission of three offenses

enumerated in Iowa’s habitual-offender statute. We reject one of his arguments

as unpreserved and the remainder as contrary to Iowa precedent. We therefore

affirm the district court’s denial of his petition.

Background and Proceedings

       Johnston was arrested for operating while intoxicated (OWI) on Dec. 23,

2011, and was convicted of that offense on March 8, 2012. He was again arrested

on November 12, 2017, for OWI and eluding. He was convicted of the second

OWI on April 19, 2018, and was granted a deferred judgment on the eluding

charge. On April 23, 2018, IDOT issued a notice that it was barring Johnston’s

privilege to operate and drive motor vehicles effective May 28, 2018, until April 23,

2023, pursuant to Iowa Code section 321.555(1) (2018).

       Johnston appealed the revocation, and a telephonic hearing was held on

July 12, 2018, before an administrative law judge (ALJ). The ALJ sustained IDOT’s

revocation determination on July 19, 2018. Johnston appealed the ALJ’s findings

to an IDOT reviewing officer, who also affirmed. Johnston then filed a petition for

judicial review. The district court heard oral arguments and dismissed the petition.

Johnston timely appealed, arguing his deferred judgment should not count as a

conviction for purposes of a habitual-offender license revocation, the date of a

conviction should be used instead of the date of an offense for determining
                                          3


habitual-offender status, and with respect to the eluding charge, IDOT must prove

an additional element for purposes of a habitual-offender determination.

Standard of Review and Error Preservation

       Johnston frames his three arguments on appeal as derivative of a broader

claim that substantial evidence is lacking to support the agency’s decision. We

disagree with this framing and find that the arguments raise pure questions of

statutory interpretation. See State v. Stephenson, 608 N.W.2d 778, 783–84 (Iowa

2000) (“Stephenson’s claim of insufficient evidence is essentially a question of

statutory construction.”).

       We reach this conclusion because none of the facts in this case are in

dispute; the disposition of the issues turns solely on the interpretation of questions

of law. Compare Cedar Rapids Cmty. Sch. Dist. v. Pease, 807 N.W.2d 839, 844–

45 (Iowa 2011) (reviewing the agency’s factual findings for substantial evidence),

with Neal v. Annett Holdings, Inc., 814 N.W.2d 512, 518–19 (Iowa 2012) (reviewing

an agency’s interpretation of statutory text for correction of legal error); see also

Burton v. Hilltop Care Ctr., 813 N.W.2d 250, 256 (Iowa 2012) (distinguishing

between review of factual findings, review of application of law to facts, and review

of interpretation of law).    Because Johnston’s disagreements with the legal

interpretations made by the tribunals below are best characterized as matters of

statutory interpretation, we review for correction of errors at law. McCormick v.

Meyer, 582 N.W.2d 141, 144 (Iowa 1998). We review for correction of “erroneous

interpretation of a provision of law whose interpretation has not clearly been vested

by a provision of law in the discretion of the agency.” Iowa Code § 17A.19(10)(c).
                                          4


Error Preservation

       Based on our conclusion regarding the applicable standard of review, we

must consider each of Johnston’s arguments independently for purposes of error

preservation analysis. “We are limited in our review of the district court’s [decision]

to only those issues initially addressed by the agency.” Anderson v. City Dev. Bd.,

631 N.W.2d 671, 673 (Iowa 2001); see also Ahrendsen ex rel. Ahrendsen v. Iowa

Dep’t of Human Serv., 613 N.W.2d 674, 676 (Iowa 2000). Under this rule, “[t]he

claim or issue raised does not actually need to be used as the basis for the decision

to be preserved, but the record must at least reveal the court was aware of the

claim or issue and litigated it.” Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa

2002). Under these standards, we conclude that one of Johnston’s arguments is

unpreserved.

       Johnston argues IDOT failed to show that the law enforcement vehicle he

eluded was pursuing him. He does not dispute that he was eluding, but he

contends IDOT failed to prove he was being pursued. Johnston provides no

authority for the proposition that section 321.555(1)(g) creates such additional

requirement, and we have failed to identify any case supporting his proposition.

Instead, his appellate brief analyzes section 321.555(1)(g) and argues “[t]he

legislature intended for habitual offender eluding to require an additional step,”

calling the statute “unambiguous” on that point.

       There is no evidence in the record showing that IDOT was aware of this

claim. It was neither raised nor decided in the administrative tribunal. In his letter

of appeal dated August 3, 2017, Johnston did not raise the argument. Moreover,

Johnston impliedly concedes the absence of any discussion of the issue at the
                                        5


agency level by arguing, “more factual development is required of the IDOT.”

Johnston’s argument highlights the fact that the agency was unaware of

Johnston’s novel interpretation of 321.555(1)(g). The argument was first raised to

the district court, upon its consideration of Johnston’s petition for review, and

therefore the agency had no opportunity to address or rebut the argument. The

district court was correct to reject the argument as unpreserved, and we do the

same.     Under our long-standing error preservation rules, the argument is

unpreserved.1 Meier, 641 N.W.2d at 537, 540.

Discussion

        We proceed to consider Johnston’s two properly preserved arguments.

First, he argues that the deferred judgment he received for the eluding charge

should not count for purposes of calculating whether he is a habitual offender

under section 321.555(1).    Second, he maintains for purposes of a habitual-

offender determination, the dates of his convictions should be used instead of the

dates of the offenses.

           a. Deferred Judgment

        Johnston was charged under section 321.279 with eluding a marked official

law enforcement vehicle, and he received a deferred judgment for the charge. He

argues his deferred judgment should not count for purposes of calculating whether




1 Even if this argument were properly preserved, we would reject it due to a lack
of supporting authority and our perception that Johnston’s reading of the statute
would result in the State having to prove a new element under section
321.555(1)(g) that is duplicative of an existing element in that same provision.
                                          6

he is a habitual offender under section 321.555(1). In light of Schilling v. Iowa

Department of Transportation, 646 N.W.2d 69 (Iowa 2002), we disagree.

        In Schilling, the defendant pled guilty to eluding a law enforcement vehicle

in violation of section 321.279. 646 N.W.2d at 70. After receiving notice of a one-

year revocation of his driver’s license under section 321.209, the defendant

petitioned for judicial review, arguing that a deferred judgment did not constitute a

“final” conviction for the purposes of section 321.209. Id. at 72. The Schilling court

considered the definition of “deferred judgment” and concluded that a deferred

judgment for an eluding conviction could be considered a conviction for purposes

of section 321.209, which requires mandatory revocation in light of certain

offenses. Id. at 71, 73.

        The Schilling court did not consider Iowa’s habitual-offender statute.

However, we find that the rationale of Schilling applies equally to section

321.555(1), and we hold that Johnston’s deferred judgment is a final conviction for

purposes of that section.2

        The Schilling court adopted a test to determine whether a conviction is final

for purposes of a statute designed for protection of the public. Id. at 73. The court

said,

        The first question is whether the license revocation is aimed at the
        protection of the public or as a punishment measure. . . . If the
        revocation statute is protective in nature, the establishment of the
        following elements will be sufficient to show that a conviction exists:
        (1) A judge or jury has found the defendant guilty, or the defendant
        has entered a plea of guilty; (2) the court has ordered some form of
        punishment, penalty, or restraint on the person’s liberty to be
        imposed; (3) a judgment of guilty may be entered if the person

2Because Johnston’s license was revoked under section 321.555(1), we limit our
holding to that subsection.
                                         7


       violates the terms of probation or fails to comply with the
       requirements of the court’s order; and (4) the conviction has become
       final. A conviction is final if the defendant has exhausted or waived
       any postorder challenge.

Id. (citation omitted).

       First, we consider whether the revocation of a habitual offender’s license

under section 321.555(1) is protective of the public. The Schilling court determined

that mandatory revocation of licenses for offenses enumerated in section 321.209

has the purpose of protecting the public.        646 N.W.2d at 73. While section

321.555(1) similarly deals with license revocation, the revocation penalty Johnston

suffered was greater in length than the revocation at issue in Schilling. Johnston

contends that his five-year suspension “serves to increase punishment by

punitively restricting his license,” strenuously noting that his revocation is four

years longer than the one-year revocation at issue in Schilling. He cites no support

for the contention that his longer revocation serves the purpose of punishment.

We decline to depart from Schilling on account of the longer period of license

revocation here at issue, and we conclude section 321.555(1) has the purpose of

protecting the public.

       Having concluded that section 321.555(1) has the purpose of protecting the

public, we need not proceed to consider the four-factor Schilling test because the

Schilling court determined that a deferred judgment for eluding under section

321.279 satisfies the four-factor test. 646 N.W.2d at 73. We therefore conclude

that Johnston’s deferred judgment for his violation of section 321.279 is a final

conviction for purposes of section 321.555(1).
                                        8

      Johnston also argues Schilling was overturned by State v. Tong, 805

N.W.2d 599 (Iowa 2011). We disagree. Tong did not expressly overrule Schilling,

and the statute at issue in Tong, which prohibits felons from possessing firearms,

is unrelated to the instant case. Additionally, the Tong court described the felon-

in-possession statute as having the dual purpose of increasing punishment and

protecting the public. Id. at 602. Johnston concedes the Tong court dealt with a

provision that served the dual purposes of public protection and increased

punishment, but he contends his five-year revocation is punitive in a way the one-

year revocation in Schilling was not. We have already rejected this argument in

applying Schilling, finding the purpose of section 321.555(1) is limited to the

protection of the public. Accordingly, we disagree that Tong impacts our analysis

here, as Schilling dealt with the same eluding statute with which Johnston was

charged. We find Schilling’s holding directly applicable to Johnston.

      Johnston points out that he successfully completed probation on May 6,

2019, and the eluding charge was subsequently expunged. In Tong, the court held

that “a deferred judgment constitutes a conviction for purposes of section 724.26

where the defendant (as here) has not completed his term of probation.” 805

N.W.2d 599, 603.     Applying such rule, Johnston’s deferred judgment was a

conviction for purposes of section 321.555(1) until he completed his probation.

Because the agency’s revocation decision issued one year prior to Johnston’s

successful completion of probation, the agency’s use of Johnston’s deferred

judgment to revoke his license under Iowa’s habitual-offender statute was not

erroneous. See Tong, 805 N.W.2d at 603.
                                            9


             b. Time Period for Habitual Offenses

         We next consider whether the date of offense or date of conviction should

be used for purposes of the time limits in section 321.555(1). Johnston argues the

agency and the district court improperly used the dates of his offenses instead of

the dates of his convictions for purposes of measuring the six-year period in which

convictions accumulate under section 321.555(1).3 This argument was squarely

addressed and rejected in State v. Phelps, 417 N.W.2d 460, 461–62 (Iowa 1988),

where the appellant’s license was revoked under section 321.555(2).

         In Phelps, the court found that the legislature intended to count offenses,

rather than convictions, for purposes of repeat-offender statutes. 417 N.W.2d at

461 (“In State v. Dague, 274 N.W.2d 293 (Iowa 1979), this court interpreted section

321.555(2) to require six convictions within the two-year period rather than simply

the commission of six offenses during that period.            Subsequent to Dague,

however, our legislature amended section 321.555 . . . .”). Noting the legislature’s

move to require six offenses instead of convictions within the statutory period, the

Phelps court held that the revised language—“six or more of any separate and


3   As relevant here, section 321.555 provides as follows:
         As used in this section . . . “habitual offender” means any person who
         has accumulated convictions for separate and distinct offenses
         described in subsection 1, 2, or 3, committed after July 1, 1974, for
         which final convictions have been rendered, as follows:
                1. Three or more of the following offenses, either singularly or
         in combination, within a six-year period:
                ...
                b. Operating a motor vehicle in violation of section 321J.2 or
         its predecessor statute.
                ...
                g. Eluding or attempting to elude a pursuing law enforcement
         vehicle in violation of section 321.279.
                                        10


distinct offenses within a two-year period”—referenced “the time within which the

violations, not convictions, must have occurred.” Id. at 462. The court observed

that the qualifying phrase “within a two-year period” follows the term “offenses.”

Id. at 462. The court also commented that the phrase “for which final convictions

have been rendered” is not qualified by a time frame. Id. at 461.

      While the Phelps court was tasked with considering section 321.555(2), not

section 321.555(1), we think its analysis applies equally to subsection one. As in

subsection two, the phrase “offenses” in subsection one is followed by time-

qualifying language: “Three or more of the following offenses, either singularly or

in combination, within a six-year period[.]” Iowa Code § 321.555(1). Also, the

phrase “for which final convictions have been rendered” precedes all subsections

and therefore applies equally to subsections one and two. The Phelps court’s

comment that this phrase is not qualified by a time frame thus applies here. We

conclude that the holding of Phelps applies to section 321.555(1); it is the date of

the offense, not the date of conviction, that governs application of section

321.555(1). We reject Johnston’s argument to the contrary.

Conclusion

      Considering each argument individually, we reject as unpreserved

Johnston’s novel claim that an additional “pursuing” element exists in section

321.555(1)(g). We conclude based on Iowa precedent that Johnston’s deferred

judgment for an eluding charge was validly used to revoke his license pursuant to

section 321.555. Iowa precedent further demands our conclusion that the tribunals

below properly used the dates of Johnston’s offenses for purposes of determining
                                       11


that Johnston was a habitual offender. We affirm the district court’s dismissal of

Johnston’s petition.

       AFFIRMED.
