                   IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1468
                                 Filed July 30, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTHONY EUGENE QUINN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Arthur E. Gamble,

Judge.



      Anthony Quinn appeals from his resentencing, arguing the sentence

imposed violates the United States Constitution and the Iowa Constitution

because the statute authorizing it violates the Ex Post Facto Clause.

AFFIRMED.




      Nicholas A. Bailey of Bailey Law Firm, P.L.L.C., Altoona, for appellant.

      Thomas J. Miller, Attorney General, Kyle P. Hanson, Assistant Attorney

General, John P. Sarcone, County Attorney, and Michael Hunter, Assistant

County Attorney, for appellee.



      Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
                                         2


POTTERFIELD, P.J.

       Anthony Quinn appeals from his September 12, 2013, resentencing on

five convictions of sexual abuse in the third degree. He argues the sentence

violates the United States Constitution and the Iowa Constitution because the

statute authorizing it violates the Ex Post Facto Clause.         As sentencing

enhancements provisions are not ex post facto violations merely because they

refer to prior convictions, we affirm.

       I. Factual and Procedural Background

       Quinn was convicted of five counts of sexual abuse in the third degree

after a bench trial on December 20, 2005. On April 19, 2006, a jury verdict

confirmed Quinn had previously been convicted of one count of lascivious acts

with a child in 1987 and one count of assault with intent to commit sexual abuse

in 1995.

       The prior convictions were sexually predatory offenses under Iowa Code

section 901A.1(1) (2005). That classification subjected Quinn to an enhanced

sentence on the third-degree sexual abuse convictions pursuant to Iowa Code

sections 901A.2(3) and 901A.1(2).        Section 901A.2(3) provides, “a person

convicted of a sexually predatory offense which is a felony, who has a prior

conviction for a sexually predatory offense, shall be sentenced to and shall serve

twice the maximum period of incarceration for the offense, or twenty-five years,

whichever is greater.” Section 901A.1(2) provides that a prior conviction will

trigger the enhancement “regardless of whether [it] occurred before, on, or after

March 31, 2000.”
                                         3


       On April 28, 2006, Quinn was sentenced to imprisonment for a maximum

term of twenty-five years on each of the five counts. Four of those terms were to

run concurrently, and the final term was to run consecutively to the other four.

       On May 23, 2013, the department of corrections alerted the district court

to an error in the imposed sentence: Iowa Code section 901A.2(8) mandated an

additional term of parole or work release not to exceed two years. The omission

of this term rendered the April 28, 2006 sentence illegal and required the entry of

a corrected sentence. Resentencing took place on September 12, 2013. The

district court did not modify the terms of the original sentence except to include

the mandatory parole or work release term.              Quinn appeals from the

resentencing, alleging that the sentencing enhancement statute necessitating the

twenty-five year terms violates the Ex Post Facto Clause of the United States

Constitution and its analogous clause in the Iowa Constitution.

       II. Scope and Standard of Review

       We review the legality of a sentence for corrections of errors at law. State

v. Edgington, 601 N.W.2d 31, 32 (Iowa 1999).            However, insofar as the

defendant asserts a constitutional violation, our review is de novo.       State v.

Gardner, 661 N.W.2d 116, 117 (Iowa 2003).

       III. Discussion

       The United States Constitution and the Iowa Constitution “forbid the

application of a new punitive measure to conduct already committed.” State v.

Corwin, 616 N.W.2d 600, 601 (Iowa 2000); see U.S. Const. art. I, § 10; Iowa

Const. art. I, § 21. “‘[A]ny statute which punishes as a crime an act previously

committed, . . . which makes more burdensome the punishment for a crime, after
                                        4

its commission, . . . is prohibited as ex post facto.’”   Schreiber v. State, 666

N.W.2d 127, 129 (Iowa 2003) (quoting Beazell v. Ohio, 269 U.S. 167, 169–70

(1925)). In other words, a new law imposing punitive sentences is prohibited if it

is (1) retrospective and (2) a disadvantage to the defendant. See State v. Iowa

Dist. Ct., 759 N.W.2d 793, 797 (Iowa 2009) (citing Weaver v. Graham, 450 U.S.

24, 29 (1981)).

      “The only relevant action for the purpose of determining the prospective or

retrospective application of a statute is the commission of the acts which make

up the elements of the current offense.” State v. DeCamp, 622 N.W.2d 290, 293

(Iowa 2001). The substantive offenses underlying any prior convictions are not

relevant because “the enhancement of punishment is for the pending offense, not

the previous offenses.”   State v. Stoen, 596 N.W.2d 504, 507 (Iowa 1999).

Sentencing enhancements “do not punish for the old offense, but stiffen the

punishment for the latest offense.” DeCamp, 622 N.W.2d at 293.

      Quinn alleges Iowa Code sections 901A.1(2) and 901A.2(3) are

retrospective because they make reference to convictions for acts that occurred

before their enactment. These two provisions were in force as of March 31,

2000. Quinn’s prior convictions concerned offenses that occurred in 1987 and

1995. The current offenses (i.e. the sexual assault charges) occurred in 2005.

      In this case, the sentencing enhancement was in force at the time of the

current offenses, and therefore, it was not applied retrospectively. Even though
                                           5


the enhancement statute is triggered by the prior convictions from 1987 and

1995, it does not change the sentences for those convictions.1

       Quinn relies on State v. Tornquist, 600 N.W.2d 301, 307 (Iowa 1999), to

support his assertion that the sentencing enhancements should be considered ex

post facto laws.2 He acknowledges that Tornquist has been abrogated by the

legislature and overturned by our supreme court. See Iowa Code § 901A.2(3);

DeCamp, 622 N.W.2d at 293 (“[Tornquist’s] consideration of the principles of

prospective and retrospective application of a statute was not relevant and

confused the issue. We disavow the prospective application analysis used in

Tornquist.”). Nevertheless, Quinn asks that we “return to a Tornquist framework”

in order to find that Iowa Code section 901A.2 violates the Ex Post Facto Clause.

       However, Tornquist has no bearing on the enhancement statute’s ex post

facto status.    The Tornquist court considered only whether the legislature

intended the courts to consider convictions that occurred prior to the statute’s

enactment to enhance a sentence. Tornquist, 600 N.W.2d at 307. At no time did

that court consider whether the enhancement statute applied as substantive law




1
  This court has previously noted that the section 901A.2(3) enhancements are not
retrospective. See Gully v. State, 658 N.W.2d 114, 118 (Iowa Ct. App. 2002) (rejecting
the State’s attempted retrospective application of the sentencing enhancements); see
also State v. Russell, No. 02-0946, 2003 WL 22187262, at *2 (Iowa Ct. App. Sept. 24,
2003) (noting that a pending offense that occurred prior to the statute’s amendment is
still measured against the prevailing case law interpreting that statute’s pre-amendment
terms rather than its current ones).
2
  Quinn also relies on Gully, 658 N.W.2d at 118. While Gully—unlike Tornquist—does
discuss ex post facto laws, it does so only in a limited context. It merely considers the
application of the amended sentencing enhancement statute to pending charges for
offenses that occurred between the enactment and amendment of the enhancement
statute. Id. Gully has no bearing on the substantive law applied to the prior convictions
and therefore does not support Quinn’s position.
                                          6


to the offenses or sentences underlying the prior convictions.3 Therefore, even if

a “return to a Tornquist framework” were possible, it would have no bearing on

Quinn’s sentences.

       Because Iowa Code sections 901A.1(2) and 901A.2(3) have no

substantive retrospective effect on sentences for the prior convictions to which

they refer, they do not violate the Ex Post Facto Clause. We affirm the district

court’s sentence.

       AFFIRMED.




3
 Quinn may have confused Tornquist’s discussion of prospective and retrospective prior
convictions with the prospective and retrospective application of newly-enacted
substantive law. See Tornquist, 600 N.W.2d at 307.
