                    IN THE COURT OF APPEALS OF IOWA

                                 No. 14-1629
                           Filed February 21, 2018


HERBERT HENRY BROWN,
    Plaintiff,

vs.

IOWA DISTRICT COURT FOR POLK COUNTY,
     Defendant.
________________________________________________________________


      Certiorari to the Iowa District Court for Polk County, Rebecca Goodgame

Ebinger, Judge.



      Herbert Brown challenges the legality of his sentence.               WRIT

ANNULLED.




      John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

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

General, for appellee.




      Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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DANILSON, Chief Judge.

       Herbert Brown was convicted of possession of a controlled substance with

intent to deliver (heroin) as an habitual offender and as a second or subsequent

offender. See State v. Brown, No. 12-0016, 2013 WL 1452965, at *1 (Iowa Ct.

App. Apr. 10, 2013). On direct appeal, we affirmed his conviction and sentences,

rejecting Brown’s contention the court had failed to give adequate reasons for the

imposition of consecutive sentences. Id. at *3-4.

       Brown later challenged his sentence, contending it was illegally enhanced.

The district court rejected his claim, and Brown now appeals.

       Because 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), the supreme court treated Brown’s notice of appeal as a petition for writ of

certiorari, see id. at 97, granted the writ, and transferred the matter to this court.

       Brown was convicted of violating Iowa Code section 124.401(1)(c)(1)

(2011), which makes it illegal, in relevant part, to possess less than one hundred

grams of heroin with the intent to deliver. This is a class “C” felony. See Iowa

Code § 124.401(1)(c). As an habitual offender, see id. § 902.8, Brown faced an

indefinite term not to exceed fifteen years, see id. § 902.9(1)(c).          However,

because Brown had a prior felony drug conviction in Minnesota, the penalty for

the current offense was tripled pursuant to Iowa Code section 124.411(1) and

(2), resulting in a forty-five-year sentence.     Brown asserts the tripling of his

fifteen-year sentence is illegal as a matter of law.

       Section 124.411provides:
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             (1) Any person convicted of a second or subsequent offense
      under this chapter [controlled substances], may be punished by
      imprisonment for a period not to exceed three times the term
      otherwise authorized, or fined not more than three times the
      amount otherwise authorized, or punished by both such
      imprisonment and fine.
             (2) For purposes of this section, an offense is considered a
      second or subsequent offense, if, prior to the person’s having been
      convicted of the offense, the offender has ever been convicted
      under this chapter or under any state or federal statute relating to
      narcotic drugs or cocaine, marijuana, depressant, stimulant, or
      hallucinogenic drugs.
             (3) This section does not apply to offenses under section
      124.401, subsection 5.

Brown seizes upon the language in subsection three and argues the sentencing

enhancement “does not apply to” his prior Minnesota possession conviction

because the Minnesota conviction was equivalent to a conviction under section

124.401(5).

      Reading section 124.411 in its entirety, it is clear the term “offense” is

used to refer only to the current conviction. We came to the same conclusion in

State v. Cornish, No. 04-1004, 2005 WL 839632, at *1 (Iowa Ct. App. Apr. 13,

2005) (affirming sentence tripled under Iowa Code section 124.411 based on a

prior felony drug conviction in Nebraska for possession of a controlled substance

(methamphetamine)).

      Here, the current offense is Brown’s conviction for possession with intent

to distribute heroin. Under subsection two, the instant offense is considered a

second or subsequent offense if, prior to Brown having been convicted of

possession with intent to distribute heroin, Brown “has ever been convicted . . .

under any state . . . statute relating to narcotic drugs or cocaine, marijuana,

depressant, stimulant, or hallucinogenic drugs.”      Iowa Code § 124.411(2)
                                          4


(emphasis added).      Brown has a prior conviction under a Minnesota statute

relating to marijuana.    Thus, his current offense is a second or subsequent

offense and the enhancement is applicable. See State v. Owens, 635 N.W.2d

478, 486 (Iowa 2001) (stating the “intended breadth of the statute is thus clear”

and concluding a previous Iowa conviction for failure to affix a drug tax stamp

constituted “any state or federal statute relating to narcotic drugs” and, thus, the

sentencing enhancement under section 124.411 was applicable).

       Section   124.411(3) states the        section—or,    in   other   words,   the

enhancement in section 124.411(1)—does not apply to violations of section

124.401(5) because section 124.401(5) has a separate enhancement provision.

See Iowa Code § 124.401(5) (“A person who commits a violation of this

subsection and who has previously been convicted of violating this chapter or

chapter 124B or 453B, or chapter 124A as it existed prior to July 1, 2017, is guilty

of an aggravated misdemeanor.         A person who commits a violation of this

subsection and has previously been convicted two or more times of violating this

chapter or chapter 124B or 453B, or chapter 124A as it existed prior to July 1,

2017, is guilty of a class “D” felony.”). We note the enhancement language in

section 124.401(5) does not apply to Brown as his Minnesota conviction was a

felony level conviction. Brown’s interpretation of section 124.411 would result in

his prior felony conviction being treated as a misdemeanor, subject to

enhancement, which would be nonsensical.1


1
  Brown also raises an equal protection argument, claiming someone with an out-of-state
conviction is treated differently than someone with an in-state conviction. However,
because there is a reasonable construction that avoids constitutional doubt—the term
“offense” in section 124.411(3) refers to the current conviction—we need not decide the
                                            5


       In a pro se brief, Brown also contends his sentence constitutes cruel and

unusual punishment, he was improperly denied a jury trial on the issue of

whether this was his second or subsequent offense, and trial counsel was

ineffective. Brown’s constitutional claims are reviewed de novo. See State v.

Oliver, 812 N.W.2d 636, 639 (Iowa 2012).

       Brown’s claim that his punishment is cruel and unusual is grounded upon

his argument above—that this conviction was not a second or subsequent

offense. But we have rejected that claim already. In any event, to determine

whether Brown’s sentence is grossly disproportionate to his crime, a three-step

test developed in Solem v. Helm, 463 U.S. 277, 296-300 (1983), is applied. “The

first step in this analysis, sometimes referred to as the threshold test, requires a

reviewing court to determine whether a defendant’s sentence leads to an

inference of gross disproportionality.” Id. at 647. “This preliminary test involves a

balancing of the gravity of the crime against the severity of the sentence.” Id.

(citation omitted). Only if the threshold test is satisfied does a court proceed to

steps two and three of the analysis.2 See id. at 650 (“If the sentence does not

create an inference of gross disproportionality, then ‘no further analysis is

necessary.’” (citation omitted)). We need not do so here.

constitutional issue. See Simmons v. State Pub. Def., 791 N.W.2d 69, 74 (Iowa 2010)
(“Only if the statute can bear no reasonable construction that avoids constitutional doubt
do we proceed definitively to decide the constitutional issue.”).
2
  These steps require the court to engage in an intrajurisdictional analysis—“comparing
the challenged sentence to sentences for other crimes within the jurisdiction”—and an
interjurisdictional analysis—“comparing sentences in other jurisdictions for the same or
similar crimes.” Oliver, 812 at 647 (citations omitted). The first factor poses a high
burden for Brown. See State v. Bruegger, 773 N.W.2d 862, 873 (Iowa 2009) (“[I]t is a
‘rare case in which a threshold comparison of the crime committed and the sentence
imposed leads to an inference of gross disproportionality.’” (citation omitted)). Here,
Brown has not provided any comparison of his sentence and sentences for a similar
crime in other jurisdictions.
                                           6


       We acknowledge Brown’s sentence is lengthy.                 However, we are

reminded that “[l]egislative determinations of punishment are entitled to great

deference.” Bruegger, 773 N.W.2d at 872-73. Moreover, we concur with the

sentencing court’s conclusion that Brown has a lengthy criminal history in

addition to this—his second—felony drug conviction. As our supreme court has

recognized, “a recidivist offender is more culpable and thus more deserving of a

longer sentence than a first-time offender.” See Oliver, 812 N.W.2d at 651; see

also Solem, 463 U.S. at 296 (“[A] State is justified in punishing a recidivist more

severely than it punishes a first offender.”).         This case is not the “rare”

circumstance where the sentence was so grossly disproportionate to the crime to

warrant further review. See Oliver, 812 N.W.2d at 650.

       As for Brown’s claims about various procedural deficiencies occurring

before sentencing, these claims do not amount to an attack on an illegal

sentence and are not subject to our review. See Bruegger, 773 N.W.2d at 872

(noting “challenges to an illegal sentence include whether ‘[t]he punishment

meted out was . . . in excess of that prescribed by the relevant statutes, multiple

terms were . . . imposed for the same offense, . . . [or] the terms of the sentence

itself [were] legally or constitutionally invalid in any other respect’” (alterations in

original) (quoting Hill v. United States, 368 N.W.2d 424, 430 (1962)).

       WRIT ANNULLED.
