                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0072
                            Filed December 24, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSHUA CARL GROVER,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Boone County, James B. Malloy,

District Associate Judge.



      Defendant appeals the firearm prohibition contained in a sentencing no-

contact order.   SENTENCE VACATED IN PART AND REMANDED FOR

ENTRY OF A CORRECTED ORDER.



      Mark C. Smith, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Adria Kester, County Attorney, and Kailyn M. Heston,

Assistant County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and McDonald, JJ.
                                          2



MCDONALD, J.

       Joshua Grover appeals the sentence imposed following his plea of guilty

to assault with intent to inflict serious injury, in violation of Iowa Code sections

708.1 and 708.2(1) (2013). Grover contends the provision in the sentencing no-

contact order that prohibits him from possessing, transporting, or receiving

firearms, offensive weapons, or ammunition is illegal because there is no

statutory basis for the prohibition. He also contends the sentencing court failed

to state reasons for imposing the firearms prohibition.

                                          I.

       On September 14, 2013, Grover and his girlfriend, K.S., had a dispute in

her apartment in Ames, Story County, during which he choked her and punched

her in the face. After the dispute, as K.S. was driving Grover from her apartment

to his vehicle, Grover yanked the steering wheel of the car, causing the car to

swerve into the ditch and then across the road into the opposite ditch, causing

K.S. physical injury. The incident involving the car occurred in Boone County.

An officer responded to the scene and spoke with Grover and K.S. as part of the

officer’s investigation.   After the officer learned of the attack in Ames and

concluded the car crash was not an accident, the officer arrested Grover and

cited him for domestic abuse assault, in violation of Iowa Code section

708.2A(2)(d).

       On September 24, the State charged Grover by trial information with willful

injury resulting in bodily injury, in violation of Iowa Code section 708.4(2), for the
                                         3



conduct occurring in Boone County.1 As a result of a plea agreement, Grover

pleaded guilty to an amended charge of assault with intent to inflict serious injury,

in violation of Iowa Code sections 708.1 and 708.2(1). At sentencing, the court

issued the sentencing no-contact order challenged in this appeal.

                                         II.

       A challenge to an illegal sentence can be raised at any time. State v.

Hoeck, 843 N.W.2d 67, 71 (Iowa 2014). We review a challenge to the legality of

a sentence for corrections of errors of law. See Iowa R. App. P. 6.904; Tindell v.

State, 629 N.W.2d 357, 359 (Iowa 2001).

       The court’s authority to impose sentence is created by statute, and any

sentence not authorized by statute is illegal and void. See State v. Bruegger,

773 N.W.2d 862, 871 (Iowa 2009) (“An illegal sentence is one not authorized by

statute or otherwise legally flawed.”); State v. Ohnmacht, 342 N.W.2d 838, 842

(Iowa 1983) (“The legislature possesses the inherent power to prescribe

punishment for crime, and the sentencing authority of the courts is subject to that

power. A sentence not permitted by statute is void.”); State v. Woods, No. 12-

0970, 2013 WL 2146460, at *2 (Iowa Ct. App. May 15, 2013) (vacating firearms

prohibition where defendant was not convicted of domestic abuse assault and

remanding for sentencing); State v. Olson, No. 02-0893, 2002 WL 31424879, at

*2 (Iowa Ct. App. Oct. 30, 2002) (vacating sentencing no-contact order where not




1
 Separate charges were filed arising out of the conduct occurring in Story County.
Those charges were pending at the time of sentencing in this matter.
                                              4



“specifically authorized in the Iowa Code”).2             Grover contends there is no

statutory authority allowing the firearms prohibition.          The State contends the

firearms prohibition is authorized by chapters 664A and 724.

       Chapter 664A applies, as relevant here, “to no-contact orders issued for

violations or alleged violations of sections 708.2A . . . and any other public

offense for which there is a victim.” Iowa Code § 664A.2(1). “A public offense is

that which is prohibited by statute and is punishable by fine or imprisonment.”

Iowa Code § 701.2.         A “victim means a person who has suffered physical,

emotional, or financial harm as a result of a public offense.”                  Iowa Code

§ 644A.1(3).     Grover was initially charged with a domestic abuse assault, a

violation of section 708.2A, and then ultimately pleaded guilty to a “public

offense,” aggravated misdemeanor assault, for which there was a “victim,” K.S.

It is thus not disputed that chapter 664A is applicable to this proceeding.

       Chapter 664A authorizes two different no-contact orders. First, the court

is required to issue a temporary no-contact order at the time of initial appearance

when a person is arrested for an offense to which chapter 664A is applicable


2
  An argument can be made that a sentencing no-contact order is civil in nature and not
subject to challenge as an illegal sentence. The sentencing no-contact order would thus
be subject to traditional rules of error preservation. See, e.g., State v. Wiederien, 709
N.W.2d 538, 543 (Iowa 2006) (Cady, J., dissenting) (stating “no-contact orders under the
statute are collateral matters to the underlying criminal proceeding” and “an acquittal of
the underlying criminal charge does not undermine or affect the validity of the prior no-
contact order, which is civil in nature and based only upon a determination of probable
cause and a need to protect the safety of another”); State v. Roby, No. 05-0630, 2006
WL 2706124, at *3 723 N.W.2d 448 (Iowa Ct. App. Sep. 21, 2006) (holding no-contact
order is civil in nature and imposition of no-contact order “alongside” criminal sentence
did not violate the ex post facto clauses of either the federal or state constitutions); State
v. Hughes, No. 02-1751, 2003 WL 22469744, at *2 (Iowa Ct. App. Oct. 29, 2003)
(holding that permanent no-contact order continuing temporary no-contact order and
issued two days after sentencing was not part of the defendant’s sentence). No such
argument is presented here, and we do not pass on the merits of any such argument.
                                         5



upon finding the following: (1) probable cause exists to believe the offense

occurred; and (2) the presence or contact with the defendant poses a threat to

the safety of the alleged victim, persons residing with the alleged victim, or

members of the alleged victim’s family.       Iowa Code § 664A.3(1).      Second,

chapter 664A authorizes the court to enter a permanent no-contact order not to

exceed five years in duration if the defendant is convicted of a covered offense.

See Iowa Code § 664A.5; State v. Wiederien, 709 N.W.2d 538, 542-43 (Iowa

2006) (holding the court lacks authority to continue no-contact order where the

defendant is acquitted).

        The scope of temporary and permanent no-contact orders is largely the

same:

        “No-contact order” means a court order issued in a criminal
        proceeding requiring the defendant to have no contact with the
        alleged victim, persons residing with the alleged victim, or members
        of the alleged victim’s immediate family, and to refrain from
        harassing the alleged victim, persons residing with the alleged
        victim, or members of the alleged victim’s family.

Iowa Code § 664A.1(1); see Iowa Code § 664A.3 (providing a temporary no-

contact order “shall restrict the defendant from having contact with the victim,

persons residing with the victim, or the victim’s immediate family). Nothing in

section 664A.3, which governs temporary orders, specifically authorizes the

firearms prohibition. Similarly, nothing in section 664A.5 specifically authorizes

the firearms prohibition. The State does not identify any statutory language in

chapter 664A explicitly authorizing the firearms prohibition.     Accordingly, we

conclude the firearms prohibition contained in the sentencing no-contact order is

not authorized by chapter 664A, standing alone.
                                          6



       We next address the State’s contention the firearms prohibition is

authorized by Iowa Code section 724.26. Iowa Code section 724.26(3) provides

that certain defendants subject to no-contact orders “shall not possess, ship,

transport, or receive a firearm, offensive weapon, or ammunition while such order

is in effect.”   The first class of defendants to which the prohibition applies

includes those “subject to a protective order under 18 U.S.C. § 922(g)(8).” Iowa

Code § 724.26(2)(a). This includes persons subject to a protective order that:

               (A) was issued after a hearing of which such person
       received actual notice, and at which such person had an
       opportunity to participate;
               (B) restrains such person from harassing, stalking, or
       threatening an intimate partner of such person or child of such
       intimate partner or person, or engaging in other conduct that would
       place an intimate partner in reasonable fear of bodily injury to the
       partner or child; and
               (C)(i) includes a finding that such person represents a
       credible threat to the physical safety of such intimate partner or
       child; or
               (ii) by its terms explicitly prohibits the use, attempted use, or
       threatened use of physical force against such intimate partner or
       child that would reasonably be expected to cause bodily injury; . . .

18 U.S.C. § 922(g)(8). United States Code section 921(a)(32) defines “intimate

partner” as “the spouse of the person, a former spouse of the person, an

individual who is a parent of a child of the person, and an individual who

cohabitates or has cohabited with the person.” The second class of defendants

to which the prohibition applies are those who “ha[ve] been convicted of a

misdemeanor crime of domestic violence.” Iowa Code § 724.26(2)(a).

       The State first argues the sentencing no-contact order is authorized as a

modification of the temporary order entered pursuant to section 724.26(3). The

argument fails because it misstates the posture of this case. On September 16,
                                        7



2013, at Grover’s initial appearance, the magistrate issued a temporary no-

contact order.   The magistrate found the defendant and victim “meet the

definition of intimate partners as defined in 18 U.S.C. § 921(a)(32)” and found

probable cause to believe “a domestic abuse assault has occurred.”            The

temporary no-contact order contained the following prohibition: “The Defendant

shall not possess, ship, transport, or receive firearms, offensive weapons, or

ammunition while this order is in effect pursuant to lowa Code section

724.26(2)(a) and as a condition of release.” At the conclusion of this criminal

proceeding, the court could have terminated or modified the existing order or

issued a new order. See Iowa Code § 664A.5. Here, the court chose to issue a

new sentencing no-contact order rather than modify the prior order. The new

order superseded the temporary order, rendering it ineffective. See E. Buchanan

Tel. Coop. v. Iowa Utils. Bd., 738 N.W.2d 636, 641 (Iowa 2007) (stating “issues

pertaining to a temporary injunction become moot upon the issuance of a

permanent injunction”); Bartsch v. Bartsch, 636 N.W.2d 3, 10 (Iowa 2001)

(stating “at the point the permanent order was entered, the temporary order

became ineffective”); State v. Olney, No. 13-1063, 2014 WL 2884869, at *2 (Iowa

Ct. App. June 25, 2014) (“A no-contact order entered pursuant to Iowa Code

section 664A.3 is a continuing but temporary order that prohibits a defendant

from having contact with or harassing an alleged victim of a public offense during

the pendency of criminal proceedings.”). The legality of the permanent order

cannot rest on a superseded, ineffective order.
                                         8



       The State also argues the firearms prohibition in the sentencing no-

contact order is explicitly authorized because Grover was “convicted of a

misdemeanor crime of domestic violence” within the meaning of section 724.26.

The Iowa Code defines “misdemeanor crime of domestic violence” as follows:

       For purposes of this section, “misdemeanor crime of domestic
       violence” means an assault under section 708.1, subsection 2,
       paragraph “a” or “c”, committed by a current or former spouse,
       parent, or guardian of the victim, by a person with whom the victim
       shares a child in common, by a person who is cohabiting with or
       has cohabited with the victim as a spouse, parent, or guardian, or
       by a person similarly situated to a spouse, parent, or guardian of
       the victim.

Iowa Code § 724.26. The State contends that Grover was “similarly situated to a

spouse.” We disagree.

       There are no facts supporting the finding that Grover and K.S. had a

spousal relationship or anything similar to a spousal relationship. There is no

evidence of cohabitation. Indeed, it appears from the temporary protective order

that the parties had separate residences. The police reports note the altercation

in Ames occurred in “her” apartment, from which we can infer the parties did not

share an apartment. Cf. Buster v. United States, 447 F.3d 1130, 1133 (8th Cir.

2006) (holding that “live-in girlfriend” is similarly situated to a spouse). There is

no evidence Grover and K.S. comingled their finances or in any way behaved as

spouses. Cf. White v. Dep’t of Justice, 328 F.3d 1361, 1369-70 (Fed. Cir. 2003)

(holding substantial evidence supported finding person was similarly situated to a

spouse where there were expectations of fidelity and monogamy, shared

expenses, shared household responsibilities, social activities in common, and

discussions about having children). There is no evidence in this record showing
                                          9



that Grover and K.S. represented themselves to the public as spouses or that

they considered themselves spouses.           See id. The only information we can

discern from the record is that the relationship was seven months in duration and

the relationship was intimate in the sense that it was sexual. The State does not

cite any authority for the proposition that a sexual relationship of seven months is

similar to a spousal relationship within the meaning of the statute. The failure to

cite authority is fatal to the claim. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to

cite authority in support of an issue may be deemed waiver of that issue.”).

Independently, we conclude those two facts, standing alone, do not place Grover

in the position of being similarly situated to K.S.’s spouse.

       The State also contends that our case law supports the imposition of the

firearms prohibition. The State cites State v. Sturges, No. 12-1273, 2013 WL

1453064, at *1 (Iowa Ct. App. Apr. 10, 2013), for the proposition that the

sentencing court can impose a firearms prohibition in a sentencing no-contact

order based on a conviction for assault rather than domestic abuse assault. The

case is not material here. The issue is not whether the sentencing court can

impose a firearms prohibition following a conviction for something other than

domestic abuse assault—it clearly can, as set forth in Iowa Code section 724.26.

The issue here is whether the sentencing court can impose a firearms prohibition

when there are no facts bringing the case within the scope of section 724.26.

Sturges does not address this issue because the imposition of the prohibition in

that case clearly was correct. Specifically, the court noted the defendant and
                                         10



victim were married and had children together. See Sturges, 2013 WL 1453064,

at *2. Sturges does not support the firearms prohibition in this case.

       The sentencing court in this case imposed a firearms prohibition as an

additional directive. The court did not identify the statutory basis for imposition of

the firearms prohibition. Chapter 664A, standing alone, does not authorize the

firearms prohibition. The sentencing court did not find that Grover and K.S. were

“intimate partners” or that Grover committed a “misdemeanor crime of domestic

violence,” within the meaning of section 724.26. Thus, section 724.26 does not

authorize the firearms prohibition. Consequently, the firearms prohibition in the

no-contact order is not authorized by statute, is an illegal sentence, and must be

vacated. “[W]here an improper or illegal sentence is severable from the valid

portion of the sentence, we may vacate the invalid part without disturbing the rest

of the sentence.”      State v. Keutla, 798 N.W.2d 731, 735 (Iowa 2011).

Accordingly, we vacate the additional directive in the sentencing no-contact order

and remand for entry of a corrected order. See State v. Hall, 740 N.W.2d 200,

205 (Iowa Ct. App. 2007) (vacating no-contact order where not authorized by

statute).

                                         III.

       Because of our resolution of the firearms prohibition issue, we need not

address Grover’s argument regarding the district court’s failure to provide a

statement of reasons regarding the imposition of the firearms prohibition. For the

foregoing reasons, we vacate that portion of the sentencing no-contact order, “If
                                      11



checked, additional directives: May not possess, transport, or receive firearms,

offensive weapons, or ammunition,” and remand for entry of a corrected order.

      SENTENCE VACATED IN PART AND REMANDED FOR ENTRY OF A

CORRECTED ORDER.
