                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0816
                               Filed June 29, 2016


MARK DONNELL FASSETT,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,

Judge.



      A convicted prisoner appeals the district court’s summary dismissal of his

application for postconviction relief. AFFIRMED.




      Leslie M. Blair III of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.




      Heard by Potterfield, P.J., and Mullins and McDonald, JJ.
                                           2


POTTERFIELD, Presiding Judge.

       Mark Fassett appeals the district court’s summary dismissal of his

application for postconviction relief.      He argues the district court erred in

dismissing his application for three reasons: because he applied under the

exception to the three-year statute of limitations provided in Iowa Code section

822.3 (2013); a genuine issue of material fact existed as to whether he was

eligible for relief under section 822.2(1)(e); and the district court considered the

wrong statutory subsection—section 822.2(1)(f)—instead of the subsection

applicable to his application.1 We find the only issue preserved for appellate

review is whether the district court erred in finding it lacked authority to grant the

relief requested by Fassett’s application under chapter 822; we hold the district

court was correct in finding chapter 822 did not provide Fassett a means of

obtaining judicial review and relief. We therefore affirm.

I. Background Facts and Proceedings

       On January 2, 2001, the State charged Fassett by trial information with

five crimes: two counts of distribution of methamphetamine to a person under

age eighteen, as a second offense, class “B” felonies in violation of Iowa Code

sections 124.401D (Supp. 1999) and 124.411 (1999); two counts of sexual abuse

1
  The relevant portions of statute provide:
                1. Any person who has been convicted of , or sentenced for, a
        public offense and who claims any of the following may institute, without
        paying a filing fee, a proceeding under this chapter to secure relief;
                ....
                e. The person’s sentence has expired, or probation, parole, or
        conditional release has been unlawfully revoked, or the person is
        otherwise unlawfully held in custody or other restraint.
                f. The person’s reduction of sentence pursuant to sections
        903A.1 through 903A.7 has been unlawfully forfeited and the person has
        exhausted the appeal procedure of section 903A.3, subsection 2.
Iowa Code § 822.2(1)(e), (f).
                                         3


in the third degree, class “C” felonies in violation of section 709.4; and one count

of possession of methamphetamine, third offense, a class “D” felony in violation

of section 124.401. Fassett ultimately pled guilty to four of the five counts; one of

the third-degree sexual abuse counts was dismissed.

       On March 27, 2002, the district court sentenced Fassett to serve

concurrent terms of imprisonment not to exceed ninety-nine, ninety-nine, ten, and

five years, respectively, for the remaining counts. The sentencing order states

the ninety-nine-year sentences for the two methamphetamine distribution counts

were reduced by one-third each, to sixty-six years, “due to [Fassett’s] plea and

mitigating circumstances,” and had applicable ten-year mandatory minimums.

Fassett discharged his five-year sentence for possession of methamphetamine

on April 1, 2003. He discharged his ten-year sentence for sexual abuse in the

third degree on July 10, 2005. He remains in prison serving the balance of his

two methamphetamine sentences; he has served the minimum sentences

applicable to those sentences.

       On September 23, 2014, Fassett filed a pro se application for

postconviction relief. In his application, Fassett stated the specific grounds for

his application related to the fact he had not yet been offered an opportunity to

take part in the Sex Offenders Treatment Program (SOTP) required by the Iowa

Department of Corrections. He explained he had already discharged the ten-

year sentence imposed for his conviction for third-degree sexual abuse, as well

as the ten-year mandatory minimums applicable to his methamphetamine

distribution counts.   However, Fassett argued that by not giving him the

opportunity to complete the SOTP, the department of corrections was effectively
                                         4


imposing another mandatory minimum sentence upon him because, under

department of corrections policy, he would become eligible for parole only after

he had completed the program. In response, the State filed a motion to dismiss,

arguing Fassett’s application was barred by the relevant three-year statute of

limitations, was based upon grounds which had been finally adjudicated, and

failed to state a ground for postconviction relief under Iowa Code section 822.2.

      A motion hearing was held on April 8, 2015. Fassett argued he should not

be required to complete the SOTP because he had already discharged his

sentence for his sole sex-offense conviction.        His court-appointed counsel

characterized the situation as an “ongoing thing” and argued the statute of

limitations therefore did not apply. Fassett asked the district court to enter an

order stating he had discharged his sentence for the third-degree sexual abuse

charge and should not be required to take SOTP before being eligible for parole

on the sixty-six year sentences. Fassett’s counsel asserted:

             I think the court can enter an order indicating that the original
      sentence was that he serve ten years and that that sentence has
      been served and discharged and that therefore he should not be
      serving any type of punishment or he should not be restrained.
             One thing that the postconviction relief statute refers to is
      that you are being unlawfully restrained and I think that’s the
      position here. He’s being unlawfully restrained because he’s being
      told he has to complete a program for an offense where he’s
      already been discharged . . . .

      The State responded by arguing the district court didn’t have the authority

to order the department of corrections to release Fassett or to order a sentence

is discharged. The State further argued the department of corrections and the

Iowa Board of Parole have authority to determine what requirements an inmate

must meet in order to be eligible for release on parole and at what point during
                                        5


an inmate’s prison sentence a required program will be offered. The district court

concluded:

              Okay. Well, I’m speculating when I say this, but it seems to
      me that they’re able to figure out when his good time and so forth
      would ordinarily entitle him to parole and so they can schedule the
      sex offender treatment program to coincide with that. The only
      thing that I think he’s being denied, and once again, I don’t have a
      good recall of this, there are some early release programs or
      something like that and certain cases have to be reviewed on an
      annual basis and others are not reviewed that frequently and his—
      until he gets sex offender treatment, he probably isn’t eligible for
      annual review for early release, but I don’t know that. And once
      again, that’s something to do with the department of corrections
      and/or the board of parole and once again, nothing I can get
      involved in the scheduling of.
              So I think the answer is, [Fassett’s counsel], the best thing
      for your client is not to prolong this proceeding. I think the sooner
      this proceeding is over, the sooner he can go either appeal it or do
      something else with the institution through the administrative
      process and then have judicial review of the administrative process
      if he doesn’t agree with how it’s resolved at that level. So I don’t
      need to decide about whether it’s timely or not. I’m going to
      dismiss it on the grounds that on the face of it, it’s not something
      that I have jurisdiction over or anything I can make an order about.
      It’s not—well, I shouldn’t say that. He’s not alleging anything that’s
      an exception to the three-year rule because he’s—what he’s
      alleging is something I don’t have jurisdiction over. I guess that’s
      the way I should say it. So that’s what I’m going to do and I’m
      going to just do a brief order that says that I’m granting the motion
      to dismiss for reasons stated on the record and your client, if you
      have further need of this, can order a transcript and you’ll have the
      reasons.

The district court issued an order the same day granting the State’s motion to

dismiss “for reasons stated on the record.”

      Fassett appeals.

II. Standard of Review

      We review postconviction proceedings for errors at law. Everett v. State,

789 N.W.2d 151, 155 (Iowa 2010).            This includes summary dismissals of
                                            6

applications for postconviction relief. Manning v. State, 654 N.W.2d 555, 560

(Iowa 2002).

III. Discussion

       We begin by addressing the issue of error preservation. Fassett argues

the district court erred in dismissing his application for three reasons. First, he

argues the three-year statute of limitations generally applicable to postconviction

relief should not have barred his application because the circumstances in his

case fall within an exception to the rule. See Iowa Code § 822.3 (“However, this

limitation does not apply to a ground of fact or law that could not have been

raised within the applicable time period.”). Second, he argues a genuine issue of

material fact existed as to whether he was eligible for relief under section

822.2(1)(e) because he claims the withholding of the SOTP caused him to be

“unlawfully held in custody or other restraint.” Third, he argues the district court

considered the wrong statutory subsection by dismissing his complaint for failing

to comply with section 822.2(1)(f) instead of section 822.2(1)(e), the subsection

applicable to his application.2

       We agree with the State’s contention Fassett has not preserved all of

these claims for appellate review.        “It is a fundamental doctrine of appellate

review that issues must ordinarily be both raised and decided by the district court

before we will decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537



2
  Although Fassett’s counsel argued section 822.2(1)(e) at the hearing on the State’s
motion to dismiss, we do note Fassett was not so clear in his original application for
postconviction relief. In the section titled “Grounds upon which application is based,” the
language for grounds (a) through (f) are listed, along with a space to the left of each
ground in which an applicant can check the grounds upon which he means to base his
claims. Fassett placed a question mark in the space next to both grounds (e) and (f).
                                        7


(Iowa 2002). The district court’s sole determination below was that it lacked

jurisdiction to order the department of corrections and the board of parole to

sequence inmates’ participation in the SOTP at certain times during their

imprisonment (and, by extension, to order that Fassett not have to participate at

all because of improper sequencing in his case). Although the State concedes

Fassett’s claims are intertwined and do raise the issue decided by the district

court regarding its authority to award the relief requested by Fassett, the court

did not make any finding regarding the applicability of the three-year statute of

limitations, nor did it make any statement that its decision was based on section

822.2(1)(f). Indeed, the district court expressly stated Fassett’s application did

not relate to a reduction of sentence that would be implicated under section

822.2(1)(f).    As a result, we are not in a position to address those claims.

However, in his second claim, Fassett argues the district court erred in summarily

dismissing his application for postconviction relief on the grounds it lacked

authority to enter an order against the department of corrections, and the State

concedes on appeal that the court addressed that issue.        Therefore, we will

address the arguments raised in Fassett’s appeal to the extent they relate to that

single issue.

       However, before we move on to address the merits of Fassett’s appeal on

that issue, we first address the district court’s use of the term “jurisdiction.”

Confusion over the distinction between subject matter jurisdiction and authority is

not uncommon. See, e.g., Holding v. Franklin Cty. Zoning Bd. of Adjustment,

565 N.W.2d 318, 319 (Iowa 1997) (“For several years we have sought to correct

a formerly widespread misimpression that often confused a court’s lack of subject
                                            8


matter jurisdiction with a court’s lack of authority to act in a particular matter.”)

“Subject matter jurisdiction refers to the power of the court ‘to hear and determine

cases of the general class to which the proceedings in question belong, not

merely the particular case then occupying the court’s attention.’”               State v.

Mandicino, 509 N.W.2d 481, 482 (Iowa 1993) (quoting Christie v. Rolscreen Co.,

448 N.W.2d 447, 450 (Iowa 1989)). Iowa district courts are courts of general

jurisdiction, “empowered by the Iowa Constitution to hear all cases in law, equity,

or special proceedings.” Schrier v.State, 573 N.W.2d 242, 244 (Iowa 1997). As

such, district courts have subject matter jurisdiction over postconviction-relief

proceedings. Id. at 244–45. “Where the court has subject matter jurisdiction but

for some other reason cannot hear the case, the court lacks authority.” Id. at

244.

       The district court’s oral ruling should have stated it lacked authority to

grant Fassett the relief he sought, rather than stating it lacked jurisdiction over

Fassett’s postconviction-relief proceeding.3           However, the district court’s

misstatement does not preclude our review of the properly phrased question—

whether the district court was correct that it lacked the authority to grant Fassett

the relief he sought. See Holding, 565 N.W.2d at 319 (noting the district court




3
  The district court may have believed it lacked jurisdiction because Fassett had failed to
exhaust his administrative remedies. In Johnson v. Department of Corrections, this
situation was referred to as a jurisdictional issue. 635 N.W.2d 487, 488 (Iowa Ct. App.
2001) (“The district court is deprived of jurisdiction over the case if administrative
remedies are not exhausted.”). In Johnson, however, the district court lacked jurisdiction
over a petition seeking judicial review of the board of parole’s decision to deny the
petitioner parole or work release. Id. at 488–89. Here, unlike in Johnson, the district
court was not presented with a petition for judicial review but with an application for
postconviction relief.
                                         9


incorrectly ruled it lacked subject matter jurisdiction before moving forward to

address the issue of whether it lacked authority).

      Iowa Code section 822.2(1)(e) provides that a person can proceed with a

claim for postconviction relief under chapter 822 where “[t]he person’s sentence

has expired, or probation, parole, or conditional release has been unlawfully

revoked, or the person is otherwise unlawfully held in custody or other restraint.”

Fassett has discharged his sentence for sexual abuse in the third degree and

has completed the minimum terms of imprisonment on his sentences for

distribution of methamphetamine to persons under age eighteen. He argues he

is being unlawfully held in custody or other restraint “because he would be

eligible for parole now if the department of corrections would have allowed him to

complete SOTP during his sex offense sentence instead of waiting until the tail-

end of his unrelated drug offense sentence[s].” Because Fassett alleges he is

being “unlawfully held in custody or other restraint,” he argues he has raised a

genuine issue of fact, which was properly before the district court under section

822.2(1)(e).

      The State responds by pointing out that “in Iowa, most parole decisions

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

N.W.2d 265, 271 (Iowa 2004). The State also refers to Iowa Code section 906.3,

which provides:

             The board of parole shall adopt rules regarding a system of
      paroles from correctional institutions, and shall direct, control, and
      supervise the administration of the system of paroles. The board of
      parole shall consult with the director of the department of
      corrections on rules regarding a system of work release and shall
      assist in the direction, control, and supervision of the work release
      system. The board shall determine which of those persons who
                                       10


       have been committed to the custody of the director of the Iowa
       department of corrections, by reason of their conviction of a public
       offense, shall be released on parole or work release. The grant or
       denial of parole or work release is not a contested case as defined
       in section 17A.2.

The State argues Fassett has not actually alleged any facts showing he is being

unlawfully held in custody or restrained.   To the contrary, Fassett is actually

complaining of the appropriateness of the decision by the department of

corrections and the board of parole to delay his participation in the SOTP given

the policy requirement he participate in the program before becoming eligible for

parole.

       A revocation of work release was considered by the Iowa Supreme Court

in Maghee v. State, 773 N.W.2d 228, 235 (Iowa 2009).             In Maghee, the

defendant filed an application for postconviction relief under what is now section

822.2(1)(e) contesting the revocation of his work release and his transfer back to

prison. Id. at 230. The district court in Maghee dismissed the defendant’s action

on the State’s motion, ruling he should have contested the revocation of his work

release as an administrative appeal to the Iowa Board of Parole under Iowa’s

Administrative Procedures Act, found in Iowa Code chapter 17A, rather than as a

postconviction action under chapter 822. Id. at 230, 235. Our supreme court

disagreed, and concluded “a postconviction-relief action is the proper vehicle to

challenge the revocation of work release and resulting transfer to a secure

facility.” Id. at 235.

       Two different panels of our court have considered challenges to parole

board procedures since Maghee. See McKeag v. State, No. 10-1084, 2011 WL

3925537, at *1 (Iowa Ct. App. Sept. 8, 2011); Miller v. State, No. 09-1853, 2011
                                       11


WL 2041822, at *1 (Iowa Ct. App. May 25, 2011). In each case, the defendant

filed an application for postconviction relief under chapter 822 contesting the

rules and procedures the Iowa Board of Parole had established to make parole

decisions. McKeag, 2011 WL 3925537, at *1; Miller, 2011 WL 2041822, at *1. In

each case, the district court dismissed the defendant’s action on the State’s

motion, agreeing with the State’s contention the defendant’s exclusive remedy

was under chapter 17A, not chapter 822. Id.

      The panels in both McKeag and Miller distinguished their facts from those

in Maghee. McKeag, 2011 WL 3925537, at *2; Miller, 2011 WL 2041822, at *1.

Whereas the defendant in Maghee had challenged the parole board’s decision to

revoke the defendant’s work release, which is explicitly included in section

822.2(1)(e) and which our supreme court had ruled could be properly contested

under chapter 822, the defendants in both McKeag and Miller were instead

challenging the parole board’s decision to have case file reviews rather than in-

person interviews to determine whether to grant them parole.       Maghee, 773

N.W.2d at 235; McKeag, 2011 WL 3925537, at *1; Miller, 2011 WL 2041822, at

*1. Both panels of our court determined that because the Iowa Board of Parole is

a state agency existing within the purview of chapter 17A, the complained-of

actions fell within the definition of “agency action” under section 17A.2(2) and

chapter 17A provided the exclusive avenue for relief.       McKeag, 2011 WL

3925537, at *1 (“By its terms, the judicial review provisions of chapter 17A are

‘the exclusive means by which a person . . . adversely affected by agency action

may seek judicial review of such agency action’ except as ‘expressly provided

otherwise by another statute referring to [chapter 17A] by name.’ Chapter 822,
                                         12


governing postconviction actions, does not expressly negate the applicability of

chapter 17A. . . . Therefore, the chapter 17A judicial review procedures are [the

defendant]’s exclusive means of judicial review.” (citations omitted)); Miller, 2011

WL 2041822, at *1 (“Accordingly, chapter 17A is the exclusive means for [the

defendant] to challenge the rules and procedures followed by the board in

making its parole determination.”).

       Although the district court in Fassett’s case did not explicitly refer to

chapter 17A, its oral ruling granting the State’s motion to dismiss indicated it did

not have the authority to provide Fassett the relief he sought and noted that

Fassett should move forward with his claims through the administrative process,

after which Fassett could seek judicial review if he was still unhappy with the

parole board’s resolution of the problem. In effect, the district court ruled Fassett

could not proceed under chapter 822 and should instead seek relief under

chapter 17A. We agree. Chapter 822 does not include statutory authority for

postconviction review of parole board policies. See Pierce v. State, No. 09-1853,

2011 WL 3925484, at *3 (Iowa Ct. App. Sept. 8, 2011) (“While [the defendant

brought his postconviction-relief application under] the same provision invoked by

Maghee, [the defendant], unlike Maghee, did not fall within its ambit. As noted,

Magee asserted that the department of corrections wrongly revoked his work

release, a claim that falls squarely within the language of section 822.2(1)(e). . . .

[The defendant] also did not provide any evidence that he is unlawfully being

held in custody or other restraint. Indeed, he concedes he has yet to complete

the balance of his prison term. For that reason section 822.2(1)(e) does not

apply to him and he cannot avail himself of postconviction review. We conclude
                                         13


chapter 17A furnished the exclusive means of challenging the Board’s action or

inaction.”).

       Furthermore, without any administrative process to review, we are left with

a record devoid of evidence regarding the status of Fassett’s parole eligibility.

Fassett claims he would be eligible for parole if not for the fact he has not yet

been allowed to participate in the SOTP, but we do not have a record to support

his claim. The record does not contain any statement by either the department of

corrections or the board of parole concerning Fassett’s eligibility for parole; no

State authority has said why Fassett has not yet participated in the SOTP or

when he will be scheduled to participate.          The record does not establish

conclusively that the SOTP truly is the sole remaining hurdle for Fassett to

overcome on his path to early release, or whether other barriers, such as

unrelated programs—a drug treatment program for his methamphetamine

convictions, for example—still remain.        By seeking relief under chapter 17A,

Fassett will be able to create a record sufficient to enable judicial review, if

necessary.

       The Iowa Department of Corrections and Iowa Board of Parole have wide

discretion over parole and work-release decisions. The Iowa Supreme Court has

upheld the department of corrections’ statutory authority to require participation in

the SOTP in a discretionary manner. Dykstra v. Iowa Dist. Ct., 783 N.W.2d 473,

478–79 (Iowa 2010) (“There is no statutory limitation that would prevent [the

department of corrections] from recommending SOTP for an inmate convicted of

a crime that is not facially considered a sex offense where the factual

circumstances of the crime are of a sexual nature.”).           We hold decisions
                                        14


regarding the timing of inmates’ participation in the SOTP is an agency action

falling within discretion of the department of corrections and board of parole, and

conclude chapter 17A is therefore the appropriate vehicle for Fassett’s complaint

regarding the fact he has not yet been allowed to participate.

      AFFIRMED.
