Opinion
No. 5-094 / 04-0220
Filed April 13, 2005
Appeal from the Iowa District Court for Black HawkCounty, K.D. Briner, Judge.
Ryan Kelley appeals his civil commitment as a sexually-violent predator. AFFIRMED.
Mark Smith, First Assistant Public Defender, and Steven L. Addington, Assistant Public Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney General, and Thomas J. Ferguson, County Attorney, for appellee.
Heard by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Following a jury trial, Ryan Kelley was ordered civilly committed pursuant to Iowa Code chapter 229A (2003) as a sexually-violent predator. On appeal Kelley claims proceedings under chapter 229A are punitive and therefore criminal in nature. As such, he claims his Fifth Amendment privilege against self-incrimination was violated when he was forced to testify. Upon our review we conclude proceedings under chapter 229A remain civil in nature, despite a recent statutory change. Consequently, we affirm the district court's order committing Kelley.
I. Background Facts and Proceedings
Kelley was convicted in 1996 of lascivious acts with a child and in 2001 was again convicted of the same. In May of 2003 the State filed a petition seeking to have Kelley committed as a sexually-violent predator pursuant to the Iowa Sexually Violent Predator Act as codified at Iowa Code chapter 229A. After a probable cause finding, the matter was set for a jury trial.
As a part of pretrial discovery, the State sought to depose Kelley, but Kelley refused, asserting his privilege against self-incrimination under the Fifth Amendment to the United States Constitution. Following a hearing, the district court filed its written ruling stating:
[T]he court agrees that, absent a grant of immunity, the Respondent could be charged with any new crimes committed within the statute of limitations. Nonetheless, there is no reason why Respondent should not be deposed with respect to the offenses for which he has already been convicted and any other matters which have been barred by the statute. . . . Respondent shall be examined under oath pursuant to the Rules of Civil Procedure. However, the Respondent may assert his fifth amendment privilege and the State is directed not to inquire into any uncharged criminal offenses which the Respondent may have committed within the period of the state of limitations unless the State grants Respondent immunity.
Following this ruling Kelley continued to refuse to give deposition testimony, and only relented when threatened with sanctions. Just prior to trial, Kelly again asserted his Fifth Amendment right not to testify. In support of this motion, Kelley argued a recent enactment to the Iowa Code's sentencing provisions made proceedings under chapter 229A so punitive in nature as to trigger the Fifth Amendment protections afforded criminal defendants. The district court overruled this motion stating that it did not believe the criminal protections of the Fifth Amendment were implicated by Iowa Code chapter 229A proceedings. Kelley appeals.
II. Standard of Review
We review constitutional claims de novo. See In re Detention of Morrow, 616 N.W.2d 544, 547 (Iowa 2000). However, the issue underlying this constitutional challenge is whether the district court erred in not construing Iowa Code chapter 229A as criminal rather than civil in nature. Had the statute been construed as "so punitive either in purpose or effect as to negate the [legislature's] intention to deem it civil" Kelley would have been afforded Fifth Amendment protections at these proceedings. See In re Detention of Garren, 620 N.W.2d 275, 279 (Iowa 2000) (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S. Ct. 2072, 2082, 139 L. Ed. 2d 450, 515 (1997)); see also In re Detention of Seewalker, 689 N.W.2d 705, 707 (Iowa Ct.App. 2004) (noting that "civil commitment proceedings do not implicate the full panoply of protective constitutional rights as are present in criminal proceedings"). Thus, the district court's conclusion regarding the applicability of Fifth Amendment protections to Kelley's civil commitment proceeding was dependent on its construction of Iowa Code chapter 229A. See Allen v. Illinois, 478 U.S. 364, 368, 106 S. Ct. 2988, 2992, 92 L. Ed. 2d 296, 304 (1986) ("The question whether a particular proceeding is criminal for the purposes of the Self-Incrimination Clause is first of all a question of statutory construction."); Garren, 620 N.W.2d at 278. Our review of matters of statutory construction is for errors of law. See State v. Gilliland, 604 N.W.2d 666, 667 (Iowa 2000).
III. Issue
The Iowa Supreme Court in Garren conclusively held that proceedings under Iowa's sexually-violent predator law, Iowa Code chapter 229A, are civil in nature. See Garren, 620 N.W.2d at 280; see also Seewalker, 689 N.W.2d at 707. Kelley's sole argument on appeal is that subsequent to the Garren decision a new subsection relating to violent sexual predators was added to the sentencing provision of Iowa Code section 901A.2, which made chapter 229A punitive in nature and thereby triggered Kelley's Fifth Amendment protections.
Kelley also argues that certain recent amendments to Iowa Code chapter 229A demonstrate that chapter 229A has become punitive. This issue was not raised before or ruled upon by the district court. Therefore, Kelley failed to preserve his arguments regarding these amendments for our consideration on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.").
Iowa Code section 901A.2 governs the enhancement of sentences. In 2002 a new subsection was added to Iowa Code section 901A.2. See 2002 Iowa Acts, ch. 1139, sec. 24. Iowa Code section 901A.2(6) provides in pertinent part:
A person who has been . . . discharged pursuant to chapter 229, and who is subsequently convicted of a sexually predatory offense or a sexually violent offense, shall be sentenced to life in prison on the same terms as a class "A" felon under section 902.1. . . . [I]f the person commits a sexually violent offense which is a misdemeanor offense under chapter 709, the person shall be sentenced to life in prison, with eligibility for parole as provided in chapter 906.
Kelley accurately argues that as a recidivist statute section 901A.2(6) implicates two primary objectives of criminal statutes, deterrence and punishment. See State v. Conley, 222 N.W.2d 501, 503 (Iowa 1974) ("Recidivist statutes are enacted in an effort to deter and punish incorrigible offenders."). Kelley further proposes that "because of section 901A.2(6) the design and effect of a commitment under chapter 229A is the punishment of the committed person." We cannot agree with this proposition.
First, we note the enactment to section 901A.2(6) does not affect the construction of section 229A. The enactment of section 901A.2(6) in no way changed the intended "design" of chapter 229A as this remains "the treatment of the individual rather than punishment." See Garren, 620 N.W.2d at 280 (noting that the preamble to the statute suggests that the purpose of a commitment is public safety and treatment of the individual rather than punishment). Second, Iowa Code section 901A.2(6) does not change the "effect" of chapter 229A. Section 901.A2(6) does not punish someone for being committed pursuant to Iowa Code chapter 229A. Instead, it merely enhances a sexually-violent predator's sentence for committing a sexually-predatory offense or a sexually-violent offense following his or her discharge from a civil commitment. It does not prolong nor otherwise modify the term of commitment authorized by chapter 229A. Thus, it does not change the nature of proceedings under Iowa Code chapter 229A.
Similarly, when a defendant in a criminal proceeding pleads guilty to a crime, the defendant has no constitutional right to be advised of the possibility that this plea will work against him by allowing a later recidivism sentencing enhancement for a subsequent criminal conviction. See State v. Kramer, 235 N.W.2d 114, 116 (Iowa 1975) (stating a defendant has no right to be advised of "any enhanced punishment which may result not only from the crime to which a plea is entered, but also from any subsequent criminal conviction"); State v. Watts, 186 N.W.2d 611, 617 (Iowa 1971) (holding a defendant's "constitutional right against self-incrimination was not violated by the court's failure to advise him his conviction upon a plea of guilty to the indictable misdemeanor charge could be used as a basis for charging him with violating his parole"); see also, United States v. Woods, 870 F.2d 285, 288 (5th Cir. 1989) (noting that "the possibility of future enhancement" is not the type of consequence about which a defendant must constitutionally be advised before entering a guilty plea); Wessling v. Bennett, 410 F.2d 205, 209 (8th Cir. 1969) (holding that defendant had no federal constitutional right to be informed of the habitual criminal charges prior to his conviction).
Therefore, we conclude the possibility of a future sentencing enhancement under Iowa Code section 901A.2(6) does not implicate the defendant's Fifth Amendment privilege against self-incrimination for a current chapter 229A commitment proceeding.
The enactment of Iowa Code section 901A.2(6) did not make proceedings under Iowa Code chapter 229A so punitive as to "transform what was clearly intended as a civil remedy into a criminal penalty." Garren, 620 N.W.2d at 283. Iowa Code chapter 229A remains "civil in nature, not criminal." Id. Therefore sexually-violent predator commitment proceedings under chapter 229A do not trigger the protections of the Fifth Amendment. We accordingly affirm the decision of the district court.