                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1869
                               Filed July 1, 2020


STATE OF IOWA,
     Plaintiff-Appellant,

vs.

IOWA DISTRICT COURT FOR JASPER COUNTY,
     Defendant-Appellee.
________________________________________________________________


      Certiorari from the Iowa District Court for Jasper County, Thomas W. Mott,

Judge.



      By certiorari, the State challenges the grant of a deferred sentence for

violating a sex-offender exclusion zone.      WRIT SUSTAINED AND CASE

REMANDED.



      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellant.

      Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellee.



      Considered by Tabor, P.J., and May and Greer, JJ.
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TABOR, Presiding Judge.

       Because he committed a sex offense against a minor, Riley Hodge could

not enter the Newton Public Library without written permission of its administrator.

After Hodge went inside to get a library card, the State charged him with an

“exclusion zone” violation. See Iowa Code § 692A.113(1)(f) (2018). Following his

conviction, the district court deferred sentence.           Contending Iowa Code

sections 692A.111 and 907.3(2)(a)(5) bar that outcome, the State asked the

district court to resentence Hodge. When the district court refused, the State

petitioned for writ of certiorari. Our supreme court granted the writ and transferred

the case to us. Because the district court lacked authority to defer sentence, we

sustain the writ and remand for imposition of a statutorily authorized sentence.

       Hodge stopped by the public library with his wife in late January 2018

seeking a replacement card. The librarian checked Hodge’s identification against

the sex offender registry and learned he was not allowed to be there.1 At her

request, Hodge left the library without complaint. The librarian called police. The

State charged him with an aggravated misdemeanor. Hodge waived his right to a

jury trial and stipulated to the minutes of testimony. The court found him guilty as

charged. At sentencing, the court expressed its frustration that this innocuous

event led to a criminal offense:

       I don’t understand why library staff felt the need to call police for his
       error, rather than tell Hodge to go away and write or call for written
       permission. I do not understand why the police officer did not assess
       the situation and tell Hodge the same thing. Assuming they had a

1 Hodge had been on the sex offender registry for eleven years, since he was
seventeen years old. Hodge acknowledged in his testimony that he signed
registration forms every three months and each time the paperwork included
information about the exclusion zones.
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      reason, the reason does not appear obvious why police so chose to
      exercise their wide discretion.

      From there, the court addressed its own decision making:

      As for the range of discretion afforded the court at sentencing for this
      conviction, I find it does not require punishment. Punishment is not
      needed for specific deterrence of defendant nor for general
      deterrence. Neither would it advance defendant’s rehabilitation.
      Defendant repeatedly registered as required. He continues to
      register. He maintains his residence and family, and he maintains a
      job all without apparent Sex Offender Registration violation. He
      needs no deterrence from approaching a public library again. A
      probation officer might counsel defendant for vocational and
      educational concerns, but he needs little supervision beyond
      reassurance to a nervous public.

      The court interpreted section 692A.111(1) as allowing it to defer judgment

or defer sentence in Hodge’s case. Convincing to the court was the second of

these two sentences:

      Notwithstanding section 907.3, the court shall not defer judgment or
      sentence for any violation of any requirements specified in this
      chapter. For purposes of this subsection, a violation occurs when a
      sex offender knows or reasonably should know of the duty to fulfill a
      requirement specified in this chapter as referenced in the offense
      charged.

Iowa Code § 692A.111(1).

      In the court’s view, the charged offense was a “strict liability” crime, not

including any element of knowledge. The court reasoned: “Therefore, whether

defendant knew or objectively ought to know does not matter under section

692A.111(1).”   Based on that rationale, the court ordered Hodge’s sentence

“deferred for eighteen months on good behavior.”

      The next day, the State filed a motion to correct illegal sentence. The

prosecutor argued all offenses listed in section 692A.111 are ineligible for a

deferred sentence “regardless of the mens rea requirement.”
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       The court overruled the State’s motion, offering a new justification for

deciding Hodge was eligible for a deferred sentence under the statute.

       [D]efendant was not charged and was not convicted of violating
       requirements. “Requirements” is the crucial word for deciding this
       issue. Defendant was, instead, convicted of violating a prohibition.
       Defendant violated the prohibition by his presence at Newton Public
       Library without written permission obtained in advance from the
       library administrator. A requirement would require defendant to
       perform an act. Imposing a requirement would be analogous to a
       demand, or a mandate, thus distinct from a prohibition, or ban
       against an act. Because defendant violated a prohibition, but did not
       violate a requirement, § 692A.111(1) does not prevent the court’s
       deferring judgment or deferring sentence under § 907.3.

The State petitioned for writ of certiorari, which the supreme court granted.

       We review the district court’s ruling for the correction of errors at law. Noll

v. Iowa Dist. Ct., 919 N.W.2d 232, 234 (Iowa 2018). “We strictly construe the penal

provisions of chapter 692A, requiring fair warning of the conduct prohibited, with

doubt resolved in favor of the accused.” Maxwell v. Iowa Dep’t of Pub. Safety, 903

N.W.2d 179, 183 (Iowa 2017). But we also construe those provisions in light of

their legislative purpose, which is to protect “the health and safety of individuals,

and particularly children, from individuals who, by virtue of probation, parole, or

other release, have been given access to members of the public.” Id.

       We start our analysis with the basic proposition that legislators, not courts,

prescribe punishment for crimes. See State v. Ohnmacht, 342 N.W.2d 838, 842

(Iowa 1983). Only sentences permitted by statute can stand. Id. A plain reading

shows the statutes here prohibited the court from granting a deferred sentence.

       In advocating to vacate the deferred sentence, the State finds support in

two statutes. First, we repeat section 692.111(1) which provides, in pertinent part:
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       A sex offender who violates any requirements of section 692A.104,
       692A.105, 692A.108, 692A.112, 692A.113, 692A.114, or 692A.115
       commits an aggravated misdemeanor for a first offense . . . .
       Notwithstanding section 907.3, the court shall not defer judgment or
       sentence for any violation of any requirements specified in this
       chapter. For purposes of this subsection, a violation occurs when a
       sex offender knows or reasonably should know of the duty to fulfill a
       requirement specified in this chapter as referenced in the offense
       charged.

Second, section 907.3(2)(a)(5) prohibits the court from deferring a sentence if

“[t]he offense is a violation of chapter 692A.”

       We are not convinced by the district court’s rationale for circumventing

these prohibitions. Contrary to the court’s interpretation, Hodge’s violation of

section 692A.113 left him ineligible for a deferred sentence under the language of

section 692A.111(1), regardless of the knowledge requirement for the offense.

See Iowa Code § 907.3(2)(a)(5). Hodge admitted entering the library, an exclusion

zone, without written permission of its administrator. He knew or had reason to

know of the exclusion from signing sex offender registration forms for more than a

decade.

       Likewise, the court’s distinction between “requirements” and “prohibitions”

elevates semantics over logic. The court believed the passive prohibition on

Hodge entering the library differed from the affirmative requirement that he register

his address with the county sheriff. Compare Iowa Code § 692A.111(1)(f) with

§ 692A.103. But stated differently, sex offenders are required to stay out of public

libraries without permission of the administrators. In short, one person’s prohibition

is another person’s requirement.

       Tellingly, Hodge’s appellate counsel does not defend the district court’s

grant of the deferred sentence. Rather, Hodge argues the district court “abused
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its discretion by not knowing that it could issue a sua sponte dismissal in the

furtherance of justice instead of a conditional dismissal in the form of a deferred

judgment.”2     Hodge contends the district court should have dismissed the

prosecution in furtherance of justice under Iowa Rule of Criminal Procedure

2.33(1). See generally State v. Brumage, 435 N.W.2d 337, 341 (Iowa 1989)

(discussing twelve factors district court must consider before dismissing case in

furtherance of justice).

       Hodge’s appellate contention is not properly before us. Nowhere in the

appellee’s brief does Hodge assert this claim was raised in the district court. This

issue was not included in the State’s petition for writ of certiorari, and Hodge filed

no response to that petition. We cannot consider this claim for the first time on

appeal. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (holding “one party

should not ambush another by raising issues on appeal, which that party did not

raise in the district court”).

       To recap, the district court misread Iowa Code section 692A.111(1) as

allowing it to grant Hodge a deferred sentence. That lenient sentencing option was

not available. See Iowa Code § 907.3(2)(a)(5). Therefore, we sustain the writ of

certiorari, vacate the court’s ruling, and remand for sentencing consistent with this

opinion.

       WRIT SUSTAINED AND CASE REMANDED.




2 Hodge asserts the court issued a “deferred judgment and placed [him] on
probation for eighteen months.” Yet the record shows the court imposed judgment
and issued a deferred sentence. Compare Iowa Code § 907.3(1) with § 907.3(2).
