                                                      1/25/2019 8:15:25 AM

               IN THE SUPREME COURT OF IOWA
                              No. 17–0488

                         Filed January 25, 2019


ROSS BARKER,

      Appellant,

vs.

IOWA DEPARTMENT OF PUBLIC SAFETY,

      Appellee.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Scott County, Mark D. Cleve,

Judge.



      The defendant seeks further review of a court of appeals decision

and the judicial review decision of the district court upholding the Iowa

Department of Public Safety’s determination that defendant must register

for life on the sex offender registry. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE

REMANDED.



      Philip B. Mears of Mears Law Office, Iowa City, for appellant.



      Thomas J. Miller, Attorney General, and John R. Lundquist,

Assistant Attorney General, for appellee.
                                      2

CHRISTENSEN, Justice.

         This appeal presents a unique set of circumstances under which the

defendant, Ross Barker, maintains a 2015 court of appeals opinion

concluding the district court properly sentenced him to ten years on the

sex offender registry precludes the Iowa Department of Public Safety (DPS)

from requiring him to now register as a sex offender for life. Barker pled

guilty to assault with intent to commit sexual abuse, an aggravated

misdemeanor, in 2008. The district court informed him at his sentencing

hearing that he was only required to register as a sex offender for ten years

when he was actually subject to lifetime registration.        Barker sought

postconviction relief after the county sheriff informed him he was required

to register as a sex offender for life. The district court dismissed Barker’s

application as untimely. However, the court of appeals reached the merits

of Barker’s claim on appeal in 2015 and concluded he could not show his

postconviction-relief counsel was ineffective for failing to argue his plea

was not knowing and voluntary because he was misinformed about the

length of his required registration.      Specifically, the court of appeals

determined Barker was not misinformed about the length of his required

registration since he was only required to register as a sex offender for ten

years.

         Barker subsequently sought the DPS’s determination of his sex

offender registration requirements. The DPS found Barker was subject to

lifetime registration and declined to accept the 2015 court of appeals’

decision that he was only required to register for ten years. Barker filed a

petition for judicial review of the DPS’s decision, and the district court and

court of appeals both affirmed the DPS’s determination based on their

conclusion that they lacked the authority to determine the length of his

sex offender registration requirements. On further review, Barker invokes
                                    3

the doctrine of issue preclusion and argues the DPS must accept the 2015

court of appeals decision regarding the length of his sex offender

registration. We agree based on the distinct facts of his case. For the

reasons set forth below, we vacate the decision of the court of appeals,

reverse the judgment of the district court, and remand the case to the DPS

for further consideration in conformity with our opinion.

      I. Background Facts and Proceedings.

      On March 14, 2008, Ross Barker pled guilty to assault with intent

to commit sexual abuse, an aggravated misdemeanor, in violation of Iowa

Code section 709.11 (2007). While there is no record of his guilty plea

beyond the plea forms, the district court informed Barker at his sentencing

hearing that he would “be required to be on the Sex Offender Registry for

a period of ten years.” On May 12, 2008, the district court entered a

corrected order to include the ten-year special sentence required pursuant

to Iowa Code section 903B.2.

      When Barker was released from prison on July 9, 2013, the county

sheriff informed him that he was required to register as a sex offender for

life rather than ten years. Barker subsequently filed a motion to correct

an illegal sentence that the district court treated as an untimely

application for postconviction relief and dismissed. Barker appealed this

dismissal, arguing, among other claims, that his postconviction counsel

was ineffective in failing to argue his guilty plea was not knowing and

voluntary since the district court affirmatively misled him regarding the

duration of the sex offender registry requirement.

      In 2015, the court of appeals affirmed the postconviction court’s

judgment on the merits of the case rather than the timeliness of the

application, explaining,
                                            4
       Because of the plea Barker entered under section 709.11, an
       aggravated misdemeanor, the district court properly imposed
       the special sentence pursuant to section 903B.2. In addition,
       under section 692A.106, Barker was required to be placed on
       the Sex Offender Registry for a period of ten years, not a
       lifetime as Barker mistakenly asserted in his PCR application.

Barker v. State, No. 14–1178, 2015 WL 5287142, at *2 (Iowa Ct. App.

Sept. 10, 2015).         We denied Barker’s further review application.1
Thereafter, Barker filed an application for determination of his registration

requirements with the DPS in which he sought the DPS’s acceptance of

the court of appeals’ decision that he was only required to register as a sex

offender for ten years. The DPS denied Barker’s application, finding he

was subject to mandatory lifetime registration pursuant to Iowa Code

section 692A.106 since he was convicted for an aggravated offense.

       Barker filed a petition for judicial review in district court, claiming

the DPS committed reversible error within the meaning of the Iowa

Administrative Procedure Act when it determined he was required to

register for life on the sex offender registry.                   The district court

acknowledged Barker “received incorrect information as to his 692A

registration     requirements      at   multiple    points     during    his   criminal

prosecution.” Yet, relying on State v. Bullock, 638 N.W.2d 728, 735 (Iowa

2002), the district court found the DPS correctly determined Barker must

register as a sex offender for life because “the determination of the length

of any required [sex offender] registration is an administrative decision

initially committed to the Department of Public Safety.” Therefore, the

district court concluded both the district court and court of appeals in

2015 lacked the authority to determine the length of Barker’s registration




       1Barkerargued in his application for further review that the court of appeals erred
and he was actually subject to lifetime registration.
                                      5

requirement.    Barker appealed, which we transferred to the court of

appeals.

      On appeal, Barker conceded the DPS correctly determined the

length of registration for his offense. However, Barker maintained his plea

was not knowing and voluntary because he was misled about the duration

of his registration requirement and trial counsel was ineffective in advising

him about the consequences of his plea. Barker also claimed that the

doctrine of issue preclusion applied, so the 2015 court of appeals’ decision

that he was only required to register as a sex offender for ten years

precluded the DPS from imposing a lifetime sex offender registration

requirement.    The court of appeals denied Barker’s requests for relief,

noting issue preclusion did not apply because “Bullock makes ‘apparent

that the determination of the length of any required registration is an

administrative decision initially committed to the department of public

safety.’ ” The court of appeals did not address whether Barker’s plea was

knowing and voluntary. Barker sought further review, which we granted.

      II. Standard of Review.

      “We apply the standards set forth in Iowa Code chapter 17A in our

judicial review of agency decision-making to determine whether our

conclusion is the same as the district court.” Brewer-Strong v. HNI Corp.,

913 N.W.2d 235, 242 (Iowa 2018). “The district court may properly grant

relief if the agency action prejudiced the substantial rights of the petitioner

and if the agency action falls within one of the criteria listed in section

17A.19(10)(a) through (n).” Id. (quoting Brakke v. Iowa Dep’t of Nat. Res.,

897 N.W.2d 522, 530 (Iowa 2017)).         The party challenging the agency

action bears the burden of demonstrating the action prejudiced his or her

rights and the agency action falls under section 17A.19(10)(a) through (n).

Hawkeye Land Co. v. Iowa Utils. Bd., 847 N.W.2d 199, 207 (Iowa 2014).
                                            6

We will affirm the district court judgment if we reach the same conclusion.

Brewer-Strong, 913 N.W.2d at 242.                “Whether the elements of issue

preclusion are satisfied is a question of law.” Emp’rs Mut. Cas. Co. v. Van

Haaften, 815 N.W.2d 17, 22 (Iowa 2012) (quoting Grant v. Iowa Dep’t of

Human Servs., 722 N.W.2d 169, 173 (Iowa 2006)). Thus, the agency’s

decision on this issue is not binding, and we “may substitute our own

interpretation of the law for the agency’s.” Grant, 722 N.W.2d at 173.

       III. Analysis.

       Barker acknowledges the court of appeals’ 2015 determination that

he was only required to register as a sex offender for ten years was

incorrect but maintains it precludes the DPS from subjecting him to

lifetime registration on the sex offender registry. 2 In Bullock, we explained

the court’s role in the sex offender registration process. 638 N.W.2d at

735. In that case, the district court merged the defendant’s sexual-abuse

conviction into his burglary conviction and sentenced him to an

indeterminate term of imprisonment for the burglary. Id. at 729. The

district court also ordered the defendant to register as a sex offender for

life. Id. The defendant directly appealed the district court’s order requiring

lifetime registration as a sex offender. Id. We vacated the defendant’s
sentence because the sentencing court lacked authority to determine the

duration of the defendant’s future registration. Id. at 735.

       In doing so, we noted the court’s involvement in the registration

process is limited to two purposes: “(1) to informing convicted defendants

        2Barker pled guilty to assault with intent to commit sexual abuse in violation of

Iowa Code section 709.11, an aggravated misdemeanor. See Iowa Code § 709.11 (2007).
Under Iowa Code chapter 692A, a violation of section 709.11 is an aggravated offense.
Id. § 692A.1(e) (now found at § 692A.101(a)(5) (2017)). Pursuant to section 692A.106, a
sex offender convicted of an aggravated offense must “register for life.” Iowa Code
§ 692A.106(5) (2017) (previously section 692A.2(5)).. Nevertheless, even life registration
is not necessary “for life” because the offender “may file an application in district court
seeking to modify the registration requirements under” chapter 692A. Id. § 692A.128(1).
                                     7

who are not sentenced to confinement of their duty to register and (2) to

the collection of specified information from such defendants.”            Id.

(emphasis omitted). We concluded “that the determination of the length

of any required registration is an administrative decision initially

committed to the Department of Public Safety.” Id. Since the defendant

had not applied to the DPS for a determination of his registration

requirements, we held the extent of the defendant’s registration

requirements were not ripe for review. Id. Both the district court and

court of appeals found Bullock controlling in their decisions that Barker

was not entitled to relief because the courts lacked authority to alter

Barker’s registration requirement.

      Though this case similarly encompasses the court’s authority to

determine the length of a defendant’s required registration on the sex

offender registry, it does so in a different context. Bullock dealt with a

direct appeal of a defendant’s sentence and the authority of a sentencing

court to determine the duration of a defendant’s sex offender registration

requirements.     Id. at 729, 735.       In contrast, in 2015, Barker’s

postconviction claim on appeal challenged the knowing and voluntariness

of his plea because “he was not informed he would be on the sexual abuse

registry for his lifetime.” Barker, 2015 WL 5287142, at *2. Instead of

asking for specific performance of the ten-year registration requirement

contained in his plea deal, Barker sought a new trial. Thus, he was not

asking the court to sentence him to a length of registration for which it did

not have authority to determine. Ultimately, this is a matter of whether

the court of appeals in 2015 had the authority to determine Barker’s plea

was knowing and voluntary and whether that decision has preclusive

effect. Since the court of appeals had the authority to determine whether

Barker’s plea was knowing and voluntary, the outcome of this case hinges
                                      8

on whether the doctrine of issue preclusion applies. See, e.g., State v.

Thomas, 659 N.W.2d 217, 220–21 (Iowa 2003) (examining defendant’s

claim that his plea was not knowing and voluntary since he was

misinformed during his plea colloquy).

      Issue preclusion is a type of res judicata that prohibits parties “from

relitigating in a subsequent action issues raised and resolved in [a]

previous action.” Emp’rs Mut. Cas. Co., 815 N.W.2d at 22 (alteration in

original) (quoting Soults Farms, Inc. v. Schafer, 797 N.W.2d 92, 103 (Iowa

2011)). Issue preclusion applies to legal and factual issues. Grant, 722

N.W.2d at 174. This doctrine furthers “judicial economy and efficiency by

preventing   unnecessary     litigation”   while   protecting    parties   from

“relitigating identical issues with identical parties or those persons with a

significant connected interest to the prior litigation.” Emp’rs Mut. Cas. Co.,

815 N.W.2d at 22 (quoting Winnebago Indus., Inc. v. Haverly, 727 N.W.2d

567, 571–72 (Iowa 2006)). Moreover, it “tends to prevent the anomalous

situation, so damaging to public faith in the judicial system, of two

authoritative but conflicting answers being given to the very same

question.”   Id. (quoting Grant, 722 N.W.2d at 178).            For a previous

determination to have preclusive effect in a subsequent action, the party

claiming issue preclusion must establish the following elements:

      (1) the issue in the present case must be identical, (2) the
      issue must have been raised and litigated in the prior action,
      (3) the issue must have been material and relevant to the
      disposition of the prior case, and (4) the determination of the
      issue in the prior action must have been essential to the
      resulting judgment.

Id. (quoting Soults Farms, Inc., 797 N.W.2d at 104).

      Barker has established all four elements of issue preclusion based

on the rare circumstances of his case.       First, the crux of the issue in

Barker’s current case is identical to the relevant issue in his 2015 appeal:
                                     9

whether Barker was misinformed about his sex offender registration

requirements when the district court informed him at his sentencing

hearing that he only had to register as a sex offender for ten years. Second,

the present issue was raised and litigated in Barker’s 2015 appeal. Both

the 2015 court of appeals case and the present case stem from Barker’s

argument that his guilty plea was not knowing and voluntary because he

was misled about the length of his sex offender registration requirements

at the time he agreed to the plea. The court of appeals in 2015 found

Barker could not establish any error occurred since the district court

properly informed him that he was only required to register as a sex

offender for ten years. Barker, 2015 WL 5287142, at *2–3.

       Third, the duration of Barker’s sex offender registration requirement

was material and relevant to the disposition of his 2015 case. The court

of appeals explicitly relied on the length of registration that the district

court told Barker at his sentencing hearing in rejecting Barker’s claim that

his plea was not knowing and voluntary. Fourth, the required length of

Barker’s sex offender registration was essential to the disposition of his

prior case. The court of appeals concluded its 2015 opinion by stating,

       Barker cannot establish any error occurred. While he claims
       he was given a lifetime registry requirement, he has provided
       no evidence of this assertion. Rather, pursuant to the court
       documents within this record, the proper sentence was
       imposed. Thus, Barker cannot prove that, but for counsel’s
       failure to properly frame his claim [as a claim that his plea
       was not knowing and voluntary], the postconviction court
       would have denied the State’s motion to dismiss.

Id. at *3.

       Nevertheless, even when a party has established all the elements of

issue preclusion, the doctrine still may not apply when a recognized

exception to the doctrine covers the situation. One such exception occurs

when “[a] new determination of the issue is warranted by differences in the
                                    10

quality or extensiveness of the procedures followed in the two courts or by

factors relating to the allocation of jurisdiction between them.” Grant, 722

N.W.2d at 175 (quoting Restatement (Second) of Judgments § 28(3), at 273

(Am. Law Inst. 1982)). We first adopted this exception in Heidemann v.

Sweitzer, 375 N.W.2d 665 (Iowa 1985). There, we applied the exception

and found issue preclusion did not prevent the Iowa Department of

Transportation (DOT) from independently determining whether an

arresting officer properly followed implied consent procedures after the

district court had already determined the arresting officer failed to do so

in a criminal trial. Heidemann, 375 N.W.2d at 668. We did so because

the legislature enacted chapter 321B to specifically provide the DOT “with

jurisdiction to revoke a driver’s license for refusal to submit to chemical

testing under Iowa’s implied consent statute.” Id. Thus, the DOT had

“special competency to resolve” license revocation proceeding issues, and

its “administrative decision-making authority should not be undercut by

the fortuitous circumstance that a parallel criminal proceeding may result

in an evidentiary ruling concerning compliance with implied consent

requirements.” Id.

      More recently, we applied this exception in Grant, in which we held

prior judicial adjudications determining an incident of child abuse

occurred did not bind the Iowa Department of Human Services (DHS) to

prevent it from making its own independent findings about the credibility

of the child abuse report. 722 N.W.2d at 177. We did so because the

legislature would not have provided the DHS with the duties to determine

the accuracy of child abuse reports and maintain the child abuse registry

“without recognizing the existence of a special competency to perform this

responsibility.” Id. “Thus, it [was] evident that our legislature designed
                                     11

the correction process so that issues relating to the correction of erroneous

matters in assessment reports would be decided by the DHS.” Id.

      The DPS maintains this exception applies to the DPS determination

about Barker’s length of registration since the legislature has provided

DPS with the jurisdiction to determine whether sex offenders are subject

to registration requirements. See Iowa Code § 692A.116. However, this

argument overlooks dispositive factual differences between this case and

Heidemann and Grant. Unlike the DOT’s special competency regarding

driver’s license revocation proceedings or the DHS’s special competency to

assess and maintain child abuse reports, there is no special competency

specific to the DPS required to determine whether a criminal offense meets

the statutory definition of “aggravated offense” for sex offender registration

purposes.   Courts already have the authority to determine whether a

defendant’s crime falls within the definition of a sexual offense that would

require sex offender registration. Iowa Code § 692A.126(1); Kruse v. Iowa

Dist. Ct., 712 N.W.2d 695, 699–700 (Iowa 2006).         Additionally, courts

inform “convicted defendants who are not sentenced to confinement of

their duty to register.” Bullock, 638 N.W.2d at 735 (emphasis omitted). In

this case, it does not require agency expertise to determine whether

assault with intent to commit sexual abuse is an aggravated offense

requiring lifetime registration since section 692A.101(1)(a)(5) explicitly

lists it as an aggravated offense and section 692A.106(5) requires sex

offenders convicted of an aggravated offense to “register for life.” Iowa Code

§ 692A.106(5); see also id. § 692A.101(1)(a)(5).         Consequently, the

exception to the doctrine of issue preclusion does not apply.

      Further, we reject the DPS’s claim that issue preclusion is

inapplicable because the DPS was not “afforded a full and fair opportunity

to litigate the issue in the action relied upon” in Barker’s claim of issue
                                    12

preclusion.   Hunter v. City of Des Moines, 300 N.W.2d 121, 126 (Iowa

1981).     Issue preclusion was previously limited by the doctrine of

mutuality of parties. Harris v. Jones, 471 N.W.2d 818, 820 (Iowa 1991).

We “abandoned the strict doctrine of mutuality in both offensive and

defensive uses of issue preclusion.” Id. Nevertheless, we remain mindful

of the purposes of issue preclusion, including our desire to protect parties

from “relitigating identical issues with identical parties or those persons

with a significant connected interest to the prior litigation.” Emp’rs Mut.

Cas. Co., 815 N.W.2d at 22 (quoting Winnebago Indus., Inc., 727 N.W.2d

at 571–72); see also Harris, 471 N.W.2d at 819–20.        In this case, the

state—not the DPS—was a party to both Barker’s criminal prosecution and

his subsequent postconviction action. Yet, neither this case nor Barker’s

prior cases at issue involving the state require special agency expertise or

representation since both the 2015 court of appeals opinion and this case

merely require the court to determine whether Barker’s offense met the

statutory definition of an “aggravated offense.” Thus, the lack of mutuality

between the parties in Barker’s prior litigation and this case does not

prevent us from applying the doctrine of issue preclusion.

      Alternatively, the DPS contends that even if the exception to issue

preclusion does not apply, “a new determination is warranted in order to

take account of an intervening change in applicable legal context” based

on the 2009 amendments to Iowa’s sex offender statute that went into

effect a year after Barker entered his plea. State v. Anderson, 338 N.W.2d

372, 375 (Iowa 1983) (quoting Restatement (Second) of Judgments § 28(2),

at 273).    However, assault with intent to commit sexual abuse has

consistently been listed as an aggravated offense requiring lifetime

registration both before and after these amendments occurred. Compare

Iowa Code § 692A.1(e) (2007), with id. § 692A.101(1)(a)(5) (2017); compare
                                         13

id. § 692A.2(5) (2007), with id. § 692A.106(5) (2017).            Thus, the 2009

amendments do not warrant a new determination in this case. Neither

does Barker’s failure to seek a modification of his registration status

according to the procedures set forth in section 692A.128, as the DPS

claims, since this case did not originate from Barker’s request for the court

to modify his registration status.         Rather, it originates from Barker’s

postconviction request for a new trial and claim on appeal that

postconviction counsel was ineffective in failing to claim Barker’s plea was

not knowing and voluntary since he was misinformed about the length of

his registration requirements.

       Finally, we reject the DPS’s argument that Barker cannot challenge

the DPS’s determination of his registration term since his claim is not ripe

until he has completed the full ten years on the sex offender registry. 3 “A

case is ripe for adjudication when it presents an actual, present

controversy, as opposed to one that is merely hypothetical or speculative.”

Bullock, 638 N.W.2d at 734 (quoting State v. Iowa Dist. Ct., 616 N.W.2d

575, 578 (Iowa 2000)). The ripeness doctrine exists

       to prevent the courts, through avoidance of premature
       adjudication, from entangling themselves in abstract
       disagreements over administrative policies, and also to protect
       the agencies from judicial interference until an administrative
       decision has been formalized and its effects felt in a concrete
       way by the challenging parties.

State v. Wade, 757 N.W.2d 618, 627 (Iowa 2008) (quoting Iowa Dist. Ct.,

616 N.W.2d at 578). In arguing Barker’s claim is not ripe while asking the

court to defer to the DPS’s determination of Barker’s registration

requirements, the DPS attempts to have its cake and eat it, too. The DPS

had no issue with ripeness when it determined Barker was subject to

       3Notably, at oral argument, counsel for the DPS stated he was “not necessarily
here to advocate for that position.”
                                     14

lifetime sex offender registration although he had not completed his full

ten years on the registry. Yet, it now asks us to refrain from ruling on the

length of Barker’s registration because it is not ripe.

      In any event, Barker’s case is ripe for adjudication. As we have

already noted, the court of appeals had to examine Barker’s registration

requirements and whether he was properly informed of the registration

period in order to rule on his 2015 appeal.       Barker continues to seek

postconviction relief, as his current postconviction claim, in which he

argues his guilty plea was invalid because he was misled about the length

of registration, has been stayed pending the outcome of his judicial review

of the DPS’s decision in this case. The length of Barker’s registration is

essential to determining the validity of his plea, and he should not have to

put his postconviction efforts on hold until he has completed the full ten

years on the registry before he can seek a determination about the length

of his registration. Barker’s claim of issue preclusion involves “an actual,

present controversy,” and he is already feeling the effects of the DPS’s

determination in a concrete way since it directly affects his postconviction

claim. Wade, 757 N.W.2d at 627. Therefore, this issue is ripe for review.

      IV. Conclusion.

      For the aforementioned reasons, we conclude the 2015 court of

appeals’ decision that Barker was only subject to ten years on the sex

offender registry has preclusive effect over the DPS’s determination. Thus,

we vacate the decision of the court of appeals, reverse the judgment of the

district court, and remand the case to the DPS for further consideration in

conformity with our opinion.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT REVERSED AND CASE REMANDED.
