                     IN THE COURT OF APPEALS OF IOWA

                                     No. 17-0249
                                 Filed June 6, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GREGORY ALLEN FERRY,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Webster County, Thomas J. Bice,

Judge.



       The defendant seeks a writ of certiorari challenging the district court’s denial

of his motion to correct an illegal sentence and denial of his application for court-

appointed counsel.       WRIT SUSTAINED IN PART AND REMANDED FOR

FURTHER PROCEEDINGS.



       Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



       Considered by Doyle, P.J., McDonald, J., and Blane, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
                                         2


BLANE, Senior Judge.

      Gregory Ferry seeks a writ of certiorari challenging the district court’s order

that denied his application for appointment of counsel and motion to correct an

illegal sentence pursuant to Iowa Rule of Criminal Procedure 2.24(5)(a). Ferry

contends the district court erred in summarily overruling his motion to correct an

illegal sentence, which raised the issue of a constitutional violation of the

prohibition of cruel and unusual punishment imposed by Iowa Code section 903B.1

(2009) (lifetime parole special sentence), without conducting a hearing to allow

presentation of facts on a gross-disproportionality challenge. Because we find a

hearing should have been held, we sustain the writ in part and remand for an

evidentiary hearing. We annul the writ as to the denial of Ferry’s application for

appointment of counsel.

   I. Factual Background.

      On September 22, 2010, the State charged Ferry with sexual abuse in the

third degree, a class “C” felony, in violation of Iowa Code sections 709.1(1),

709.4(1), and 709.4(3); and incest, a class “D” felony, in violation of Iowa Code

section 726.2. The basis for the charges was that Ferry sexually assaulted a

twenty-year-old family member while she was incapacitated from alcohol and

Xanax by inserting his fingers into her vagina. On January 7, 2011, pursuant to a

plea agreement, Ferry entered a guilty plea to count I, sexual abuse in the third

degree, with count II being dismissed. Following his guilty plea, Ferry waived his

rights and requested immediate sentencing.

      The district court sentenced Ferry to a term of incarceration not to exceed

ten years. The court also imposed a lifetime special sentence pursuant to Iowa
                                          3


Code section 903B.1. Ferry completed the Sex Offender Treatment Program while

incarcerated. He discharged his ten-year sentence in April of 2015 and began his

Iowa Code chapter 903B special sentence. Ferry subsequently returned to prison

for violating his parole.

   II.      Procedural History.

         On January 20, 2017, Ferry filed a motion to correct an illegal sentence and

an application for appointment of counsel. The State did not resist or file any

document concerning Ferry’s motions. On January 30, the district court, without

holding a hearing, summarily denied Ferry’s motion to correct an illegal sentence,

finding his arguments were “without merit” and noting that if “Iowa Code [s]ection

903B is to be ruled ‘unconstitutional,’ that should best be left to the appropriate

appellate court to do so.” The court also denied Ferry’s application for appointment

of counsel.

         Ferry timely filed a notice of appeal. After the notice was filed, the Iowa

Supreme Court determined there is no right of appeal pursuant to Iowa Code

section 814.6 from a ruling denying a motion to correct an illegal sentence because

it is not a “final judgment of sentence.” See State v. Propps, 897 N.W.2d 91, 96–

97 (Iowa 2017). On July 14, 2017, the clerk of the supreme court entered an order

requiring Ferry to file a statement why the notice of appeal should be treated as a

petition for writ of certiorari and review granted. On October 10, Ferry filed his

statement. On November 9, the supreme court entered an order granting Ferry’s
                                             4


petition for writ of certiorari. The supreme court then transferred the certiorari

action to this court for consideration.1

    III.      Discussion.

           A. Appointment of Counsel.

           Ferry contends the district court was obligated under both constitutional and

statutory provisions to appoint counsel regarding his motion to correct an illegal

sentence. The State argues a motion to correct an illegal sentence, being after

final judgment, is not a critical stage of the proceedings and does not require

appointment of counsel.

           Standard of Review. A claimed denial of the constitutional right to counsel

is reviewed de novo, Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011), but when

there is no factual dispute, review is for correction of errors at law, State v. Young,

863 N.W.2d 249, 252 (Iowa 2015). Insofar as his claim is based on a statute, we

review for corrections of errors at law. See Schneider v. State, 789 N.W.2d 138,

144 (Iowa 2010); State v. Cohrs, No. 14-2110, 2016 WL 146526, at *1 (Iowa Ct.

App. Jan. 13, 2016). In interpreting the Iowa Rules of Criminal Procedure, our

review is for correction of errors at law. Young, 863 N.W.2d at 252 (citing State v.

Jones, 817 N.W.2d 11, 15 (Iowa 2012)).




1
  We note that Ferry’s notice of appeal, filed pro se, only specified that he was appealing
the district court ruling denying his motion to correct an illegal sentence and did not
mention an appeal of the court’s denial of his application for appointment of counsel as is
required by Iowa Rule of Appellate. Procedure 6.102(2)(a). However, Ferry’s statement
in support of treating his notice of appeal as a petition for writ of certiorari specifically
mentioned the trial court’s denial of appointment of counsel. Since the supreme court
granted Ferry’s request based upon the statement in support, we find it appropriate to
address Ferry’s claim that the trial court erred in failing to grant his application for
appointment of counsel.
                                           5

       Ferry raises the same issues recently addressed by our court in Cohrs—but

under a slightly different factual background—and State v. Wells, No. 16-0984,

2017 WL 3524733 (Iowa Ct. App. Aug. 16, 2017). In Cohrs, the defendant filed a

motion to correct illegal sentence, but he did not request the district court appoint

counsel. 2016 WL 146526, at *1. On appeal, Cohrs requested the appointment

of appellate counsel and challenged the district court’s failure to appoint counsel

based on both the Federal and Iowa Constitution, as well as an Iowa statutory

basis. Id. In Wells, the defendant filed a motion to correct an illegal sentence and

application for court-appointed counsel. 2017 WL 3524733, at *1. As here, the

district court denied both Wells’s motion and application in one order. Id. On

appeal, Wells claimed he was entitled to court-appointed counsel based on both

the Federal and Iowa Constitutions, as well as Iowa statutes. Id. at *1–3.

       All of Ferry’s arguments here are based upon the same constitutional and

statutory provisions previously raised and discussed in Cohrs and Wells. In both

cases, our court rejected those arguments and found that a defendant was not

entitled to court-appointed counsel related to a motion to correct an illegal

sentence, as the motion was filed after final judgment and, thus, not a critical stage

of the proceedings. Wells, 2017 WL 3524733, at *2; Cohrs, 2016 WL 146526, at

*3. We see no reason to stray from those holdings or to restate them here. Based

upon Cohrs and Wells,2 the district court properly denied Ferry’s application to

appoint counsel on his motion to correct an illegal sentence.




2
 We also note that Cohrs did not seek further review by the supreme court, but that Wells
did, and it was denied.
                                           6


       B. Hearing for Individualized Assessment.

       We next address Ferry’s contention the district court was required to hold a

hearing to address his gross-disproportionality challenge before ruling on it.

       Standard of Review.       When a certiorari action alleges a violation of

constitutional rights, “we make an independent evaluation of the totality of the

circumstances” and review de novo. State v. Iowa Dist. Ct., 801 N.W.2d 513, 517

(Iowa 2011).

       Ferry argues he should have been given an opportunity to develop the

record with regard to his gross-disproportionality challenge. Relying on State v.

Willard, 756 N.W.2d 207, 214 (Iowa 2008), he contends, “At the very least,

procedural due process requires ‘notice and opportunity to be heard in a

proceeding that is “adequate to safeguard the right for which the constitutional

protection is invoked.”’” (citations omitted). Ferry concludes that the district court’s

ruling on his motion without holding a hearing where he could present evidence in

support of his gross-disproportionality challenge violated his constitutional right

and requires remand for that purpose. The State argues that a number of cases

decided by our court have previously held that the district court need not hold a

hearing.3

       In a fairly recent case—more recent than ones cited and relied upon by the

State—decided by our court, where a defendant filed a motion to correct illegal

sentence making a claim of gross disproportionality as to Iowa Code section




3
  See State v. Titus, No. 15-0486, 2016 WL 2745938, at *2 (Iowa Ct. App. May 11, 2016)
(collecting cases); see also State v. Clayton, No. 13-1650, 2014 WL 7343315, at *1 (Iowa
Ct. App. Dec. 24, 2014).
                                              7


903.1(B) (special sentence of parole) and the district court ruled on the motion

without holding a hearing to make the factual determination called for in State v.

Oliver,4 we sustained the writ of certiorari and remanded the case for purposes of

such hearing. See State v. Webber, No. 15-0439, 2016 WL 4035239, at *8 (Iowa

Ct. App. July 27, 2016). As explained in Webber:

       Such a particularized sentencing challenge is governed by the three-
       step analysis from Solem v. Helm, 463 U.S. 277, 290–92 (1983).
       The first step, sometimes referred to as the threshold test, requires
       a court to determine if a sentence leads to an inference of gross
       disproportionality. [State v.] Bruegger, 773 N.W.2d [862,] 873 [(Iowa
       2009)]. “This preliminary test involves a balancing of the gravity of
       the crime against the severity of the sentence.” Id. The Solem court
       “noted, among other things, that the culpability of the offender,
       including his intent or motive in committing a crime, may be
       considered in determining the proportionality of the penalty to the
       offense.” Id. at 875 (citing Solem, 463 U.S. at 293).

2016 WL 4035239, at *5. In order to conduct the preliminary test under Solem,

unless the court determines there is a sufficient record before it to rule, the court

must hold a hearing that allows both the defendant and the State an opportunity to

present evidence germane to that test.

       In the present case, Ferry’s pro se motion to correct illegal sentence

asserted that his sentence, which included the special sentence under Iowa Code

section 903B.1 of lifetime supervision, was unconstitutional. He set out in his

motion, in addition to other claims,5 that “under the totality of specific facts and


4
  812 N.W.2d 636, 639–40 (Iowa 2012) (citing Graham v. Florida, 560 U.S. 48, 60 (2010)).
Oliver expounded that a defendant may bring the latter kind of challenge to his or her
particular sentence “regardless of the presence or absence” of certain “unique factors”
generating a high risk of potential gross disproportionality. 812 N.W.2d at 651 n.12.
5
  Ferry also contended the statute is unconstitutional on its face and as applied; it is a bill
of attainder allowing those convicted of a sex offense to be subject to additional
punishment without a trial; imposes a “second punishment” for the same offense; the term
of the special sentence life time parole subjects him to supervision not only of sexual
behavior, but all aspects of behavior; and that parole is a condition of release before the
                                           8


circumstances of this case, Ferry’s sentence is grossly disproportionate to the

crime he committed and the level of supervision he is and has been subjected to

violates Constitutional Rights, especially his right to be free from ‘Cruel and

Unusual Punishment.’”       Ferry generally argues the statute violates Federal

Constitutional Amendments I, IV, V, VI, VIII and IX, as well as the Iowa

Constitution, article I, section 17.

       As in Webber, Ferry did not allege in his pro se motion to correct illegal

sentence specific facts to raise an inference of gross disproportionality. However,

as we found in Webber: “[A]s a pro se litigant, [he] was ‘entitled to a liberal

construction of his pleadings.’” 2016 WL 4035239, at *7 (quoting Munz v. State,

382 N.W.2d 693, 697 (Iowa Ct. App. 1985)). We went on to state:

       To merit a hearing, Webber’s motion needed to raise a claim that
       could best be evaluated by giving the parties an opportunity to fully
       explain the facts and circumstances of the offense. See Oliver, 812
       N.W.2d at 649–50 (“Creating a proper record would require giving
       the defendant an opportunity to fully explain the facts and
       circumstances of his prior offense. It would also involve giving the
       State a chance to present evidence of the impact on the victim and
       her family, the defendant’s lack of remorse, his inability to respond
       to rehabilitative services, and the need to incapacitate the
       defendant.”); Bruegger, 773 N.W.2d at 886 (explaining Solem-type
       approach for appraising Bruegger’s cruel-and-unusual-punishment
       claim could not be applied without a proper record).

Id.

       The district court, without a hearing, ruled as follows:

               [Ferry] herein has filed a pro se “Motion for Correction of
       Illegal Sentence.” The Court has reviewed the file herein.
               [Ferry] was convicted and sentenced for Sexual Abuse Third
       Degree in 2010. He completed the SOTP [sexual offender treatment
       program] protocol while in prison and was discharged from prison in

full sentence has been served, but here the “special sentence” is an additional enhanced
sentence added after the prison term has been completed.
                                         9


       April of 2015. Given the nature of his conviction, he was subject to
       the provisions of Iowa Code 903B. [Ferry], upon allegations that he
       has now violated the terms of that parole, wants to challenge, on a
       constitutional basis, the validity of that law.
              The Court OVERRULES the Motion for Correction of Illegal
       Sentence. The Court FINDS that [Ferry’s] arguments are without
       merit. Further, if Iowa Code [chapter] 903B is to be ruled as
       “unconstitutional,” that should best be left to the appropriate
       appellate court to do so.

       We note, as we did in Webber, that the district court did not undertake an

analysis of the facts or cite to Bruegger, Oliver, or Solem. It simply stated Ferry’s

arguments were “without merit” and did not undertake a Solem gross-

disproportionality analysis. Rather, the district court went on to state that if the

code section was to be ruled unconstitutional that was left to the appellate court.

However, under Solem, a gross-disproportionality fact-based evaluation requires

the district court to make that determination based upon the record and to set out

its findings. Because the current record is inadequate for us to decide Ferry’s

constitutional claim, we remand for a hearing on the gross disproportionality of

Ferry’s special sentence. Cf. State v. Denato, 173 N.W.2d 576, 579 (Iowa 1970)

(remanding for hearing on factual situation involving disclosure of informant’s

identity because it was “impossible for us to knowingly resolve the issue” on

appeal).

       Because we must remand this case to the district court to hold a hearing,

we do not address the merits of Ferry’s gross-disproportionality claim.

       WRIT SUSTAINED IN PART AND REMANDED FOR FURTHER

PROCEEDINGS.
