                    IN THE COURT OF APPEALS OF IOWA

                                     No. 19-0328
                               Filed November 6, 2019


GEORGE McCLENNON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, Julie

Schumacher, Judge.



      George McClennon appeals the summary disposition of his application for

postconviction relief. AFFIRMED.




      Priscilla E. Forsyth, Sioux City, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee State.



      Considered by Vaitheswaran, P.J., and Potterfield and Mullins, JJ.

Schumacher, J., takes no part.
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MULLINS, Judge.

       Pursuant to a plea agreement, George McClennon pled guilty to domestic

abuse assault, third or subsequent offense.1        The plea agreement provided

McClennon would be sentenced to a term of imprisonment not to exceed five

years, with a mandatory minimum of one year. See Iowa Code §§ 708.2A(4),

(7)(b), 902.9(1)(e), .13. The court sentenced McClennon in accordance with the

terms of the plea agreement.

       Little more than six months later, McClennon filed an application for

postconviction relief, in which he claimed, among other things, his sentence was

illegal and he received ineffective assistance of counsel in relation to his plea and

sentencing. His claims were based upon his receipt of a time computation from

the department of corrections that he believed indicated he would be required to

serve eighty-five percent2 of his five-year prison sentence, which neither the court

nor counsel advised him of at sentencing.

       The State moved for summary disposition, arguing McClennon was

confusing a mandatory minimum sentence with earned-time credits under Iowa

Code section 903A.2 and the rules of criminal procedure do not require a

defendant be advised of calculation of earned-time credits. See Iowa R. Crim. P.

2.8(2)(b)(2). McClennon resisted. Following a hearing, the court granted the

State’s motion, and this appeal followed.




1
  McClennon was originally charged as a habitual offender. See generally Iowa Code
§ 902.8 (2018).
2
  The language McClennon pointed to in the document provided: “Domestic Abuse
Assault—3rd or Subsequent Offense, 85%. No Mandatory Minimum Selected.”
                                          3


       On appeal, McClennon generally argues his sentence was illegal or he

received ineffective assistance because he was never “advise[d] . . . that he would

have to serve 85% of his sentence.” Iowa Code section 902.13 was enacted in

2017. 2017 Iowa Acts ch. 83, § 5. It provides individuals convicted of third-or-

subsequent domestic abuse assault “shall be denied parole or work release until

the person has served between one-fifth of the maximum term and the maximum

term of the person’s sentence.” Iowa Code § 902.13(1). The sentencing court is

the decision-maker as to what the mandatory minimum term of confinement will

be. Id. § 902.13(2).

       Section 903A.2(1) provides for a reduction in a total sentence for good

conduct. The director of the department of corrections and the parole board, not

courts, are responsible for evaluating earned time and parole or work-release

eligibility. Id. §§ 903A.4, 906.3. Obviously, those institutions are still bound by the

mandatory minimum imposed by the court.

       McClennon cites State v. Iowa District Court for Black Hawk County in

support of his argument that the relationship between sections 902.13 and 903A.2

should be treated the same as the relationship between sections 902.12 and

903.2. See 616 N.W.2d 575, 579 (Iowa 2000). We disagree that the provisions

should be afforded the relationship discussed in that case and requested by

McClennon.      When that case was decided, the statutory language of the

mandatory-minimum provision expressly qualified the term imposed by the court

with section 903A.2. See Iowa Code § 902.12 (1999) (“Except as otherwise

provided in section 903A.2 . . . .”). The language the supreme court relied upon in

concluding that sections 902.12 and 903A.2 “together impose a mandatory
                                        4

minimum sentence,” which must be determined by the court, Iowa Dist. Ct., 616

N.W.2d at 579, was removed by the legislature in 2003. 2003 Iowa Acts ch. 156,

§ 11. Neither was the qualifying language included in the enactment of section

902.13 in 2017.

      Under former section 902.12 a defendant convicted of certain crimes was

required to serve one-hundred percent of the maximum term of imprisonment.

Iowa Code § 902.12 (2003).       The statutory language subordinated the one-

hundred percent term to section 903A.2 earned-time credits, which fell under the

purview of the department of corrections. Id. §§ 902.12, 903A.4. The supreme

court signaled its position that mandatory minimums are necessarily judicial

determinations, and courts, not agencies, should determine whether a good-

conduct credit should be applied against an imposed mandatory minimum term of

imprisonment. See Iowa Dist. Ct., 616 N.W.2d at 579. The legislature clearly

picked up the message and removed the subordinating language from section

902.12 but lessened the mandatory minimum imposed to seventy percent. 2003

Iowa Acts ch. 156, § 11.

      Simply stated, the imposition of mandatory minimums under sections

902.12 and 902.13 and the application of earned-time credits are separate

determinations, made by separate powers, the judicial and executive branches.

Earned-time credits cannot be used to shorten a mandatory minimum term of

incarceration imposed by the court, but can be used to shorten the “total sentence

of confinement,” see Iowa Code § 903A.2(1)(a)(1), (b)(1), here being a five-year

indeterminate term. But, that is not to say the inmate cannot be paroled or granted

work release before the “total sentence of confinement” runs; the person can be
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granted parole or work release only after the court’s mandatory minimum has been

satisfied, and then the person’s overall sentence will be discharged at the

appropriate time after the application of earned-time credits.3           The gist of

McClennon’s arguments made in the district court and on appeal is that section

903A.2 requires him to be mandatorily imprisoned until he has served enough for

his sentence to be discharged after applying earned-time credits and he should

have been advised of the same at the time of his plea and sentence. He is

incorrect. We find counsel was not ineffective and McClennon’s sentence is not

illegal. We affirm the summary disposition of his application for postconviction

relief.

          AFFIRMED.




3
  We also note that the legislature requires the court sentencing a defendant for an
aggravated misdemeanor or felony to publicly announce “[t]hat the defendant’s term of
incarceration may be reduced from the maximum sentence because of statutory earned
time, work credits, and program credits” and “the defendant may be eligible for parole
before the sentence is discharged.” Iowa Code § 901.5(9)(a)–(b). The legislature did not
require the court to calculate those credits or the date of parole eligibility.
