text:
    In re the DETENTION OF Jeffrey GOODWIN. State of Iowa, Appellee, v. Jeffrey Goodwin, Appellant.
    No. 03-0871.
    Supreme Court of Iowa.
    Nov. 19, 2004.

      Mark Smith, First Assistant State Public Defender, and Greg Bal, Assistant Public Defender, for appellant.
    Thomas J. Miller, Attorney General, and Cristen C. Odell-Douglass and Scott Brown, Assistant Attorneys General, for appellee.
   CADY, Justice.

A jury found Jeffrey Allen Goodwin was a sexually violent predator subject to civil commitment under Iowa Code chapter 229A (2003). Goodwin appeals from the district court judgment ordering his civil commitment. He contends the district court’s refusal to submit his requested special interrogatory to the jury violated his due process rights. For the following reasons, we disagree and affirm the district court judgment.

I. Background Facts and Proceedings

Goodwin, who is now forty years old, has been in prison almost his entire adult life. He was first convicted when he was eighteen of criminal mischief in the third degree and operating without the owner’s consent. He served three years and two months of his four-year sentence, which he completed in 1986. He was out of prison for eight to nine months before he committed his second offense of operating without the owner’s consent. He returned to prison until 1988.

On October 14, 1988, around three weeks after his release, Goodwin entered a furniture store in Keokuk and sexually assaulted a female employee. After making small talk with the employee, Goodwin grabbed her and pulled her to the floor. He then attempted to undo her shirt and was able to unzip her pants. Goodwin then began “humping” her until she felt wetness on her clothing where his crotch had been in contact with her body. Goodwin then tied her with twine and took $14 from her purse before leaving the store. Goodwin was ultimately convicted of second-degree robbery and assault with intent to commit sexual abuse. He was sentenced to fifteen years in prison. He was serving the sentence when the State initiated civil commitment proceedings.

While in prison, Goodwin sent the victim a Christmas card. He later pled guilty to third-degree harassment over the incident. He later sent a letter to the victim, which also resulted in a conviction for third-degree harassment. In 1998, he sent a third letter to the victim and was convicted of second-degree harassment.

On November 6, 2001, Goodwin was convicted of second-degree harassment for actions directed at a female prison guard. He made a list, entitled “Pain and Humiliation,” which he acknowledged was aimed at intimidating the guard. The list was confiscated from Goodwin’s cell. It listed various means to inflict pain and humiliation on women. The acts of pain included whipping, electric shock, cigar burns, pulling teeth, breaking bones, and death. The list of desired humiliation centered on various grotesque sexual matters.

Goodwin engaged in other conduct of a sexual nature while in prison. In October 1995, he told a female guard that he desired to assault her with a coat hanger. He also threatened to rape and torture her on multiple occasions. Goodwin also masturbated in her presence on several occasions. On one such occasion, he told her she was “his” and that the real fun would start when he was released from prison. In November 1995, Goodwin told the guard he was going to torture her and kill her. The guard made eleven reports of Goodwin’s sexual misconduct. He received a total of four years of lockup time for these reports.

Goodwin also made disturbing statements to other prison employees. In 1999, he gave the unit manager of his cell house a letter in which he stated, “All I want to do is kidnap women and introduce them to zoophilia, S & M, bondage, and rape. This is what I’m being denied treatment for. So denying me access to treatment isn’t hurting me, but women.” In another letter, he wrote, “I’ll just send you people the newspaper clipping of the missing women i kidnap, torture and violate. And you people can apologize to their familys. Because i’m not going to keep trying to go to Mt. Pleasant.” On October 6, 1999, Goodwin gave a four-page letter to the guard detailing the torture and rape of a woman. At the end of the letter, he wrote, “This is what will probably happen if i don’t get the treatment i need and requested, but been denied so far.” Referring to the four-page letter, he later told her, “you keep f — ing with me, ... I would make that part of your reality, you know.”

Additionally, a prison nurse detailed the following statements Goodwin made to her:

He said that when he got out of prison that he would do it again; that he would re-offend; that he would use whips; that it was all about control; that I would not understand how it made him feel to control women like that.
He also made the statement that he picked his women by choosing women that had something that they would want to return to, such as family or children, so that they would comply to his wishes, or whatever he had them do — they would comply in hopes of being released.
He had made the statement to me that he had been in prison for twelve years, and that he had been in too long. And that he had tried to see women as human beings with feelings, but that he just couldn’t do it. He basically said they were objects, and that he had become more hardened towards women since he had been in prison.

The prison psychologist indicated that Goodwin discussed

sexual fantasies that ... were very sadistic. They involved kidnapping women, torturing them with various devices. He fantasized different ways that he could get access to women to control them.... He said that he became aroused from fantasizing about the sadistic part of his fantasies.

In addition, Goodwin admitted that during a session with the psychologist, he placed his foot on her chair in between her legs to see if he could “get away with it.” After this incident, she stopped working with him for a year.

The discharge date for Goodwin’s sentence was October 2, 2002. On September 6, 2002, the State filed a petition to commit him as a sexually violent predator under Iowa Code chapter 229A. A jury trial commenced on April 28, 2003.

The jury heard the testimony concerning Goodwin’s background and history. The State also called Dr. Dennis M. Doren, a psychologist, as an expert witness. Based on a review of Goodwin’s Department of Corrections records, his criminal history, and an interview, Dr. Doren opined that Goodwin suffers from three mental conditions: sexual sadism, exhibitionism, and antisocial personality disorder. He opined that Goodwin has a mental abnormality that makes it likely he will engage in sexually violent offenses if not confined to a secure facility. Dr. Doren did not base his opinion that Goodwin would reoffend solely on the diagnosis of antisocial personality disorder. He explained:

There are a few things that distinguish Mr. Goodwin compared to many other people who would be properly diagnosed antisocial personality disorder.
One of those is the repetitively sexual nature of his pattern of disregard for and violation of the rights of others, that being what antisocial means. That includes the 1988 offense on [the furniture store employee]. It includes the masturbating publicly. It includes the verbal comments, the verbalizations that are sexual. It includes the written comments that are sexual in nature.
By no means is his pattern only sexual, but there is a great deal of sexuality in his pattern.
The second thing that distinguishes Mr. Goodwin is that he is also someone who scores very highly in a — How do I say it? He very much fits the criteria for a subtype of antisocial personality disorder that is not particularly common, not so common in the prison setting, and that is the concept of the psychopath.
... A score of 36 [on the psychopathy checklist], even compared to the adult, male inmates, antisocial or otherwise, puts him in the top 2 percent of psychopathy compared to the adult male inmates. Clearly atypical even compared to the usual incarcerated antisocial personality disorder individual.

Dr. Doren further testified that all three of Goodwin’s conditions — sexual sadism, exhibitionism, and antisocial personality disorder — affect Goodwin’s emotional and volitional capacity, predispose him to commit sexually violent offenses, and cause him to have a serious difficulty controlling his behavior.

Goodwin called Dr. Thomas G. Gratzer, a psychiatrist, as his expert witness. Dr. Gratzer opined that Goodwin has neither sexual sadism nor exhibitionism. With respect to whether Goodwin meets the statutory definition of a sexually violent predator, Dr. Gratzer testified,

mental abnormality to my mind would mean a psychiatric disorder, a major mental illness, that in my opinion Mr. Goodwin, while he has an antisocial personality disorder, does not have a major mental illness; does not have a sexual disorder. So he doesn’t have a mental abnormality, as I would understand that term, although he clearly is antisocial.

Dr. Gratzer testified, “I think antisocial personality disorder predisposes an individual to commit criminal acts. I don’t agree it predisposes an individual to commit sexual offenses.” He further explained,

I don’t believe an antisocial personality disorder is a condition that you would associate with inability to control. It refers to personality issues, or characte-rological issues. We hold those people accountable in the criminal system or in society, more generally. We believe they can control their behavior. If they choose not to control their behavior, that’s a separate issue.

On cross-examination, Dr. Gratzer conceded that because criminal acts in general include sexual offenses, Goodwin’s antisocial personality disorder predisposes him to commit sexual offenses. He also stated that Goodwin’s repeated misconduct “could be” indicative of an inability to control his behavior.

Goodwin requested the following special interrogatory be submitted to the jury as a part of the jury instructions: Goodwin argued that if the jury determined that he only suffered from antisocial personality disorder, he could not have a mental abnormality for the purposes of civil commitment.

We find beyond a reasonable doubt that the respondent suffers from the following mental abnormalities:
1. Sexual Sadism _ (write NO or YES)
2. Exhibitionism (write NO or YES)
3. Antisocial Personality Disorder. (write NO or YES)

The court rejected the request for the interrogatory and instructed the jury, “The law does not require jurors to agree which mental abnormalities were proven by the evidence. The law only requires that each juror agree that the Respondent suffers from at least one mental abnormality.” The verdict form submitted to the jury required only that it answer yes or no to one question: “Is the Respondent, Jeffrey A. Goodwin, a sexually violent predator?” The jury answered “yes” on April 30, 2003, and the court ordered that Goodwin be placed in the Civil Commitment Unit for Sexual Offenders at Oakdale.

Goodwin appeals. He claims the jury should have been required to identify whether his underlying mental abnormality was based solely upon his diagnosis of an antisocial personality disorder because commitment as a sexually violent predator under those circumstances would violate the Due Process Clause.

II. Standard of Review

When violation of a constitutional right is claimed, the standard of review is de novo. State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004) (citing State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001)). “The court makes an ‘independent evaluation of the totality of the circumstances as shown by the entire record.’ ” Id. (quoting State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001)). “We give considerable deference to the trial court’s findings regarding the credibility of the witnesses, but are not bound by them.” Id. (citing Turner, 630 N.W.2d at 606; State v. Liggins, 524 N.W.2d 181, 186 (Iowa 1994)).

III. Discussion

The claim raised by Goodwin fails for two reasons. First, we have rejected the underlying assumption upon which the claim is based. In In re Detention of Barnes, 689 N.W.2d 455, 460 (Iowa 2004), ’filed on this date, we held that antisocial personality disorder can serve as the mental abnormality upon which commitment is based, so long as the other elements of the statute are satisfied. Second, chapter 229A does not require the fact finder to determine which particular mental abnormality satisfies the statute, just as it does not require a determination of the specific sexually violent offense that supports commitment. Thus, a person with multiple disorders may be committed under the statute as long as the fact finder determines that at least one of the disorders meets the requirements of the statute and the remaining requirements are met. Consequently, the district court did not abuse its discretion in refusing to submit the requested special interrogatory. See Six v. Freshour, 231 N.W.2d 588, 594 (Iowa 1975) (noting that the trial court has considerable discretion to submit special interrogatories to a jury). There was ample evidence in the record that Goodwin suffered from three separate mental abnormalities and that each predisposed him to commit sexually violent offenses. The requested interrogatory “raise[d] no question[ ] which would be decisive of any ultimate issue in this case.” Id.

IV. Conclusion

We conclude the district court’s refusal to submit Goodwin’s requested special interrogatory to the jury was not an abuse of discretion. Additionally, we find his civil commitment as a sexually violent predator does not violate due process. The judgment of the district court is affirmed.

AFFIRMED.

      . Goodwin stated he wanted to go to Mount Pleasant to get into the sex offender treatment program "[t]o get out of [his] lockup time.” The unit manager testified that inmates have to be "report-free” and in the general population (as opposed to lockup) before being accepted into the program.

      . Dr. Doren slated this
      means that the person is sexually aroused by the infliction of pain or humiliation to individuals; that it has been a condition that has existed for at least six months; and, has caused some type of emotional distress or impairment in that person's life.

      . According to Dr. Doren,
      Exhibitionism is a sexual disorder. It means the person is sexually aroused by exposing his genitals to unsuspecting others. Again, it's something lasting for at least six months and causing some type of impairment to the person's life or distress.

      .Dr. Doren explained antisocial personality disorder as follows:
      This is not a sexual disorder. Personality disorder is a — let me use a generic concept — is a chronic, maladaptive pattern of behavior and inner-experience that causes the person impairment in his life.... And that pattern of behavior is described as disregard of the rights of others.
      He stated that antisocial personality disorder does not necessarily relate to sexual offending, but it can in certain individuals.

      . We recognize Iowa Rule of Civil Procedure 1.934 provides that "[t]he jury in a case in which it renders a general verdict may be required by the court, and must be so required on the request of any party to the action, to find specially upon any particular questions of fact....” Nevertheless, this rule does not require the district court to submit all interrogatories requested by the parties. The trial court has discretion to refuse to submit a requested interrogatory that fails to pose a question that is "essential to the juiy's determination of the case.” Berghammer v. Smith, 185 N.W.2d 226, 236 (Iowa 1971).


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    In re the DETENTION OF Timothy HODGES. State Of Iowa, Appellee, v. Timothy Hodges, Appellant.
    No. 03-1494.
    Supreme Court of Iowa.
    Nov. 19, 2004.

      Mark Smith, First Assistant State Public Defender, and Greg Bal, Assistant Public Defender, for appellant.
    Thomas J. Miller, Attorney General, and Cristen C. Odell-Douglass and Thomas H. Miller, Assistant Attorneys General, and Brent Symens, County Attorney, for ap-pellee.
   CADY, Justice.

In this appeal we consider whether civil commitment under Iowa Code chapter 229A (2003) violates due process under the United States and Iowa Constitutions when the condition underlying commitment is antisocial personality disorder. For the reasons we expressed in In re Detention of Barnes, 689 N.W.2d 455, 2004 WL 2634540 (Iowa 2004) (.Barnes ID, also filed today, we affirm the district court judgment.

I. Background Facts and Proceedings

Timothy Hodges, who is now forty-three years old, has a long history of sex offending. After his father sexually molested him at age ten, Hodges began molesting his sister. Around the same time, he began peeping into the girls’ locker room at school to watch girls undress and shower. He also peeped into the bathroom at home to “watch[ ] women or other girls us[e] the rest room.” He soon began peeping through windows in various houses in his community and even “entered a few of the homes to rifle through the female occupant’s underwear drawers.” On one occasion, after mowing a woman’s lawn, he “asked her if she could take her nightgown off for” him. Hodges was placed in the children’s unit at Cherokee Mental Health Institute following the incident.

Hodges remained at Cherokee for two years. While there, he continued peeping into the girls’ locker rooms and bathrooms. After he was released, he continued his voyeuristic activities until he was placed in a children’s home at age fifteen. While there, Hodges testified he would pull down girls’ bed covers to look at their naked bodies as they slept. He was later returned to the Cherokee Institute after threatening to kill himself.

After his release from Cherokee, Hodges was placed in the Boys and Girls Home in Sioux City until he was seventeen. While on passes from the home, Hodges began to engage in frotteurism. He would randomly grab “women [in] appropriately on the streets of downtown Sioux City.” He “was arrested and charged with 26 different counts, roughly” over a “two to three month period.” While at the Boys and Girls Home, he would clandestinely watch the house counselors take showers and would take their underwear. As a result of these activities, Hodges was placed in the State Boys Training School until he was eighteen.

After Hodges was released from the Training School, he continued his frotteu-rism in Crestón. He was also convicted of trespassing for peeking under the restroom stalls at the Union County courthouse to watch women using the bathroom. Instead of serving jail time, Hodges went to the Clarinda Mental Health Institute for thirty days.

When Hodges was nineteen, he was charged with second-degree burglary for breaking into a girlfriend’s house and shoving her mother against the wall. He was returned to Clarinda for six to eight months.

When Hodges was twenty-one, he served thirty days in jail for fondling a woman without her consent. Between the ages of twenty-one and twenty-four, he frequently took women’s underwear from clotheslines and laundromats. He also molested his twelve-year-old cousin for two to three months during this time.

In 1984, Hodges raped a mentally challenged woman on the grounds of Cherokee. He was charged with sexual abuse, but pled guilty to the reduced charge of assault causing bodily harm. He served eighty-seven days in jail.

After his release from jail, Hodges moved to LeMars, where he was arrested for watching women use the restroom at a laundromat through a hole in the wall. He also “broke into a gas station ... to steal a bunch of porno magazines.” He was convicted of third-degree theft, and served eight months of a two-year sentence.

After Hodges was released from prison, he broke into a woman’s house “[t]o feel or fondle her while she was asleep.” He also broke into another woman’s house for the same purpose on two occasions. He was arrested and charged with trespassing and four counts of second-degree burglary. He pled guilty to one count of second-degree burglary and was sentenced to ten years in prison.

After Hodges was released from prison, he began a sexual relationship with a mentally challenged woman, and engaged in sexual intercourse with the woman in the presence of her four-year-old daughter. He then sexually molested the child. He was convicted of third-degree sexual abuse in 1998 and discharged his sentence in December 2002.

The State filed a petition seeking to have Hodges deemed a sexually violent predator and civilly committed under Iowa Code chapter 229A. The trial commenced on August 12, 2003, and the jury heard testimony about Hodges’ history of sex offending and testimony from psychiatrists. On August 14, 2003, the jury concluded Hodges was a sexually violent predator under Iowa Code section 229A.2(11), and the district court ordered him committed to the Civil Commitment Unit for Sexual Offenders at Oakdale.

Hodges appeals. He claims that a civil commitment under chapter 229A based on a diagnosis of antisocial personality disorder violates due process under the United States and Iowa Constitutions.

II. Preservation of Error

The State acknowledges Hodges preserved error to the extent that his claim involves statutory construction, but claims he failed to preserve error on the due process challenge. It claims the due process challenge was not preserved because Hodges did not specifically refer to the Due Process Clause in his motion for a directed verdict in district court.

The general rule is “that an appellate court will not consider grounds for a motion for directed verdict which the movant did not place before the trial court.” Podraza v. City of Carter Lake, 524 N.W.2d 198, 202 (Iowa 1994) (citing 75A Am.Jur.2d Trial § 981, at 502-03 (1991)). However, there is an exception to this rule. Id.

[A]n appellate court will consider grounds not precisely raised in a motion for directed verdict where the record indicates the trial court, counsel, and both parties had no doubt what the grounds for the motion were and these grounds were obvious and discussed thoroughly in the court below.

Id. (citing 75A Am.Jur.2d Trial 931, at 503).

It is clear in this case that “the trial court, counsel, and both parties had no doubt [that] the grounds for the motion” were that civil commitment of Hodges would violate due process. See id. The record indicates that counsel for Hodges informed the district court that his argument was “[biased on the Foucha v. Louisiana as well as the Kansas v. Crane, United States Supreme court cases.” Counsel for Hodges further indicated the cases were “summarized in the memorandum” provided to the court and that they held that “an antisocial personality disorder [was] not sufficient basis for civil commitment.” Foueha and Crane are cases that address the requirements for civil commitment to satisfy due process. See Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 870, 151 L.Ed.2d 856, 862-63 (2002) (holding “there must be proof of serious difficulty in controlling behavior ... sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in the ordinary case”) (citations omitted); Foucha v. Louisiana, 504 U.S. 71, 83, 112 S.Ct. 1780, 1787, 118 L.Ed.2d 437, 450 (1992) (holding it violates due process for a state to indefinitely detain persons acquitted due to insanity when they are no longer mentally ill). Thus, the due process issue was properly preserved for appeal. See Podraza, 524 N.W.2d at 202.

III. Standard of Review

When violation of a constitutional right is claimed, the standard of review is de novo. State v. Tague, 676 N.W.2d 197, 201 (Iowa 2004) (citing State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001)). “The court makes an ‘independent evaluation of the totality of the circumstances as shown by the entire record.’ ” Id. (quoting State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001)). “We give considerable deference to the trial court’s findings regarding the credibility of the witnesses, but are not bound by them.” Id. (citing Turner, 630 N.W.2d at 606; State v. Liggins, 524 N.W.2d 181, 186 (Iowa 1994)).

IV. Hodges’ Commitment as a Sexual Predator.

In Barnes II, we rejected the same claim raised by Hodges in this case. 689 N.W.2d at 458. Although Hodges could not be committed solely because of his antisocial personality disorder, antisocial personality disorder can serve as the mental abnormality upon which commitment is based so long as all the elements of the statute are met. For the reasons expressed in Barnes II, we conclude the commitment did not violate Hodges’ due process rights under the United States and Iowa Constitutions.

V. Conclusion.

We affirm the district court judgment.

AFFIRMED.

      . Hodges described "frotteurism” as follows: "I might notice their breasts or their butt and I might grab their breasts for sexual pleasure. Just to grab them. Not really to harm them. Just to grab them for my own gratification.” The DSM-IV defines frotteurism as: "Over a period of at least 6 months, recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving touching and rubbing against a non-consenting person.” Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders § 302.89 (4th ed., text rev.2000).


author: WIGGINS, Justice. LARSON, Justice

text:
    STATE of Iowa, Appellee, v. The WOLFORD CORPORATION, Appellant.
    No. 03-1726.
    Supreme Court of Iowa.
    Dec. 3, 2004.

      John P. Roehrick of Roehriek, Krull & Blumberg, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, John P. Sarcone, County Attorney, and Lawrence E. James, Assistant County Attorney, for appellee.
   WIGGINS, Justice.

The district court affirmed the associate district court’s criminal conviction of The Wolford Corporation (Wolford) for failing to timely file two real estate contracts in violation of Iowa Code section 558.46(1) (2001). Because we agree with the district court that a violation of section 558.46(1) is a public offense punishable through criminal prosecution, and the execution of a second contract covering the same real estate transaction as the original contract did not extinguish Wolford’s obligation to record the original contract, we affirm the judgment of the district court.

I. Background Facts and Procedure.

On April 26, 2001, Doreen Johnson entered into a real estate contract with Rachel N. Nelson as Trustee for the Medino-ski Trust (Trust) for the purchase of a home located in Des Moines. On June 27, 2002, Johnson signed another contract concerning the same property with the Trust, which included the same terms and conditions as the original contract but with a lower interest rate. Under the terms of both contracts, the Trust had the obligation to file a “memorandum of interest” with the county recorder evidencing Johnson’s interest in the property. The Trust did not file the original contract or a memorandum of the original contract with the recorder’s office for recording. The Trust filed the second contract on January 29, 2003, for recording.

On February 24, 2003, the State issued a citation against the Trust for failing to timely record the June real estate contract within 180 days from the date the parties signed the second contract as mandated by Iowa Code section 558.46(1) and (2). Because the Trust recorded the second contract 216 days after the date of signing, the county attorney charged the Trust with thirty-six simple misdemeanor counts, one count for each day the Trust did not file the contract for recording after the expiration of the 180-day grace period. The State later filed an amended complaint asserting an additional 246 simple misdemeanor counts based on the Trust’s and Wolford’s failure to record the original contract. The 246 counts represented each day the Trust and Wolford failed to file the original contract with the recorder calculated from the expiration of the 180-day grace period to the date the parties executed the second contract. In total, the State charged the Trust and Wolford with 282 simple misdemeanor counts. Without objection, the court later substituted Wol-ford as the proper defendant on all counts.

Wolford entered a plea of not guilty and argued a violation of section 558.46 is subject to a civil penalty rather than a criminal fine, and the second contract had extinguished any recording violations under the original contract. The associate district court concluded Wolford’s failure to timely record the real estate contracts was punishable as a criminal misdemeanor. The court, however, found Wolford guilty of just one count of failure to record a real estate contract pursuant to section 558.46. The court fined Wolford $5 per day for each of the 282 days that the contracts went unrecorded, plus a thirty percent surcharge. The district court affirmed the decision of the associate district court. Wolford filed a petition for discretionary appeal, which this court granted.

II. Issues.

This discretionary appeal involves two issues: (1) whether a violation of Iowa Code section 558.46 constitutes a public offense punishable through criminal prosecution, and (2) whether execution of the second contract extinguished Wolford’s statutory obligation to record the original contract.

III. Scope of Review.

Our review is for correction of errors at law because Wolford’s contentions raise a question of statutory interpretation. State v. Kress, 636 N.W.2d 12, 17 (Iowa 2001); State v. Ceron, 573 N.W.2d 587, 589 (Iowa 1997).

IV. Is the Violation of Iowa Code Section 558.46 a Public Offense Punishable Through Criminal Prosecution?

There are no common-law crimes in this state. State v. Campbell, 217 Iowa 848, 853, 251 N.W. 717, 719 (1933). The legislature defines criminal acts by statute. State v. Di Paglia, 247 Iowa 79, 84, 71 N.W.2d 601, 604 (1955). It is not essential for a criminal statute to include language that the violation of the statute constitutes a misdemeanor or felony. Bopp v. Clark, 165 Iowa 697, 701, 147 N.W. 172, 174 (1914). The legislature has criminalized affirmative acts. See, e.g., Iowa Code § 707.1 (criminalizing murder as killing another with malice aforethought); id. § 714.1(1) (criminalizing theft as taking possession of another’s property with the intent to deprive the other thereof); id. § 716.1 (criminalizing criminal mischief as intentionally damaging property by one who has no right to do so). The legislature has also criminalized omissions. See, e.g., id. § 422.25(5) (criminalizing the failure to file a tax return as a fraudulent practice); id. § 692A.7 (criminalizing the failure to register as a sex offender). The penalty for a criminal act may be incarceration. See, e.g., id. § 902.1 (stating the penalty for a class “A” felony is life in prison). The penalty may only be a fine. See, e.g., id. § 805.8 (listing scheduled fines for motor vehicle violations). In some instances, the penalty may include both incarceration and a fine. See, e.g., id. § 902.9(4) (stating the penalty for a class “C” felony includes confinement and a fine). The fine may be in a fixed amount for the specified violation. See, e.g., id. § 805.8(2)(a) (requiring a twenty dollar fine for certain parking violations). For other violations, the fine may be a per diem amount for each day the violation persists. See, e.g., id. § 455B.146A (stating knowingly violating a provision of division II of chapter 455B is an aggravated misdemeanor punishable by a fine of not more than ten thousand dollars for each day of violation). In other words, the legislature can draft a criminal statute in any form. It need not use any special language to criminalize an act. It may criminalize commissions or omissions and provide for a variety of penalties for a violation of a criminal statute.

To decide whether a violation of Iowa Code section 558.46 is a public offense punishable through a criminal prosecution, we must determine the legislative intent when the legislature adopted it. See Clinton Cmty. Sch. Dist. v. Anderson, 322 N.W.2d 73, 75-76 (Iowa 1982). “We determine legislative intent from the words chosen by the legislature, not what it should or might have said.” Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004).

Iowa Code section 558.46 provides in relevant part:

1. Every real estate installment sales contract transferring an interest in residential property shall be recorded by the contract seller with the county recorder in the county in which the real estate is situated not later than one hundred eighty days from the date the contract was signed by the contract seller and contract purchaser.
2. Failure to record a real estate contract required to be recorded by this section by the contract seller within the specified time limit is punishable by a fine not to exceed one hundred dollars per day for each day of violation. The county recorder shall record a real estate contract presented for recording even though not presented within one hundred eighty days of the signing of the contract. The county recorder shall forward to the county attorney a copy of each real estate contract recorded more than one hundred eighty days from the date the contract was signed by the contract seller and contract purchaser. The county attorney shall initiate action in the district court to enforce the provisions of this section. Fines collected pursuant to this subsection shall be deposited in the general fund of the county-

Iowa Code § 558.46(1), (2) (2003) (emphasis added).

By the legislature’s use of the language “punishable by a fine” in section 558.46(2), we believe the legislature intended a violation of section 558.46(1) to be a criminal act. In the absence of a legislative definition, we give words their plain and ordinary meaning. Lauridsen v. City of Okoboji Bd. of Adjustment, 554 N.W.2d 541, 544 (Iowa 1996). The dictionary defines a “fine” as “2a: a sum formerly paid as compensation or for exemption from punishment but now imposed as punishment for a crime — distinguished from forfeiture and penalty.” Webster’s Third New International Dictionary 852 (unabr. ed. 2002). Ordinary legal phraseology considers a “fine” as

pecuniary punishment which may be legally imposed or assessed only by a lawful tribunal in a case wherein it has jurisdiction, properly invoked, of the offense charged and of the person of the accused. It is the sentence pronounced by the court for the violation of a criminal law, the amount of which may be fixed by law or left in the discretion of the court.

Marquart v. Maucker, 215 N.W.2d 278, 282 (Iowa 1974). Finally, the legislature defines a “public offense” as “that which is prohibited by statute and is punishable by fine or imprisonment.” Iowa Code § 701.2 (emphasis added). These definitions indicate the legislature intended to make a violation of section 558.46 a public offense punishable through criminal prosecution when it used the phrase “punishable by a fine.”

Additionally, the legislature expresses its intent by omission. N. Iowa Steel Co. v. Staley, 253 Iowa 355, 357, 112 N.W.2d 364, 365 (1961). The Code is replete with statutes specifically labeling the violation of a statute as a “civil fine” or “civil penalty.” See, e.g., Iowa Code § 9H.4(11) (providing for a “civil penalty” for a violation of the statute regulating the ownership of farmland); id. § 123.135(5) (providing for a “civil penalty” for a violation of chapter 123); id. § 135.105A(4) (providing for a “civil penalty” for failure to complete a training program prior to performing a lead abatement or inspection); id. § 142B.6 (providing for a “civil penalty” for smoking in a prohibited area); id. § 490.1502(4) (providing for a “civil penalty” for a foreign corporation transacting business in Iowa without a certificate of authority). Had the legislature intended the violation of section 558.46(1) to constitute a civil infraction, it would have used the term “civil penalty” or “civil fine” in section 558.46(2).

Wolford asserts because section 558.46(2) requires the fine “shall be deposited in the general fund of the county,” a violation of section 558.46(2) is a civil infraction. It bases its assertion on section 666.3, which provides:

Fines and forfeitures, after deducting court costs, court expenses collectible through the clerk of the court, and fees of collection, if any, and not otherwise disposed of, shall be paid to the treasurer of state for deposit in the general fund of the state.

Id. § 666.3. It argues the fine under section 558.46(2) cannot be a criminal fine because it is not payable to the general fund of the State. Wolford believes Anderson supports its position.

In Anderson, we held the intent of the legislature as evidenced by the language it used in a statute is determinative of whether a violation of the statute is a criminal act or civil infraction. 322 N.W.2d at 75-76. Only after we determined the legislature intended a violation of the environmental quality statute to be a civil infraction because of the language it used, did we consider to whom the fine was payable. Id. at 76. Thus, Anderson does not stand for the proposition that the entity to whom a fine is payable determines the nature of a statute. To the contrary, whether the violation of a statute is a criminal act or civil infraction does not turn on who receives the fine. The legislature has enacted statutes that provide for the payment of civil penalties to a variety of entities. See, e.g., Iowa Code § 125.135(5) (providing for the civil fines collected under this section be retained by the alcoholic beverage division); id. § 142B.6 (providing for the civil penalty to be deposited in the county treasury); id. § 216.15A(ll)(ci) (providing for the civil penalty to be deposited in the general fund).

In summary, the intent of the legislature as determined by the language it used determines whether a violation of section 558.46 is a public offense punishable through criminal prosecution, not the entity that receives the fine. For all these reasons, we are convinced the district court was correct when it concluded the legislature intended a violation of section 558.46(1) to be a criminal act, rather than a civil infraction.

V. Did the Execution of the Second Contract Extinguish Wolford’s Statutory Obligation to Record the Original Contract?

Wolford argues the parties substituted the second contract for the original contract; thus, Wolford concludes it is only liable for its failure to record the second contract making it responsible for a fine of thirty-six days, the days the second contract went unrecorded as required by the statute. Wolford is correct in its conclusion that the second contract replaced and extinguished the parties’ rights and obligations under the original contract. “ ‘[Pjarties to a valid contract may rescind or abandon it, or substitute another in its place, or by conduct inconsistent with the continued existence of the original contract estop themselves from asserting any right thereunder.’ ” Recker v. Gustafson, 279 N.W.2d 744, 755 (Iowa 1979) (citations omitted). Further, when the parties substitute a later contract for an earlier contract, the later contract extinguishes the contractual obligations of the earlier contract. See, e.g., Klipp v. Iowa Grain Indent. Fund Bd., 502 N.W.2d 9, 11 (Iowa 1993). Wolford is incorrect, however, when it concludes the execution of the second contract retroactively extinguished its obligation to file the original contract.

The purpose of recording a real estate contract is to give third persons notice of the seller’s and buyer’s respective interests in the real estate created by the contract. Recording allows third persons to file real estate liens against the appropriate party when authorized by law and to determine the status of the title before entering into a transaction involving the property. Additionally, recording the contract allows for judgment liens and other statutory liens to automatically attach to a person’s interest in the real property when permitted by law. See, e.g., Iowa Code § 624.23 (providing for a judgment lien to automatically attach to the real property of a defendant at the time the judgment is rendered); id. § 364.13A (providing for the automatic attachment of a lien for a special assessment against real property benefited by the special assessment).

An additional legislative purpose of section 558.46(1) is to protect a buyer’s interest in the real property covered by the contract. A judgment or statutory lien, which by law is a charge against the seller’s real property, cannot defeat the buyer’s interest under a real estate contract if the seller properly records the contract as required by section 558.46(1). Additionally, recording facilitates the buyer when he or she seeks conventional financing for the property, and gives notice to the buyer’s heirs of the buyer’s interest in the property upon the buyer’s death. Finally, if the seller properly records the contract as required by section 558.46(1), the seller is unable to resell the property or divest the buyer’s interest in the property without first following the legal requirements for the forfeiture of the contract. See Iowa Code ch. 656.

The original contract gave Johnson an interest in the real property. Recording the original contract was essential to protect Johnson’s interest in the property created by the original contract. Although the second contract extinguished the rights between the parties created by the original contract, Wolford’s failure to timely record the original contract left Johnson vulnerable to claims by third parties who did not receive notice of her interest in the property created by the original contract. Wol-ford’s failure to timely record the original contract also would have allowed Wolford to resell the property to a good-faith purchaser, even though Johnson had a valid interest in the property. Accordingly, we agree with the district court that the parties’ execution of the second real estate contract did not extinguish Wolford’s prior obligation under section 558.46(1) to record the original contract.

VI. DISPOSITION.

Because we agree with the district court that a violation of Iowa Code section 558.46(1) is a public offense punishable through criminal prosecution and the execution of a second contract did not retroactively extinguish Wolford’s obligation to record the original contract, we affirm the judgment of the district court.

AFFIRMED.

All justices concur except LARSON and CADY, JJ., who dissent.

LARSON, Justice

(dissenting).

I dissent because section 558.46 does not clearly provide for criminal, as opposed to civil, punishment. In such a case, doubts must be resolved in favor of the defendant. See Rewis v. United States, 401 U.S. 808, 812, 91 S.Ct. 1056, 1059, 28 L.Ed.2d 493, 497 (1971) (“[Ajmbiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.”).

The majority holds that section 558.46(2) is a criminal provision because it uses the word “fine.” While use of the word “fine” is probative, it is not determinative. 36A C.J.S. Fines § 2, at 206 (2003) (“[T]he terms ‘fine’ and ‘penalty’ are often used synonymously, and there is authority that the term ‘fíne’ is broad enough to include penalties for the violation of law which are recoverable in civil actions even though such violation is made neither a misdemeanor nor a felony.” (Footnotes omitted.)); see also State ex rel. Howell County v. W. Plains Tel. Co., 232 Mo. 579, 135 S.W. 20, 21-22 (1911) (finding that a statute was not criminal, even though the statute used the word “fine,” because it contained many other characteristics more consistent with civil penalties); State v. Johnson, 1 Or.App. 363, 462 P.2d 687, 689-90 (1969) (holding that a statute was not criminal, even though it imposed a “fine” on any political candidate who belatedly filed a statement of campaign contributions).

Ultimately, when determining for the first time whether a statute imposes civil or criminal sanctions, “we must seek out and give effect to the intention of the legislature.... ” Lenertz v. Mun. Ct., 219 N.W.2d 513, 515-16 (Iowa 1974) (holding-after considering the statute’s whole text, legislative history, and purpose — that a consumer fraud provision did not impose criminal sanctions); see 36A C.J.S. Fines § 2, at 206 (“The true significance of [the term ‘fine’], when used in a statute or constitution, must be ascertained according to the ordinary methods of interpretation.”). In this case, I believe the legislature used the word “fine” in its broad sense: simply “a payment extracted by the government and payable to the government.” Coleman v. Watt, 40 F.8d 255, 263 (8th Cir.1994). This definition, without further clarification, could apply to a civil forfeiture as well as a criminal punishment.

It is true, as the majority concludes, that our laws have criminalized acts of omission as well as commission. However, even the omission-crime statutes cited by the majority clearly state they are crimes. For example, Iowa Code section 422.25(5) makes failure to file a tax return a fraudulent practice. Fraudulent practices in turn are declared to be simple misdemeanors to class “C” felonies under Iowa Code sections 714.9-.13. Similarly, failure of a sex offender to register is stated by section 692A.7 to be an aggravated misdemeanor to a class “D” felony, depending on the number of offenses. In contrast, section 558.46(2) does not say what level of “crime” it is (e.g., simple or aggravated misdemeanor) or that a violation is a crime at all.

Another important factor in determining whether this is civil or criminal is the placement of the section in question — a decision made here by the legislature, not the code editor. Section 558.46 is in the chapter on conveyances, not in the criminal provisions of the Code. See Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 2082, 138 L.Ed.2d 501, 514-15 (1997) (finding that the state’s objective to create a civil proceeding was evidenced by its placement in the probate code instead of in the criminal code). Notwithstanding this general rule, the Iowa legislature has placed one criminal provision in the conveyancing chapter. See Iowa Code § 558.40. However, it did so not by implication, but by clearly stating that a violation of that section is a crime. That section provides:

Any officer, who knowingly misstates a material fact in either of the certificates mentioned in this chapter, shall be liable for all damages caused thereby, and shall be guilty of a serious misdemeanor.

Id. (emphasis added). If the legislature truly intended criminal sanctions for a violation of section 558.46, it should have included equally clear language.

In sum, we should never recognize a crime by inference or implication. As the Supreme Court has said:

[W]hen choice has to be made between two readings of what conduct [the legislature] has made a crime, it is appropriate, before we choose the harsher alternative, to require that [the legislature] should have spoken in language that is clear and definite.

United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22, 73 S.Ct. 227, 229, 97 L.Ed. 260, 264 (1952). Before we conclude, as the majority has, that a violation of section 558.46 is a crime, we should await clear and definite language from the legislature stating as much. I would reverse.

CADY, J., joins this dissent.

      . The Trust had entered into a management agreement with Wolford under which Wol-ford was responsible for the contract, including its recording.


author: SACKETT, C.J.

text:
    STATE of Iowa, Plaintiff-Appellee, v. Jerry Martin BATES, Defendant-Appellant.
    No. 03-1950.
    Court of Appeals of Iowa.
    July 28, 2004.
    Jesse Macro, Jr., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, Martin Ramsey, County Attorney, for appellee.
    Considered by SACKETT, C.J., and HUITINK and MILLER, JJ.
   SACKETT, C.J.

Defendant-appellant Jerry Bates appeals the district court’s denial of his motion to dismiss following his guilty plea to lascivious acts with a child in violation of Iowa Code section 709.8 (1999). On appeal defendant argues the district court was in error in denying his motion to dismiss due to the failure of the State of Iowa to comply with the provisions of the Interstate Agreement on Detainers, Iowa Code chapter 821. We affirm.

I. BACKGROUND FACTS AND PROCEEDINGS

Defendant was charged in Madison County, Iowa on August 14, 2000 with second-degree sexual abuse. Pending trial on that charge, defendant was arrested in Missouri on an operating while intoxicated (OWI) charge. On July 16, 2001 defendant appeared in Iowa and pled guilty to an amended charge of lascivious acts with a child. Sentencing on this charge was set for September 24, 2001. Four days before the scheduled Iowa sentencing, defendant pled guilty to the OWI charge in Missouri and was immediately sentenced to a four-year prison term. On September 28, 2001 defendant sent an “Inmate’s Notice of Place of Imprisonment and Request for Disposition of Indictments[,] Informations or Complaints” to the Madison County Attorney. There was evidence that the State of Iowa initiated extradition proceedings, but that the State of Missouri determined defendant could only be delivered to Iowa for purposes of sentencing via an Executive Agreement rather than through the extradition process. On December 3, 2002 defendant sent Agreement on Detainers Forms II, III, and IV to the Polk County Courthouse requesting final disposition of, among other charges, his conviction for lascivious acts with a child. The State contends there is no evidence these forms were delivered to the Madison County prosecutor.

On September 16, 2003 defendant moved to dismiss his conviction for lascivious acts with a child, claiming his speedy trial rights had been violated under the Interstate Agreement on Detainers, Iowa Code chapter 821, because the State had failed to bring him to Iowa for sentencing within 180 days of his September 28, 2001 and December 3, 2002 requests for final disposition.

II. SCOPE OF REVIEW

We review the district court’s denial of defendant’s motion to dismiss for errors at law. See State v. Widmer-Baum, 653 N.W.2d 351, 354 (Iowa 2002).

III. ANALYSIS

The Interstate Agreement on Detainers is in chapter 821 of the Iowa Code. Iowa Code §§ 821.1-.8. It is an agreement that establishes uniform procedures between states, the District of Columbia, and the federal government for the orderly and cooperative disposition of criminal charges against a prisoner incarcerated in one jurisdiction and wanted by another jurisdiction that has lodged a de-tainer against the prisoner to respond to untried criminal charges in that jurisdiction. Widmer-Baum, 653 N.W.2d at 354. Article III of the Interstate Agreement on Detainers, section 821.1 of the Iowa Code, provides,

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, the prisoner shall be brought to trial within one hundred eighty days after the prisoner shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of the prisoner’s imprisonment and the prisoner’s request for a final disposition to be made of the indictment, information, or complaint.... (Emphasis added).

Under the plain language of Article III, defendant does not fall within the protections of the Interstate Agreement on De-tainers. Defendant, who pled guilty, had already been convicted of the crime at issue and was merely awaiting sentencing. As stated in Article I of section 821.1, the purpose of the Interstate Agreement on Detainers was to address the uncertainties stemming from “untried indictments, infor-mations or complaints, and difficulties in securing speedy trial of persons already incarcerated in other jurisdictions.... ” Defendant was not facing any uncertainty with respect to the merits of the charge against him.

When faced with the question of whether the Interstate Agreement on Detainers applies when a defendant has been convicted of a crime in another jurisdiction but not yet sentenced, the majority of courts have concluded that it does not. See Stephenson v. State, 801 So.2d 34, 37-40 (Ala.Crim.Ct.App.2000); State v. Burkett, 179 Ariz. 109, 876 P.2d 1144, 1146-48 (Ariz.Ct.App.1993); People v. Mahan, 111 Cal.App.3d 28, 168 Cal.Rptr. 428, 431 (1980); People v. Castoe, 86 Cal.App.3d 484, 150 Cal.Rptr. 237, 238-40 (1978); Moody v. Corsentino, 843 P.2d 1355, 1358-59, 1367-72 (Colo.1993); Bogue v. Fennelly, 705 So.2d 575, 581 (Fla.Dist.Ct.App.1997); Lancaster v. Stubblefield, 985 S.W.2d 854, 856 (Mo.Ct.App.1998); Prince v. State, 118 Nev. 634, 55 P.3d 947, 950-51 (2002); State v. Sparks, 104 N.M. 62, 716 P.2d 253, 255 (N.M.Ct.App.1986), cert. denied, 103 N.M. 798, 715 P.2d 71 (1986); People v. Randolph, 85 Misc.2d 1022, 381 N.Y.S.2d 192, 193-94 (1976); State v. Barnes, 14 Ohio App.3d 351, 471 N.E.2d 514, 516 (Ohio Ct.App.1984); State v. Leyva, 906 P.2d 910, 911-12 (Utah Ct.App.1995); State v. Barefield, 110 Wash.2d 728, 756 P.2d 731, 732-34 (1988); State v. Grzelak, 215 Wis.2d 577, 573 N.W.2d 538, 539-41 (Wis.Ct.App.1997).

Given the plain language of chapter 821 and the overwhelming authority above, we conclude the Interstate Agreement on De-tainers does not apply for purposes of expediting sentencing.

AFFIRMED.

        . The conviction for lascivious act with a child is listed only on Forms III and IV.

      . The minority view is articulated in Tinghitella v. California, 718 F.2d 308, 309-11 (9th Cir.1983).


author: LANSING, Judge.

text:
    TWIN CITY PIPE TRADES SERVICE ASSOCIATION, INC., Respondent, v. PEAK MECHANICAL, INC., et al., Defendants, Spectrum Investment Group, LLC, Appellant.
    No. A04-356.
    Court of Appeals of Minnesota.
    Dec. 7, 2004.
    Vincent J. Fahnlander, Eric L. Lipman, Mohrman & Kaardal, P.A., Minneapolis, MN, for respondent.
    John M. Koneck, Brian S. McCool, Fre-drikson & Byron, P.A., Minneapolis, MN, for appellant.
    Considered and decided by SHUMAKER, Presiding Judge; LANSING, Judge; and FORSBERG, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

LANSING, Judge.

This appeal from the district court’s entry of summary judgment in favor of the trustees of an employee-benefit trust fund presents the question of whether the trustees may file a mechanics’ lien statement on behalf of union employees. Because the trustees are acting as the representatives of the employees and effectively stand in their shoes, we conclude they may file the claim, and we affirm the district court’s ruling.

FACTS

Spectrum Investment Group, LLC, the owner of real property in Eagan, employed a subcontractor, Peak Mechanical, Inc. to make improvements on the property. Peak then employed the pipefitters and plumbers of four different, local unions to furnish the required labor from November 2001 through January 2002.

The terms and conditions of the employment were governed by the applicable collective bargaining agreements, to which Peak, by virtue of its membership in Minnesota Mechanical Contractors Association (MMCA), was a party. These agreements incorporated a trust agreement between Twin City Pipes Trades Service Association, Inc. (TCPT), MMCA, the Plumbing Heating Cooling Contractors Association (PHCC), and the Pipe Trades local unions. The trust agreement provides that TCPT, a non-profit corporation, is responsible for the administration of two trusts: the Twin City Pipe Trades Pension Trust and the Twin City Pipes Trades Welfare Fund. A board of trustees, composed in part of MMCA, PHCC, and the local unions, administers the trusts and TCPT.

The trust agreement provides that TCPT is the representative of the union employees in any “legal proceeding, including the filing of mechanics liens on any property where Employees of a delinquent Employer have furnished labor, and for the additional purpose of acting as such representative in any court foreclosure proceeding to enforce payment of the lien.” The collective bargaining agreement con-junctively provides that if an employer defaults in making the required contributions to the trust, “the trustees ..., acting on behalf of the Union members or beneficiaries of the funds, may take any legal action as they, in their sole discretion may determine, in order to effect collection of the amounts of wages, or other payments which are in default.”

Despite its obligations .under the collective bargaining agreement, Peak failed to make the required contributions to the employee-benefit trust fund, amounting to a sum of $62,947.45. In an effort to enforce Peak’s obligations, TCPT filed mechanics’ lien statements against Spectrum as the owner of the property that received the improvements. In both the initial lien statements as well as the amended statements, TCPT indicated that it was the lien claimant for the unpaid benefits. The statements specified that the amount of the lien was “due and owing to the lien claimant for labor performed or skill, material or machinery furnished to the land.” The lien statements did not identify the unions or the employees that actually performed the labor on the property.

Spectrum disputed the validity of the liens, and TCPT sought judicial foreclosure. Both parties moved for summary judgment, and Spectrum asserted that TCPT could not claim the lien in its own name without designating the individual employees who performed the work. The district court concluded TCPT had standing to sue on behalf of the union employees and entered judgment for $62,947.45 in favor of TCPT. Spectrum now appeals this judgment.

ISSUE

Can the representatives of an employee-benefit trust fund enforce an employer’s obligation to contribute to the fund by claiming a mechanics’ lien on real property improved through the labor of the employees?

ANALYSIS

On appeal from summary judgment, this court determines whether the case raises issues of material fact and whether the district court erred in its application of the law. Cummings v. Koehnen, 568 N.W.2d 418, 420 (Minn.1997). In assessing the evidence, we take the view most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). When the district court’s decision to grant summary judgment relies on its application of a statute to undisputed facts, the result is a legal conclusion, which we review de novo. Lefto v. Hoggsbreath Enters., Inc., 581 N.W.2d 855, 856 (Minn.1998).

The mechanics’ lien statute provides Ihat whoever “contributes to the improvement of real estate by performing labor, or furnishing skill ... shall have a lien upon the improvement, and upon the land....” Minn.Stat. § 514.01 (2002). The lien claimant must file a lien statement with certain information presented, including the “name[ ] of the claimant” and that the amount is “due and owing to the claimant for labor performed.” Minn.Stat. § 514.08, subd. 2 (2002).

Minnesota courts strictly construe the mechanics’ lien statute when examining whether the requirements for attachment and creation of the lien are satisfied. Dolder v. Griffin, 323 N.W.2d 773, 779-80 (Minn.1982) (discussing the tension between the need for prelien notice to unsuspecting owners and the remedial purpose of protecting laborers). After the creation of the lien, however, courts liberally construe the statute to effectuate its remedial purpose of protecting laborers. Id. In applying this two-part test, courts have uniformly applied the stricter standard to the issues of notice and timing, but have not addressed which standard applies to the question of whether the proper lien claimant is named on the statement. See, e.g., Ryan Contracting, Inc. v. JAG Invs., Inc., 634 N.W.2d 176, 184 (Minn.2001) (applying the strict standard to the one-year time limit of section 514.12); Merle’s Constr. Co. v. Berg, 442 N.W.2d 300, 302 (Minn.1989) (“There must be strict compliance with the prelien notice statutory requirements.”).

We note initially that TCPT met the statutory obligation of stating the name of the claimant regardless of which construction we apply. See Minn.Stat. § 514.08, subd. 2(3) (requiring claimant’s name on lien statement). The question of whether TCPT is a proper claimant, however, goes beyond this basic requirement. The inquiry of whether some name was used is distinct from whether the right name was used; the former is subject to a strict construction because it is essential to create the lien. But the issue of whether the right name is used relates not only to the lien’s validity but also to the lien’s protective scope. The scope of a lien’s protection determines the availability of relief and, in this case, the availability of funds for the workers’ welfare and pensions. An interpretation of the scope of protection, within the framework of the statutory language, generally receives a remedial or more liberal interpretation. See, e.g., Weyerhaeuser v. Twin City Millwork, 291 Minn. 293, 301, 191 N.W.2d 401, 405-06 (1971) (applying liberal construction to scope of protection afforded subcontractor); Armco Steel Corp. v. Chicago & N.W. Ry., 276 Minn. 133, 137-38, 149 N.W.2d 23, 26 (1967) (accepting substantial statutory compliance against a technical interpretation that would defeat mechanics’ lien remedy); W.T. Bailey Lumber Co. v. Elks’ Bldg. Corp., 167 Minn. 5, 9, 208 N.W. 198, 200 (1926) (holding that variance between copartnership and corporation listed on lien statement did not defeat lien).

Courts in other states that have addressed the issue of strict or liberal statutory interpretation in construing the scope of entities entitled to the mechanics’ lien protection have applied a liberal interpretation consistent with remedial purposes. See Performance Funding, L.L.C. v. Ariz. Pipe Trade Trust Funds, 203 Ariz. 21, 49 P.3d 293, 298-99 (Ct.App.2002) (applying a strict standard for construing notice requirement, but interpreting the statute broadly when determining who is entitled to assert the mechanics’ lien remedy); Haw. Carpenters’ Trust Funds v. Aloe Dev. Corp., 63 Haw. 566, 633 P.2d 1106, 1110 (1981) (“We are considering the law in a remedial aspect, for we are deciding whether the Trustees should enjoy the advantages afforded thereby.”).

Based on the remedial approach that Minnesota law extends to the protective scope of mechanics’ liens and the instructive reasoning from other jurisdictions, we conclude, as a preliminary matter, that although the rule of strict construction applies to the determination of whether a lien statement includes some identification of the lien claimant, we use a rule of liberal construction in resolving the issue of whether the claimant was entitled to file the statement.

Minnesota has not addressed the issue of whether a trustee of an employment-benefit fund is a proper mechanics’ lien claimant. Although not strictly prece-dential, a United States Supreme Court case with a closely aligned issue provides significant guidance. In United States ex rel. Sherman v. Carter, the Supreme Court determined that the language in the Miller Act referring to a “person who has furnished labor,” includes trustees of an employee-benefit trust fund. United States ex rel. Sherman v. Carter, 353 U.S. 210, 218-19, 77 S.Ct. 793, 798, 1 L.Ed.2d 776 (1957) (applying 40 U.S.C. § 270(b)). The Court, in reaching this conclusion, reasoned that it did not need to decide whether the trustees were assignees in a technical sense. Id. at 219-20, 77 S.Ct. at 798. It is sufficient, according to the Court, to say that the trustees’ relationship, as defined in the applicable trust and collective bargaining agreements, was “closely analogous to that of an assignment.” Id. at 220, 77 S.Ct. at 798. The agreements “created the right of the trustees to collect those contributions on behalf of the employees. The trust agreement gave the trustees the exclusive right to enforce payment. The trustees stand in the shoes of the employees and are entitled to enforce then-rights.” Id. The Court noted that “the trustees of the fund have an even better right to sue on the bond than does the usual assignee since they are not seeking to recover on their own account.” Id.

The Supreme Court’s reasoning in Carter seems particularly relevant since the 1974 passage of the Employment Retirement Income Security Act (ERISA). See ERISA, Pub.L. No. 93-406, 88 Stat. 832 (1974) (codified as amended at 29 U.S.C. §§ 1001-1461 (2000)). ERISA imposed a statutory right and duty on the trustees to enforce payment of contributions to trust funds, thus changing the relationship between employers and benefit-fund trustees. United States ex rel. Int'l Bhd. of Elec. Workers, Local Union 692 v. Hartford Fire Ins. Co., 809 F.Supp. 523, 526 (E.D.Mich.1992). The trustees, therefore, “are not dependent on an assignment, either actual or constructive.” Id.

We recognize that Carter is distinguishable in one way: the Miller Act deals with contractors’ surety bonds rather than mechanics’ liens. The liberal construction traditionally afforded surety bonds corresponds, however, to the remedial interpretation usually given to mechanics’ liens. See Weyerhaeuser, 291 Minn, at 301, 191 N.W.2d at 405-06 (expressing commitment to liberal interpretation of both statutes that govern contractors’ bonds and laws dealing with mechanics’ liens). First, the Act embraces the same purpose as the mechanics’ lien law at issue: to protect laborers. See Haw. Carpenters’ Trust Funds, 633 P.2d at 1111 (noting the parallel purposes of the Miller Act and mechanics’ lien laws); Omaha Constr. Indus. Pension Plan v. Children’s Hosp., 11 Neb.App. 35, 642 N.W.2d, 849, 853 (2002) (observing that the purposes of the Miller Act and mechanics’ lien laws are the same). Second, the language at issue in Carter, “person who has furnished labor,” is substantially the same as the critical language in the mechanics’ lien statute, “performing labor, or furnishing skill.” Finally, only Carter has explicitly addressed the unique situation of a trust agreement that confers the right to enforce the employees’ claims to the trustees.

Other jurisdictions have employed the Supreme Court’s reasoning in Carter for guidance in interpreting mechanics’ lien provisions. The majority of jurisdictions have followed Carter and used a rule of liberal construction to determine the rights of the trust fund representatives. Thus, a “considerable body of authority in analogous situations supports the standing of Trustees of fringe benefit trusts to claim on behalf of those who actually rendered the labor.” Nat’l Elec. Indus. Fund v. Bethlehem Steel Corp., 296 Md. 541, 463 A.2d 858, 861 (1983); see also Dobbs v. Knudson, Inc., 292 N.W.2d 692, 695 (Iowa 1980) (“The courts of other jurisdictions which have addressed this problem have uniformly held that the trusts in this kind of situation may file and enforce the claims.”); Omaha Constr. Indus. Pension Plan, 642 N.W.2d at 853 (“[o]ther jurisdictions which have confronted this same type of action have uniformly held that [trusts] may assert and enforce a lien on behalf of employees-beneficiaries who contributed labor or material during construction.”).

In holding that trustees may file claims on behalf of employees for unpaid trust fund benefits, courts have offered a number of reasons for their application of Carter. First, the Maryland Court of Appeals, like the Supreme Court, determined that the trusts may file a claim “because the Trusts operate for the benefit of the workers, and payments ... to the Trusts are recognized as beneficial to the workers by federal labor law.” Nat’l Elec. Indus. Fund, 463 A.2d at 863. The Supreme Court of Hawaii also acknowledged the role of federal labor policy and ERISA when it held that trustees may file mechanics’ liens on behalf of the employees. It concluded that a contrary interpretation “would ignore relevant federal policy and fly in the face of logic.” Haw. Carpenters’ Trust Funds, 633 P.2d at 1113. The Supreme Court of Iowa addressed an additional reason that has particular significance to this case: the effect of a collective bargaining agreement. The court determined that “[a]lthough the right to make the claim for labor furnished ... is given in [the statute] to the person who furnishes it, the trusts have a contractual right to make the claim for those persons.” Dobbs, 292 N.W.2d at 696.

The Arizona Court of Appeals, in its application of Carter, went further than these courts and held that the phrase “every person who labors” in its mechanics’ lien statute included a fringe-benefit trust fund. Performance Funding, 49 P.3d at 299. It reached the conclusion in spite of the observation that a “fringe-benefit trust fund may not in common parlance constitute a ‘person furnishing labor.’ ” Id.

The four jurisdictions to adopt a contrary view do not provide a compelling basis for rejecting the majority position. Ridge Erection Co. v. Mountain States Tel. & Tel. Co., 37 Colo.App. 477, 549 P.2d 408 (1976); Edwards v. Bethlehem Steel Corp., 517 N.E.2d 430 (Ind.Ct.App.1988); Chestnut-Adams Ltd. P’ship v. Bricklayers & Masons Trust Funds, 415 Mass. 87, 612 N.E.2d 236 (1993), abrogated on other grounds by Cent. Transp., Inc. v. Pkg. Printing, 429 Mass. 189, 706 N.E.2d 698 (1999); Int'l Bhd. of Elec. Workers, Local No. 48 v. Or. Steel Mills, Inc., 168 Or.App. 101, 5 P.3d 1122 (2000). None of the opposing cases directly address Carter. Nor do they involve collective bargaining agreements that explicitly set forth the representational status of the trust. We address briefly the rationale of the opposing jurisdictions to highlight the distinctions.

The Supreme Judicial Court of Massachusetts held that the mechanics’ lien statute, which expressly allowed trusts related to the Taft-Hartley Act, 29 U.S.C. § 186 (1988), to file a lien, was preempted by ERISA. Chestnut-Adams, 612 N.E.2d at 240-41. But the court’s reasoning hinged on the statute’s express singling out ERISA-benefits trust funds for state enforcement although ERISA already provided a remedy. Id. at 239-40. The Minnesota statute does not single out ERISA-benefits funds; Chestnut-Adams is therefore of no assistance in this inquiry.

The Oregon Court of Appeals held that trustees could not foreclose on a mechanics’ lien because a second statute expressly granted the trustees a separate lien and, therefore, permitting the trust to foreclose on a mechanics’ lien asserted on behalf of the workers would nullify the other statute. Int’l Bhd. of Elec. Workers, 5 P.3d at 1125. Minnesota has no supplemental statute comparable to Oregon’s.

In the third jurisdiction, the Colorado Court of Appeals concluded that the trustees of a benefit trust could not file a mechanics’ lien under the mechanics’ lien statute in existence at the time of filing. Ridge Erection Co., 549 P.2d at 412. It based its decision on the effect of a statutory amendment, passed after the filing of the liens at issue in that case, which expressly permitted trustees to file a lien. Id. at 411. Thus its conclusion rested on a completely different statutory ground: the intention of the legislature in light of the subsequent amendment. Id.; see also Haw. Carpenters’ Trust Funds, 633 P.2d at 1111 (explaining that Ridge Erection Co. relied on the subsequent expression of legislative intent and lacked significant persuasive value). Because Minnesota has no similar amendment, the Colorado decision provides no guidance.

Of all the authority adopting the alternative approach, Indiana has come the closest to addressing this precise issue, in Edwards v. Bethlehem Steel Corp., 517 N.E.2d 430, 432 (Ind.Ct.App.1988). Although the Indiana Court of Appeals indicated that it employs a strict standard to determine whether a lien had attached, it also clarified that it would apply a liberal standard on other issues. Id. Despite this superficial similarity to our rules of construction, there is a notable difference between Indiana and existing Minnesota law. The Indiana court explained that it would strictly construe provisions relating to the “creation, existence or class of individuals entitled to such a lien.” Id. (emphasis added). No Minnesota case has ever suggested that a determination of the class of individuals entitled to a lien is a matter of strict construction. Thus, it appears that Indiana actually employs a stricter standard than Minnesota, and the decision is not instructive.

Although we choose to follow the majority of courts, we decline to go so far as the Arizona Court of Appeals, by concluding that the trust fund somehow “labored” on the property. See Performance Funding, 49 P.3d at 299 (interpreting statutory language broadly to include trust). Such an interpretation puts a greater strain on the fabric of the statute than its coherence can sustain. Instead, we agree with courts such as Iowa, which recognize that employees effectively transferred their rights to file liens to the trust fund. See Dobbs, 292 N.W.2d at 696 (recognizing trust’s contractual right to file claim). We find this interpretation most consistent with the Supreme Court’s reasoning, the Minnesota statute, the trust agreement, and the collective bargaining agreement, as well as public policy.

As in Carter, the language of the trust agreement at issue in this case suggests a transfer of rights that is at least analogous to an assignment; we find it unnecessary to conclude that the collective bargaining agreement and trust agreement created an actual assignment. By authorizing TCPT to enforce mechanics’ liens on their behalf, the employees effectively transferred their legal rights to file lien statements authorizing TCPT to do so in its own name. See Kinney v. Duluth Ore Co., 58 Minn. 455, 455, 60 N.W. 23, 23 (1894) (holding that the proper transfer of an enforceable claim under the mechanics’ lien statute is a valid assignment and that the assignee has the right to file the lien statement in his own name). The trust agreement, a recognized part of the collective bargaining agreement, expressly provides that TCPT will represent the employees in filing mechanics’ liens; the language is not ambiguous. A necessary implication of this grant of authority is the power to take the steps necessary to effectively carry out the representation. One such step is the filing of the mechanics’ lien. If TCPT were not permitted to file the claim, TCPT would find it substantially more difficult, and perhaps impossible, to meet its federal obligations under ERISA and its contractual obligations to the employees.

In construing the statutory language to permit TCPT to act on behalf of the employees, we believe we best serve the statute’s remedial purpose. Otherwise, the employees might not receive the funds to which they are entitled. The countervailing concern of protecting an unsuspecting landowner lacks force, as nothing suggests that TCPT’s filing of the lien statement in its own name deprived Spectrum of notice. We therefore join Arizona, Iowa, Maryland, Nebraska, and Hawaii in allowing trustees of employee-benefit trust funds to file mechanics’ lien statements on behalf of the employees.

DECISION

TCPT is a proper lien claimant because it is acting as the representative of the employees who performed labor that contributed to the improvement of real estate. Accordingly, we affirm the district court’s grant of summary judgment in favor of TCPT.

Affirmed.


author: CRIPPEN, Judge.

text:
    STATE of Minnesota, Respondent, v. Gerald E. HOUSTON, Appellant.
    No. A04-324.
    Court of Appeals of Minnesota.
    Dec. 7, 2004.

      Mike Hatch, Attorney General, Thomas R. Ragatz, Assistant Attorney General, St. Paul, MN; and Kathleen A. Heaney, Sher-burne County Attorney, Arden Fritz, Assistant Sherburne County Attorney, Elk River, MN, for respondent.
    John M. Stuart, State Public Defender, Davi E. Axelson, Assistant State Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by LANSING, Presiding Judge; TOUSSAINT, Chief Judge; and CRIPPEN, Judge.
   OPINION

CRIPPEN, Judge.

In December 2003, this court affirmed the conviction and sentence of appellant Gerald Houston for attempted controlled substance crime in the first degree, methamphetamine manufacture, and one count of controlled substance crime in the fifth degree, possession. State v. Houston, No. C5-02-584, 2002 WL 31892561, *6 (Minn.App. Dec.31, 2002). In a subsequent post-conviction proceeding, appellant asserts, inter alia, that the cause of the upward durational departure must be scrutinized under Blakely. Because Blakely does not have retroactive effect in the case and because there is no merit in the other claims stated by appellant, we affirm the district court’s denial of appellant’s post-conviction petition.

FACTS

Appellant was charged after a search of his car revealed several items associated with the manufacture of methamphetamine in the trunk of the vehicle. His convictions occurred after a jury trial. The district court determined that appellant met the criteria of the career-offender statute, Minn.Stat. § 609.1095, subd. 4 (2002). Appellant was sentenced on January 11, 2002, and subsequently filed his direct appeal, resulting in the 2003 decision of this court. Four months later, appellant initiated this post-conviction proceeding.

Although the district court determined in 2002 that the presumptive sentence for appellant’s offenses was six and a half years, the court relied on the presentence investigation report to determine that appellant was a career offender, and sentenced him to the statutory maximum of 240 months (20 years). Appellant’s criminal history included six prior felony convictions dating back 20 years. Five of appellant’s prior convictions involved the possession, sale, or manufacture of controlled substances. The court noted that appellant left California without permission from his parole officer and never successfully completed any period of parole or probation. Additionally, the court took note of a 1981 burglary conviction, which it considered in the career-offender analysis.

ISSUES

1. Is appellant entitled to sentencing relief under Blakely in a collateral attack initiated four months after the finality of his conviction and sentence?

2. Given the scope of what was decided or could have been decided when appellant’s claims were considered in an earlier appeal, is he entitled to relief on his complaint that his sentence was excessive?

ANALYSIS

I.

In Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the United States Supreme Court held that an upward sentencing departure is unconstitutional unless the facts upon which the departure was based were admitted by the defendant or found beyond a reasonable doubt by a jury. Blakely, — U.S. at -, 124 S.Ct. at 2537. Appellant contends that under Blakely, he was entitled to a jury trial on the factors employed to increase his sentence. Because one of the grounds for the departure was a determination that his offense was committed as part of a “pattern of criminal conduct” under MinmStat. § 609.1095, subd. 4 (2002), appellant argues that it was error for this factor to have been decided by a judge rather than a jury. Appellant contends that Blakely should be given retroactive effect in his collateral attack on the sentence, singularly because Justice O’Connor’s dissent noted that the rule would apply to any decision occurring after Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Blakely, — U.S. at -, 124 S.Ct. at 2549 (O’Connor, J., dissenting). We observe initially that Justice O’Connor’s observation was simply that sentencing guidelines since Apprendi are arguably open to collateral attack. Because of this and other observations about Blakely, we reject appellant’s arguments that the decision be applied retroactively.

Whether or not a decision applies retroactively is a question we are to review de novo. State v. Costello, 646 N.W.2d 204, 207 (Minn.2002). The Supreme Court has stated two exceptions to the general rule that new rules of law are not retroactively applicable to cases on collateral review. Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). To fit under the first exception, the rule must place “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.” Id. at 311, 109 S.Ct. at 1075 (quotation & citation omitted). Alternatively, under the second exception, “a new rule [will] be applied retroactively if it requires the observance of those procedures that ... are implicit in the concept of ordered liberty,” and the procedure must implicate the fundamental fairness of a trial. Id. at 311, 109 S.Ct. at 1076 (quotation & citation omitted).

Under Teague, a holding constitutes a new rule if “it breaks new ground, imposes a new obligation on the States or the Federal Government, or was not dictated by precedent existing at the time the defendant’s conviction became final.” O’Meara v. State, 679 N.W.2d 334, 339 (Minn.2004) (quotation & citation omitted). We held that Apprendi announced a new constitutional rule because it was not dictated by existing precedent and “unmistakably altered the legal landscape.” Id.; see also Meemken v. State, 662 N.W.2d 146, 149 (Minn.App.2003) (stating that Appren-di was not dictated by existing precedent). We further held that Apprendi did not fall within the two Teague exceptions and refused to apply the rule retroactively. Meemken, 662 N.W.2d at 149. The rule announced in Apprendi neither defined a new offense, thereby falling within the first Teague exception, nor altered our understanding of “the bedrock procedural elements essential to the fairness of trial” under the second exception. Id. Similarly, we have refused retroactive application of Blakely to a conviction that was final before Apprendi. State v. Petschl, 688 N.W.2d 866 (Minn.App.2004) (holding that Blakely was not dictated by precedent existing before Apprendi).

Because appellant was sentenced after Apprendi, the question in this case is whether Blakely is a new rule or was “dictated” by Apprendi, merely modifying the Apprendi rule that governs this case, and, if a new rule, whether it falls within either of the Teague exceptions. Although there is dispute as to whether Blakely was “dictated” by the holding of Apprendi, the more persuasive view is that it was not.

The specific holding of Apprendi was that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum ... must be submitted to a jury and proved beyond a reasonable doubt.” 530 U.S. at 466, 120 S.Ct. at 2350. In Blakely, the Supreme Court invalidated the Washington sentencing guidelines provision allowing a judge to depart upward from the presumptive sentence based on judicial findings rather than findings by a jury. - U.S. at -, 124 S.Ct. at 2538. The Court stated that, for Apprendi purposes, the statutory maximum is “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Id. at -, 124 S.Ct. at 2537 (emphasis omitted). In Blakely, the Court did not claim that Apprendi, by itself, provided sufficient grounds to hold that a presumptive guidelines sentence was the “statutory maximum.” As Justice O’Con-nor’s dissent notes, the' great majority of courts have held that Apprendi did not invalidate upward departures under sentencing guidelines schemes based on judicial findings. Id. at -, 124 S.Ct. at 2549 (O’Connor, J., dissenting). Further, this court has joined the majority in reading the Apprendi term “prescribed statutory maximum” in a literal fashion as referring to the statutory maximum, not the “sentencing-grid maximum” or presumptive sentence. See State v. McCoy, 631 N.W.2d 446, 450-51 (Minn.App.2001) (concluding that the statutory maximum is dictated by the statute for the charged offense, not the sentencing guidelines).

Finally, the Blakely decision, like Apprendi, does not fall within the Teague exceptions to the general rule of non-retroactive application. It does not impact the scope of government power to proscribe crime. And we have recently held that Blakely is not a watershed rule that alters the understanding of the basic procedures essential to the fairness of a criminal conviction. Petschl, 688 N.W.2d at 875. Blakely is not subject to retroactive application on collateral review, and appellant is not entitled to a jury trial on the grounds for his sentencing departure.

II.

Appellant next argues that his sentence was excessive because new legal authority limits the discretion of the district court to impose the statutory maximum sentence under a statutory enhancement provision. Appellant relies on the Minnesota Supreme Court case of Neal v. State, 658 N.W.2d 536 (Minn.2003), and argues that, because Neal was unavailable at the time of his direct appeal, his claims bypass the Knaffla procedural bar.

Neal involved an offender convicted and sentenced on a kidnapping charge where he restrained the victim for a short period of time, did not remove the victim from the scene, and confined the victim solely to facilitate the commission of the crime of robbery. Id. at 540-41. The supreme court held that the 480-month sentence, more than four times the presumptive sentence, was excessive, and the court remanded to the trial court for determination of a reasonable sentence. Id. at 549. Appellant’s reliance on Neal is misplaced for two reasons. First, Neal simply reinforced the importance of using caution when approaching the statutory maximum sentence and ensuring that sentences are proportional to the gravity of the offense. See State v. Smallwood, 594 N.W.2d 144, 157 (Minn.1999) (holding that a reviewing court “will not interfere with a trial court’s discretion in sentencing unless the sentence is disproportionate to the offense.”). Neal reiterates the proportionality .requirement, and it does not present a “novel legal claim” necessary to overcome the Knaffla procedural bar. Second, the analysis of the court and its conclusion regarding the kidnapping sentence stemmed uniquely from the “minimal statutory requirements of kidnapping,” standards that could lead, in some pertinent circumstances, to unfairly exaggerating the offender’s criminality. Neal, 658 N.W.2d at 547. The analysis in Neal has no relevance to appellant’s drug offense sentence.

Finally, appellant raises multiple issues in his pro se supplemental brief: (1) that his conviction for an attempted controlled substance crime does not constitute a “subsequent controlled substance conviction” under Minn.Stat. § 152.021, subd. 3(b) (2002); (2) that the district court improperly applied the career-offender statute to the facts of his case, (3) that he was denied the effective assistance of counsel; (4) that the sentence enhancers in Minn. Stat. § 609.1095, subds. 2, and 3, do not apply to the facts of his case; (5) that he is the victim of vindictive sentencing; and (6) that he was subject to double jeopardy because he was acquitted of controlled substance crime in the first degree but convicted of attempted controlled substance crime in the first degree.

All of the issues raised by appellant were either raised on direct appeal or could have been raised on direct appeal. Therefore, they need not be addressed as they are all procedurally barred under Knaffla, 309 Minn. at 252, 243 N.W.2d at 741.

DECISION

Appellant was not entitled to a jury trial in his 2002 sentencing. Further, because appellant has offered no new legal authority allowing him to challenge the length of his sentence and because the other claims raised by appellant are procedurally barred under Knaffla, we affirm the district court’s decision as to appellant’s conviction and sentence.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . Under State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976), once a direct appeal has been taken, all matters raised in it, and all claims known but not raised, will not be considered in postconviction proceedings. However, fairness requires substantive review of a postconviction claim if the petitioner did not "deliberately and inexcusably” fail to raise it on direct appeal. Roby v. State, 531 N.W.2d 482, 484 (Minn.1995) (citation omitted). Because our decision in State v. McCoy, 631 N.W.2d 446, 450-51 (Minn.App.2001), limited the Apprendi holding to sentences that literally exceed the “statutory maximum,” we are satisfied that appellant did not deliberately and inexcusably fail to raise the Apprendi claim on his direct appeal. Thus, his case comes within an exception to the Knaffla procedural bar.

      . See footnote 1.

      . Appellant was sentenced under Minn.Stat. § 609.1095, subd. 4, only. As such, this argument is without merit.