                     IN THE SUPREME COURT OF IOWA

                                  No. 07–0703

                           Filed November 14, 2008

STATE OF IOWA,

       Appellant,

vs.

KELLY LEE WADE,

      Appellee.
________________________________________________________________________
       Appeal from the Iowa District Court for Johnson County, Stephen

C. Gerald II, Judge.



       The State appeals a district court ruling that the special sentencing

provisions   of     Iowa   Code    section   903B.2    are   unconstitutional.

JUDGMENT OF CONVICTION AFFIRMED. SENTENCE AFFIRMED IN

PART     AND        VACATED       IN   PART;    CASE     REMANDED        FOR

RESENTENCING.



       Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,

Assistant Attorney General, and Janet M. Lyness, County Attorney, for

appellant.



       Paul D. Miller of Miller Law Office, Iowa City, for appellee.
                                     2
BAKER, Justice.

      The State appeals the district court’s ruling, in which the court

refused to impose the special sentence provisions of Iowa Code section

903B.2 (Supp. 2005) on Kelly Lee Wade, who had been convicted of

indecent exposure under chapter 709.      The district court found the

statute was “illegal and unconstitutional.”   In this case, the court is

asked to decide whether the special sentencing provisions of Iowa Code

section 903B.2 violate the United States Constitution’s prohibition

against cruel and unusual punishment, the separation-of-powers

doctrine, and the Equal Protection Clauses of the United States and Iowa

Constitutions.   Because we find Iowa Code section 903B.2 is neither

illegal nor unconstitutional, we remand this case with instructions that

the sentence under section 903B.2 be imposed.

      I. Background Facts and Prior Proceedings.

      On May 23, 2006, Wade entered a beauty salon and inquired

about a pubic wax procedure. He unzipped his pants and exposed his

pubic hair to a stylist, then zipped his pants, turned toward another

stylist, placed his hand down his pants, and rubbed himself. On July 5,

Wade was charged by trial information with indecent exposure, a serious

misdemeanor, in violation of Iowa Code section 709.9.     Wade initially

entered a plea of not guilty. He later withdrew the not-guilty plea and

entered a guilty plea but resisted the district court’s imposition of a

special sentence under Iowa Code section 903B.2. Pursuant to the guilty

plea, Wade was convicted of indecent exposure.     He was sentenced to

serve 365 days in jail, with 355 days of the sentence suspended, and was

placed on probation for two years.

      Wade filed a motion to determine the constitutionality of section

903B.2, which imposes a special sentence for a person convicted of a
                                   3
misdemeanor under chapter 709.         Pursuant to Iowa Code section

903B.2,
     A person convicted of a misdemeanor or a class “D” felony
     offense under chapter 709 . . . shall also be sentenced, in
     addition to any other punishment provided by law, to a
     special sentence committing the person into the custody of
     the director of the Iowa department of corrections for a
     period of ten years, with eligibility for parole as provided in
     chapter 906. The special sentence imposed under this
     section shall commence upon completion of the sentence
     imposed under any applicable criminal sentencing provisions
     for the underlying criminal offense and the person shall
     begin the sentence under supervision as if on parole. The
     person shall be placed on the corrections continuum in
     chapter 901B, and the terms and conditions of the special
     sentence, including violations, shall be subject to the same
     set of procedures set out in chapters 901B, 905, 906, and
     908, and rules adopted under those chapters for persons on
     parole. The revocation of release shall not be for a period
     greater than two years upon any first revocation, and five
     years upon any second or subsequent revocation.
     Wade asserted the application of the statute is an illegal sentence

and unconstitutional, as violative of the Due Process Clauses of the

United States and Iowa Constitutions and the prohibition against cruel

and unusual punishment contained in the United States Constitution.

Wade later supplemented his motion and asserted section 903B.2 is

overbroad and violates the Equal Protection Clauses of the United States
and Iowa Constitutions. He also asserted that the sentence violated the

separation-of-powers doctrine.   The district court found the special

sentence provisions of section 903B.2 were “illegal and unconstitutional

under the laws applicable to this case for the reasons set forth in the

defendant’s objections” and refused to impose the special sentence on

Wade. The State appeals.

     II. Scope of Review.

     This court reviews challenges to the constitutionality of a statute

de novo. State v. Keene, 629 N.W.2d 360, 363 (Iowa 2001). “[W]e must
                                     4
remember     that   statutes   are   cloaked   with    a   presumption     of

constitutionality. The challenger bears a heavy burden, because it must

prove the unconstitutionality beyond a reasonable doubt.”           State v.

Seering, 701 N.W.2d 655, 661 (Iowa 2005) (citing State v. Hernandez-

Lopez, 639 N.W.2d 226, 233 (Iowa 2002)). This court reviews the district

court’s interpretation of a statute for correction of errors at law. Iowa R.

App. P. 6.4; State v. Boggs, 741 N.W.2d 492, 498 (Iowa 2007); State v.

Mott, 731 N.W.2d 392, 394 (Iowa 2007).

      III. Issues Waived.

      In his brief to this court, Wade does not argue due process or

overbreadth as reasons for upholding the district court’s ruling. He has

therefore waived these issues. See Iowa R. App. P. 6.14(1)(c) (“Failure in

the brief to state, to argue, or to cite authority in support of an issue may

be deemed waiver of that issue.”).

      IV. Cruel and Unusual Punishment.

      “The United States Constitution prohibits ‘cruel and unusual’

punishment, and this prohibition is applicable to the states through the

Fourteenth Amendment.” State v. Phillips, 610 N.W.2d 840, 843 (Iowa

2000) (citing U.S. Const. amend. VIII; State v. Lara, 580 N.W.2d 783, 784

(Iowa), cert. denied, 525 U.S. 1007, 119 S. Ct. 523, 142 L. Ed. 2d 434

(1998)). “[T]he Eighth Amendment’s protection against excessive or cruel

and unusual punishments flows from the basic ‘precept of justice that

punishment for [a] crime should be graduated and proportioned to [the]

offense.’ ” Kennedy v. Louisiana, ___ U.S. ___, ___, 128 S. Ct. 2641, 2649,

171 L. Ed. 2d 525, 538 (2008) (quoting Weems v. United States, 217 U.S.

349, 367, 30 S. Ct. 544, 549, 54 L. Ed. 793, 798 (1910)). Punishment

may be considered cruel and unusual “because it is ‘so excessively severe
                                     5
that it is disproportionate to the offense charged.’ ” Phillips, 610 N.W.2d

at 843–44 (quoting Lara, 580 N.W.2d at 785).
      Generally, a sentence that falls within the parameters of a
      statutorily prescribed penalty does not constitute cruel and
      unusual punishment. Only extreme sentences that are
      “grossly disproportionate” to the crime conceivably violate
      the Eighth Amendment.
            Substantial deference is afforded the legislature in
      setting the penalty for crimes. Notwithstanding, it is within
      the court’s power to determine whether the term of
      imprisonment imposed is grossly disproportionate to the
      crime charged. If it is not, no further analysis is necessary.
State v. Cronkhite, 613 N.W.2d 664, 669 (Iowa 2000) (quoting Harmelin v.

Michigan, 501 U.S. 957, 1001, 111 S. Ct. 2680, 2705, 115 L. Ed. 2d 836,

869 (1991)) (other citations omitted); see also Rummel v. Estelle, 445 U.S.

263, 272, 100 S. Ct. 1133, 1138, 63 L. Ed. 2d 382, 390 (1980) (“Outside

the context of capital punishment, successful challenges to the

proportionality of particular sentences have been exceedingly rare.”);

Lara, 580 N.W.2d at 785 (“Legislative determinations of terms of

imprisonment are given a strong presumption of constitutionality.”).

      Indecent exposure is a serious misdemeanor, punishable by a term

of imprisonment not to exceed one year.         Iowa Code § 903.1(1)(b).

Pursuant to Iowa Code section 903B.2, Wade is subject to a ten-year
special sentence, whereby if he violates the terms of his parole, he will be

sentenced to additional imprisonment for a term not to exceed two years

for a first offense and not to exceed five years for a second offense. Wade

contends that committing him to the custody of the director of the Iowa

department of corrections for ten years, with mandatory revocation and

imprisonment terms of two or five years for parole violations, is “grossly

disproportionate” to the allowable maximum sentence for a serious

misdemeanor, and therefore violates the cruel-and-unusual clause of the

Constitution.
                                        6
       Our analysis begins with application of a threshold test that

measures “ ‘the harshness of the penalty against the gravity of the

offense.’ ”   Seering, 701 N.W.2d at 670 (quoting State v. Rubino, 602

N.W.2d 558, 564 (Iowa 1999)); see also State v. Musser, 721 N.W.2d 734,

749 (Iowa 2006) (noting the proportionality test is used only in those rare

cases where “ ‘a threshold comparison of the crime committed to the

sentence imposed leads to an inference of gross disproportionality.’ ”

(quoting Lara, 580 N.W.2d at 785)). The analysis of whether a sentence

is “grossly disproportionate in view of the gravity” of the offense “is

undertaken      objectively   without       considering   the   individualized

circumstances of the defendant or the victim in this case.” Musser, 721

N.W.2d at 749.

       This court has held that a two-year sentence for violating a

residency restriction for sex offenders “is in appropriate proportion with

the crime and thus is not cruel and unusual punishment.” Seering, 701

N.W.2d at 670. Noting that the restriction had “been created to enforce

an important state interest in protecting persons against sexual

offenders,” the court held that “a potential two-year penalty attached to a

violation of the statute is [not] disproportionate when ‘measuring the

harshness of the penalty against the gravity of the offense.’ ” Id. (quoting

Rubino, 602 N.W.2d at 564); see also United States v. Moriarty, 429 F.3d

1012, 1025 (11th Cir. 2005) (holding a term of lifetime supervised release

not grossly disproportionate to child pornography offense).

       In this case, the statute commits an offender into the custody of

the department of corrections where “the person shall begin the sentence

under supervision as if on parole.” Iowa Code § 903B.2. Any additional

imprisonment will be realized only if Wade violates the terms of his

parole. Iowa Code section 903B.2 is not grossly disproportionate to the
                                    7
acts of committing the crime of indecent exposure and subsequently

violating parole terms, and thus is not cruel and unusual punishment.

      V. Equal Protection.

      Wade also contends section 903B.2 violates the equal protection

clauses of the United States and Iowa Constitutions. “Because neither

party in this case has argued that our equal protection analysis under

the Iowa Constitution should differ in any way from our analysis under

the Federal Constitution, we decline to apply divergent analyses in this

case.” Sanchez v. State, 692 N.W.2d 812, 817 (Iowa 2005).

      “The Fourteenth Amendment to the United States Constitution and

article I, section 6 of the Iowa Constitution provide individuals equal

protection under the law. This principle requires that ‘similarly situated

persons be treated alike under the law.’ ” Wright v. Iowa Dep’t of Corr.,

747 N.W.2d 213, 216 (Iowa 2008) (quoting In re Det. of Williams, 628

N.W.2d 447, 452 (Iowa 2001)).
      [T]he Fourteenth Amendment does not deny to States the
      power to treat different classes of persons in different ways.
      The Equal Protection Clause of that amendment does,
      however, deny to States the power to legislate that different
      treatment be accorded to persons placed by a statute into
      different classes on the basis of criteria wholly unrelated to
      the objective of that statute. A classification “must be
      reasonable, not arbitrary, and must rest upon some ground
      of difference having a fair and substantial relation to the
      object of the legislation, so that all persons similarly
      circumstanced shall be treated alike.”
Reed v. Reed, 404 U.S. 71, 75–76, 92 S. Ct. 251, 253–54, 30 L. Ed. 2d

225, 229 (1971) (quoting F.S. Royster Guano Co. v. Virginia, 253 U.S.

412, 415, 40 S. Ct. 560, 561, 64 L. Ed. 989, 990 (1920)) (other citations

omitted).

      To determine whether a statute violates equal protection, we first

determine whether the statute makes a distinction between similarly

situated individuals. Wright, 747 N.W.2d at 216. While Wade identifies
                                   8
a class of similarly situated persons, we find that under Iowa Code

section 903B.2 those persons are not accorded different treatment.

Further, the legislature could have rationally determined that a

classification imposing a special sentence on all offenders who have

committed sex crimes, whether serious misdemeanors or felonies,

advances the governmental objective of protecting citizens from sex

crimes.

     Iowa Code section 903B.2 subjects persons convicted of class “D”

felony offenses or misdemeanors under chapter 709 (sexual abuse),

section 726.2 (incest), or section 728.12 (sexual exploitation of a minor)

to the special sentence.   Essentially, section 903B.2 places offenders

who have committed certain sex crimes in a unique class and imposes

upon them a special sentence.

     Wade claims that “[p]lacing a person convicted of the serious

misdemeanor Indecent Exposure in the same classification as Class D

felons is not a reasonable classification.” Wade argues that subjecting

serious misdemeanants and felons to the same special sentence is

unreasonable because under the Iowa sentencing and probation

structure, misdemeanants are otherwise treated less harshly than

felons.

     Under equal protection, it is the nature of the offense and not its

criminal classification that determines whether offenders are similarly

situated. See People v. Friesen, 45 P.3d 784, 785 (Colo. Ct. App. 2001)

(concluding that different felony classifications merely set forth the

penalty ranges for classes of offenses and do not create classes of

offenders, therefore, a defendant is only similarly situated with

defendants who commit the same or similar acts). Here, the nature of

the offense is a sex crime. Therefore, offenders who commit sex crimes
                                     9
are similarly situated, whether their particular offense is classified as a

misdemeanor or felony.

      Even though Wade has identified two classes that are similarly

situated, Wade’s equal protection argument fails because under Iowa

Code section 903B.2 offenders who commit serious misdemeanor sex

crimes and offenders who commit felony sex crimes are not treated

differently. Under equal protection, “all persons similarly circumstanced

shall be treated alike.” Reed, 404 U.S. at 75–76, 92 S. Ct. at 253–54, 30

L. Ed. 2d at 229.    Where there is no disparate treatment of similarly

situated individuals, an equal protection claim fails.     Section 903B.2

imposes the special sentence upon all sexual offenders, both serious

misdemeanants and felons.       Serious misdemeanant sexual offenders

and felony sexual offenders are similarly situated and similarly treated.

Under Wade’s challenged classification, Iowa Code section 903B.2 does

not violate equal protection.     See People v. Williams, 89 P.3d 492,

495 (Colo. Ct. App. 2003) (rejecting defendant’s argument that provision

which “provides the same sentence enhancement whether accompanied

by misdemeanor or felony sexual assault,” and therefore unfairly

subjected misdemeanants to the same punishment as felons, violates

equal protection).

      The district court held, without elaboration, that section 903B.2

denies offenders who commit sex crimes “the same equal protections of

the laws as other criminal offenders.” We will address this classification

as well. The State has a strong interest in protecting its citizens from sex

crimes.   State v. Iowa Dist. Ct. for Scott County, 508 N.W.2d 692,

694 (Iowa 1993) (per curiam); see also Seering, 701 N.W.2d at 665

(noting the strong government interest in preventing sex offenders from

reoffending).   Moreover, “[t]he legislature enjoys broad discretion in
                                      10
defining and classifying criminal offenses.” State v. Biddle, 652 N.W.2d

191, 203 (Iowa 2002) (citing State v. Ceaser, 585 N.W.2d 192, 196 (Iowa

1998)).

      Because sex offenders present a special problem and danger to

society, the legislature may classify them differently.       This court has

previously held, that “[t]he legislature is free to single out sexually violent

predators from other violent offenders.        The particularly devastating

effects of sexual crimes on victims . . . provide a rational basis for the

classification.”   In re Morrow, 616 N.W.2d 544, 549 (Iowa 2000).         This

court has also determined that “the legislature may decide to treat sexual

abuse crimes similarly regardless of whether the abuse was committed

with force.”   Iowa Dist. Ct. for Scott County, 508 N.W.2d at 694 (citing

State v. Cobb, 311 N.W.2d 64, 67 (Iowa 1981)) (emphasis added). “[I]t is

up to the legislature to determine the most appropriate method of

punishing and deterring criminal activity.” Biddle, 652 N.W.2d at 203

(citing Ceaser, 585 N.W.2d at 199).         “ ‘As long as the classificatory

scheme chosen by [the legislature] rationally advances a reasonable and

identifiable governmental objective, we must disregard the existence of

other methods . . . that we, as individuals, perhaps would have

preferred.’ ” Sanchez, 692 N.W.2d at 818 (quoting Schweiker v. Wilson,

450 U.S. 221, 235, 101 S. Ct. 1074, 1083, 67 L. Ed. 2d 186, 198 (1981)).

The fact that sexual offenders, both serious misdemeanants and felons,

are subject to different sentencing provisions than non-sexual offenders

raises no equal protection issue because it serves the legitimate

government interest of protecting the public from sex crimes.

      Other jurisdictions have also come to this conclusion. See In re

Blodgett, 510 N.W.2d 910, 917 (Minn. 1994) (rejecting equal protection

challenge to a similar statute, noting that there are “genuine and
                                    11
substantial   distinctions”   between    the   sexual   predator    and   other

criminals because “the sexual predator poses a danger that is unlike any

other”); see also Martin v. People, 27 P.3d 846, 862 (Colo. 2001)

(recognizing “the legislature’s continuing desire to set sex offenders apart

from other offenders”); Friesen, 45 P.3d at 785 (concluding non-sexual

offenders are not similarly situated with sex offenders).

      In upholding the constitutionality of the Alaska Sex Offender

Registration Act against an ex post facto challenge, the United States

Supreme Court stated that:
             Alaska could conclude that a conviction for a sex
      offense provides evidence of substantial risk of recidivism.
      The legislature’s findings are consistent with grave concerns
      over the high rate of recidivism among convicted sex
      offenders and their dangerousness as a class. The risk of
      recidivism posed by sex offenders is “frightening and high.”
Smith v. Doe, 538 U.S. 84, 103, 123 S. Ct. 1140, 1153, 155 L. Ed. 2d

164, 183–84 (2003) (emphasis added) (quoting McKune v. Lile, 536 U.S.

24, 34, 122 S. Ct. 2017, 2025, 153 L. Ed. 2d 47, 57 (2002)).                We

conclude that sex offenders are not similarly situated to other criminal

offenders, and therefore, under this challenged classification, Iowa Code

section 903B.2 does not violate equal protection.

      In finding section 903B.2 unconstitutional, the district court also

noted “[t]he statutes concerned make no provision to distinguish parole

violations of a sexual nature with more basic parole violations.”

According to the district court, this failure could result in prison

sentences, for sex offenders only, “for parole infractions such as

consuming alcohol or failing to maintain employment.”              Although we

appreciate the district court’s concern, we question whether this issue is

ripe for our determination.
            A case is ripe for adjudication when it presents an
      actual, present controversy, as opposed to one that is merely
                                     12
      hypothetical or speculative.        The basic rationale for 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 the
             agencies from judicial interference until an
             administrative decision has been formalized and
             its effects felt in a concrete way by the
             challenging parties.
State v. Iowa Dist. Ct. for Black Hawk County, 616 N.W.2d 575, 578 (Iowa

2000) (quoting Abbott Lab. v. Gardner, 387 U.S. 136, 148–49, 87 S. Ct.

1507, 1515, 18 L. Ed. 2d 681, 691 (1967), overruled on other grounds by

Califano v. Sanders, 430 U.S. 99, 105, 97 S. Ct. 980, 984, 51 L. Ed. 2d

192, 199 (1977)) (other citations omitted).

      We must determine if the issues raised by the district court are

administrative decisions for the department of corrections and board of

parole or a judicial decision for the sentencing court and whether there

has been an administrative decision that has affected the defendant.

Because we conclude in the following section that the issues raised by

the district court regarding minor parole infractions are administrative

decisions and the concerns expressed by the district court have not come

to pass, we find that this issue is not ripe.

      VI. Separation of Powers.

      Wade also argues that section 903B.2 violates the separation-of-

powers doctrine of the Iowa Constitution because it allows an

administrative parole judge to revoke an offender’s special sentence and

sentence him or her to a prison term for parole violations.
      The separation-of-powers clause provides:
      The powers of the government of Iowa shall be divided into
      three separate departments—the legislative, the executive,
      and the judicial: and no person charged with the exercise of
      powers properly belonging to one of these departments shall
      exercise any function appertaining to either of the others,
      except in cases hereinafter expressly directed or permitted.
                                       13
Iowa Const. art. III, § 1.     The “doctrine is violated ‘if one branch of

government purports to use powers that are clearly forbidden, or

attempts to use powers granted by the constitution to another branch.’ ”

Klouda v. Sixth Judicial Dist. Dep’t of Corr. Servs., 642 N.W.2d 255,

260 (Iowa 2002) (quoting Phillips, 610 N.W.2d at 842).

      “Judicial power vested in the courts by the Iowa Constitution is the

power to decide and pronounce a judgment and carry it into effect. Any

encroachment upon that power is a violation of the separation-of-powers

doctrine.”   Id. at 261.    “[T]here is no encroachment on judicial power

when the legislature prescribes certain acts as crimes, provides penalties

for their violation, and authorizes or withholds probation.” Id. To the

extent a statute transfers sentencing functions to another branch of

government, it violates the separation-of-powers doctrine. Id. at 262.

      Bearing these principles in mind, in Klouda this court determined

that statutes which allowed administrative law judges to revoke or

continue probation encroached on judicial power.              Id. at 262–63.

“Although suspending a sentence and granting probation do not

constitute imposing a sentence . . . they are akin to sentencing in that

they represent a sentencing alternative.”        Id. at 262 (citing State v.

Wright, 202 N.W.2d 72, 76 (Iowa 1972)).          The court held that to the

extent the statutes involved sentencing functions, which “are clearly

reserved to the judiciary,” they violated the separation-of-powers

doctrine. Id. The question in this case, then, is to what extent does the

special sentencing statute involve sentencing functions.

      The State argues that section 903B.2 does not violate the

separation-of-powers doctrine because the special sentence is not a

“sentencing alternative.”    See id.   Iowa Code section 903B.2 states an

offender “shall also be sentenced . . . to a special sentence . . . for a period
                                    14
of ten years . . . as if on parole.” (Emphasis added.) Thus, the ten-year

sentence is mandatory, but upon commencement of the sentence, the

offender is immediately and automatically placed on parole. This court

has previously noted that “[p]robation ‘relates to judicial action taken

before the prison door is closed.’ In contrast, parole ‘relates to executive

or administrative action taken after the door has been closed on the

convict.’ ”. Klouda, 642 N.W.2d at 262 (quoting Wright, 202 N.W.2d at

76) (emphasis added); see also Doe v. State, 688 N.W.2d 265, 271 (Iowa

2004).   The parole board, an executive agency, is vested with the

authority to determine which prisoners are released on parole.         Iowa

Code § 906.3. “Historically, corrections officials have been given broad

discretion with respect to the role parole rightly plays in an individual

prisoner’s constructive reintegration into society.” Larsson v. Iowa Bd. of

Parole, 465 N.W.2d 272, 275 (Iowa 1991). In Iowa, most parole decisions

are legitimately within the discretion of the executive branch. Doe, 688

N.W.2d at 271.

      Pursuant to Iowa Code section 908.5, if a parole violation is

established, an administrative parole judge may continue the parole with

or without modification or revoke the parole and require the parolee to

serve the sentence originally imposed.
      “As part of its power the legislature can grant to the parole
      board the exclusive power to determine if a parole permit
      shall be revoked and any such revocation by the parole
      board made within the limits of the legislative authority
      given to it cannot be attacked.”
Larsson, 465 N.W.2d at 276 (quoting State v. Fazzano, 194 A.2d 680,

684 (R.I. 1963)).       Clearly parole continuance, modification, and

revocation decisions are considered parole decisions rather than

sentencing decisions.
                                      15
      Here, the legislature simply extended Iowa’s parole supervision

scheme to require additional supervision for sex offenders consistent

with the state’s objective of protecting citizens from sex crimes.        The

sentence is automatic.     To the extent there are consequences from a

parole violation, such decisions are executive or administrative decisions

and no judicial function is involved.      The consequences of a parole

violation under Section 903B.2 do not involve sentencing functions and

therefore the statute does not violate the separation-of-powers doctrine.

      VII. Illegal Sentence/Conflict of Law.

      Wade also argues that imposition of the special sentence “is an

illegal sentence as it conflicts with and violates the maximum period of

confinement” and length of probation provisions of Iowa Code sections

907.7 and 907.11.         The district court ruled the special sentence

provisions of section 903B.2 were “illegal and unconstitutional under the

laws applicable to this case for the reasons set forth in the defendant’s

objections.”     An illegal sentence is one which is not authorized by

statute. Tindell v. State, 629 N.W.2d 357, 359 (Iowa 2001). Here, the

special sentence would be imposed pursuant to section 903B.2 and is

specifically authorized by that statute.

      Wade argues that imposition of the special sentence conflicts with

and   violates    the   Iowa   Code   sections   regarding   sentencing   for

misdemeanors and should therefore be declared unconstitutional.

Compare Iowa Code § 903B.2 (“A person convicted of a misdemeanor or a

class “D” felony offense under chapter 709, section 726.2, or section

728.12 shall also be sentenced, in addition to any other punishment

provided by law, to a special sentence committing the person into the

custody of the director of the Iowa department of corrections for a period

of ten years, with eligibility for parole as provided in chapter 906.”), with
                                     16
id. § 903.1(1)(b) (“For a serious misdemeanor, there shall be a fine of at

least three hundred fifteen dollars but not to exceed one thousand eight

hundred seventy-five dollars.     In addition, the court may also order

imprisonment not to exceed one year.”).            We do not see any

constitutional implications.

      The sole issue is whether there is an impermissible conflict

between sections 903B.2 and 903.1(1)(b). We find this argument to be

simply disingenuous.     Wade was convicted of a serious misdemeanor.

Section 903.1 provides the sentences for misdemeanors and provides

different penalties for each class of misdemeanor.    In the introductory

section of the statute, however, it states that the court shall determine

the sentence under this section, if a person is convicted of a “serious

misdemeanor and a specific penalty is not provided for.”     Iowa Code §

903.1 (emphasis added). Under section 907.7, the length of probation for

a misdemeanor shall not exceed two years. Pursuant to section 906.15,

“a person released on parole shall be discharged when the person’s term

of parole equals the period of imprisonment specified in the person’s

sentence. . . .” The district court found:
            There is no way to reconcile the provisions of section
      906.15 with section 903B.2.       The maximum period of
      incarceration for a serious misdemeanor is one year which
      would require discharge from parole after a maximum of one
      year. Section 903B.2 provides for a “parole” of ten years.
      Where a general statutory provision conflicts with a special

provision, and the conflict “is irreconcilable, the special . . . provision

prevails as an exception to the general provision.”     Iowa Code § 4.7.

Section 903.1(b) is specifically limited to those circumstances where “a

specific penalty is not provided for.” The specific provisions of section

903B.2 prevail over the more general provisions of section 903.1(1)(b).
                                     17
The district court erred in finding section 903B.2 imposes an illegal

sentence.

      VIII. Conclusion and Disposition.

      The special sentence imposed under Iowa Code section 903B.2 is

not grossly disproportionate to the acts of committing the crime of

indecent exposure and subsequently violating parole terms, and thus is

not cruel and unusual punishment. The State has a strong interest in

protecting its citizens from sex crimes, and the legislature could

rationally determine that imposing a special sentence on sex offenders

for parole violations advances the State’s interest. Therefore, the statute

does not violate equal protection.    Because the decision of whether a

parole violation has occurred under section 903B.2 is an executive or

administrative decision, such decisions do not involve sentencing

functions and therefore do not violate the separation-of-powers doctrine.

Because the specific provisions of section 903B.2 prevail over the more

general provisions of section 903.1(1)(b), section 903B.2 does not impose

an illegal sentence.   For these reasons, we vacate the district court’s

holding that “the special sentence under Iowa Code section 903B.2 is

illegal and unconstitutional and shall not be imposed” upon Wade. We

remand this case with instructions that the sentence under section

903B.2 be imposed.

      JUDGMENT         OF   CONVICTION       AFFIRMED.            SENTENCE

AFFIRMED IN PART AND VACATED IN PART; CASE REMANDED FOR

RESENTENCING.

      All justices concur except Streit, J., who takes no part.
