                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0061
                             Filed March 25, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SCOTT W. CARTER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clarke County, Gary G. Kimes,

Judge.



      Scott Carter appeals from the denial of his motion to correct an illegal

sentence. AFFIRMED.




      Unes J. Booth of Booth Law Firm, Osceola, for appellant.

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

General, and Michelle Rivera, County Attorney, for appellee.



      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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DOYLE, J.

       This appeal involves the interplay between two drug offense statutes that

prohibit the same conduct but have grossly disparate penalties. One statute

provides for a ninety-nine-year sentence. The other provides for a twenty-five-

year sentence.

       Scott Carter pled guilty to delivering methamphetamine to a minor, in

violation of Iowa Code section 124.401D(2) (1999 Supp.).1 He was sentenced to

ninety-nine years of imprisonment.          Carter contends that because sections

124.401D(2) and 124.406(1)(a) (1999) provide grossly disparate punishments for

identical conduct, the longer sentence that was imposed upon him is illegal. 2

The fact that Carter’s criminal act was subject to different penalties does not

render his sentence illegal, and we therefore affirm the district court’s denial of

Carter’s motion to correct illegal sentence.

I.     Background Facts and Proceedings

       The record before us reflects the following. In May 2000, two teenage

girls, fourteen and seventeen years old, ran away from a group home in Des

Moines. They showed up at Carter’s Clarke County farm intending to hide from

law enforcement and juvenile authorities. Carter, then forty-one years old, was a


1
  This section is now numbered 124.401D(2)(a) (2015).
2
  A section 124.401D(2) violation, delivery of methamphetamine by an adult to a minor,
is subject to a ninety-nine-year sentence. See Iowa Code § 902.9(1) (1999 Supp.) (now
§ 902.9(1)(a) (2015)) (“A felon sentenced for a first conviction for a violation of section
124.401D, shall be confined for no more than ninety-nine years.”). A section
124.406(1)(a) (1999) violation, distribution of schedule I or II controlled substances
(including methamphetamine) by an adult to a minor, a class “B” felony, is subject to a
twenty-five-year sentence. See id. § 902.9(2) (1999 Supp.) (now § 902.9(1)(b) (2015))
(“A class ‘B’ felon shall be confined for no more than twenty-five years.”).
Methamphetamine is classified as a Schedule II controlled substance.                     Id.
§ 124.206(4)(b).
                                        3


friend of the fourteen-year-old’s family, and Carter had known the girl since her

birth. Carter secretly sheltered the girls in a barn and a camper for three days.

During that time, Carter forced the fourteen-year-old to perform various sex acts.

Carter pointed a gun at her, threatened to drug her, and threatened to restrain

her with duct tape to force her to be a compliant participant in the sex acts

performed.       Carter provided methamphetamine to the fourteen-year-old and

marijuana to the seventeen-year-old. The girls stole Carter’s supply of drugs and

when he was unable to locate the drugs, Carter physically assaulted the girls,

and threatened to kill them. The girls then fled on foot, eventually running to a

neighboring property. Law enforcement became involved.

      Carter was charged by information with eight offenses: Count I, sexual

abuse in the third degree; Count II, harboring a runaway child; Count III,

harboring a runaway child; Count IV, distribution of a schedule I controlled

substance (marijuana) to a minor; Count V, delivery of a schedule II controlled

substance (methamphetamine) to a minor; Count VI, sexual abuse in the third

degree; Count VII, sexual abuse in the third degree; and Count VIII, sexual

abuse in the third degree. Pursuant to a plea agreement, Carter pled guilty to

Count V, delivery of a schedule II controlled substance (methamphetamine) to a

minor, in violation of Iowa Code section 124.401D(2). As a part of the plea

agreement, the remaining charges were dismissed. Carter was sentenced to

serve an indeterminate term of incarceration not to exceed ninety-nine years,

with no eligibility for parole until having served a minimum term of ten years’

incarceration.
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       In 2013, Carter filed a motion to correct illegal sentence arguing the

mandatory ninety-nine-year sentence for violating section 124.401D(2) is illegal

because section 124.406(1)(a) imposes only a twenty-five-year sentence for

identical conduct. The district court denied the motion, and Carter now appeals.

II.    Standard of Review

       Although we ordinarily review a claim of an illegal sentence for the

correction of errors at law, when the claim is that the sentence is unconstitutional

our review is de novo. State v. Lyle, 854 N.W.2d 378, 382 (Iowa 2014). An

illegal sentence may be corrected at any time. Iowa R. Crim. P. 2.24(5).

III.   Discussion

       Carter claims that because the two statutes prohibit the same conduct but

have disparate penalties, the longer sentence that was imposed upon him is

illegal. Iowa Code section 124.401D(2) (now 124.401D(2)(a)) provides in part:

              It is unlawful for a person eighteen years of age or older to
       deliver or possess with the intent to deliver to a person under
       eighteen years of age, a material, compound, mixture, preparation,
       or substance that contains any detectable amount of
       methamphetamine, its salts, isomers, or salts of its isomers, . . . .

Iowa Code section 124.406(1)(a) provides in part:

       1. A person who is eighteen years of age of older who:
       a. Unlawfully distributes or possesses with intent to distribute a
          substance listed in schedule I or II to a person under eighteen
          years of age commits a class “B” felony . . . .

Section 124.406(1)(a) is more expansive in scope than section 124.401D(2) as

the former covers distribution3 of any schedule I or II substance, while the latter

only covers delivery of methamphetamine. But the statutory provisions overlap

3
   For purposes of our analysis, the terms “distribution” and “delivery” are
interchangeable. See Iowa Code § 124.101(7), (11).
                                       5


because each make it unlawful for a person eighteen years of age or over to

deliver methamphetamine to a person under the age of eighteen.

      Carter first argues,

             The creation of two statutes with grossly disparate
      sentencing provisions for identical conduct defies rational
      explanation, furthers no legitimate government interest, permits
      arbitrary enforcement of the law by impermissibly granting
      prosecutors the power to choose the length of sentence in violation
      of the equal protection and due process provisions of the Iowa
      Constitution.

Even though the two statutory provisions call for differing punishments for the

same conduct, Carter has no valid complaint. In United States v. Batchelder, the

Supreme Court held:

             This Court has long recognized that when an act violates
      more than one criminal statute, the government may prosecute
      under either so long as it does not discriminate against any class of
      defendants. . . . Whether to prosecute and what charge to file or
      bring before a grand jury are decisions that generally rest in the
      prosecutor’s discretion.

442 U.S. 114, 123-24 (1979) (internal citations omitted). “The prosecutor may be

influenced by the penalties available upon conviction, but this fact, standing

alone, does not give rise to a violation of the Equal Protection or Due Process

Clause.”   Batchelder, 442 U.S. at 125.      The Batchelder holding has been

embraced by our supreme court. See State v. Tague, 310 N.W.2d 209, 211

(Iowa 1981); see also State v. Perry, 440 N.W.2d 389, 391-92 (Iowa 1989).

Carter urges us to reject Batchelder and rely on our own interpretation of the

equal protection and due process clauses of the Iowa Constitution.            As an

intermediate appellate court, we are not at liberty to upend our supreme court

precedent. See State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990)
                                        6

(“We are not at liberty to overturn Iowa Supreme Court precedent.”); State v.

Hughes, 457 N.W.2d 25, 28 (Iowa Ct. App. 1990) (citing State v. Eichler, 83

N.W.2d 576, 578 (Iowa 1957) (“If our previous holdings are to be overruled, we

should ordinarily prefer to do it ourselves.”)).    We therefore reject Carter’s

argument.

      Carter next contends,

            By enacting two felony statutes that permit grossly disparate
      punishments for identical conduct with no guidance to “effectively
      preclude arbitrary or capricious” action in regard to the selection of
      the particular statute for prosecution, the legislature
      unconstitutionally delegated its authority to the prosecutor to
      determine the length of sentence.

Our supreme court has held,

             When a single act violates more than one criminal statute,
      the prosecutor may exercise discretion in selecting which charge to
      file. This is permissible even though the two offenses call for
      different punishments.

Perry, 440 N.W.2d at 391-92 (citing Tague, 310 N.W.2d at 211). Furthermore,

this delegation of discretion to a prosecutor does not give rise to a violation of

Carter’s equal protection or due process rights. Id. We therefore reject Carter’s

argument.

      Carter further asserts the rule of lenity, a rule of statutory construction,

applies. Our supreme court explained,

      The rule of lenity requires that ambiguous statutes imposing
      criminal liability be strictly construed in favor of the defendant.
      Originally conceived to mitigate the extension of the death penalty
      to many criminal acts in England, the modern purposes of the rule
      of lenity include providing fair notice that conduct is subject to
      criminal sanction, preventing inconsistent and arbitrary enforcement
      of the criminal law, and promoting separation of powers by ensuring
      that crimes are created by the legislature, not the courts.
                                          7

State v. Hearn, 797 N.W.2d 577, 585 (Iowa 2011). When the language of a

statute is clear and unambiguous, we need not resort to rules of statutory

construction.   See Perry, 440 N.W.2d at 391 (“When terms of a statute are

explicit, the court normally will not resort to rules of statutory construction.”); see

also State v. Peters, 525 N.W.2d 854, 857-58 (Iowa 1994). The language in both

statutes is clear and unambiguous. We find no positive repugnancy between the

provisions. We therefore conclude the overlap between the statutes does not

require us to invoke the statutory construction rule of lenity. See Batchelder, 442

U.S. at 121. We therefore reject Carter’s argument.

       Lastly, Carter claims the ninety-nine-year penalty “violates the cruel and

unusual punishment provision of the Iowa constitution, when compared to others

who are equally culpable and receive only a twenty-five (25) year sentence for

violating § 124.406(1)(a).” The Iowa Constitution prohibits the imposition of cruel

and unusual punishment. See Iowa Const. art I, § 17. But if punishment “falls

within the parameters of a statutorily prescribed penalty,” it generally “does not

constitute cruel and unusual punishment.” State v. Cronkhite, 613 N.W.2d 664,

669 (Iowa 2000). Carter’s ninety-nine-year sentence falls within the statutorily

prescribed penalty. Carter does not argue the ninety-nine-year sentence is cruel

and unusual in and of itself. Instead, he contends “there should be no disparity in

the punishment meted out by two statutes which proscribe identical conduct.”

Unfortunately, Carter fails to fully articulate the nature of his cruel and unusual

punishment challenge. He provides us with no analysis or substantive argument

in support of his claim. A random mention of an issue, without elaboration or

supportive authority, is not sufficient to raise an issue for review. See EnviroGas,
                                         8

L.P. v. Cedar Rapids/Linn Cnty. Solid Waste Agency, 641 N.W.2d 776, 785 (Iowa

2002); Soo Line R.R. v. Iowa Dep’t of Transp., 521 N.W.2d 685, 689 (Iowa 1994)

(stating court will not consider issues concerning which an appellant cites no

authority nor offers any substantive argument). Therefore, we do not consider

Carter’s cruel and unusual claim.

IV.    Conclusion

       For all the above reasons, we reject Carter’s claims on appeal. The fact

that Carter’s criminal act was subject to different penalties does not render his

sentence illegal. We affirm the district court’s denial of Carter’s motion to correct

illegal sentence.

       AFFIRMED.
