Opinion
No. 5-247 / 04-0668
Filed April 28, 2005
Appeal from the Iowa District Court for Linn County, William L. Thomas, Judge.
John Lee Ford appeals, arguing the trial court had the discretion to waive a mandatory minimum sentence. AFFIRMED.
Jon M. Kinnamon, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Harold Denton, County Attorney, and Russ Keast, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
John Lee Ford was found guilty of second-degree sexual abuse and sentenced to an indeterminate prison term not to exceed twenty-five years. Our court affirmed his conviction on direct appeal.
Ford sought postconviction relief, raising several constitutional challenges to his judgment and sentence, including one styled "legislative sentencing." The district court rejected the constitutional challenges but concluded a sentencing provision not cited by the original sentencing court might apply. Our court affirmed the ruling and remanded the case for resentencing "to determine the applicability" of two provisions, Iowa Code sections 902.12 and 903A.2 (1999). On remand, the district court concluded these sentencing provisions applied to Ford. The court sentenced him accordingly.
In this appeal from the re-sentencing order, Ford argues the district court had discretion to waive the applicability of section 902.12. Reviewing for error, we disagree. See Iowa R. App. P. 6.4,
In pertinent part, section 902.12 states that a person serving a sentence for conviction of certain forcible felonies, including second-degree sexual abuse, " shall serve one hundred percent of the maximum term of the person's sentence and shall not be released on parole or work release." Iowa Code § 902.12(3). Unless the legislature expressly provides otherwise, "The word `shall' imposes a duty." Id. § 4.1(30)(a) (emphasis added).
Both parties agree that an amendment to section 902.12 in 2004 has no bearing on Ford's issues on appeal.
Inmates sentenced pursuant to section 902.12(3) may earn a reduction of sentence following commitment to prison. However, the reduction is capped at fifteen percent of the total sentence. Id. § 903A.2(1)(b).
Together, these statutes "impose a mandatory minimum sentence" of eighty-five percent of the maximum sentence. State v. Iowa Dist. Ct. for Black Hawk County, 616 N.W.2d 575 (Iowa 2000). The district court had no discretion to waive the mandatory minimum. See State v. Iowa Dist. Ct. for Shelby County, 308 N.W.2d 27, 31 (Iowa 1981).
Our court's instruction "to determine the applicability" of these statutes, as well as the Iowa Supreme Court's use of similar language in Iowa District Court for Black Hawk County, were simply instructions to "determine the factual predicate for application of these statutes — the commission of one of the specified forcible felonies. . . ." Iowa Dist. Ct. for Black Hawk County, 616 N.W.2d at 579. The district court correctly made this determination.
We affirm the district court's resentencing order.