                    IN THE COURT OF APPEALS OF IOWA

                                      No. 18-1972
                               Filed November 27, 2019


CASEY DIXON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,

Judge.



      Casey Dixon appeals the denial of his postconviction-relief application.

AFFIRMED.




      G. Brian Weiler, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.



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


DOYLE, Presiding Judge.

       Casey Dixon argues his due process rights under the state and federal

constitutions are violated by prospective application of a 2016 amendment to Iowa

Code section 902.12 (2009) that reduces mandatory sentencing minimums for

certain charges. We disagree and affirm the district court’s denial of Dixon’s

postconviction-relief application.

       The district court set forth the following procedural background:

               On September 2, 2009, Casey Dixon was convicted of two
       counts of robbery in the second-degree, in violation of [Iowa Code
       section 711.3]. He was sentenced in accordance with section 902.12
       to consecutive ten-year terms of incarceration. Dixon appealed his
       conviction on October 19, 2009, but it was dismissed as a frivolous
       appeal. On August 17, 2011, Dixon filed an application for
       postconviction relief. The district court denied his application on
       January 28, 2016, and the Iowa Court of Appeals affirmed the denial
       on April 5, 2017. See Dixon v. State, No. 16-0329, 2017 WL
       1278294, at *3 (Iowa Ct. App. Apr. 5, 2017).
               In 2016, the Iowa legislature amended section 902.12 of the
       Iowa Code to give the sentencing court discretion in setting the
       minimum sentence between one-half and seven-tenths of the
       maximum term of the sentence. [See 2016 Iowa Acts ch 1104 § 8,
       (codified at Iowa Code § 902.12(3) (Supp. 2016))]. At the time Dixon
       was sentenced, defendants convicted of robbery in the second-
       degree were required to serve seven-tenths of the maximum term of
       the sentence prior to becoming eligible for parole or work release.
       Compare [Iowa Code § 902.12(3) (Supp. 2016)], with Iowa Code
       § 902.12(5) (2009). As a result, on January 20, 2017—while his
       application for postconviction relief was pending on appeal—Dixon
       filed a motion to correct illegal sentence with the district court. In this
       motion, Dixon argued, in light of the amendment to section 902.12,
       that his sentence constituted cruel and unusual punishment. On
       January 25, 2017, the District Court for Scott County denied Dixon’s
       motion, and he subsequently appealed the ruling. However, there is
       no appeal as a matter of right from the denial of a motion to correct
       an illegal sentence. See State v. Propps, 897 N.W.2d 91, 96 (Iowa
       2017) (citing Iowa R. App. P. 6.106). Thus, the Iowa Supreme Court
       ordered Dixon’s notice of appeal be treated as a petition for writ of
       certiorari. At the Iowa Supreme Court’s discretion, the petition was
       granted and transferred to the Iowa Court of Appeals. On March 7,
       2018, the writ was annulled. See Dixon v. Iowa Dist. Ct. for Scott
                                          3

       County, No. 17-0369, 2018 WL 1182529, at *3 (Iowa Ct. App. Mar.
       7, 2018).
              While Dixon’s motion to correct illegal sentence was pending,
       he filed an amended application for postconviction relief on March
       28, 2017. In the amended application, Dixon argued he should be
       resentenced under the amended version of section 902.12. Dixon
       does not dispute the fact the amendment explicitly limits the
       application of the statute to convictions “occurring on or after July 1,
       2016.” Iowa Code § 902.12(3) (Supp. 2016). Instead, Dixon
       contends the Court is obligated to retroactively apply the statute
       because he never received the possibility of a lessened sentence,
       and thus, his due process and equal protection rights under the
       United States and Iowa Constitutions were violated.

The district court denied Dixon’s postconviction-relief application concluding the

amended statute did not deprive Dixon of due process. On appeal, Dixon asserts

“the trial court erred in ruling that Mr. Dixon is not deprived of due process by not

allowing his sentence to be assessed under current law.”1

       As the district court noted, a 2016 legislative amendment to Iowa Code

section 902.12 reduced the amount of mandatory minimum sentence for second-

degree robbery convictions from seventy percent to between one-half and seven-

tenths of the maximum term of incarceration. Compare Iowa Code § 902.12(3)

(Supp. 2016), with id. § 902.12(5) (2009). The amendment to that section explicitly

states that the new sentencing provision applies “for a conviction that occurs on or

after July 1, 2016.” Id. § 902.12(3) (Supp. 2016). It is not retroactive. This court


1  In a common assertion, Dixon states that “[e]rror was preserved by filing of a
timely Notice of Appeal . . . .” As we have stated time and time again (more than
fifty times since our published opinion of State v. Lange, 831 N.W.2d 844, 846-47
(Iowa Ct. App. 2013)), the filing of a notice of appeal does not preserve error for
our review. See Thomas A. Mayes & Anuradha Vaitheswaran, Error Preservation
in Civil Appeals in Iowa: Perspectives on Present Practice, 55 Drake L. Rev. 39,
48 (Fall 2006) (“However error is preserved, it is not preserved by filing a notice of
appeal. While this is a common statement in briefs, it is erroneous, for the notice
of appeal has nothing to do with error preservation.”). That said, error preservation
is uncontested here.
                                           4


has consistently rejected various attacks on the prospective application of the

statutory provision. Clayton v. Iowa Dist. Ct., 907 N.W.2d 824, 830 (Iowa Ct. App.

2017) (rejecting an equal protection argument)2; State v. Harrington, No. 17-1883,

2018 WL 5291332, at *1 (Iowa Ct. App. Oct. 24, 2018) (providing no constitutional

analysis), further review denied (Dec. 19, 2018); Webster v. State, No. 17-0539,

2018 WL 3873411, at *6 (Iowa Ct. App. Aug. 15, 2018) (rejecting an equal

protection argument), further review denied (Oct. 8, 2018); Monroe v. State, No.

17-1266, 2018 WL 2230724, at *1-2 (Iowa Ct. App. May 16, 2018) (rejecting an

equal protection argument), further review denied (July 16, 2018); Dixon v. Iowa

Dist. Ct., No. 17-0369, 2018 WL 1182529, at *3 (Iowa Ct. App. Mar. 7, 2018)

(rejecting a cruel and unusual punishment argument), further review denied (July

11, 2018). Dixon again attacks the provision but on due process grounds this time.

       In rejecting an equal protection challenge to the prospective application of

the ameliorative sentencing provision, this court stated:

       Sentencing is a legislative function. We afford broad deference to
       the legislature in setting the penalties for criminal conduct and in
       determining when the penalties are to go into effect. See State v.
       Cronkhite, 613 N.W.2d 664, 669 (Iowa 2000) (“Substantial deference
       is afforded the legislature in setting the penalty for crimes.”); State v.
       Jackson, 204 N.W.2d 915, 917 (Iowa 1973); State v. Stanley, 344
       N.W.2d 564, 567 (Iowa Ct. App. 1983). There is a strong policy
       justification for making ameliorative sentencing provisions
       prospective only. Beyond the administrative and financial burden of
       resentencing offenders, the State has a strong policy interest both in
       maintaining the integrity of sentences that were valid when imposed
       and in promoting the finality of sentences. See Nguyen, 878 N.W.2d
       at 758; see also People v. Mora, 154 Cal. Rptr. 3d 837, 842 (Cal. Ct.
       App. 2013); Burch v. Tennessee Dep’t of Corr., 994 S.W.2d 137, 139

2 As a published opinion, Clayton is controlling legal authority. Compare Iowa R.
App. P. 6.904(2)(a) (referencing published opinions as “legal authorities”), with
Iowa R. App. P. 6.904(2)(c) (“Unpublished opinions or decisions shall not
constitute controlling legal authority.”).
                                         5


       (Tenn. Ct. App. 1999). Clayton has not carried his burden in
       negating these plausible policy justifications for the legislature
       choosing to make the sentencing provision at issue prospective only.

Clayton, 907 N.W.2d at 828-29. And in responding to Dixon’s claim that the

legislature’s failure to make the ameliorative sentencing provision retrospective is

cruel and unusual punishment, a panel of this court noted:

       “The legislature possesses the inherent power to prescribe
       punishment for crime, and the sentencing authority of the courts is
       subject to that power.” State v. Iowa Dist. Ct., 308 N.W.2d 27, 30
       (Iowa 1981). It is solely the legislature’s prerogative to set
       punishments that balance the State’s interest in achieving certain
       penological interests with the State’s other interests in the
       administration of criminal justice. Here, the State has significant
       interests in making the ameliorative sentencing provision prospective
       only. There is both an administrative and financial burden associated
       with resentencing offenders. See Clayton, [907 N.W.2d at 829].
       More important, “the State has a strong policy interest both in
       maintaining the integrity of sentences that were valid when imposed
       and in promoting the finality of sentences.” Id. While there are
       constitutional bounds the legislature may not transgress in crafting
       punishments, limiting an ameliorative sentencing provision to provide
       prospective relief is not one. See Dorsey v. United States, 567 U.S.
       260, 273 (2012) (stating as a general rule that statutes are not
       retroactive in the absence of an express provision or necessary
       implication that Congress intends to the contrary); Dillon v. United
       States, 560 U.S. 817, 828 (2010) (“We are aware of no constitutional
       requirement of retroactivity that entitles defendants sentenced to a
       term of imprisonment to the benefit of subsequent [ameliorative
       amendments].”); United States v. Haines, 855 F.2d 199, 200 (5th Cir.
       1988) (“[T]here is absolutely no constitutional authority for the
       proposition that the perpetrator of a crime can claim the benefit of a
       later enacted statute which lessens the culpability level of that crime
       after it was committed.”); United States v. Sorondo, 845 F.2d 945,
       948 (11th Cir. 1988) (“Congress is certainly empowered to pass laws
       which lessen the severity of previous sentencing provisions, and it
       need not do so retroactively.”); Clayton, [907 N.W.2d at 828-29]
       (rejecting an equal protection challenge to the statute at issue and
       stating “[w]e afford broad deference to the legislature in setting the
       penalties for criminal conduct and in determining when the penalties
       are to go into effect”).
                                       6

Dixon, 2018 WL 1182529, at *2-3. We believe these same precepts apply to

Dixon’s due process claim. Dixon’s undeveloped argument does not address or

negate these plausible policy justifications to show his due process rights were

violated.

       We hold the due process clauses set forth in the federal and state

constitutions do not require retrospective application of the ameliorative

sentencing provision set forth in Iowa Code section 902.12(3) to those persons

sentenced before July 1, 2016. The postconviction court correctly denied Dixon’s

postconviction-relief application.

       AFFIRMED.
