IN THE COURT OF APPEALS OF IOWA
No. 15-1534
Filed August 17, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DYAN MARIE LEE-BROWN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Washington County, Randy S.
DeGeest (trial) and Cynthia H. Danielson (motion to adjudicate law points),
Judges.
Dyan Lee-Brown appeals from judgment and sentence entered upon her
conviction for possession of a controlled substance, third offense. AFFIRMED.
Jeffrey L. Powell of The Law Office of Jeffrey L. Powell, Washington, for
appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
2
DANILSON, Chief Judge.
Dyan Lee-Brown appeals from judgment and sentence entered upon her
conviction for possession of a controlled substance, third offense, in violation of
Iowa Code section 124.401(5) (2013). The sole issue on appeal is whether the
possession-of-marijuana offense, which Lee-Brown does not contest, is subject
to enhancement as a second or third offense under section 124.401(5).
“This case involves a question of statutory interpretation. Such questions
are reviewed for errors at law.” Rhoades v. State, 880 N.W.2d 431, 434 (Iowa
2016).
Our goal is to determine the legislative intent of the provision at issue.
State v. Albrecht, 657 N.W.2d 474, 479 (Iowa 2003). Interpreting a statute
begins with the words used. State v. Nicoletto, 862 N.W.2d 621, 624 (Iowa
2015). “We do not search for meaning beyond the express terms of a statute
when the statute is plain and its meaning is clear.” Albrecht, 657 N.W.2d at 479.
Chapter 124 is known as the “Uniform Controlled Substances Act.” Iowa
Code § 124.602. A “‘[c]ontrolled substance’ means a drug, substance, or
immediate precursor in schedules I through V of division II of this chapter.” Id.
§ 124.101(5). Pursuant to section 124.401(5), it is “unlawful for any person
knowingly or intentionally to possess a controlled substance” under most
circumstances. “Any person who violates this subsection is guilty of a serious
misdemeanor for a first offense.” Id. § 124.101(5). However, “[a] second
offender is guilty of an aggravated misdemeanor, while a third offender is guilty of
a class ‘D’ felony.” State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005).
3
Lee-Brown acknowledges she is guilty of possession of marijuana, as
convicted. But she has two prior convictions under chapter 124: possession of
methamphetamine in September 2012, in violation of section 124.401(5); and
possession of drug paraphernalia, in violation of section 124.414. Lee-Brown
argues she is a second offender under section 124.401(5) because she has only
been convicted once before of an offense of possession of controlled substance.
The district court rejected Lee-Brown’s contention noting the subsection
plainly states that “[a] person who commits a violation of this subsection and has
previously been convicted two or more times of violating this chapter . . . is guilty
of a class ‘D’ felony.” Iowa Code § 124.401(5) (emphasis added).
Lee-Brown argues only convictions for “possession of controlled
substance” should fall under the enhancement, pointing out that two paragraphs
that follow specify such offenses.1 The State asserts both Lee-Brown’s prior
convictions are for violations of “this chapter”—chapter 124—and fall squarely
1
Section 124.401(5) states in part:
A person who commits a violation of this subsection and has previously
been convicted two or more times of violating this chapter or chapter
124A, 124B, or 453B is guilty of a class “D” felony.
If the controlled substance is marijuana, the punishment shall be
by imprisonment in the county jail for not more than six months or by a
fine of not more than one thousand dollars, or by both such fine and
imprisonment for a first offense. If the controlled substance is marijuana
and the person has been previously convicted of a violation of this
subsection in which the controlled substance was marijuana, the
punishment shall be as provided in section 903.1, subsection 1,
paragraph “b.” If the controlled substance is marijuana and the person
has been previously convicted two or more times of a violation of this
subsection in which the controlled substance was marijuana, the person
is guilty of an aggravated misdemeanor.
....
If the controlled substance is amphetamine, its salts, isomers, or
salts of its isomers, or methamphetamine, its salts, isomers, or salts of its
isomers, the court shall order the person to serve a term of imprisonment
of not less than forty-eight hours.
(Emphasis added.)
4
within the words of the provision. Iowa Code § 124.401(5). The State maintains
Lee-Brown is thus a third offender under the subsection.
Our supreme court has recently stated:
[W]here the language chosen by the legislature is unambiguous,
we enforce a statute as written. McGill v. Fish, 790 N.W.2d 113,
118 (Iowa 2010). But as our cases amply demonstrate, great care
must be used before declaring a statute unambiguous. See Rolfe
State Bank v. Gunderson, 794 N.W.2d 561, 564 (Iowa 2011). We
have noted the need to be circumspect regarding narrow claims of
plain meaning and must strive to make sense of our law as a
whole. Id.
Consistent with our caselaw, the leading treatise on statutory
construction cautions against indiscriminate use of the plain
meaning approach, noting that “invocation of the plain meaning rule
may represent an attempt to reinforce confidence in an
interpretation arrived at on other grounds.” See 2A Norman J.
Singer & Shambie Singer, Statutes and Statutory Construction,
§ 46:1, at 161–62 (7th ed. rev. 2014). The treatise further notes “it
would seem difficult, or impossible, for courts to determine the
meaning of a statutory term or provision without any contextual
consideration.” Id. § 46:4, at 199–200.
Rhoades, 880 N.W.2d at 446.
“A statute is ambiguous if reasonable minds differ or are uncertain as to
the meaning of the statute.” Id. We construe the statute by considering the
language of the act, in connection with its manifest purpose and design. State v.
Rohm, 609 N.W.2d 504, 509 (Iowa 2000).
But even in the absence of ambiguity, our supreme court has
acknowledged that if the literal construction of the statute would produce absurd
results, contrary to the purposes and policies of the act, the court will depart from
such literal interpretation. State v. Walden, 870 N.W.2d 842, 848-49 (Iowa
2015).
5
Here, the legislature amended section 124.401(5) in 1998, “to include the
enhanced penalty provisions for recidivism.” Freeman, 705 N.W.2d at 291 (citing
1998 Iowa Acts ch. 1138, § 25). In State v. Cortez, 617 N.W.2d 1, 3 (Iowa 2000),
our supreme court referenced the first paragraph of section 124.401(5) as the
stricter felony track, and the second paragraph as the lenient track. We now
know that the second track, the lenient enhancement track, only applies if a
defendant’s prior convictions were for possession of marijuana and the defendant
is facing a new charge of possession of marijuana. State v. Rankin, 666 N.W.2d
608, 610-11 (Iowa 2003).
We also observe that prior to 2000 there was no offense of possession of
drug paraphernalia in chapter 124, and there was no reference to chapter
violations in the first paragraph of section 124.401(5). At that time, the first
paragraph of section 124.401(5) provided that “[a] person who commits a
violation of this subsection and who had previously been convicted of violating
this subsection is guilty of an aggravated misdemeanor.” To constitute a class
“D” felony there had to be two such subsection violations. Thus, both the first
paragraph and the second paragraph referenced “subsections.”
In 2000, our legislature amended the first paragraph, striking the reference
to subsection violations, and in lieu, inserted violations of “this chapter or chapter
124A, 124B, or 453B.” 2000 Iowa Acts ch. 1201, § 4. No revision was made to
the second paragraph so it continues to reference “a violation of this subsection.”
Thus, we can only conclude the legislature intended to differentiate the first two
paragraphs by the terminology chosen.
6
During the same legislative session but in a separate bill, our legislature
amended chapter 124, adding a new section—section 124.414—making it
“unlawful for any person to knowingly or intentionally manufacture, deliver, sell or
possess drug paraphernalia.” 2000 Iowa Acts ch. 1144, § 4. We have no way of
knowing if the legislature gave consideration to the effect of both amendments,
that is, allowing a simple misdemeanor charge of possession of drug
paraphernalia to be used to enhance the penalty under the first paragraph of
section 124.401(5). But, “we ordinarily assume when a legislature enacts
statutes it is aware of the state of the law.” Rhoades, 880 N.W.2d at 446.
We acknowledge the oddity of allowing a simple misdemeanor conviction
to be used as an enhancement in the stricter felony track. We also note the
same conviction cannot be used to enhance the second more lenient track. We
are troubled by the possibility that someone charged with a possession under the
felony track could be enhanced to a class “D” felony offense by two prior simple
misdemeanor convictions of possession of paraphernalia, yet the second track
requires two serious misdemeanor convictions of possession of marijuana to
elevate a third such conviction to an aggravated misdemeanor.
Nonetheless, we decline to go so far as to say the result is absurd and
retrofit the legislation as we see fit. Our supreme court has cautioned that “the
absurd results doctrine should be used sparingly because it entails the risk that
the judiciary will displace legislative policy on the basis of speculation that the
legislature could not have meant what it unmistakably said.” Walden, 870
N.W.2d at 848 (citations omitted). Accordingly, we decline to speculate, and
7
although the enhancement language in section 124.401(5) creates unusual
results, we cannot say it creates absurd results.
Here, Lee-Brown is a person who was convicted of violating subsection
124.401(5) (possession of marijuana) and has previously been convicted not
once but twice of violating “this chapter.” We agree with the district court that the
language is unambiguous. We are unable to conclude the statute creates absurd
results. Thus, we affirm. Lee-Brown’s policy arguments are more properly
addressed to the legislature.
AFFIRMED.