                        IN THE COURT OF APPEALS OF IOWA

                                       No. 16-2068
                                   Filed May 17, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RICHARD YATES III,
     Defendant-Appellant.
________________________________________________________________


           Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.



           A defendant convicted of burglary and theft challenges his sentences as

illegal.       SENTENCE       VACATED       IN   PART    AND     REMANDED     FOR

RESENTENCING.



           Mark C. Smith, State Appellate Defender, for appellant.

           Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee.



           Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, Judge.

       In the summer of 2016, Richard Yates III broke into a construction trailer

and stole equipment valued between $1000 and $10,000. He also exercised

control over stolen property valued between $500 and $1000.                 After being

charged for these acts, he pleaded guilty to two class “D” felonies—burglary in

the third degree and theft in the second degree—both as an habitual offender. In

a separate case, he pleaded guilty to theft in the third degree, an aggravated

misdemeanor. See Iowa Code § 714.2(3) (2016).

       On appeal Yates claims he received illegal sentences.               For the two

habitual-offender felonies, Yates contends the district court acted without

statutory authority in imposing the law enforcement initiative (LEI) surcharge of

$125 on each count. See id. § 911.3. For the aggravated-misdemeanor theft, he

claims the court illegally sentenced him to a determinate term of 730 days in the

county jail. The State concedes resentencing is required for the aggravated-

misdemeanor offense but defends imposition of the LEI surcharges on the

felonies. Because confinement of more than one year must be an indeterminate

term, we agree a remand for resentencing is in order on the aggravated-

misdemeanor sentence.1 See id. § 903.1(2). For the reasons discussed below,

we find the court’s imposition of the LEI surcharges was authorized by statute.


1
  Yates raises a second challenge to the aggravated-misdemeanor sentence, arguing
the court erred in sentencing him to the Scott County jail. See Iowa Code § 901.7
(stating “the court shall commit the defendant to the custody of the director of the Iowa
department of corrections” when “imposing a sentence of confinement” more than one
year). The State responds, while the sentencing order erroneously directed Yates to
serve his sentence in the county jail, the order on incarceration status appropriately
committed Yates “into the custody of the Iowa Department of Corrections” on that
conviction. Because we have remanded for resentencing on this conviction, the
inconsistency can be corrected in the new sentencing order.
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       We may correct an illegal sentence at any time. See Iowa R. Crim. P.

2.24(5)(a).   When a defendant challenges a sentence as being outside the

court’s statutory authority, we review for errors at law. See State v. Morris, 416

N.W.2d 688, 689 (Iowa 1987). If the sentence is not permitted by statute, it is

illegal and void. State v. Ross, 729 N.W.2d 806, 809 (Iowa 2007).

       We turn to the parties’ dispute over the LEI surcharge, an obligation

arising under Iowa Code section 911.3. Yates points to the general sentencing

statute for felons—Iowa Code section 902.9. That section sets out penalties for

class “D” felons, who are not habitual offenders, as no more than five years in

prison and a fine of at least $750 but not more than $7500. See Iowa Code

§ 902.9(1)(e). But habitual offenders face confinement for not more than fifteen

years with no fine. See id. § 902.9(1)(c). Section 902.9 also provides that the

section 911.3 surcharge “shall be added to a fine imposed on a class ‘C’ or class

‘D’ felon, as provided by those sections, and [is] not part of or subject to the

maximums set in this section.” Id. § 902.9(2).

       Looking at section 902.9(2), Yates asserts the legislature intended the

surcharges be added to the sentences of class “C” and class “D” felons but not to

the sentences for habitual offenders. In Yates’s view, had lawmakers meant for

surcharges to be added to habitual-offender sentences, “they could have said so.

They did not.” Yates contends his interpretation is “buttressed” by the wording of

Iowa Code section 911.3, which provides:

               1. In addition to any other surcharge, the court or clerk of the
       district court shall assess a law enforcement initiative surcharge of
       one hundred twenty-five dollars if an adjudication of guilt or a
       deferred judgment has been entered for a criminal violation under
       any of the following:
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              a. Chapter 124, 155A, 453B, 713, 714, 715A, or 716.
              b. Section 719.7, 719.8, 725.1, 725.2, or 725.3.

Yates argues the introductory phrase “in addition to any other surcharge” in

section 911.3(1) “presupposes” the LEI surcharge may only be assessed against

an offender who is subject to another surcharge.

       The State counters that because Yates was adjudicated guilty of third-

degree burglary under chapter 713 and second-degree theft under chapter 714,

the court was required to assess the LEI surcharge for both felony offenses

under section 911.3(1)(a). The State reads the phrase “in addition to any other

surcharge” as permissive, rather than restrictive.

       Section 902.9(1)(c) does not authorize courts to impose a fine as a part of

an habitual-offender sentence. Ross, 729 N.W.2d at 809. But the absence of

authorization for imposition of a fine in section 902.9(1)(c) does not override the

statutory mandate for assessing the LEI surcharge in section 911.3. See id. at

808, 812 (vacating imposition of fine but affirming order to pay LEI surcharge);

see also State v. Konvalinka, No. 11-0777, 2012 WL 1860352, at *8 (Iowa Ct.

App. May 23, 2012) (upholding imposition of ten-dollar DARE surcharge on

felony eluding enhanced as habitual offender).

       When an appellate issue requires reading related statutes together, we

attempt to harmonize them. See In re A.M., 856 N.W.2d 365, 372 (Iowa 2014).

But if they cannot be harmonized, the more specific provision will prevail as an

exception to the general provision. See Iowa Code § 4.7. Here, the statutory

authority for the LEI surcharge deals with the question in the more granular way,

and its specificity controls our result. See id. Section 911.3 requires the district
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court to assess the $125 LEI surcharge where the defendant is adjudicated guilty

of a criminal violation found in delineated chapters of the criminal code; no

exception is made for defendants sentenced as habitual offenders under section

902.9(1)(c).   Moreover, section 902.9(2) speaks to the situation where a

surcharge is added to a fine, clarifying that the surcharge amount is not a part of

the maximum amounts set for class “C” and class “D” felonies in section

902.9(1)(d) or (e). Accordingly, section 902.9(2) does not prohibit imposing the

$125 LEI surcharge when no fine is imposed.2

       As to the introductory phrase—“in addition to any other surcharge”—in

section 911.3, our reading aligns with the State’s position. The interpretation

urged by Yates essentially adds the word “only” to the statute, i.e., the court shall

assess the LEI surcharge “only in addition to any other surcharge.” Supplying a

missing term in that manner would contravene the “omitted-case” canon of

interpretation, which states: “Nothing is to be added to what the text states or

reasonably implies.” See Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 93 (2012); see also Rohlf v. Kasemeier, 118 N.W.

276, 277 (Iowa 1908) (“Nothing is to be added to [criminal] statutes by

intendment . . . .”). We conclude the opening language of section 911.3 does not

restrict a court from assessing the LEI surcharge even if no other surcharge is

applicable. The district court properly imposed the surcharges for Yates’s felony

offenses under section 911.3




2
 We recognize a different result would apply to the criminal-penalty surcharges levied
under Iowa Code section 911.1, which are set at 35% of the fine or forfeiture imposed.
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      But because the district court’s determinate two-year sentence imposed

on the aggravated-misdemeanor theft violated section 903.1(2),3 we vacate that

portion of Yates’s sentence and remand for resentencing.

      SENTENCE        VACATED        IN       PART   AND     REMANDED         FOR

RESENTENCING.




3
 Because Iowa Code section 714.2 lacks a specific sentencing provision, the general
misdemeanor sentencing statute in chapter 903 applies. See State v. Ayers, 590
N.W.2d 25, 29 (Iowa 1999).
