                IN THE SUPREME COURT OF IOWA
                                  No. 11–2097

                         Filed November 9, 2012


JOHN LOWERY,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.


      Appeal from the Iowa District Court for Polk County, Donna L.

Paulsen, Judge.



      Inmate contends the governor’s commutation of his sentence

requires recalculation of his earned time credit and discharge from

prison.      AFFIRMED IN PART; REVERSED IN PART; AND CASE

REMANDED.



      Andrea K. Buffington of Glazebrook & Moe, LLP, Des Moines, for
appellant.



      Thomas J. Miller, Attorney General, and William A. Hill, Assistant

Attorney General, for appellee.
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HECHT, Justice.

      This case requires us to consider the effect of the governor’s

commutation of an inmate’s sentence on the inmate’s accumulation of

earned time credit under Iowa Code chapter 903A (2011).

      I. Background Facts and Proceedings.

      When John Lowery was eighteen years old, he was charged with

and convicted of first-degree armed robbery in violation of Iowa Code

section 711.2 (1995). His sentence was subject to section 902.12, which

prohibited him from being eligible for parole or work release until he had

served seventy percent of the maximum term of his sentence. See Iowa

Code § 902.12(5) (2011).

      In early 2011, the governor commuted Lowery’s sentence.         The

commutation order read:

            KNOW YE, that by virtue of the authority vested in me
      by the law and the Constitution of the State of Iowa, I,
      Chester J. Culver, Governor of the State of Iowa, do hereby
      COMMUTE the mandatory minimum requirement portion,
      only, of the 25-year sentence imposed [on] John H. Lowery
      #1119812, for the crime of First Degree Armed Robbery, a
      Class B Felony, in violation of Iowa Code sections 711.2 and
      902.12.
           The Iowa Department of Corrections and the Iowa
      Board of Parole shall take notice of this COMMUTATION OF
      SENTENCE from a 25-year term, with a mandatory
      minimum requirement, to a 25-year term, only, and take all
      necessary steps to effectuate herewith, including the
      scheduling of a parole review, without delay.
            Furthermore, the Iowa Board of Parole shall consult
      with the attached letter that outlines my findings, dated
      January 13, 2011, each time the Board interviews
      Mr. Lowery, or otherwise considers him for parole or work
      release.

The governor’s letter to the parole board outlined Lowery’s history and

his reasons for clemency.    Specifically, he noted Lowery’s young age

when he committed the crime and his prior history of drug and alcohol
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abuse. He also referenced Lowery’s minimal role in the crime—that he

accompanied a friend who brandished a weapon and assaulted the

victim, but did not actively participate himself. He described how Lowery

has participated in rehabilitative programs since being incarcerated, has

made payments towards his attorney’s fees, has participated in

educational opportunities offered to inmates, makes presentations to

high school students about the importance of making good decisions,

and trains seeing-eye dogs for the blind. The governor concluded:

            While I cannot determine from the status of this
      commutation file whether or not Mr. Lowery, if his case were
      to be reviewed by the Board of Parole, would receive a
      unanimous recommendation for the commutation of his
      sentence, I have seen enough of the file to be convinced that
      his application should be carefully considered. And, that
      cannot happen during such time that he remains subject to
      the mandatory provisions of his sentencing order.
             Under the Iowa constitution, Article IV, section 16, and
      pursuant to Iowa Code section 914.1, the Governor of Iowa
      has been granted by its citizens a general clemency power
      that includes power to grant a commutation of sentence.
            ....
            Pursuant to that power, I commute Mr. Lowery’s
      sentence, to the extent that its mandatory provisions shall
      now be removed, and I direct the Board of Parole to schedule
      him for a parole review, without delay.

      Lowery filed an application for postconviction relief in June 2011

seeking recalculation of his earned time to comply with the governor’s

commutation of the mandatory minimum portion of his sentence.

Specifically, Lowery contended that with the mandatory minimum

portion of his sentence removed he was entitled to accumulate earned

time at a faster rate than had been available to him under the original

sentence which included a mandatory minimum term of incarceration. If

his earned time were calculated at the accelerated rate, Lowery

contended he would be entitled to an immediate release.        The district
                                     4

court denied his application, concluding the governor’s commutation of

Lowery’s sentence “changed only the parole eligibility date and did not

change the sentence itself (including the rate of accumulation of earned

time) or the discharge date.” Lowery appealed.

      II. Scope of Review.

      We review denials of applications for postconviction relief for

correction of errors at law. Goosman v. State, 764 N.W.2d 539, 541 (Iowa

2009). To the extent that our decision rests on an interpretation of a

statute, we also review statutory interpretation for errors at law. State v.

Gonzalez, 718 N.W.2d 304, 307 (Iowa 2006). To the extent that we must

interpret the governor’s commutation of sentence, our review is at law.

      III. Discussion.

      Although the case law is sparse, it is generally well-settled that

when an inmate’s sentence is commuted, the new sentence replaces the

former sentence. 59 Am. Jur. 2d Pardon and Parole § 5, at 11–12 (2012);

67A C.J.S. Pardon & Parole § 4, at 7 (2002).               Usually “[a]fter

commutation, the sentence has the same legal effect, and the status of

the prisoner is the same, as though the sentence had originally been for

the commuted term.” State ex rel. Murphy v. Wolfer, 148 N.W. 896, 897

(Minn. 1914). In Iowa, the governor’s constitutional clemency power may

be exercised with broad discretion.      For example, we have held the

governor may impose conditions on the defendant in exchange for his

clemency as long as the conditions themselves are not illegal, immoral,

or impossible to be performed. Arthur v. Craig, 48 Iowa 264, 267 (1878).

In State ex rel. Davis v. Hunter, we concluded the governor could not

require the defendant to give up “good time” he had earned or

accumulated under a statute as a condition of clemency. 124 Iowa 569,

573–74, 100 N.W. 510, 512 (1904). Our decision further noted, however,
                                    5

that the governor may impose other conditions on a pardon such as

abstaining from drinking alcoholic beverages or avoiding being charged

with more crimes. Id. at 570, 573, 100 N.W. at 511.

        In this case, we must decide the legal effect of the governor’s

commutation of Lowery’s sentence in light of the statutory provisions

addressing the accumulation of earned time.

        Lowery was originally sentenced to a twenty-five-year term with a

seventy percent mandatory minimum. This meant that Lowery could not

be considered for parole until he completed seventy percent of his

sentence. See Iowa Code § 902.12(5). This mandatory minimum also

affected the rate at which he could accumulate earned time which would

provide for a discharge before he served his full sentence. Because his

sentence had a mandatory minimum, he accumulated earned time at a

slower rate than if his sentence had been for a term of years with no

mandatory minimum, and he could accumulate no more than fifteen

percent of his total sentence.   See Iowa Code § 903A.2(1)(a).    The net

effect of the two statutes meant that Lowery would have been eligible for

consideration for parole or work release after he had served seventy

percent of his sentence (approximately seventeen and a half years).

Assuming he accumulated all the earned time allowed under the statute,

he would be eligible for discharge after serving eighty-five percent of his

sentence (about twenty-one and a fourth years). In contrast, if Lowery

had been sentenced to a term of twenty-five years with no mandatory

minimum, he would have been entitled to accrue earned time at a faster

rate.   Assuming he had accumulated all the earned time he could, he

would have been entitled to release after about eleven and a third years

and would have been considered for parole annually.
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      The governor’s order of commutation did not expressly address

Lowery’s accumulation of earned time. Lowery argues that under such

circumstances, we should follow other courts which have concluded

“where a commuted sentence does not specifically deny benefits . . . the

commuted sentence is with [the] benefits [normally associated with the

new sentence].” State ex rel. Milby v. State, 471 So. 2d 1000, 1002 (La.

Ct. App. 1985).   Accordingly, Lowery contends his earned time should

have accrued at the accelerated rate from the time of his original

sentence, his discharge would have been earned on January 30, 2009,

and thus he is entitled to immediate release.

      The State argues that the governor did not intend to change the

rate at which Lowery accumulated good time and only intended to

remove the mandatory minimum that prevented Lowery from having a

hearing before the parole board.   The State argues that the governor’s

reference to Lowery being scheduled for a parole hearing and his letter to

the parole board outlining his reasons for granting clemency to Lowery

demonstrate that the governor had no intention of granting Lowery an

immediate release.    This is evidenced, the State contends, by the

governor’s directive that Lowery’s request for parole be vetted by the

parole board.     The State contends we must assume the governor

understood the law and the effect of the statute addressing earned time

and therefore would have known that if Lowery accumulated earned time

at the accelerated rate, he would have been entitled to an immediate

release as a consequence of the commutation order. Knowing that, the

governor’s specific references to parole hearings indicate he did not

intend Lowery to accumulate earned time at the faster rate.

      We agree that the governor’s commutation order cannot really be

considered silent on the issue of earned time as Lowery argues.       The
                                         7

order and the accompanying letter to the parole board make clear that

the governor did not expect he was securing Lowery’s release by

eliminating the mandatory minimum portion of the sentence.                 Instead

the commutation order required the Iowa Department of Corrections to

“take notice of this COMMUTATION OF SENTENCE from a 25-year term,

with a mandatory minimum requirement, to a 25-year term, only, and

take all necessary steps to effectuate herewith, including the scheduling of

a parole review, without delay.” The letter, written to the parole board,

acknowledged that the governor was not sure if Lowery would be a good

candidate for parole but required the board to “carefully consider[]”

Lowery’s file and directed the board to schedule a hearing.

       We agree that normally when the governor commutes a sentence,

the new sentence replaces the old sentence as of the day of sentencing

and that “the status of the [inmate] is the same as though the sentence

had originally been for the commuted term.” Pittman v. Richardson, 23

S.E.2d 17, 18 (S.C. 1942). Thus, normally a prisoner would be entitled

to earned time credit applicable to the commuted sentence, but “this

right depends on the terms of the commutation.” Id. In this case, the

governor’s order and letter to the parole board make clear that he did not

intend Lowery to be released, but wanted the parole board to review his

case and consider him as a candidate for parole.

       Accordingly,    we   conclude     Lowery’s    earned    time    should    be

calculated under section 903A.2(1)(b) (the reduced rate) until the time of

the governor’s commutation.         After the commutation, Lowery’s earned

time must be calculated at the accelerated rate provided for in section

903A.2(1)(a). 1    This result gives effect to the governor’s intention

       1Our decision should not be understood as a determination that the governor
had no authority to fully commute Lowery’s sentence on the date of the commutation
order notwithstanding the fact that Lowery’s accumulated earned time as of that date
                                            8

expressed in his commutation order that Lowery not be released

immediately, but also gives effect—from the date of the commutation

order forward—to the plain language of the statute which provides that

inmates     serving    sentences     with       no   mandatory   minimums        shall

accumulate earned time at an accelerated rate.

       IV. Conclusion.

       We affirm the district court’s determination that the governor’s

commutation order does not entitle Lowery to an immediate discharge.

However, because we conclude the legal effect of the governor’s

commutation order changes the rate at which Lowery may accumulate

earned time from the date of the commutation forward, we reverse that

part of the district court’s ruling that the commutation had no effect on

the rate of Lowery’s accumulation of earned time and the resulting

tentative discharge date. Accordingly we affirm in part, reverse in part,

and remand to the district court for entry of a ruling consistent with this

opinion.

       AFFIRMED        IN    PART;     REVERSED          IN   PART;     AND     CASE

REMANDED.




_______________________
would not have otherwise required his discharge on that date. Our interpretation of the
governor’s commutation order leads us to conclude the governor did not intend his act
of clemency in this case to change the rate of Lowery’s accumulation of earned time for
the period before commutation.
