                     IN THE COURT OF APPEALS OF IOWA

                                     No. 18-1426
                                  Filed July 3, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

K’VON HENDERSON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       A defendant convicted of second-degree robbery asks for the benefit of an

ameliorative sentencing provision.         REVERSED AND REMANDED FOR

RESENTENCING.



       Priscilla E. Forsyth, Sioux City, for appellant.

       Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.



       Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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TABOR, Judge.

      K’von Henderson asks to be resentenced. At issue is the date of his

conviction for robbery in the second degree. Here is the chronology:

             In February 2016, a jury found Henderson guilty of robbery in
              the first degree and, in March 2016, the district court
              sentenced him to a prison term not to exceed twenty-five
              years.

             Effective July 1, 2016, the legislature amended the sentencing
              statutes for robbery in the second degree. 2016 Iowa Acts ch.
              1104, § 8 (codified as amended at Iowa Code § 902.12(3)
              (Supp. 2016)).

             In March 2018, the Iowa Supreme Court set aside
              Henderson’s first-degree robbery conviction after finding
              insufficient evidence of the dangerous-weapon element, and
              remanded for “entry of conviction and sentence on second-
              degree robbery.” State v. Henderson, 908 N.W.2d 868, 878–
              79 (Iowa 2018).

             In August 2018, the district court resentenced Henderson to a
              prison term not to exceed ten years with a mandatory
              minimum of seven years. The court refused to apply revised
              section 902.12, which permits a shorter mandatory minimum
              for second-degree robbery convictions occurring on or after
              July 1, 2016.

      We reverse the resentencing order. Because Henderson’s second-degree

robbery conviction did not occur until 2018, he is entitled to have the sentencing

court consider the ameliorative provision.

I.    Prior Proceedings

      At the resentencing hearing, defense counsel urged the district court to

consider Henderson “eligible for leniency as spelled out in section 902.12(3) that

allows the court to impose a mandatory between one-half and seven-tenths of the

maximum term.” Counsel asserted Henderson was a good candidate for a shorter

minimum because he had only one “write-up” while in prison and was gaining
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maturity, earning his high school equivalency degree, and pursuing college

classes.

      Henderson’s request for leniency tracked a statutory amendment to the

sentencing statutes for robbery in the second degree. Before July 1, 2016, district

courts sentencing defendants for second-degree robbery had no choice but to

impose an indeterminate ten-year term with a mandatory minimum of seven years.

See Iowa Code § 902.12(5) (2015) (amended 2016). In May 2016, the legislature

approved a bill giving discretion to sentencing courts in second-degree robbery

cases by enacting the following:

      At the time of sentencing, the court shall determine when a person
      convicted of robbery in the second degree as described in
      section 902.12, subsection 3, shall first become eligible for parole or
      work release within the parameters specified in section 902.12,
      subsection 3, based upon all pertinent information including the
      person’s criminal record, a validated risk assessment, and the
      negative impact the offense has had on the victim or other persons.

2016 Iowa Acts ch. 1104, § 6 (codified as amended at Iowa Code § 901.11(3)

(Supp. 2016)). The enactment further provided:

      A person serving a sentence for a conviction for robbery in the
      second degree in violation of section 711.3 for a conviction that
      occurs on or after July 1, 2016, shall be denied parole or work
      release until the person has served between one-half and seven-
      tenths of the maximum term of the person's sentence as determined
      under section 901.11, subsection 3.

2016 Iowa Acts ch. 1104, § 8.

      At the resentencing hearing, the State disagreed with the defense’s

interpretation of the new language. The prosecutor argued Henderson was not

“eligible for consideration of the five-year minimum” because “this occurred before

the change in the law.” Alternatively, the prosecutor asserted even if Henderson
                                              4


was eligible for a shorter mandatory minimum, his “criminal history and the facts

of this case would not warrant that.”

       When the court asked Henderson if he had anything to say, he replied, “I

do not understand what is going on right now.” Henderson asked why he was

being sentenced for the lesser-included offense when he “didn’t get the opportunity

to prepare a defense for second degree robbery.”1

       The sentencing court then rejected Henderson’s request to apply the new

law, reasoning:

       This occurred in 2015. The law was changed long after that. When
       precisely the conviction occurred as Mr. Henderson himself points out,
       reasonable minds may differ, but as I said the court on appeal made its
       determination. We’re bound by that. And so the conviction occurred in
       February of 2016 when the jury returned its verdict and then it relates back
       by virtue of what the Iowa Supreme Court did.

Henderson appeals that decision by the sentencing court.

II.    Scope of Review

       Henderson’s claim rises or falls on the meaning of the word “conviction” in

section 902.12(3). Accordingly, we review his statutory interpretation challenge




1
 The supreme court explained its remedy as follows:
      Because there was insufficient evidence to convict Henderson of first-
      degree robbery as an aider and abettor due to a failure of proof on the
      dangerous weapon element, that conviction must be set aside. The
      question remains what to do next. The jury necessarily found sufficient
      evidence to establish the other elements of first-degree robbery, namely,
      intent to commit a theft and assault. The jury was instructed . . . that if they
      found only those two elements, and not the dangerous weapon element,
      they should find the defendant guilty of the lesser included offense of
      second-degree robbery. Accordingly, the appropriate remedy is to remand
      the case for the district court to enter judgment and sentence on the lesser
      included offense of robbery in the second degree. See [State v.] Ortiz, 905
      N.W.2d [174, 183 (Iowa 2017)]; State v. Morris, 677 N.W.2d 787, 788–89
      (Iowa 2004); State v. Pace, 602 N.W.2d 764, 773 (Iowa 1999).
Henderson, 908 N.W.2d at 878–79 (footnote omitted).
                                             5

for correction of legal error. See Noll v. Iowa Dist. Court, 919 N.W.2d 232, 234

(Iowa 2018).

III.   Analysis

       Henderson contends he should have derived the benefit of the 2016

legislation at his 2018 resentencing because he was “convicted,” according to the

technical definition of the term, after the July 1, 2016 application date set out in the

amended statute. The State maintains the legislature intended “conviction” to

convey its popular definition (establishment of guilt, independent of judgment and

sentence).2

       The meaning of “conviction” depends on the context. Daughenbaugh v.

State, 805 N.W.2d 591, 597 (Iowa 2011). Daughenbaugh describes two possible

usages: (1) in the “general or popular sense,” a conviction means establishing guilt

independent of judgment and sentence; and (2) in the “technical legal sense,” a

conviction requires a formal adjudication and entry of judgment by a court. Id.

When choosing between these definitions, we examine the purpose of the statute.

Id. at 598. If a statute appears designed as a punishment measure, the court has

gravitated to the technical definition of conviction; but when the statute primarily



2
  The State begins its response by recognizing the default rule providing “an amendment
to a sentencing statute that reduces the penalty for an offense committed prior to its
effective date must be applied if the statute is effective at the time of sentencing.” State
v. Trader, 661 N.W.2d 154, 156 (Iowa 2003) (citing State v. Chrisman, 514 N.W.2d 57, 61
(Iowa 1994)); accord Iowa Code § 4.13(2) (“If the penalty, forfeiture, or punishment for any
offense is reduced by a reenactment, revision, or amendment of a statute, the penalty,
forfeiture, or punishment if not already imposed shall be imposed according to the statute
as amended.”). The State argues the default rule “does not apply to Henderson because
the 2016 amendment specifies its own effective date.” But Henderson does not rely upon
application of the default rule; instead he argues his “conviction” followed the date
specified by the legislature, entitling him to application of the amended sentencing
scheme.
                                           6


aims to protect the public, the court has adopted the popular definition for

conviction. Id.; Schilling v. Iowa Dep’t of Trans., 646 N.W.2d 69, 71 (Iowa 2002)

(embracing popular definition of conviction as trigger for license revocation

because measure was aimed at public protection rather than punishment).

       Henderson believes the legislature intended “conviction” to carry its

technical definition (adjudication plus entry of judgment) because the goal of the

statute was primarily punishment. Henderson also asserts “there had been no

specific finding of guilt of second degree robbery until the Supreme Court

decision.” He highlights language in the supreme court decision remanding his

case for “for entry of conviction and sentence on second-degree robbery.”

Henderson, 908 N.W.2d at 879 (emphasis added).

       We agree with Henderson’s interpretation of “conviction.” The relaxation of

the mandatory-minimum provision for second-degree robbery was not about

protecting the public, but about giving more discretion to the court to fashion an

appropriate prison sentence.      “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.”

Daughenbaugh, 805 N.W.2d at 598–99 (concluding “conviction” in postconviction-

relief chapter did not include a deferred judgment).

       The State does not aver the statute has a protective purpose, instead it

relies on alternative canons of statutory construction. First, the State contends

Henderson’s interpretation of “conviction” conflates the timing of a conviction and

sentence, rendering the legislature’s specified application date superfluous in light
                                         7


of the section 4.13 directive to apply ameliorative sentencing amendments to

defendants awaiting sentencing. We disagree.

       In deciphering legislative intent, we must scrutinize the full scope of the

sentencing amendment.       Had the drafters not included the language “for a

conviction that occurs on or after July 1, 2016,” the new provision would have

invited all persons currently “serving a sentence for a conviction for robbery in the

second degree in violation of section 711.3” to seek a shorter minimum term. Iowa

Code § 902.12. The absence of a launch date would have enabled a raft of

retroactivity claims from inmates being denied parole or work release until they

served seven-tenths of their maximum term under preexisting convictions. In our

view, the legislature’s inclusion of a specific date foreclosed retroactivity

challenges, but did not rebuke the principle that persons not yet sentenced should

benefit from an ameliorative change in the statute.

       The State next argues a broader view of the statutory language

demonstrates the legislature intended to differentiate the timing of a conviction and

imposition of sentence. In support of that argument, the State points to another

section of the same bill where the drafters referred to sentencing, allegedly as a

stage of the proceedings that follows a conviction: “At the time of sentencing, the

court shall determine when a person convicted of robbery in the second degree as

described in section 902.12, subsection 3, shall first become eligible for parole or

work release . . . .”   2016 Iowa Acts ch. 1104, § 6 (codified at Iowa Code

§ 901.11(3)) (emphasis added).

       Contrary to the State’s argument, the legislature’s reference to “sentencing”

in section 901.11(3) is less about the sequence of events and more about giving
                                         8

the court, rather than the parole board, the power to apply section 902.12(3). Cf.

State v. Kress, 636 N.W.2d 12, 21 (Iowa 2001) (concluding sections 124.413 and

901.10 were sentencing provisions despite their reference to eligibility for parole).

And the word “convicted” in section 901.11(3) may be read consistently with

“conviction” in section 902.12(3), as a finding or admission of guilt together with

the entry of judgment—creating a status ripe for determining the point of eligibility

for parole or work release.

       Under the State’s interpretation of section 902.12(3) in this appeal, the

district court could not impose a mandatory minimum of less than seven years

upon a person who entered a guilty plea or received a verdict of guilt for second-

degree robbery before July 1, 2016, even if the sentencing occurred on or after

that effective date. But the State has not consistently advanced that position. In

State v. Williams, the defendant pleaded guilty to second-degree robbery in June

2016 and was sentenced in August 2016; the sentencing court “considered a

number of factors in determining whether to impose a 50% or 70% mandatory

minimum before deciding to impose the 50% minimum.” No. 16-1560, 2017 WL

4315052, at *1 (Iowa Ct. App. Sept. 27, 2017). The State did not argue the district

court imposed an illegally lenient sentence by applying section 902.12(3) to

Williams’s “conviction” by guilty plea that occurred before July 1, 2016.

       The State’s interpretation of “conviction” in section 902.12(3) was correct in

Williams and is mistaken here.        Contrary to the district court’s reasoning,

Henderson’s second-degree robbery conviction did not “relate back” to the jury’s
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guilty verdict on first-degree robbery in February 2016.3 Henderson was not

convicted of second-degree robbery until the supreme court set aside his

conviction for first-degree robbery and remanded the case to the district court for

resentencing and entry of judgment on second-degree robbery—all of which

occurred after July 1, 2016.4

       We reverse and remand for resentencing, where the district court will

consider the appropriate length of Henderson’s mandatory minimum sentence

under Iowa Code section 902.12(3) (2018).

       REVERSED AND REMANDED FOR RESENTENCING.




3
  Moreover, even if we employed the popular definition of conviction, Henderson could not
be “convicted” of both first- and second-degree robbery at the trial. See Iowa Code
§ 701.9 (“No person shall be convicted of a public offense which is necessarily included
in another public offense of which the person is convicted. If the jury returns a verdict of
guilty of more than one offense and such verdict conflicts with this section, the court shall
enter judgment of guilty of the greater of the offenses only.”).
4
  This determination can be distinguished from State v. Harrington, where we found the
new sentencing provision did not apply because the defendant’s underlying second-
degree robbery conviction had not been disturbed. No. 17-1883, 2018 WL 5291332, at *1
n.2 (Iowa Ct. App. Oct. 24, 2018) (clarifying supreme court only reversed judgment and
sentence concerning Harrington’s status as an habitual offender, not the underlying
conviction for second-degree robbery).
