                    IN THE COURT OF APPEALS OF IOWA

                                 No. 15-1593
                             Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

COREY RAY PETTIT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Peter B. Newell,

District Associate Judge.



      Corey Ray Pettit appeals the district court’s extension of a no-contact

order. AFFIRMED.




      William P. Baresel of Prichard Law Office, P.C., Charles City, for

appellant.

      Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

      Corey Ray Pettit appeals the district court’s extension of a no-contact

order, claiming hearsay was improperly used at the hearing, the State failed to

show an ongoing threat, the burden was improperly placed on him, and Iowa

Code section 664.A8 (2013) is void for vagueness. We affirm.

I.    BACKGROUND FACTS AND PROCEEDINGS

      In 2005, Pettit threatened to kill his then-girlfriend, Rosalind Marcili, with a

gun. He was charged with aggravated domestic abuse assault and going armed

with intent (which was later dismissed). A magistrate issued a temporary no-

contact order prior to trial. A jury found Pettit guilty of the lesser offense of

simple misdemeanor domestic abuse assault, pursuant to Iowa Code sections

236.2, 708.1, and 708.2A (2005). The court entered a sentencing order that

included a provision extending the no-contact order for five years.          The no-

contact order was modified in November to allow Pettit to have contact with his

children, who were in Marcili’s custody.      In 2006, the no-contact order was

modified to allow Pettit to have contact with Marcili to discuss visitation with the

minor children.   In 2010, the district court extended the no-contact order for

another five years.

      In 2015, a second motion to extend the no-contact order was filed. The

court granted the motion, but Pettit requested a hearing. At the hearing, Pettit

claimed he no longer posed a threat to Marcili and, therefore, the no-contact

order was “not necessary.” Marcili testified her son reported to her that in 2014

Pettit told the son he wished Marcili were dead. She also testified she feared
                                         3


Pettit. After the hearing, the court extended the no-contact order. Pettit now

appeals.

II.    STANDARD OF REVIEW

       We review a trial court’s ruling on the admissibility of evidence for an

abuse of discretion. State v. Helmers, 753 N.W.2d 565, 567 (Iowa 2008). When

a defendant attacks the constitutionality of a sentence, our review is de novo.

State v. Seats, 865 N.W.2d 545, 553 (Iowa 2015). We review sentences for

correction of errors at law when the defendant challenges the legality of a

sentence on nonconstitutional grounds.       Id.   Because this appeal concerns

statutory interpretation, we also review the no-contact order extension for

correction of errors at law. See Iowa R. App. P. 6.907; State v. Wiederien, 709

N.W.2d 538, 540 (Iowa 2006).

III.   DISCUSSION

       Pettit claims the district court improperly extended the no-contact order

due to the use of hearsay evidence, the State failed to show he continued to

pose a threat to Marcili, the burden was improperly placed on him to prove he

was no longer a threat, and Iowa Code section 664A.8 is void for vagueness. In

response, the State claims our court is without jurisdiction.       The State also

claims, in the alternative, that error has not been preserved on Pettit’s claims

concerning the burden of proof and vagueness.

       A.     Jurisdiction

       The State claims Pettit has no right to appeal from the district court’s order

extending the no-contact order because that order was not a final judgment and,
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in the alternative, he failed to provide reasons for discretionary review.            We

disagree

       We decided an identical jurisdictional issue in State v. Sinclair, where we

found this court had jurisdiction to decide an appeal from the extension of a no-

contact order. No. 12-1151, 2013 WL 3458146, at *2 (Iowa Ct. App. July 10,

2013). We reasoned:

              The question of appellate jurisdiction depends on what
       authority the district associate judge exercised when extending the
       no-contact order. Iowa Code section 602.6306(4) (2011) provides
       where district associate judges are “exercising the jurisdiction of
       magistrates” appeals are “governed by the laws relating to appeals
       from judgments and orders of magistrates”; i.e. the district court
       should hear the issue on appeal. See Iowa Code §§ 602.6306(4),
       602.6405. Where district associate judges are “exercising any
       other jurisdiction,” appeals are “governed by the laws relating to
       appeals from judgments or orders of district judges”; i.e. the Court
       of Appeals should hear the issue on appeal. Id. § 602.6306(4); see
       also id. § 602.5103(2).
              While the underlying offense in this case was a simple
       misdemeanor, we are not persuaded the legislature’s grant of
       subject matter jurisdiction for magistrates to hold trials in simple
       misdemeanor cases impliedly confers unlimited jurisdiction for
       magistrates to extend no-contact orders arising in such cases for
       additional five-year terms, without limit on the number of
       modifications, under section 664A.8. Cf. [State v.] Erdman, 727
       N.W.2d [123,] 125–26 [(Iowa 2007)] (holding district associate
       judges’ jurisdiction to hear indictable misdemeanors and class “D”
       felonies did not confer jurisdiction to enter judgment in those cases
       on bail bonds in excess of $10,000).
              Significantly, section 602.6405 does not mention chapter
       664A. Because of this omission, the district associate judge
       exercised “any other jurisdiction” instead of the jurisdiction of a
       magistrate. The Court of Appeals then has jurisdiction to consider
       the appeal. See Iowa Code § 602.6306(4).

Id.
       We find jurisdiction is proper and address Pettit’s claims.1

1
  Our court has also found an appeal from the extension of a no-contact order was
properly before our court as an application for discretionary review. See State v. Dowell,
No. 13-1269, 2015 WL 4158758, at *1 (Iowa Ct. App July 9, 2015). Relying on Iowa
                                           5


       B.     Error Preservation

       The State claims Pettit has not preserved his burden of proof and

vagueness claims on appeal because he did not raise them at the no-contact

order extension hearing. We have held a no-contact order, if contained in the

original sentencing order, is part of the sentence and can be challenged at any

time as an illegal sentence. See State v. Hall, 740 N.W.2d 200, 202 (Iowa Ct.

App. 2007) (finding a challenge to a no-contact order, raised for the first time on

appeal, was not waived and should be treated as a challenge to an illegal

sentence); see also, e.g., State v. Sanchez, No. 13-1989, 2015 WL 4935530, at

*5 (Iowa Ct. App Aug. 19, 2005). “[A] challenge to an illegal sentence includes

claims that the court lacked the power to impose the sentence or that the

sentence itself is somehow inherently legally flawed, including claims that the

sentence is outside the statutory bounds or that the sentence itself is

unconstitutional.” State v. Bruegger, 773 N.W.2d 862, 871 (Iowa 2009). We find

Pettit’s claims fit this definition and address the merits.

       C.     Hearsay

       Pettit claims the court improperly relied on hearsay testimony of the son

and, because hearsay is inadmissible, the district court should not have relied on

the statement in finding Pettit continued to pose a threat. The rules of evidence

are inapplicable in sentencing proceedings. Iowa R. Evid. 5.1101(c)(4). Given

the no-contact order was part of Pettit’s sentence, we find rule 5.1101(c)(4)

applies to any hearing concerning the extension of a no-contact order. We find

Code section 814.6(2)(e), we found given the “serious interest at stake in a five year
extension of an order prohibiting contact with one’s children” treating the appeal as an
application for discretionary review was proper. Id.
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the district court did not abuse its discretion in considering evidence concerning

Pettit’s son’s statement.

        D.    Void for Vagueness, Burden of Proof, and Ongoing Threat

        Pettit claims Iowa Code section 664A.8 is void for vagueness, the burden

of proof should not have been placed on him to show he was no longer a threat,

and the district court improperly extended the no-contact order.

        The purpose of statutory interpretation is to determine the
        legislature’s intent. We give words their ordinary and common
        meaning by considering the context within which they are used,
        absent a statutory definition or an established meaning in the law.
        We also consider the legislative history of a statute, including prior
        enactments, when ascertaining legislative intent.          When we
        interpret a statute, we assess the statute in its entirety, not just
        isolated words or phrases. We may not extend, enlarge, or
        otherwise change the meaning of a statute under the guise of
        construction.

Schaefer v. Putnam, 841 N.W.2d 68, 75 (Iowa 2013) (citations omitted).

        The Due Process Clause of the Fourteenth Amendment to the United

States Constitution prohibits vague statutes. State v. Reed, 618 N.W.2d 327,

332 (Iowa 2000).      “A similar prohibition has been recognized in Iowa’s due

process clause found in article I, section 9 of the Iowa Constitution.” Formaro v.

Polk Cty., 773 N.W.2d 834, 840 (Iowa 2009) (citation omitted). “In assessing

whether a statute is void-for-vagueness this court employs a presumption of

constitutionality and will give the statute ‘any reasonable’ construction to uphold

it.”   Id.   “Conversely stated, challengers to a statute must refute ‘every

reasonable basis’ upon which a statute might be upheld.” State v. Nail, 743

N.W.2d 535, 540 (Iowa 2007) (citation omitted).
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       There are three generally cited underpinnings of the void-for-
       vagueness doctrine. First, a statute cannot be so vague that it
       does not give persons of ordinary understanding fair notice that
       certain conduct is prohibited. Second, due process requires that
       statutes provide those clothed with authority sufficient guidance to
       prevent the exercise of power in an arbitrary or discriminatory
       fashion. Third, a statute cannot sweep so broadly as to prohibit
       substantial amounts of constitutionally-protected activities, such as
       speech protected under the First Amendment.

Id. at 539.

       Iowa Code section 664A.8 provides in relevant part, “The court shall

modify and extend the no-contact order for an additional period of five years,

unless the court finds that the defendant no longer poses a threat to the safety of

the victim, persons residing with the victim, or members of the victim’s family.”

(Emphasis added.)

       Pettit claims section 664A.8 is void for vagueness because the statute

does not provide guidance on how the court should measure whether he still

“poses a threat” to the victim. He notes the court’s conclusion the victim still felt

afraid a decade after the no-contact order was issued was insufficient to support

extending the no-contact order. We find Pettit has failed to carry his burden to

“refute every reasonable basis” upon which section 664A.8 may be upheld. See

Nail, 743 N.W.2d at 540. The State claims the word “threat” is a word of ordinary

meaning the fact-finder may apply based on the facts presented. See Schaefer,

841 N.W.2d at 75. We find this is reasonable and decline to find section 664A.8

void for vagueness.

       Relatedly, Pettit claims section 664A.8 is ambiguous because there is a

lack of guidance to the court or to the defendant on what needs to be shown and

the statute improperly violates his constitutional rights.    Looking at the plain
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language of section 664A.8, we find the statute does not place the burden on the

defendant to show the defendant is no longer a threat to the victim. See Iowa

Code § 664A.8. We find that Pettit’s claim is misplaced. The statute provides

that the court must find the defendant is no longer a threat to the safety of the

victim. The statute does not require the defendant to prove anything; it simply

requires the court to make an independent finding based upon the evidence

presented.

      We also find Pettit has failed to demonstrate a violation of his

constitutional rights. Pettit raises vague claims concerning his substantive Due

Process rights and his First Amendment right of freedom of speech and

association.   Pettit has not framed his substantive due process or First

Amendment claims in a cognizable fashion, and we decline to do so for him. See

Iowa R. App P. 6.903(2)(g); see, e.g., State v. Seering, 701 N.W.2d 655, 662

(Iowa 2005) (noting “[t]here are two stages to any substantive due process

inquiry,” these include a determination of the nature of the individual right

involved and then which level of scrutiny to apply); see also, e.g., State v. Bower,

725 N.W.2d 435, 441 (Iowa 2006) (demonstrating several grounds on which a

First Amendment challenge may be properly raised).

      Finally, we find the district court did not err in its application of section

664A.8. The evidence submitted at the hearing demonstrated Pettit remained a

threat for the purposes of extending the no-contact order for another five years

pursuant to section 664A.8.

      AFFIRMED.
