                IN THE SUPREME COURT OF IOWA
                               No. 10–0413

                          Filed October 21, 2011


DAVID SCOTT DAUGHENBAUGH,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.


      Appeal from the Iowa District Court for Clinton County, Paul L.

Macek, Judge.



      Applicant appeals district court judgment denying postconviction

relief. AFFIRMED.



      John J. Wolfe, Jr., Clinton, for appellant.



      Thomas J. Miller, Attorney General, Benjamin M. Parrott and
Sharon K. Hall, Assistant Attorney Generals, Michael L. Wolf, County

Attorney, and Robin L. Strausser, Assistant County Attorney, for

appellee.
                                    2

APPEL, Justice.

      In this case, we consider whether a person who pled guilty to

criminal charges, received a deferred judgment, and had the charges

dismissed after successful completion of probation has a conviction of a

crime that can be challenged in a postconviction relief proceeding. The

district court entertained the postconviction relief claim, but concluded

that there was no basis to vacate the conviction.         We agree with the

result of the district court, but for different reasons as described below.

We therefore affirm the judgment of the district court.

      I. Factual and Procedural Background.

      David Daughenbaugh worked as a part-time pharmacist at the

Camanche Pharmacy. Police arrested him on a warrant for theft in April

2008. As a result of an inventory search of his vehicle after his arrest,

police discovered fifty-seven prescription bottles containing various

prescription drugs. Daughenbaugh told the arresting officer that he was

a “pharmacist tech” and intended to destroy the pills.        His employer,

however, told police that Daughenbaugh had no permission to take the

medication from the pharmacy.

      Daughenbaugh was subsequently charged with three felony counts

of violating Iowa Code sections 155A.23(1)(a) and 124.401(1)(c)(8) (2007);

one aggravated misdemeanor in violation of Iowa Code sections

155A.23(1)(a) and 124.401(1)(d); and one serious misdemeanor of

unlawful possession of a prescription drug.

      Daughenbaugh and the State entered into a plea agreement. The

plea agreement provided that Daughenbaugh would plead guilty to the

three felony counts and the aggravated misdemeanor count in exchange

for the State’s promise not to oppose Daughenbaugh’s request for a
                                       3

deferred judgment.    The State also agreed to drop the misdemeanor

count.

      The district court held a plea hearing on August 21, 2008. During

the plea colloquy, Daughenbaugh admitted that he obtained the drugs—

Ritalin,   Vicodin,   Lortab,    and       Lonox—by   fraud,     deceit,   and

misrepresentation. He further explained that he took the drugs in order

to self-medicate himself for a bad back.

      The district court found a factual basis to support the guilty pleas

and accepted them. During a subsequent sentencing hearing in October

2008, the court granted Daughenbaugh’s request for a deferred

judgment, placed him on supervised probation for two years, and

imposed civil penalties. As a condition of probation, Daughenbaugh was

required   to   undergo     therapy,   continue   taking   his    prescription

medication, and submit to random drug testing.

      After his guilty plea and deferred judgment, Daughenbaugh

received a letter from the Department of Health and Human Services

(DHS) dated June 16, 2009. The DHS letter notified Daughenbaugh that

he was excluded “from eligibility to participate in any capacity in the

Medicare, Medicaid, and all Federal health care programs” as a result of
his felony “convictions.”    The practical impact of the letter was that

Daughenbaugh was virtually unemployable as a pharmacist.

      Daughenbaugh then filed an application for postconviction relief.

In his postconviction relief papers, he alleged that his trial counsel

provided ineffective assistance of counsel under both the Sixth

Amendment of the United States Constitution and article I, section 10 of

the Iowa Constitution. Daughenbaugh claimed that there was no factual

basis to support his acknowledgement at the plea colloquy that he

obtained the prescription pills by “fraud, deceit, misrepresentation, or
                                          4

subterfuge.” See Iowa Code § 155A.23(1)(a). He claimed that the trial

information and minutes of testimony only supported charges of theft.

Daughenbaugh filed a motion for summary judgment. The State resisted

and filed its own motion for summary judgment.

        The State asserted that Daughenbaugh had not been “convicted”

for purposes of postconviction relief under Iowa Code chapter 822. The

State relied on Galloway v. State, No. 08–0652, 2008 WL 4571556 (Iowa

Ct. App. Oct. 15, 2008), an unpublished court of appeals opinion. The

State     also   argued    that   there   was   a   factual   basis   to   support

Daughenbaugh’s guilty pleas.          The State claimed that theft, by itself,

constituted “deceit” under the applicable statutes.           Further, the State

argued that there was factual support on a “subterfuge” theory as

Daughenbaugh knew which drugs were frequently inventoried by the

pharmacy and took drugs that were not subject to such review. Finally,

the State contended that untruthful statements made by Daughenbaugh

after the officers discovered the prescription pills demonstrated fraud or

deceit.

        The district court held that Daughenbaugh was entitled to file a

claim for postconviction relief.          The court rejected the approach of

Galloway and instead adopted the framework of Schilling v. Iowa

Department of Transportation, 646 N.W.2d 69 (Iowa 2002), in determining

that Daughenbaugh’s guilty pleas amounted to “convictions” even though

he received a deferred judgment. On the merits of his claim, however,

the district court determined that there was a substantial factual basis

for his guilty pleas and that, as a result, counsel was not ineffective. The

district court concluded that theft involves “deceit, misrepresentation,

and subterfuge.”          Further, the district court found that because

Daughenbaugh was an employee of the pharmacy, his theft of drugs
                                       5

amounted to embezzlement which was deceitful because he did not tell

his employer that he was taking the drugs.         The district court further

found that Daughenbaugh engaged in misrepresentation because he took

drugs knowing there would not be inventories over a certain time period,

and therefore, he “misrepresented” the true nature of the employer’s

inventory.

      II. Standard of Review.

      Postconviction relief proceedings are actions at law and are

generally reviewable on error.      Osborn v. State, 573 N.W.2d 917, 920

(Iowa 1998).   Claims of ineffective assistance of counsel, however, are

reviewable de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

      III. Overview of Issues Presented.

      A. The Growth of Collateral Consequences.              In recent years,

there has been a striking growth of what is generally termed “collateral

consequences” that flow from a criminal conviction.          Federal law now

imposes dozens of sanctions for persons with felony drug convictions.

See generally ABA Comm’n on Effective Crim. Sanctions & Pub. Defender

Serv. for D.C., Internal Exile:    Collateral Consequences of Conviction in

Federal      Laws       and       Regulations     (2009),     available      at

http://www.abanet.org/cecs/internalexile.pdf          (discussing       federal

statutory    and    regulatory   collateral   consequences    of   a   criminal

conviction). States have also imposed an increasing number of sanctions

as a result of criminal convictions. See, e.g., Kimberly R. Mossoney &

Cara A. Roecker, Ohio Collateral Consequences Project: Executive

Summary, 36 U. Tol. L. Rev. 611, 620 (2005) (describing Ohio statutory

and regulatory collateral consequences of a criminal conviction). In Iowa,

for example, a person who is convicted of sexual offenses will be subject

to registration laws and other restrictions that apply to sex offenders,
                                        6

Iowa Code section 692A.103(1) (2011), and a deferred judgment for

eluding a law enforcement vehicle may have an impact on one’s driver’s

license, Schilling, 646 N.W.2d at 73.

      The growth of collateral consequences and their potential impact

on criminal defendants has gained considerable national attention. The

ABA Standards for Criminal Justice and the Uniform Collateral

Consequences Conviction Act approved by the National Conference of

Commissioners on Uniform Laws provide for the collection and

publication of information regarding collateral consequences, require

that criminal defendants be advised of collateral consequences in pretrial

proceedings, require individualized determinations of disqualification in

certain circumstances, and provide avenues of relief from collateral

consequences arising from criminal convictions. See ABA Standards for

Criminal Justice, Collateral Sanctions and Discretionary Disqualification

of Convicted Persons Standard 19-2.1 to .5, -3.2 (3d ed. 2004); Unif.

Collateral Consequences of Conviction Act §§ 4–10, 11 U.L.A. 6, 15–29

(Supp. 2011).

      Recent developments in the law of the right to effective counsel

have recognized the need for lawyers representing criminal defendants to

advise their clients of the direct collateral consequences of a plea

bargain. In Padilla v. Kentucky, ___ U.S. ___, ___, 130 S. Ct. 1473, 1486–

87, 176 L. Ed. 2d 284, 298–99 (2010), the United States Supreme Court

held that a criminal defendant pleading guilty to drug offenses received

ineffective assistance of counsel when his lawyer failed to advise him of

an    important     collateral    consequence—deportation—that          would

automatically occur because of his conviction of drug offenses.

      This   case   is   a   classic   example   of   the   impact   collateral

consequences may have on criminal proceedings. Daughenbaugh pled
                                     7

guilty to serious drug offenses believing he would likely receive a deferred

judgment upon certain conditions. After receiving a deferred judgment,

Daughenbaugh was notified by federal authorities that because his guilty

pleas amounted to convictions under federal law, he could no longer

participate as a pharmacist in federal drug programs, a death knell for

licensed pharmacists. He now seeks to unravel the criminal proceedings

to avoid the serious collateral consequences.

      B. Challenge to “Conviction” in This Case. In Iowa, there are

two separate avenues for challenging illegal restraint by government.

The first avenue is entitled habeas corpus and is found in Iowa Code

chapter 663. The second avenue is entitled postconviction relief and is

found in Iowa Code chapter 822.

      In this case, Daughenbaugh brought a claim for posttrial relief

under Iowa Code chapter 822.       In order to be entitled to relief under

chapter 822, a petitioner must show that he was “convicted of, or

sentenced for, a public offense.” Iowa Code § 822.2(1). In addition, Iowa

Code section 822.4 provides that the applicant must allege “the date of

the entry of the judgment of conviction or sentence complained of.” Id.

§ 822.4.

     IV. Whether Daughenbaugh Is Entitled to Relief Under Iowa
Code Chapter 822.

      A. Federal Precedent.        The question of what constitutes a

“judgment of a State court” has been addressed in cases considering the

impact of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), which amended federal habeas corpus statutes.         Pub. L. No.

104–132, Title I, §§ 101, 106, 110 Stat. 1217, 1220 (codified as amended

in scattered sections of 28 U.S.C.). The AEDPA provided, among other

things, that a person who files an application for habeas corpus
                                    8

“pursuant to the judgment of a State court” must file the application

within one year of “the date on which the judgment became final by the

conclusion of direct review or the expiration of the time for seeking such

review.” 28 U.S.C. § 2244(d)(1)(A) (2006).

      After the enactment of AEDPA, the question arose whether, in the

context of deferred judgments, the one-year statute of limitations began

to run at the time of a deferred judgment or only when a deferred

judgment was revoked and a sentence imposed on the defendant. The

Fifth Circuit considered the issue in Caldwell v. Dretke, 429 F.3d 521

(5th Cir. 2005). In Caldwell, the Fifth Circuit concluded that a “deferred

adjudication” in a Texas criminal proceeding was a “judgment” sufficient

to trigger the one-year statute of limitations under the AEDPA. Caldwell,

429 F.3d at 527–28.

      The Caldwell court emphasized that the question of whether a

deferred adjudication in Texas was a “judgment” for federal habeas

corpus purposes was a question of federal law. Id. at 527. Although the

court noted that a deferred adjudication is not a judgment under Texas

law, the court concluded that it was a “judgment” under the Federal

Rules of Civil Procedure, which define “judgment” as including “a decree

and any order from which an appeal lies.” Id. at 527–28; see Fed. R. Civ.

P. 54(a).   Because Texas law allowed a direct appeal from a deferred

adjudication, the Fifth Circuit reasoned that a “judgment” for AEDPA

purposes was present. Id. at 528–29.

      The United States Supreme Court denied certiorari in Caldwell.

Caldwell v. Quarterman, 549 U.S. 970, 127 S. Ct. 431, 166 L. Ed. 2d 301

(2006).     In denying certiorari, however, Justice Stevens issued a

statement noting that, under a literal reading of the statute, a deferred

judgment cannot be considered a “judgment of a State court” because it
                                      9

does not involve a determination of guilt or innocence and the imposition

of a sentence.     Id. at 970, 127 S. Ct. at 432, 166 L. Ed. 2d at 301.

Justice Stevens concluded, however, that if a court determines that a

nonliteral reading of a statute is more faithful to the actual intent of the

Congress, that reading should normally be preferred. Id.

      Subsequent to Caldwell, the United States Supreme Court decided

Burton v. Stewart, 549 U.S. 147, 127 S. Ct. 793, 166 L. Ed. 2d 628

(2007).     According to the Burton Court, “[f]inal judgment in a criminal

case means sentence. The sentence is the judgment.” Burton, 549 U.S.

at 156, 127 S. Ct. at 798, 166 L. Ed. 2d at 636 (internal quotation marks

omitted).     The language of Burton, however, has not caused the Fifth

Circuit to reconsider its approach in Caldwell. See Tharpe v. Thaler, 628

F.3d 719, 724–25 (5th Cir. 2010).

      B. Other State Law Precedent.          While nearly all states have

adopted some kind of postconviction relief procedure, the statutes vary

significantly in their language.    Some states, perhaps anticipating the

problem posed in this case, provide that any person who pleads guilty to

a criminal offense may seek postconviction relief. See, e.g., Ariz. R. Crim.

P. 32.1 (West, Westlaw through July 15, 2011), Fla. R. Crim. P. 3.850(a)

(West, Westlaw through June 1, 2011). In these states, postconviction

relief appears available to a defendant who pleads guilty regardless of

whether there is a formal adjudication of guilt in the technical legal

sense.

      Most state postconviction relief statutes use broader language,

however, with many of them referring generally to “convictions.” In a few

of these jurisdictions, courts have grappled with the question of whether

a plea of guilty when judgment is deferred amounts to a “conviction”

under a postconviction relief statute.
                                    10

      In Colorado, the court of appeals considered the issue in People v.

Manzanares, 85 P.3d 604 (Colo. App. 2003). In Manzanares, the court

cited the language in Colorado’s postconviction relief statute and the

applicable rule of criminal procedure in coming to the conclusion that

postconviction relief was not available for persons with deferred

judgments. Manzanares, 85 P.3d at 611. Although the court provided

no analysis of the language, the applicable postconviction relief statute

and rule of criminal procedure referred in places to “conviction of crime,”

but in other places referred to “judgment of conviction” and “the court

rendering judgment.”    See Colo. Rev. Stat. Ann. § 18-1-410(1) (West,

Westlaw through 68th Gen. Assembly, 1st Reg. Sess.); Colo. R. Crim. P.

35(c)(2)–(3) (West, Westlaw through Aug. 15, 2011); see also State v.

Young, 242 S.W.3d 926, 928–29 (Tex. Ct. App. 2008) (holding a person

who receives a deferred adjudication is not “convicted” for purposes of a

Texas postconviction relief statute authorizing DNA tests as the term

“convicted” under Texas caselaw always involves adjudication of guilt).

      The Minnesota appellate courts have struggled with the issue

under Minnesota law which provides for postconviction relief for “a

person convicted of a crime.”      Minn. Stat. Ann. § 590.01(1) (West,

Westlaw through 2011 Reg. Sess.). In Smith v. State, 615 N.W.2d 849,

852 (Minn. Ct. App. 2000), the Minnesota Court of Appeals concluded

that a person who received a “stay of adjudication” was not “convicted of

a crime” under the statute. The court supported its conclusion by citing

statutory language relating to deferred judgments, which declared that a

deferred judgment “shall not be deemed a conviction . . . for any other

purpose.”   Smith, 615 N.W.2d at 851–52 (quoting Minn. Stat. Ann.

§ 152.18(1) (1998)). The court also cited State v. Verschelde, 595 N.W.2d

192, 196 (Minn. 1999), for the proposition that stays of adjudication were
                                    11

not subject to direct appeal.   Id. at 851.   The court concluded that a

different approach should not be employed for collateral attack. Id. at

852. The court recognized that there might be collateral consequences to

a deferred judgment, but concluded that if a defendant has concerns

about such potential consequences, a defendant should decline to accept

a deferred judgment. Id.

      Yet, the Minnesota Court of Appeals reversed course in the

unreported case of Jones v. State, No. A07-1633, 2008 WL 3289618

(Minn. Ct. App. Aug. 12, 2008).      The Jones court relied on State v.

Allinder, 746 N.W.2d 923 (Minn. Ct. App. 2008), which held that, in light

of orders from the Minnesota Supreme Court, direct appeal of stays of

adjudication in felony cases were to be allowed.         Jones, 2008 WL

3289618, at *2.    The court noted that the court in Smith stated that

“[t]here is no basis for treating a stay of adjudication differently for

purposes of postconviction relief” than a direct appeal.       Id. (internal

quotation marks omitted).     As a result of the concept equating direct

appeal with postconviction relief, the Jones court concluded, because the

Minnesota Supreme Court had by order instructed that stays of

adjudication could be appealed directly, a stay of adjudication could also

be challenged in a postconviction relief proceeding. Id. at **2–3.

      The Maryland appellate courts have also taken on the issue of

whether an avenue of postconviction relief is available when the

defendant receives a deferred judgment and is subject to serious

collateral consequences.    In Rivera v. State, 973 A.2d 218, 229 (Md.

2009), the Court of Appeals of Maryland held a person receiving

probation before judgment could seek collateral relief through a writ of

error coram nobis.    Citing Maryland precedent, the court stated, “In

today’s usage . . . the meaning of ‘convicted’ and ‘conviction’ turns upon
                                          12

the context and purpose with which those terms are used.” Rivera, 973

A.2d at 228 (internal quotation marks omitted).           In the context of a

coram nobis petition, the Maryland court concluded that the term

“convicted” or “conviction” is used to identify persons who face

“significant collateral consequences because of having been found guilty

of a criminal offense.”         Id. (internal quotation marks omitted).     The

Maryland cases were based upon the availability of the common law writ

of coram nobis, however, and not upon interpretation of a postconviction

relief statute.

      We next turn to consider how states that, like Iowa, have adopted

the Uniform Post-Conviction Procedure Act handle issues similar to those

posed in this case.           See, e.g., Alaska Stat. Ann. § 12.72.010 (West,

Westlaw through Sept. 8, 2011 of 1st Reg. Sess. & 1st Special Sess. of

the 27th Legislature); Idaho Code Ann. § 19-4901 (West, Westlaw

through 2011 chs. 1–335); Ind. R. of Procedure for Post-Conviction

Remedies PC-1(a) (West, Westlaw through July 15, 2011). The Uniform

Post-Conviction Procedure Act was originally approved in 1955. It was

superseded by new versions in 1966 and 1980. Unlike the common law

writ of habeas corpus, the Uniform Act is not limited to persons “in

custody” but is available to anyone “convicted of and sentenced for” a

crime.   See Unif. Post-Conviction Procedure Act § 1 & cmt. (amended

1980), 11 U.L.A. 201, 203–04 (2003).

      The Uniform Act, however, does not provide definitions for the term

“convicted of” a public offense. In this respect, the Uniform Act is unlike

the   Model       Code   of    Criminal   Procedure,   which   broadly   defines

“conviction” as meaning “the final acceptance of a plea of guilty or the

finding by the jury or by the court that the defendant is guilty.” Model

Code of Criminal Procedure § 360 (1930).
                                    13

      We have found no meaningful caselaw in the Uniform Act on the

question of whether the term “convicted of” is used in its technical legal

sense or its general popular sense.      One court has suggested that for

purposes of the Uniform Act, the meaning of “convicted” follows the

definition of “convict” in Webster’s New World Dictionary, namely, “to

prove a person guilty of a crime.” Jackson v. State, 489 S.E.2d 915, 916

(S.C. 1997) (internal quotation marks omitted).      But this formulation

merely restates the question: Does a plea of guilty that is accepted by a

court as part of a deferred judgment “prove a person guilty of a crime”?

      C. Iowa Caselaw.         We begin our discussion of Iowa law by

examining our approach to statutory interpretation of the term

“conviction.”   Like many other jurisdictions, we have emphasized that

“conviction” has an “equivocal meaning” that depends upon the context

in which it is used. State v. Hanna, 179 N.W.2d 503, 507 (Iowa 1970).

Like many other states, we have said that, when the word is used in its

general and popular sense, conviction means the establishment of guilt

independent of judgment and sentence. Id. at 508. On the other hand,

when the term “conviction” is used in its technical legal sense, it requires

a formal adjudication by the court and the formal entry of a judgment of

conviction. Id. at 507–08. In Hanna, we held that, under beer and liquor

statutes, the term “conviction” was used in its general rather than

technical sense. Id. at 508.

      Five years after Hanna, we decided State v. Farmer, 234 N.W.2d 89

(Iowa 1975). In Farmer, the defendant received a deferred judgment after

pleading guilty to false uttering of a check. Farmer, 234 N.W.2d at 90.

Several months later, the court revoked the defendant’s probation and

sentenced the defendant to an indeterminate prison term. Id. Among

other things, the defendant claimed the court erred in failing to
                                    14

adjudicate him guilty before proceeding to sentence him.       Id.   On the

narrow issue presented, we unremarkably held that an adjudication of

guilt must be made prior to the imposition of the criminal sentence after

the revocation of probation. Id. at 92.

      In Farmer, we noted, in passing, that an adjudication of guilt does

not occur when the defendant receives a deferred judgment.               Id.

Nonetheless, we held that, although the district court judge did not

expressly adjudicate guilt, an adjudication of guilt could be implied from

the sentence itself. Id. Farmer thus does not address the issue before us

today, namely, whether a person is “convicted of” a public offense for

purposes of postconviction relief when the person pleads guilty and

receives a deferred judgment.

      After Farmer, however, we continued to vary our interpretation of

the term “conviction” depending upon the statutory context. Generally, if

statutes were designed to enhance punishment, the word “conviction”

was deemed to be used in its narrow technical sense, but in its broader

sense when the purpose of the statute was to protect the public. State v.

Kluesner, 389 N.W.2d 370, 372 (Iowa 1986).

      Our purposive approach is illustrated by Kluesner. In Kluesner, we

held that the term “conviction” in a mandatory restitution statute was

used in its broader sense rather than its technical legal sense.      Id. at

372–73. We noted that the court had “encountered difficulty” with the

legislature’s use of the term “conviction.”   Id. at 372.   In determining

whether the term “conviction” should be construed in its general, popular

sense or in its strict legal sense, we looked primarily to the underlying

purpose of the statute. Id. Because the purposes of the statute were

protection of the public and encouraging rehabilitation of the defendant,
                                     15

we concluded that the legislature intended the term “conviction” to be

construed in its general, popular sense. Id. at 372–73.

         Most recently, in Schilling we considered the meaning of the term

“conviction” in the context of a statute authorizing the revocation of a

driver’s license upon a “final conviction” of eluding a law enforcement

vehicle.    Schilling, 646 N.W.2d at 70.    In Schilling, we repeated the

principle that if the statute was a punishment measure, the court would

use the term “conviction” in its narrow, technical sense, but if the statute

served a protective purpose, a broad definition would be applicable. Id.

at 73.

         Finally, we have considered whether a deferred judgment amounts

to a “final judgment” for purposes of direct appeal. In State v. Stessman,

460 N.W.2d 461, 462–63 (Iowa 1990), we held that a person who received

a deferred judgment, was placed on probation, and was ordered to pay

restitution and court costs, has no right of direct appeal because there is

no final judgment in the district court. We reasoned that, under Iowa

Code section 814.6(1)(a), a person has a right to appeal in instances

where a “final judgment of sentence” exists.     Id. at 462.   Because an

order deferring judgment is interlocutory, State v. Anderson, 246 N.W.2d

277, 279 (Iowa 1976), we concluded that a deferred judgment did not

meet the final judgment requirement of the statute.         Stessman, 460

N.W.2d at 462.

         D. Analysis. The question under Iowa Code chapter 822 turns on

the meaning of the phrase “convicted of” a public offense in Iowa Code

section 822.2. Resolution of the issue turns on whether we regard the

term “convicted of” as used in “the restricted or technical legal sense” or

whether it is used in its “general and popular sense.”         Hanna, 179

N.W.2d at 507–08.
                                     16

      We conclude that a “deferred judgment” is used in its strict legal

sense in our postconviction relief statute, and as a result, a guilty plea

pursuant to a deferred judgment is not a conviction under Iowa’s

postconviction relief statute. A postconviction statute by its very nature

is a legal framework for structuring challenges in the courts to the

outcomes of our criminal justice system. In the context of a statute that

is designed to structure legal relationships in the court system, we

believe the legislature most likely used the term in its “strict legal sense”

and not in its broader popular context.

      Our conclusion draws support from the language of Iowa Code

section 822.4, which requires an applicant for postconviction relief to

state the “date of the entry of the judgment . . . complained of.” Iowa

Code § 822.4. The ambiguous use of the term “conviction” in Iowa Code

section 822.2 must be read in pari materia with the pleading

requirements of Iowa Code section 822.4. See State v. Tong, 805 N.W.2d

599, 601–02 (Iowa 2011) (analyzing statutory context in determining

whether a deferred judgment is a conviction for purposes of felon-in-

possession offense); State v. Nail, 743 N.W.2d 535, 541 (Iowa 2007).

Reading these statutory provisions together, we conclude that, since an

applicant must state “the date of the entry of the judgment . . .

complained of,” there must be an entry of a judgment of conviction. In

other words, the statute uses the term “conviction” in its technical sense,

namely, to require adjudication and the entry of judgment. See Farmer,

234 N.W.2d at 92.

      While some jurisdictions treat deferred judgments as convictions

under postconviction relief statutes, we find the cases in those

jurisdictions   distinguishable.    Under    the   federal   and   Minnesota

precedents, deferred judgments were found subject to postconviction
                                         17

relief because they were subject to direct appeal. See Caldwell, 429 F.3d

at 528; Jones, 2008 WL 3289618, at *2.               In Iowa, however, deferred

judgments are not subject to direct appeal. Stessman, 460 N.W.2d at

462; Anderson, 246 N.W.2d at 279. In Maryland, the court relied on a

common law remedy, not on a postconviction relief statute. See Rivera,

973 A.2d at 228.       As a result, we do not find that these authorities

override     our   analysis   that   the      term   “conviction”   in   the   Iowa

postconviction statute must be based upon an underlying criminal

judgment.

       V. Conclusion.

       For the above reasons, we conclude that Daughenbaugh is not

entitled to postconviction relief. 1 The judgment of the district court is

therefore affirmed.

       AFFIRMED.

       All justices concur except Wiggins, J., who concurs specially.




       1We  express no opinion upon whether or under what circumstances a guilty plea
followed by a deferred judgment might be subject to collateral attack under Iowa Code
chapter 663.
                                   18

                                        #10–0413, Daughenbaugh v. State

WIGGINS, Justice (concurring specially).

      I concur in result only because I am bound by stare decisis. See

State v. Tong, 805 N.W.2d 599, 604 (Iowa 2011) (Wiggins, J., concurring).
