                 IN THE SUPREME COURT OF IOWA
                              No. 09–0418

                           Filed May 14, 2010


STATE OF IOWA,

      Appellee,

vs.

MICHAEL LEROY ANDERSON,

      Appellant.



      Appeal from the Iowa District Court for Marshall County, Carl D.

Baker, Judge.



      Appellant appeals district court decision delaying implementation

of a special sentence under Iowa Code section 903B.2.          DISTRICT

COURT     JUDGMENT      REVERSED      AND    CASE    REMANDED       WITH

INSTRUCTIONS.



      Mark C. Smith, State Appellate Defender, Patricia Reynolds,

Assistant Appellate Defender, and Jordan T. Smith, Student Legal Intern,

for appellant.



      Thomas J. Miller, Attorney General, William A. Hill, Assistant

Attorney General, and Jennifer Miller, County Attorney, for appellee.
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STREIT, Justice.

      Michael Anderson was ordered to serve a special sentence of ten

years pursuant to Iowa Code section 903B.2. He argues this sentence

should have begun to run when he discharged the sentence for the

offense that triggered imposition of the special sentence.       The State

argues the special sentence should not begin to run until Anderson

discharges a concurrent and separate prison sentence.        Based on the

language of the statute, the special sentence should have begun when

Anderson discharged the sentence for the underlying criminal offense,

regardless of his concurrent and unrelated sentence.

      I.    Background Facts and Prior Proceedings.

      Michael Anderson pled guilty to sexual exploitation of a minor in

violation of Iowa Code section 728.12(3) (2007) in Marshall County. He

was sentenced to two years in prison, with the sentence to run

concurrently with two consecutive five-year sentences imposed in Story

County. In Story County, Anderson had been convicted of two counts of

enticing away a minor in violation of Iowa Code section 710.10(2) (2005)

and was sentenced to two sentences of up to five years in prison, to be

served consecutively.

      Based on the Marshall County conviction, Anderson was also

ordered to serve a special sentence of ten years pursuant to Iowa Code

section 903B.2 (2007). Section 903B.2 imposes a special sentence for

certain offenses and requires that the special sentence be served “under

supervision as if on parole.”      Essentially, section 903B.2 requires

Anderson to serve an additional ten-year period of parole. Violation of

parole may result in a two-year revocation for the first offense and a five-

year revocation for subsequent violations.
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      Anderson discharged the Marshall County two-year sentence while

he still had time remaining on the two consecutive five-year Story County

sentences.   Anderson filed a motion with the district court asking the

court to order the State to implement the ten-year special sentence

because Anderson had discharged the underlying Marshall County

sentence.    The district court first ordered that the sentence be

implemented, but on a motion for reconsideration by the State, held it

should not be implemented until after Anderson discharged the

concurrent Story County sentences. Anderson appealed.

      II.    Scope of Review.

      “ ‘We review the district court’s construction of [a] statute for

correction of errors at law.’ ” State v. Booth, 670 N.W.2d 209, 211 (Iowa

2003) (quoting In re Detention of Swanson, 668 N.W.2d 570, 575 (Iowa

2003)).

      III.   Merits.

      Anderson was sentenced to a ten-year special sentence pursuant

to Iowa Code section 903B.2.

      Section 903B.2 states:

             A person convicted of a misdemeanor or a class “D”
      felony offense under . . . section 728.12 shall also be
      sentenced, in addition to any other punishment provided by
      law, to a special sentence committing the person into the
      custody of the director of the Iowa department of corrections
      for a period of ten years, with eligibility for parole as provided
      in chapter 906. The special sentence imposed under this
      section shall commence upon completion of the sentence
      imposed under any applicable criminal sentencing provisions
      for the underlying criminal offense and the person shall begin
      the sentence under supervision as if on parole. The person
      shall be placed on the corrections continuum in chapter
      901B, and the terms and conditions of the special sentence,
      including violations, shall be subject to the same set of
      procedures set out in chapters 901B, 905, 906, and 908,
      and rules adopted under those chapters for persons on
      parole. The revocation of release shall not be for a period
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       greater than two years upon any first revocation, and five
       years upon any second or subsequent revocation. A special
       sentence shall be considered a category “A” sentence for
       purposes of calculating earned time under section 903A.2.

Iowa Code § 903B.2 (2007) (emphasis added). 1
       Both parties focus on the italicized sentence.           Anderson argues

that under section 903B.2, the special sentence should have begun when

he discharged the sentence for the underlying offense in Marshall County

that led to imposition of the special sentence. He argues the statutory

language “underlying criminal offense” is unambiguous and compels the

court to order that the special sentence be implemented from the date on

which Anderson discharged the two-year Marshall County sentence.

       The State argues the special sentence should not begin to run until

Anderson discharges the separate and longer concurrent sentences from

Story County.      The State first argues the language of the statute is

unambiguous because it refers to “any applicable criminal sentencing

provisions” and should therefore be interpreted as applying to any

concurrent sentences. In the alternative, the State argues the statute is

ambiguous, and, therefore, this court must look to legislative intent. The

State points to the court of appeals decision in Popejoy v. State, 727

N.W.2d 383, 387 (Iowa Ct. App. 2006), which held a similar statute

imposing a two-year special sentence did not require imposition of the

special sentence when the sentence for the underlying offense was

completed, but instead when the defendant was released from prison

after serving any longer, concurrent sentence.



        1Iowa Code section 903B.2 was amended during the 2009 legislative session to

clarify that the special sentence may also be served on work release, in addition to
parole. The amendment added the sentence, “The board of parole shall determine
whether the person should be released on parole or placed in a work release program.”
2009 Iowa Acts ch. 119, § 60 (codified at Iowa Code § 903B.2 (Supp. 2009)). The
amendment also added the words “or work release” after all references to parole. Id.
                                     5

      In interpreting section 903B.2, “our primary goal is to give effect to

the intent of the legislature.” In re Detention of Betsworth, 711 N.W.2d

280, 283 (Iowa 2006). “That intent is gleaned from the language of ‘ “the

statute as a whole, not from a particular part only.” ’ ” Id. (quoting State

v. Iowa Dist. Ct., 630 N.W.2d 778, 781 (Iowa 2001)).       “In determining

what the legislature intended . . . we are constrained to follow the

express terms of the statute.” State v. Byers, 456 N.W.2d 917, 919 (Iowa

1990). “When a statute is plain and its meaning clear, courts are not

permitted to search for meaning beyond its express terms.”         State v.

Chang, 587 N.W.2d 459, 461 (Iowa 1998). In determining plain meaning,

“[s]tatutory words are presumed to be used in their ordinary and usual

sense and with the meaning commonly attributable to them.” State v.

Royer, 632 N.W.2d 905, 908 (Iowa 2001).

      If the language of a statute is ambiguous, “ ‘the manifest intent of

the legislature is sought and will prevail over the literal import of the

words used.’ ”   State Pub. Defender v. Iowa Dist. Ct., 633 N.W.2d 280,

283 (Iowa 2001) (quoting State v. McSorley, 549 N.W.2d 807, 809 (Iowa

1996)).   We also note the rule of statutory construction that penal

statutes “are to be strictly construed, with any doubt resolved against the

State and in favor of the accused.” Byers, 456 N.W.2d at 919.

      The language of Iowa Code section 903B.2 is unambiguous. The

statute states the ten-year special sentence “shall commence upon

completion of the sentence imposed under any applicable criminal

sentencing provisions for the underlying criminal offense and the person

shall begin the sentence under supervision as if on parole.” Iowa Code

§ 903B.2 (emphasis added). The words “underlying criminal offense” are

a specific reference to the offense which led to the imposition of the ten-

year special sentence, here, the Marshall County conviction. The only
                                      6

way this sentence could be read to allow the special sentence to begin

after Anderson completes the concurrent Story County sentences would

require this court to ignore the words “underlying criminal offense.”

      The State argues the words “any applicable criminal sentencing

provisions” suggest section 903B.2 be read to apply to any concurrent

sentences.   However, these words are modified by the phrase “for the

underlying criminal offense” and therefore are limited to any sentencing

provisions “for the underlying criminal offense,” here, the Marshall

County sentence.

      The State questions how one can be in prison and on parole at the

same time. Iowa Code section 906.1 defines parole as “the release of a

person . . . , which release occurs prior to the expiration of the person’s

term, is subject to supervision by the district department of correctional

services, and is on conditions imposed by the district department.”

Although the language of section 903B.2 indicates the special sentence

should be served on parole, the specific language states it should be

served “as if on parole.” Iowa Code § 903B.2 (emphasis added). Use of

the phrase “as if” allows the State to formulate a special sentence of

parole, although the defendant is not necessarily being released from

another sentence early. Similarly, the legislature’s use of the words “as if

on parole” indicate the requirement is compatible with a special sentence

beginning while a defendant is serving a separate concurrent offense.

This clarifies that the “special” parole contemplated could be served while

in prison—it is “as if” the inmate is on parole.

      The    State   also   argues   the   statute’s   references   to   parole

demonstrate the legislative intent for the special sentence to begin after

any concurrent sentences. We disagree. We must determine legislative

intent based on the language chosen by the legislature.             Byers, 456
                                    7

N.W.2d at 919; see also Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996)

(“[W]e should not speculate as to the probable legislative intent apart

from the wording used in the statute.”).     The legislature’s use of the

words “as if on parole” could suggest two alternate interpretations of the

legislature’s intent.   First, as the State suggests, the intent behind

section 903B.2 could be “to provide a controlled, gradual, supervised

release into the community.” Popejoy, 727 N.W.2d at 387. In Popejoy,

the court of appeals held a two-year special sentence would begin to run

only after the defendant served a separate concurrent sentence.        Id.

Popejoy considered Iowa Code section 709.8 (2001), a different statute

than section 903B.2. Although the two are similar because both created

a special sentence, the language used by the legislature is not identical.

Section 709.8 referred to the “preceding sentence,” which the court of

appeals interpreted to include a concurrent sentence, id., whereas

section 903B.2 refers to the “underlying criminal offense.”

      The second potential rationale behind section 903B.2 is that those

required to serve a special sentence be supervised for an additional ten-

year period. As this court stated in State v. Tripp, 776 N.W.2d 855, 858

(Iowa 2010), “Parole is a lenient form of punishment that monitors a

person’s activities to ensure the person is complying with the law.” If a

defendant begins to serve the ten-year sentence while still imprisoned on

a separate concurrent sentence, the defendant will still be supervised

and monitored during that time.

      Given the two possible rationales behind section 903B.2, we must

rely on the language chosen by the legislature. The language of section

903B.2, which states that the special sentence “shall commence upon

completion of the sentence imposed under any applicable criminal

sentencing provisions for the underlying criminal offense and the person
                                    8

shall begin the sentence under supervision as if on parole,” cannot be

read to include a separate and concurrent sentence. We hold the ten-

year special sentence should have begun to run when the sentence for

“the   underlying   criminal   offense,”—Anderson’s   Marshall    County

sentence—was completed.

       IV.   Conclusion.

       Iowa Code section 903B.2 requires that a special sentence begin to

run when the sentence for the underlying criminal offense is discharged,

even if the defendant is serving a longer concurrent sentence.

Anderson’s ten-year special sentence should be calculated as if it began

when he discharged the Marshall County sentence—the sentence for the

underlying criminal offense.

       DISTRICT     COURT      JUDGMENT      REVERSED       AND    CASE

REMANDED WITH INSTRUCTIONS.
