                    IN THE COURT OF APPEALS OF IOWA

                               No. 3-1256 / 13-0981
                                Filed July 16, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHAD JAY ROUSE,
     Defendant-Appellant.
________________________________________________________________
     Appeal from the Iowa District Court for Polk County, Christopher L.

McDonald, Judge.



       A defendant appeals his judgment and sentence for serious injury by

vehicle by reckless driving and operating a motor vehicle while under the

influence. He claims the district court erred in finding that it had no discretion to

suspend his sentence. AFFIRMED.



       Timothy McCarthy II of McCarthy & Hamrock, P.C., West Des Moines, for

appellant.

       Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, John P. Sarcone, County Attorney, and Kevin Bell, Assistant County

Attorney, for appellee.



       Heard by Vaitheswaran, P.J., Mullins, J., and Miller, S.J.* McDonald, J.,

takes no part.

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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VAITHESWARAN, P.J.

       We must decide whether the district court had authority to suspend a

sentence.

I.     Background Facts and Proceedings

       The State charged Chad Rouse with (1) serious injury by vehicle and

(2) operating a motor vehicle while under the influence (OWI). Rouse entered an

Alford1 plea to both charges, which the district court accepted.

       The court proceeded to address a motion to adjudicate law points filed by

Rouse on whether the court had authority to suspend the judgment or sentence

on the serious-injury-by-vehicle count. The court found it had no authority to

suspend the sentence.

       The court adjudged Rouse guilty and sentenced him to a prison term not

exceeding five years on the first count and one year on the second count, with

the terms to be served concurrently. This appeal followed.

II.    Analysis

            A. Statutory Analysis

       Rouse contends the district court had discretion to suspend his sentence

on the serious-injury-by-vehicle count and the court’s interpretation of the

pertinent statute raises constitutional concerns. Rouse’s contention requires a

close examination of the provisions under which Rouse was charged and

sentenced.




1
 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding “express admission of
guilt . . . is not a constitutional requisite to the imposition of [a] criminal penalty”).
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          Rouse was charged under Iowa Code section 707.6A(4) (2013), which

states: “A person commits a class ‘D’ felony when the person unintentionally

causes a serious injury, as defined in section 321J.1, by any of the means

described in subsection 1 or 2.” The means described in subsection 1 require

the operation of “a motor vehicle while intoxicated.” Iowa Code § 707.6A(1). The

means described in subsection 2 do not contain this element. The State relied

on the means described in subsection 2 and, specifically, the means set forth in

subsection 2(a): “driving a motor vehicle in a reckless manner with willful or

wanton disregard for the safety of persons or property.”               Iowa Code

§ 707.6A(2)(a).

          Rouse’s sentence was governed, in part, by section 707.6A(7), which

states:

                 Notwithstanding the provisions of sections 901.5 and 907.3,
          the court shall not defer judgment or sentencing, or suspend
          execution of any part of the sentence applicable to the defendant
          for a violation of subsection 1, or for a violation of subsection 4
          involving the operation of a motor vehicle while intoxicated.

Iowa Code § 707.6A(7) (emphasis added). The district court relied on this

provision in declining to suspend his sentence for serious injury by vehicle.

          Rouse focuses on the italicized language of section 707.6A(7).        He

concedes he entered an Alford plea to a violation of subsection 4 but argues,

because the means by which he committed the violation does not include the

element of operating a motor vehicle while intoxicated, the court possessed the

authority to suspend his sentence.

          The plain language of section 707.6A(7) undercuts Rouse’s reading. See

State v. Wiederien, 709 N.W.2d 538, 541 (Iowa 2006) (“We determine legislative
                                         4


intent from the words chosen by the legislature, not what it should or might have

said.”).   The provision disallows suspension of a sentence for a violation of

subsection 4 “involving” operation of a motor vehicle while intoxicated. The term

“involving” is broad, variously meaning “to relate,” “to connect,” and “to entail.”

Webster’s New Collegiate Dictionary 604 (1981); See Wiederien, 709 N.W.2d at

541 (“Absent a statutory definition or an established meaning in the law, words in

the statute are given their ordinary and common meaning by considering the

context within which they are used.”). Had the legislature intended to prohibit

suspension of a sentence only where the means of committing serious injury by

vehicle contained the element of operating a motor vehicle while intoxicated, the

legislature could have worded section 707.6A(7) as follows: “the court shall not

defer judgment or sentencing, or suspend execution of any part of the sentence

applicable to the defendant . . . for a violation of subsection 4 by the means

described in subsection 1.”    See Iowa Code § 707.6A(7).         The legislature’s

choice of broader language leads us to conclude that the prohibition of

suspension contained in section 707.6A(7) is not limited to the means set forth in

subsection 1.

       Turning to the record, there is no question Rouse’s crime of serious injury

by vehicle “involved” operating a motor vehicle while intoxicated. First, Rouse

was charged with OWI in connection with the same incident as the serious-injury-

by-vehicle count. Second, he entered an Alford plea to OWI at the same time

and in the same proceeding as his plea to serious injury by vehicle. Because his

crime “involved” the operation of a motor vehicle while intoxicated, the district

court lacked authority to suspend his sentence for serious injury by vehicle.
                                         5


            B. Constitutional Analysis

       In the alternative, Rouse argues that Iowa Code section 707.6A(7)

“violates his right to equal protection as applied.” This constitutional challenge

was not raised in the district court. However, the Iowa Supreme Court has held

that challenges to illegal sentences may be raised at any time and those

challenges may include constitutional arguments asserting inherent flaws in the

sentence.     See State v. Bruegger, 773 N.W.2d 862, 871 (Iowa 2009) (“[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.”). While the court noted that sentencing

challenges grounded in the Fourth, Fifth, and Sixth Amendments might require

error preservation, the court simultaneously overruled its prior opinion holding

that an equal protection challenge to a sentence was governed by our normal

error preservation rules. Id. (overruling State v. Ceaser, 585 N.W.2d 192, 195

(Iowa 1998)).    In light of Breugger, we conclude error preservation is not a

concern. We proceed to the merits of Rouse’s challenge.

       “The Fourteenth Amendment to the United States Constitution and article

I, section 6 of the Iowa Constitution provide individuals equal protection under the

law. This principle requires that ‘similarly situated persons be treated alike under

the law.’” State v. Wade, 757 N.W.2d 618, 624 (Iowa 2008) (citation omitted).

       Rouse contends section 707.6A(7) violates the equal protection clauses

because a person found guilty of death by reckless driving under section

707.6A(2)(a) may have the sentence suspended, whereas a person convicted of
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serious injury by reckless driving under section 707.6A(4) may not, despite the

fact that death by reckless driving is a higher level crime. As appealing as this

argument may appear, the Iowa Supreme Court has cautioned against focusing

on the criminal classification of an offense in analyzing equal protection claims.

Wade, 757 N.W.2d at 625. The court has insisted that the nature of the offense

is controlling. Id.

          In State v. Kolbet, 638 N.W.2d 653, 661 (Iowa 2001), the court addressed

an equal protection challenge to the offenses delineated in section 707.6A.

There,      the   defendant   asserted    that   section   707.6A   unconstitutionally

discriminated “between perpetrators of different acts of homicide embraced with

the statute.” Kolbet, 638 N.W.2d at 661. The court disagreed, citing a Colorado

opinion that pointed to the heightened public safety risk of driving while drunk

versus reckless driving Id. (citing People v. Loeser, 981 P.2d 197, 199 (Colo.

App. 1998)). To the extent Kolbet unequivocally rejected an equal protection

challenge to the entirety of section 707.6, it is controlling. Based on Kolbet, we

conclude section 707.6A(7) does not violate the equal protection clauses of the

federal and state constitutions.

III.      Disposition

       We affirm the district court’s judgment and sentence.

       AFFIRMED.
