author: SNELL, Justice.

text:
    STATE of Iowa, Appellee, v. Palmer Ray CRONKHITE, Appellant.
    No. 99-128.
    Supreme Court of Iowa.
    July 6, 2000.

      Thomas M. Walter of Johnson, Hester, Walter & Breckenridge, L.L.P., Ottumwa, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger and James Kivi, Assistant Attorneys General, John A. Morris-sey, County Attorney, and Timothy W. Dille, Assistant County Attorney, for ap-pellee.
   SNELL, Justice.

Defendant, Palmer Ray Cronkhite, pled guilty to murder in the second degree, in violation of Iowa Code section 707.3 (1997), a class “B” felony. Cronkhite was subsequently sentenced to an indeterminate term of imprisonment not to exceed fifty years. See Iowa Code § 707.3. Pursuant to his plea agreement, Cronkhite objected to the imposition of sentencing mandates under which he is required to serve one hundred percent of the maximum term of his sentence without eligibility for work release or parole. See id. § 902.12. This requirement is qualified by section 903A.2(1), which affords Cronkhite the opportunity to reduce his sentence by as much as fifteen percent for good conduct. Id. § 903A.2(1).

On appeal, defendant asserts Iowa Code sections 902.12 and 903A.2 are unconstitutional on the ground they violate his rights to due process and equal protection. Cronkhite also maintains his sentence is tantamount to cruel and unusual punishment.

I. Scope of Review

The constitutional challenges raised by defendant necessitate a de novo review. State v. Finnel, 515 N.W.2d 41, 43 (Iowa 1994). Generally, as here, we deem the federal and state Due Process and Equal Protection Clauses to be identical in scope, import, and purpose. In re C.P., 569 N.W.2d 810, 811-12 (Iowa 1997); Exi- ra Community Sch. Dist. v. State, 512 N.W.2d 787, 792-93 (Iowa 1994).

II. Discussion

A. Due Process

Defendant avers section 903A.2 vests prisoners with the inalienable right to early release through the accumulation of credits earned by good conduct. Iowa Code section 903A.2 provides:

Unless an inmate is sentenced pursuant to section 902.12, an inmate of an institution under the Iowa department of corrections is eligible for a reduction of sentence of one day for each day of good conduct of the inmate while committed to one of the department’s institutions. Unless an inmate is sentenced pursuant to section 902.12, in addition to the sentence reduction óf one day for each day of good conduct, each inmate is eligible for an additional reduction of sentence up to five days a month if the inmate participates satisfactorily in employment in the institution, in Iowa state industries, in an inmate employment program established by the director, in a treatment program established by the director, or in an inmate education program approved by the director. However, if an inmate is sentenced under section 902.12, the total number of days which may be accumulated by the inmate to reduce the inmate’s sentence shall not exceed fifteen percent of the inmate’s total sentence of confinement. ...

Section 902.12, as referenced above, qualifies eligibility for parole based on the classification of the offense committed. It reads as follows:

902.12 Minimum sentence for certain forcible felonies — eligibility for parole or work release.
Except as otherwise provided in section 903A.2, a person serving a sentence for conviction of the following forcible felonies shall serve one hundred percent of the maximum term of the person’s sentence and shall not be released on parole or work release:
1. Murder in the second degree in violation of section 707.3.
2. Sexual abuse in the second degree in violation of section 709.3.
3. Kidnapping in the second degree in violation of section 710.3.
4. Robbery in the first or second degree in violation of section 711.2 or 711.3.

Cronkhite maintains section 902.12 abridges fundamental liberty interests secured for all prisoners by section 903A.2, and that these rights are abrogated without due process of law. To this end defendant asserts he should be afforded a hearing in which to challenge the categorization of crimes under the statute, and to raise mitigating factors in support of parole.

Cronkhite’s contentions are based on the Fifth Amendment Due Process Clause of the United States Constitution, and on article I, section 9 of the Iowa Constitution. The Due Process Clause applies when government action deprives a person of liberty or property. Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668, 675 (1979). Accordingly, when there is a claimed denial of due process we must inquire into the nature of the interest at stake. Id. To obtain a protectable right a person must have more than an abstract need, desire, or expectation of that right; the individual must, instead, have a legitimate claim to it. Id. at 7, 99 S.Ct. at 2103-04, 60 L.Ed.2d at 675 (citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972)).

There is no constitutional or inherent right to be conditionally released from prison prior to the expiration of a valid sentence. Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2104, 60 L.Ed.2d at 675. A state may, if it so chooses, establish a system of parole, but it is under no duty to do so. Vitek v. Jones, 445 U.S. 480, 488, 100 S.Ct. 1254, 1261, 63 L.Ed.2d 552, 562 (1980); Greenholtz, 442 U.S. at 7, 99 S.Ct. at 2104, 60 L.Ed.2d at 675. Under such a system states have the authority to shorten prison terms based on good behavior. Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935, 951 (1974). Again, the Constitution does not guarantee credit for good conduct. Id. However, once a scheme is implemented prisoners are imbued with a liberty interest to which the procedural protections of the Due Process Clause attach. Vitek, 445 U.S. at 488-89, 100 S.Ct. at 1261, 63 L.Ed.2d at 562.

In the case at hand, defendant characterizes section 902.12 as an arbitrary revocation of a liberty interest created under section 903A.2. This depiction is inapt. Section 902.12 does not revoke a vested liberty interest, it creates a separate one for a particularized class of persons. A due process claim cannot be premised on the legislature’s refusal to grant parole or extend good-conduct credits to inmates convicted of second-degree murder. See State v. Holmes, 276 N.W.2d 823, 830 (Iowa 1979) (questions of eligibility for parole consideration ordinarily do not have constitutional dimension). Thus, Cronkhite is not permitted to assail the propriety of the parole system itself; any attack must be limited to the State’s failure to adhere to protocol in its application. Greenholtz, 442 U.S. at 9-11, 99 S.Ct. at 2104-05, 60 L.Ed.2d at 676-77. Defendant’s claim is without merit.

B. Equal Protection

Cronkhite maintains there is no rational basis for distinguishing between categories of offenses listed in section 902.12 and other offenses defined by the Code. Consequently defendant avers any limitation the statute prescribes on an inmate’s ability to seek early release violates the Equal Protection guarantees of the Fourteenth Amendment to the United States Constitution and article I, section 6 of the Iowa Constitution.

No fundamental rights or suspect classifications are implicated by Cronkhite’s claim. Hence we analyze the equal protection issue under the rational basis test. In re C.P., 569 N.W.2d at 812-13. In conformance with this test, constitutional protections are only offended when the classification is based on arbitrary grounds unrelated to the achievement of a legitimate state interest. Id. at 813. Section 902.12 will be deemed constitutional if the classification made by the statute is reasonable and operates equally upon all within the class. State v. Ceaser, 585 N.W.2d 192, 196 (Iowa 1998). Cronk-hite bears the burden of showing the law clearly, palpably, and without doubt infringes upon the Constitution. In re C.P., 569 N.W.2d at 813.

As previously noted, section 902.12 is applicable to murder in the second degree, sexual abuse in the second degree, kidnapping in the second degree, and robbery in the first or second degree. Defendant observes the law does not encompass all forcible felonies, omitting many which he contends are of an even more violent or serious nature than those delineated above. Cronkhite therefore argues the random inclusion of second-degree murder violates equal protection standards.

This same question was broached in Ceaser and in State v. Ramirez, 597 N.W.2d 795 (Iowa 1999), with respect to first and second-degree robbery. In both cases we upheld the validity of section 902.12. Therein we opined:

[T]he legislature enjoys broad discretion in defining and classifying criminal offenses .... [It] is free to impose disparate punishments for different crimes so long as the offenses are distinguishable on their elements.... [I]f the elements of the offenses are not the same, persons committing the crimes are not similarly situated and, therefore, may be treated differently for purposes of the Equal Protection Clause.

Ceaser, 585 N.W.2d at 196 (citations omitted); see also Ramirez, 597 N.W.2d at 798.

Cronkhite makes no attempt to persuade us the elements of second-degree murder are indistinguishable from those of other crimes. Nor has he demonstrated that similarly situated individuals are extended disparate treatment. Instead, the focus of Cronkhite’s claim is on the presumed irrationality of the classification.

As we remarked in Ceaser, it is within the province of the legislature to determine the most appropriate means of punishing and deterring criminal activity. Ceaser, 585 N.W.2d at 196. Second-degree murder and the other class “B” forcible felonies are violent, or potentially violent, crimes. Persons willing to commit such transgressions conceivably pose a greater risk to society than those who perpetrate other felonies. It is entirely reasonable for the legislature to conclude the crime of murder in the second degree has a broad social impact warranting strict punitive measures. See id. at 198. This is precisely the type of judgment our legislature is charged to make. Id. Defendant’s right to equal protection has not been violated.

C. Cruel and Unusual Punishment

Lastly, defendant contends the imposition of a fifty-year term of imprisonment for second-degree murder is excessively' severe if the opportunity to reduce that sentence through good conduct is limited in accordance with section 902.12.

The Eighth Amendment to the United States Constitution and article I, section 17 of the Iowa Constitution prohibit cruel and unusual punishment. Punishment may be cruel and unusual because it inflicts torture, is otherwise barbaric, or is so excessively severe it is disproportionate to the offense charged. State v. Lara, 580 N.W.2d 788, 784-85 (Iowa 1998). Generally, a sentence that falls within the parameters of a statutorily prescribed penalty does not constitute cruel and unusual punishment. State v. Kyle, 271 N.W.2d 689, 693 (Iowa 1978). Only extreme sentences that are “grossly disproportionate” to the crime conceivably violate the Eighth Amendment. Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S.Ct. 2680, 2705, 115 L.Ed.2d 836, 869 (1991); Lara, 580 N.W.2d at 785.

Substantial deference is afforded the legislature in setting the penalty for crimes. Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637, 649 (1983); Lara, 580 N.W.2d at 785. Notwithstanding, it is within the court’s power to determine whether the term of imprisonment imposed is grossly disproportionate to the crime charged. See State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998); Lara, 580 N.W.2d at 785-86. If it is not, no further analysis is necessary. Harmelin, 501 U.S. at 1005, 111 S.Ct. at 2707, 115 L.Ed.2d at 871 (in the. rare case a threshold comparison of the crime committed to the sentence imposed leads to an inference of gross disproportionality, we may look to additional factors delineated in Solem, 463 U.S. at 291, 103 S.Ct. at 3010, 77 L.Ed.2d at 649-50); Hoskins, 586 N.W.2d at 709; Lara, 580 N.W.2d at 785-86.

Here, Cronkhite was found guilty of second-degree murder and sentenced to an indeterminate term of imprisonment not to exceed fifty years. In light of the offense charged, which is essentially defined as the willful, deliberate killing of another without premeditation, see Iowa Code §§ 707.2-.3, this is not an excessively severe penalty. Furthermore, Cronkhite’s right to be free from cruel and unusual punishment is not violated by the mere fact he must serve eighty-five percent of his sentence. Hoskins, 586 N.W.2d at 709; Lara, 580 N.W.2d at 785-86. “There can be no serious contention, ... a sentence which is not otherwise cruel and unusual becomes so simply because it is ‘mandatory.’” Lara, 580 N.W.2d at 785 (quoting Harmelin, 501 U.S. at 995, 111 S.Ct. at 2701, 115 L.Ed.2d at 865). Cronkhite’s punishment must stand.

III. Conclusion

Iowa Code sections 902.12 and 903A.2 do not violate defendant’s rights to due process or equal protection of the law. Nor does the sentence imposed constitute a cruel or unusual punishment. The decision of the trial court is thus affirmed.

AFFIRMED.

All justices concur except NEUMAN, J., who takes no part.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    In the Matter of the GUARDIANSHIP OF B.J.P., Minor Child, J.P., Appellant.
    No. 99-937.
    Supreme Court of Iowa.
    July 6, 2000.

      Catherine K. Levine, Des Moines, for appellant.
    Martha L. Johnson, Des Moines, for minor child.
   CADY, Justice.

Janet Peek seeks further review of a decision by the court of appeals dismissing her appeal from an order by an associate probate judge terminating a guardianship. The court of appeals determined it had no jurisdiction to hear the appeal. We vacate the decision of the court of appeals and affirm the decision of the district court.

I. Background Facts and Proceedings.

On July 13, 1992, the probate court appointed Janet Peek guardian of a young child whom we identify as B.J.P. The petition for guardianship was filed by Janet and included the consent of B.J.P.’s mother.

B.J.P. was born on June 21, 1989, and was the first of two children born from an incestuous relationship between Janet’s son and one of her teenage daughters. B.J.P. has severe mental and physical disabilities, including cerebral palsy. Janet’s son also impregnated his other teenage sister, resulting in the birth of an additional child. The incest occurred while Janet’s children lived in her home.

On September 18, 1996, B.J.P. (as well as other children fathered by Janet’s son) was removed from the Peek home by the juvenile court and placed in foster care. The removal followed an adjudication by the juvenile court that the children were in need of assistance based on a failure to provide the children reasonable care and supervision.

On April 30, 1998, the juvenile court terminated the parent-child relationship between Janet’s son and daughter and B.J.P. The juvenile court also placed B.J.P. in the custody of the Department of Human Services for the purposes of adoption. Additionally, it granted the probate court concurrent jurisdiction under Iowa Code section 232.3(2) (1997) to terminate the guardianship.

On June 1, 1998, the court-appointed guardian ad litem for B.J.P. filed a petition in probate court to terminate the guardianship established by Janet in 1992. Following a hearing on July 7, 1998, an associate probate judge entered an order granting the petition for termination of the guardianship of B.J.P. No evidence was presented at the hearing.

Janet filed a petition to vacate the order and moved for a new trial asserting she was entitled to a full evidentiary hearing. The probate court denied the petition.

Janet appealed from the order terminating the guardianship. She claimed the probate court erred by failing to permit her to introduce evidence at the hearing. We transferred the case to the court of appeals. It found it lacked jurisdiction because Janet failed to first appeal the order of the associate probate judge to the district court. Janet sought further review from the decision by the court of appeals.

II. Scope of Review.

Our scope of review is dictated by how the case was tried before the district court. See Collins Trust v. Allamakee County Bd. of Supervisors, 599 N.W.2d 460, 463 (Iowa 1999). Iowa Code section 633.33 governs the nature of probate proceedings. It states,

Actions to set aside or contest wills, for the involuntary appointment of guardians and conservators, and for the establishment of contested claims shall be triable in probate as law actions, and all other matters triable in probate shall be tried by the probate court as a proceeding in equity.

Iowa Code § 633.33. Actions for the termination of a guardianship constitute “other matters triable in probate,” and are equitable in nature. See In re Guardianship of Sams, 256 N.W.2d 570, 572 (Iowa 1977). We review equitable actions de novo. Iowa R.App. P. 4.

III. Jurisdiction of the Associate Probate Judge.

We have jurisdiction of appeals from final decisions of the district court. Iowa RApp. P. 1(a). Thus, we must determine if an order entered by an associate probate judge terminating a guardianship constituted a final decision of the district court. This requires us to examine our statutes to determine if the legislature granted an associate probate judge jurisdiction to enter final judgments in guardianship actions.

The district court “sitting in probate” is granted jurisdiction over all probate actions, including conservatorship and guardianship proceedings. Iowa Code §§ 633.10(3), .13. However, the district court is authorized to appoint a referee to audit “accounts of fiduciaries” and perform “other ministerial duties in probate proceedings.” Id. § 633.20(1). We have previously determined this statutory language does not grant jurisdiction to probate referees to enter final judgments of the district court. In re Estate of Willis, 418 N.W.2d 857, 860 (Iowa 1988). In Willis, we found the governing statute contained no language expressly granting jurisdiction to referees to enter final decisions for the purposes of appellate review. Id. at 859-60. We further observed our rules of civil procedure suggest that decisions by referees were not final until adopted by the district court. Id. Additionally, we observed that referees were included within the definition of a master under the rules of civil procedure, and those rules, as well as our earlier decisions interpreting similar rules, indicated that referee reports were not final judgments. Id. at 858-59.

The court of appeals relied on our holding in Willis to conclude in this case that it had no jurisdiction to hear the appeal because the order by the associate probate judge had not been reviewed by the district court. However, section 633.20 was amended following our decision in Willis. See 1993 Iowa Acts ch. 70, § 11. The amendment did not alter the authority of the district court to appoint referees in probate to perform ministerial duties, but granted the chief judge of the district authority to appoint an associate probate judge. See Iowa Code § 633.20(3). The associate probate judge was not only given “jurisdiction” which mirrored the authorized acts of a referee, but was also granted “jurisdiction” to perform “judicial functions as the court prescribes.” Id. Thus, we must decide if this statutory language gives an associate probate judge jurisdiction to enter final judgments for the purposes of appellate review.

We have previously determined our legislature granted juvenile court referees jurisdiction to enter final decisions for the purposes of appeal. See In re D.W.K., 365 N.W.2d 32, 34 (Iowa 1985). In D.W.K. we found the statutory language defining the authority of a juvenile court referee granted referees concurrent district court jurisdiction. Id. at 33-34. The statute specified the juvenile court referee had “the same jurisdiction to ... issue orders ... as the judge of the district court.” Id. Similarly, we recently held that a hospitalization referee had statutory authority to enter final decisions for the purposes of appellate review. In re Melodie L., 591 N.W.2d 4, 7 (Iowa 1999). The statute establishing hospitalization referees provides that orders entered in the discharge of their duties had the “same force and effect as if ordered by a district judge.” Id.; see Iowa Code § 229.21(2).

A review of our probate code reveals the legislature created two separate positions within the umbrella of the district court probate jurisdiction. Compare Iowa Code § 633.20(1), with id. § 633.20(3). A referee is authorized to assist the district court in ministerial probate matters. Id. § 633.20(1). In doing this, the legislature refrained from describing the duties of a referee in the context of a grant of jurisdiction. Id. Instead, referees are considered to be masters, and subject to the rules of civil procedure which include review by the district court. See Iowa Rs. Civ. P. 207-13.

On the other hand, section 633.20(3) reveals our legislature created the position of associate probate judge separate from the position of referee. More importantly, the duties of an associate probate judge are specifically described in the context of “jurisdiction,” which expresses authority to perform duties of the district court beyond mere ministerial functions. See Iowa Code § 633.20(3). Additionally, the legislature has failed to establish a procedure for the district court to review orders by an associate probate judge. As in D.W.K. and Melodie L., this indicates orders by an associate probate judge are final. Finally, our legislature has specified that appeals from orders by district associate judges exercising any jurisdiction of the district court are governed by the law relating to appeals from orders by the district court. Id. § 602.6306(4). This reveals a general legislative scheme for orders entered by associate judges within the district court to be final orders for the purpose of appellate review. We conclude this case is properly before us on appellate review.

IY. Termination of Guardianship.

We next consider the merits of the claim by Janet that she was deprived of a meaningful hearing when the probate court failed to permit her to submit evidence to show the guardianship of B.J.P. should not be terminated despite the order by the juvenile court transferring custody to the Department of Human Services for adoption.

The probate court in this case did provide Janet with a hearing prior to ordering the termination of the guardianship. Janet appeared at the hearing and was represented by counsel. Thus, the issue is whether Janet had a right to submit evidence. Although the governing statute does not require an evidentiary hearing, the claim has due process implications. Due process not only requires a hearing, but a “hearing appropriate to the nature of the case.” Quality Refrigerated Servs., Inc. v. City of Spencer, 586 N.W.2d 202, 205 (Iowa 1998) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57, 94 L.Ed. 865, 873 (1950)).

Iowa Code section 633.675 sets forth the grounds for the termination of a guardianship including a determination by the court that the guardianship is “no longer necessary” for any reason. See Iowa Code § 633.675(4). Normally, evidence would be necessary for the probate court to terminate a guardianship in a contested proceeding. In this case, however, the custody and guardianship of the ward had been transferred to the Department of Human Services by the juvenile court for the purposes of adoption or other permanent placement. See id. § 232.117(5). We have reviewed the duties and powers of a guardian and are unable to discern any purpose for the continuation of a prior guardianship under these circumstances. See id. § 633.635(1), (2) (responsibilities of a guardian).

Janet claimed the hearing should have provided her an opportunity to present evidence of the special needs of B.J.P. and her ability to meet those needs as a guardian. However, the juvenile court was required to transfer guardianship and custody of B.J.P. after it terminated parental rights for the purposes of adoption or other permanent placement. Id. § 232.117(3), (5). The juvenile court did this by ordering guardianship and custody of B.J.P. transferred to the Department of Human Services. Thus, the issue Janet sought to litigate in probate court through the introduction of evidence of her ability to meet the special needs of B.J.P. had been decided by the juvenile court. After the juvenile court ordered the termination of parental rights and selected the guardian and custodian to carry out the adoption, the only action to be taken by the probate court was to terminate the prior guardianship. Under the circumstances of this case, the probate court provided Janet with an appropriate hearing and properly terminated the guardianship.

V. Conclusion.

We vacate the decision of the court of appeals and affirm the decision of the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

All justices concur except NEUMAN, J., who takes no part.

      . There is no claim that the associate probate judge in this case was not authorized by the court to hear a petition to terminate a guardianship and order termination.


author: CARTER, Justice.

text:
    Glen AHRENDSEN for Lydia AHRENDSEN and William Ahrendsen, Appellant, v. IOWA DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. 99-0092.
    Supreme Court of Iowa.
    July 6, 2000.

      Robert T. Gaffney of Bunz & Gaffney, Manning, for appellant.
    Thomas J. Miller, Attorney General, and Daniel W. Hart, Assistant Attorney General, for appellee.
   CARTER, Justice.

Glen Ahrendsen, who filed an application for Medicaid benefits on behalf of his mother and deceased father, appeals from a district court decision upholding a regulation of the Iowa Department of Human Services (DHS) that limits retroactive payment of Medicaid benefits to a period of three months prior to the most recent application. After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

Glen Ahrendsen is the son of Lydia and William Ahrendsen. In August 1991 William and Lydia transferred 160 acres of farmland worth approximately $240,000 to Glen and his sister for a consideration of two dollars. Their attorney advised them at this time that this transfer would render them ineligible for Medicaid benefits for an unspecified period of time.

William and Lydia subsequently entered a nursing home in January 1992. In September 1992, upon the request of a social worker at the nursing home, Glen filed an application for Medicaid benefits for his parents with the Audubon County office of DHS. DHS is the administrator of the federal Medicaid program in Iowa. On September 30,1992, DHS issued a decision denying the Ahrendsens’ application. The decision indicated that they would be ineligible for Medicaid payments until August 1997. This statement was not correct. The correct period of ineligibility was until February 1994.

DHS had a policy allowing new applications for Medicaid benefits to be filed during a previously determined period of ineligibility. When such applications were filed, the previously determined ineligibility was reviewed anew. In September 1996 Glen filed a new application for his mother, Lydia, and also sought to obtain retroactive benefits for his father, who had died in July 1994. The application was approved for Lydia only with retroactive payments to June 1, 1996. Glen then requested an extended period of retroactivity based on the fact that the agency had given incorrect information concerning the period of ineligibility in its consideration of the Ahrendsen September 1992 application. This request was denied on the basis that a federal statute and administrative regulations of DHS only permit retroactive payment of benefits for a period of three months.

Ahrendsen filed a petition for judicial review. The district court affirmed the agency decision, and this appeal followed.

I. Standard of Review.

Iowa Code section 17A.19(8) (1999) governs this court’s review of appeals from administrative actions. On review of agency actions, this court functions solely in an appellate capacity to correct errors of law on the part of the agency. Glowacki v. State Bd. of Med. Exam’rs, 516 N.W.2d 881, 884 (Iowa 1994). An appeal of a district court decision is governed by Iowa Code section 17A.20. The scope of review under this section is limited to determining whether the district court correctly applied the law in exercising its section 17A.19(8) judicial review function. Id. This court’s review is limited to questions considered by the agency. Office of Consumer Advocate v. Iowa State Commerce Comm’n, 465 N.W.2d 280, 283 (Iowa 1991).

II. Standards for Medicaid Eligibility.

Medicaid is a cooperative federal and state welfare program in which the federal government provides financial assistance to states so that they can furnish medical care to certain needy individuals and families. See 42 U.S.C. § 1396. Although participation in the program is voluntary, participating states must comply with certain requirements imposed by the federal Medicaid statute and with federal regulations promulgated by the Secretary of the Department of Health and Human Services, who administers the program at the federal level.

To qualify for federal assistance, a state must obtain the Secretary’s approval of a “plan for medical assistance.” 42 U.S.C. § 1396a(a); Grants to States for Medical Assistance Programs, 42 C.F.R. § 430.10 (1999). Iowa participates in the Medicaid program pursuant to a state plan approved by the Secretary. The federal Medicaid statute and regulations that the state must follow impose financial limits on Medicaid eligibility and require states to impose a period of ineligibility for Medicaid benefits on individuals who transfer assets for less than fair market value in order to qualify for Medicaid. See 42 U.S.C. §§ 1396a(a)(10), 1396a(a)(17), 1396b(f), 1396p(c). The crux of this case is the mistake made by the department in 1992 regarding the period of ineligibility resulting from the transfer of assets from the Ahrendsens to their children. At that time, the Iowa Medicaid program had two different policies on transfers of assets, depending on when the transfer was made. Iowa’s original policy oh transfers of assets was promulgated in 1982 and provided for periods of ineligibility from twenty-four to seventy-two months, depending on the amount transferred to qualify for Medicaid benefits. IV Iowa Admin. Bull. 1060 (Feb. 17, 1982) (codified at Iowa Admin. Code r. 770 — -75.6, rescinded Feb. 1,1999).

In the Medicare Catastrophic Coverage Act of 1988, Congress mandated a uniform national policy on transfers made after July 1, 1989, with a maximum ineligibility period of thirty months. Medicare Catastrophic Coverage Act of 1988, Pub.L. No. 100-360, § 303(b), 102 Stat. 683, 760-61 (1988) (codified as amended at 42 U.S.C. § 1396p(c)). DHS subsequently published new rules on June 28, 1989, for transfers made after July 1, 1989, with a maximum ineligibility period of thirty months. XI Iowa Admin. Bull. 2229 (June 28, 1989) (codified at Iowa Admin. Code r. 44175.15, rescinded Feb. 1, 1999). The department, however, retained the old rules for transfers made prior to July 1, 1989. XI Iowa Admin. Bull. 2229, 2231 (June 28, 1989) (amending Iowa Admin. Code r. 441 — 75.6, rescinded Feb. 1, 1999). The Ahrendsens’ transfer was made in August 1991 and an application for Medicaid benefits was filed in September 1992. Because the transfer was made after July 1, 1989, the correct period of ineligibility was thirty months.

Lydia’s September 1996 application for Medicaid benefits was approved effective June 1, 1996, which was three months prior to the month in which the application was submitted. That was the maximum period for retroactive payment permitted by federal statute and state regulation. The federal Medicaid statute provides:

A State plan for medical assistance must—
(34) provide that in the case of any individual who has been determined to be eligible for medical assistance under the plan, such assistance will be made available to him for care and services included under the plan and furnished in or after the third month before the month in which he made application (or application was made on his behalf in the case of a deceased individual) for such assistance if such individual was (or upon application would have been) eligible for such assistance at the time such care and services were furnished.

42 U.S.C. § 1396a(a)(34) (emphasis added). Iowa administrative rules governing the effective date of Medicaid benefits in Iowa track with the federal statute:

76.5(1) Three-month retroactive eligibility.
a. Medical assistance benefits shall be available for all or any of the three months preceding the month in which the application is filed to persons who meet both of the following conditions:
(1) Have medical bills for covered services which were received during the three-month retroactive period.
(2) Would have been eligible for medical assistance benefits in the month services were received, if application for medical assistance had been made in that month.

Iowa Admin. Code r. 441 — 76.5(l)(a).

In seeking relief from the agency decision, the Ahrendsens advance three theories: (1) that the September 1996 application should be considered to be a timely appeal of the agency’s ruling on the September 1992 application, (2) that the agency is estopped to assert its limit on retroactive benefits by reason of having misinformed the Ahrendsens of their rights, and (3) that the denial of retroactive benefits for the full period of eligibility would result in unjust enrichment. We • separately consider these contentions.

A. Consideration of the September 1996 application as an appeal of the agency’s ruling on the September 1992 application. The Ahrendsens argue that the application filed for Lydia in September 1996 and the subsequent proceedings before the department should be treated as a timely appeal of the period of ineligibility given in September 1992. More particularly, they argue that at common law a cause of action does not arise until the injury occurs. Moreover, they claim that due to the error made by the department, the “cause of action” did not accrue until discovery of the mistake in September 1996. See Iowa Code § 614.4 (in actions for relief on ground of mistake, cause of action shall not be deemed to have accrued until mistake is discovered by aggrieved party). Finally, they urge that Medicaid benefits are property rights enforceable under 42 U.S.C. § 1983, and the two-year statute of limitations applicable in § 1983 actions does not begin to run until the plaintiff knows or has reason to know of the injury that is the basis of the § 1983 action.

This argument by the Ahrendsens must fail for several reasons. First, as we observed in Vachon v. State, 514 N.W.2d 442 (Iowa 1994):

[K]nowledge of the facts and knowledge that they are actionable are distinct and unrelated issues for the purposes of the discovery rule....
There is no suggestion in any of the leading cases in this area that accrual of the cause of action is postponed until plaintiff learns or should learn the state of the law positing a right of recovery upon the facts already known to or reasonably knowable by the plaintiff.

Vachon, 514 N.W.2d at 446.

More to the point, we are convinced that the concept of an enlargement of the time for commencing legal proceedings until the basis of the claim is discovered is not applicable to a situation in which a claim has already been presented and ruled on by an adjudicative tribunal. In such a situation, the claimant faced with a decision of the tribunal has a choice of accepting it or challenging it within the time provided by law.

Nor are we convinced that a belated appeal of the decision on the September 1992 application could, by itself, bring the Ahrendsens the relief they are seeking. The issue on the September 1992 application was the Ahrendsens’ eligibility at that time. The decision correctly determined that such eligibility did not exist. Although an appeal might have enlightened them as to the correct duration of the period of ineligibility, it would not have formed the basis for granting them the relief that they now seek. It is implicit in the statute and regulations that such relief could only have been obtained by filing a new application no later than three months following their attaining eligibility.

B. The estoppel claim. The Ahrendsens assert that DHS should be estopped from denying their claim for Medicaid benefits throughout their full period of eligibility. We disagree. As we observed in S & M Finance Co. v. Iowa State Tax Commission, 162 N.W.2d 505 (Iowa 1968), “[ejquitable estoppel is based on the idea that one who has made certain representations should not thereafter be permitted to change his position to the prejudice of one who has relied thereon.” S & M Fin. Co., 162 N.W.2d at 510. The Ahrendsens’ failure to obtain Medicaid benefits at an earlier date has not come about from any change of position on the part of DHS. Consequently, an essential element of an estoppel claim is lacking.

Because the present case involves the administration of a federal program and the period of retroactivity is fixed by a federal statute, federal decisions on estop-pel claims based on misadvice to a claimant are instructive. In Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981), a claimant had met with a field representative of the Social Security Administration and inquired as to her eligibility for “mother’s insurance” benefits. The representative told her incorrectly that she was not eligible. As in the present case, the claimant later discovered that the representative was wrong and that she would have been eligible for benefits had she filed an application. In rejecting a claim of estoppel similar to the one being urged by the Ahrendsens, the Supreme Court held that the agency was not estopped from denying benefits for the period prior to the time that the claimant’s belated application was made. Schweiker, 450 U.S. at 790, 101 S.Ct. at 1472, 67 L.Ed.2d at 690. We conclude that the Ahrendsens may not prevail on their es-toppel claim.

C. The unjust enrichment theory. The Ahrendsens’ final claim is that, if we do not grant them benefits for the entire period for which they were eligible, the State will be unjustly enriched. We find no merit in this contention. In Dolezal v. City of Cedar Rapids, 326 N.W.2d 355, 357-58 (Iowa 1982), this court approved a recovery for unjust enrichment against a municipal corporation under a theory of quasi-contract. We concluded that an unjust-enrichment claim arises from the equitable principle that one shall not be permitted to unjustly enrich oneself by receiving property or benefits without making compensation therefor. In so concluding, we applied the standard contained in Restatement of Restitution, Introductory Note, at 522-25 (1937). We are convinced that neither DHS nor the State of Iowa was unjustly enriched by denying an application for Medicaid benefits on a ground that was consistent with federal statutory law and the DHS regulations.

We have considered all issues presented and conclude that the judgment of the district court should be affirmed.

AFFIRMED.

All justices concur except NEUMAN, J., who takes no part.

      . Congress substantially amended the federally mandated policy on transfers of assets in 1993, resulting in a third policy, applicable to transfers made after August 10, 1993, that has no maximum period of ineligibility. See Omnibus Budget Reconciliation Act of 1993, Pub.L. No. 103-66, § 13611, 107 Stat. 312, 622 (1993) (amending 42 U.S.C. § 1396p(c)). DHS adopted state administrative rules implementing this policy effective February 9, 1994. XVI Iowa Admin. Bull. 1468-69 (Jan. 5, 1994) (codified at Iowa Admin. Code r. 441 — 75.23). Effective February 1, 1999, the state administrative rules on transfers made on or before August 10, 1993, were rescinded as no longer affecting current Medicaid applicants or recipients. XXI Iowa Admin. Bull. 1090-91 (Dec. 2, 1998) (rescinding Iowa Admin. Code r. 441 — 75.6 & 75.15).


text:
    STATE of Iowa, Appellee, v. Ryan OETKEN, Appellant.
    No. 99-364.
    Supreme Court of Iowa.
    July 6, 2000.

      Alfredo Parrish of Parrish, Kruidenier, Moss, Dunn & Montgomery, L.L.P., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Scott Schroeder, Assistant County Attorney, for appellee.
   SNELL, Justice.

Defendant was convicted of second-degree burglary and adjudicated an habitual offender. He now appeals, challenging the sufficiency of the evidence, the propriety of the jury instructions, the jurisdiction of the trial court, and the effectiveness of counsel. We find no reversible error. The decision of the district court is affirmed.

I. Background Facts and Proceedings

On September 25,1998, defendant, Ryan Oetken, was indicted on two counts of burglary in the second degree in violation of Iowa Code sections 713.1 and 713.5(1) (1997). Defendant was also alleged to be an habitual offender in accordance with Iowa Code section 902.8. Prior to trial the State filed a substitute, supplemental information, which omitted any reference to defendant’s criminal history or his status as an habitual offender. The first proceeding commenced in December of 1998 and, due to unusual and unforeseeable circumstances, ended in a mistrial.

Evidence adduced at the second trial indicates defendant and his accomplice, Robby Inghram, systematically engaged in a scheme to burglarize homes near rural Danville. Their chosen method of accomplishing this endeavor was to drive through sparsely populated areas in search of a home that appeared to be unoccupied during regular work hours. On the morning of March 16, 1997, the men happened upon the residence of Joann Beckman. They parked, knocked to ascertain the premises were vacant, and broke in through a back door. They then proceeded to burglarize the home stealing several televisions, a VCR, one rifle, cased, and one shotgun, uncased.

Having completed the theft, the men decided to store the goods in Inghram’s basement. Robby’s sister, Natalie, was present at the time and witnessed defendant carrying a large gun. Having been discovered, Robby admitted he and Oetken had stolen the items and told Natalie not to “freak out.” Shortly thereafter In-ghram left for work.

At approximately 7:30 the next morning, Oetken and Inghram set out once again. On this occasion they victimized the home of Gerald Morrison. Employing the same methods used the previous day, the two men parked their car, knocked on the back door, broke in, and stole a TV, a VCR, a stereo, two telephones, and one cased, Winchester, 12-gauge shotgun. As before, Robby’s sister, Natalie, witnessed the pair hide their plunder in the Inghram basement.

That same morning Oetken and In-ghram visited the home of Patricia McConnell, a neighbor of Gerald Morrison. Again, they parked their car and knocked on a back door. On this occasion, however, a resident responded to the summons. The men made an ill attempt to explain their presence and exited in haste.

Soon thereafter, the pair feared the authorities were closing in. In an effort to conceal their deeds, Oetken and Inghram disposed of the stolen property by throwing the items in the Mississippi River. The men’s paranoia was apparently justified, as the police had in fact suspected them of the crimes. Authorities subsequently searched the area where defendant disposed of the property and recovered, among other things, the shotgun stolen from Gerald Morrison. Inghram confessed when faced with this and other seemingly overwhelming evidence.

Oetken pled not guilty and was convicted on all counts. Defendant was then sentenced to a term of imprisonment not to exceed fifteen years. On appeal he now contends the following: (1) there was insufficient evidence to prove he possessed a dangerous weapon in the manner required to elevate his crime to second-degree burglary; (2) the jury was not instructed as to the elements of the offense; and (3) the trial court erred in enhancing his sentence as an habitual offender.

Defendant notes error may not have been preserved with respect to his first two claims. We agree. Oetken therefore requests we address those issues in terms of ineffective assistance of counsel. To that end defendant also contends counsel was inadequate in that he did not conduct a thorough investigation prior to trial, file a motion to sever the offenses, object to hearsay, or demand voir dire, opening statements, and closing arguments be reported for the record.

II. Scope of Review

Claims of ineffective assistance of counsel are derived from the Sixth Amendment to the United States Constitution, and are afforded a de novo review. State v. Pace, 602 N.W.2d 764, 768 (Iowa 1999). Such claims are generally preserved for postconviction proceedings unless, as here, a satisfactory record exists upon which to base a conclusion. Id.

To sustain his petition, defendant must prove, by a preponderance of the evidence, that trial counsel failed in an essential duty and prejudice resulted therefrom. State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999). There is a strong presumption that counsel’s performance meets professional standards. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). To rebut this presumption defendant must present an affirmative factual basis establishing inadequate representation. Id. Improvident trial strategy or miscalculated tactics do not necessarily constitute ineffective assistance of counsel. Id.

Moreover, the resultant prejudice must give rise to a reasonable probability the outcome of the proceeding would have been different had counsel not erred. Pace, 602 N.W.2d at 774. We need not consider whether counsel did in fact abrogate a duty if no prejudice is evident. Id.

III. Analysis

A. Sufficiency of the Evidence

Defendant’s primary contention on appeal is that the State did not have sufficient evidence to prove he possessed a dangerous weapon for the purpose of promoting the commission of the crime. To that end, Oetken argues the incidental acquisition of a weapon during the perpetration of a burglary, in and of itself, cannot serve to elevate the offense.

Defendant’s position is not supported by precedent. In State v. Franklin, 368 N.W.2d 716 (Iowa 1985), defendant, Franklin, and several accomplices, entered the home of Catherine and Douglas Darby. Douglas was severely beaten after which the men ransacked the premises in hopes of finding drugs, weapons and money. None of the men were armed when they initially entered the apartment, but during the search a machete was discovered, which Franklin subsequently used to threaten the Darbys. Franklin claimed that because he did not enter the household armed, his conviction for first-degree burglary could not stand. We disagreed, holding matters that occur after entry, such as physical injury, or possession of a weapon at any point while participating in the burglary, are of moment in elevating the crime. Franklin, 368 N.W.2d at 720.

In State v. Olsen, 482 N.W.2d 452 (Iowa App.1992), defendant, Olsen, burglarized a home, found a gun, loaded it, fired a shot through the wall of the house, and fled the scene. While making his escape, Olsen was chased by the police. In an effort to dispose of incriminating evidence he jettisoned the gun through the window of the car. Olsen was later convicted of burglary in the first degree. Even though the weapon was not used to further the commission of the crime, the court of appeals followed our language in Franklin holding defendant’s possession of a weapon at any time permitted elevation of the offense.

Oetken endeavors to distinguish Franklin and Olsen, observing the defendants therein actually used and or brandished weapons, whereas the firearms he allegedly stole constituted nothing more than loot from a burglary. Here, defendant notes two of the three firearms were removed from the homes in cases, the guns were neither used nor brandished in any manner, and any crime he may have committed is analogous to the burglary of an armament factory where a thief runs away with a sack of rifles. Oetken argues the legislature never intended the mere theft of a weapon, be it from a department store or a private gun collection, to be sufficient to elevate an offense for possession under the burglary statute. Such a policy, he avers, would lead to absurd results.

Iowa Code sections 713.1 and 713.5 provide:

Any person, having the intent to commit a felony, assault or theft therein, who, having no right, license or privilege to do so, enters an occupied structure, such occupied structure not being open to the public, or who remains therein after it is closed to the public or after the person’s right, license or privilege to be there has expired, or any person having such intent who breaks an occupied structure, commits burglary.
A person commits burglary in the second degree in either of the following circumstances:
1. While perpetrating a burglary in or upon an occupied structure in which no persons are present, the person has possession of an explosive or incendiary device or material, or a dangerous weapon, or a bodily injury results to any person.

The language of the statute is relatively straightforward, it simply requires an offender have “possession” of a dangerous weapon. Possession can be actual, constructive, joint, or sole. State v. Maghee, 573 N.W.2d 1, 10 (Iowa 1997).

A person who has direct physical control of something on or around [his][her] person is in actual possession of it.
A person who is not in actual possession of something and has the authority or right to maintain control of it either alone or together with someone else, is in constructive possession of it.
If one person alone has possession of something, possession is sole.
If two or more persons share possession, possession is joint.

Id,

The circumstances of this case indicate Oetken and Inghram burglarized two homes. During the commission of these crimes the men found three guns, inspected them, and absconded with the firearms in their possession. Natalie Inghram witnessed Oetken carrying guns into the basement of her home, and Robby In-ghram later confessed, implicating his confederate. There was sufficient evidence for the jury to adduce Oetken had possession of a weapon at some point during the commission of the crimes. We need not consider whether defendant had actual or constructive possession of the weapons because the word itself is subject to more than one meaning and can be used interchangeably to describe either. State v. Eickelberg, 574 N.W.2d 1, 3 (Iowa 1997).

Nor does the statute require a weapon be used or brandished. In Eickel-berg, we noted the distinction between possession and usé of a firearm for purposes of a penalty enhancement provision. Id. at 5. Therein, defendants were in the process of establishing a drug production operation in the basement of their home when the police happened upon the scene. A search later revealed five marijuana plants, assorted drug paraphernalia, and an unloaded shotgun, in a case, on a rack, in the same room. Defendants were found guilty of manufacturing marijuana while in immediate possession or control of a firearm. On appeal, defendants argued the State was required to prove an affirmative act linking the weapon to the furtherance of the drug operation.

We did not find the assertion compelling. Instead, we contrasted a federal law, which stipulated a defendant must use or carry a firearm while committing a drug offense, with the Iowa statute that merely necessitated an accused possess or control a firearm to be guilty under the enhancement provision. Id. (comparing Bailey v. United States, 516 U.S. 137, 150, 116 S.Ct. 501, 509, 133 L.Ed.2d 472, 484 (1995)). We remarked that had our legislature wished to restrict the enhanced penalty to situations in which a weapon is actually used or carried, it could have done so. Id.

The scenario in Eickelberg is similar to the burglary statute at hand, wherein the legislature prohibited the mere possession of a dangerous weapon as opposed to its use. This likely indicates the policy underlying the statute is to prohibit felons from possessing, transporting, or transferring guns, rather than simply using them during the commission of a crime.

B. Jury Instructions

Defendant avers two assignments of error with regard to jury instructions. First, Oetken argues the trial court failed to instruct the jury as to the elements of theft, the crime underlying the burglary charge, and that this failure resulted in reversible error. Second, Oetken asserts the trial court should have defined the word “possession.” In support of his first argument, defendant cites State v. Mesch, 574 N.W.2d 10 (Iowa 1997), in which we held the State is

required to specify the felony that the defendant intended to commit after the breaking and entering. To avoid confusion or speculation on the part of the jury, the district court must also instruct on the elements constituting the felony. Failure to do both is reversible error.

Mesch, 574 N.W.2d at 14 (citations omitted).

To commit burglary in Iowa, a person unlawfully entering a premises must have the intent to commit a felony, assault or theft therein. See Iowa Code § 713.3. In Mesch, the trial court refused to instruct the jury as to which crime or felony an accused charged with burglary intended to commit. We reversed the defendant’s conviction on the grounds that, unless the State limits its prosecution and requested jury instructions to theft or assault, the State must specify which felony it believes a burglar intended to commit. Mesch, 574 N.W.2d at 14. We also directed the court to instruct the jury as to the elements constituting the felony. Id.

Generally, a court is required to instruct the jury as to the pertinent issues, the law, and the definition of the crime. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996); Henderson v. Scurr, 313 N.W.2d 522, 525 (Iowa 1981). Particular terms need not be defined, though, if readily understood by persons of ordinary intelligence. Only technical terms or legal terms of art must be explained. Kellogg, 542 N.W.2d at 516.

We need not decide, however, whether “theft” is a term readily understood by persons of ordinary intelligence or whether it is a legal term of art warranting a definitional instruction. Even assuming an instruction defining the crime of theft should have been given, we conclude the defendant suffered no prejudice from the absence of such an instruction here.

An intent to commit theft may be inferred from an actual breaking and entering of a building which contains things of value. State v. Sangster, 299 N.W.2d 661, 663 (Iowa 1980); State v. Clay, 213 N.W.2d 473, 480 (Iowa 1973). In the context of the burglary statute and the facts presented herein, the evidence overwhelmingly indicated Oetken intended to commit theft by breaking into private residences, and stealing firearms, televisions, and other personal property. Oetken was not prejudiced by the jury’s understanding of the term “theft.” Nor, for the reasons set forth in the previous division, was he prejudiced by the jury’s application of the commonly accepted meaning of “possession.” It is therefore unnecessary for us to consider whether his attorney abrogated a duty by failing to request further instruction in these regards.

C. Propriety of the Enhanced Sentence

Following his conviction, Oetken was sentenced as an habitual offender. Defendant now contends the district court was without authority to so rule. Oetken bases this assertion on the fact that the State filed a substituted and supplemental trial information within which no reference was made to defendant’s purported status as an habitual offender. Defendant maintains the substituted trial information replaced the one previously filed, thereby relieving the court of jurisdiction to consider the matter.

A challenge to subject matter jurisdiction may be made at any time. State v. Mandicino, 509 N.W.2d 481, 482 (Iowa 1993). Generally, this rule is extended to instances like this one where a court has jurisdiction, but is more appropriately alleged to lack the authority to hear a particular case. Id. Our review of this issue is for correction of errors at law. State v. Clark, 608 N.W.2d 5, 7 (Iowa 2000); Holding v. Franklin County Zoning Bd., 565 N.W.2d 318, 320 (Iowa 1997).

Iowa Rule of Criminal Procedure 6(5) provides:

If the offense charged is one for which the defendant, if convicted, will be subject by reason of the Code, to an increased penalty because of prior convictions, the allegation of such convictions, if any, shall be contained in the indictment. A supplemental indictment shall be prepared for the purpose of trial of the facts of the current offense only, and shall satisfy all pertinent requirements, except that it shall make no mention, directly or indirectly, of the allegation of the prior convictions, and shall be the only indictment read or otherwise presented to the jury prior to conviction of the current offense. The effect of this subdivision shall be to alter the procedure for trying, in one criminal proceeding, the offenses appropriate to its provisions, and not to alter in any manner the basic elements of an offense as provided by law.

Rule 6(5) is applicable with respect to prior convictions used as a basis for enhancement penalties. State v. Cook, 565 N.W.2d 611, 614 (Iowa 1997). The purpose of the rule is to ensure an accused a fair trial on the primary charge by requiring the prosecution to file a supplemental information in which prejudicial references to a defendant’s criminal history are deleted. Id. at 613.

Here, the State filed a substituted and supplemental information in order to comply with rule 6(5). At no point did the State expressly or impliedly indicate an intent to drop the habitual offender charges. Nor was this a ploy to mislead or deceive the defendant. This procedure has been utilized by Iowa courts for the last thirty-five years, and was designed to put Oetken on notice. See State v. Robinson, 165 N.W.2d 802, 803-04 (Iowa 1969).

Defendant cannot now claim he was unaware of the impending habitual offender adjudication. To do so would be disingenuous. The record indicates Oetken was privy to conversations in which the court addressed issues concerning defendant’s status during trial. It also reveals Oetken stipulated to the propriety of two prior burglary convictions, and specifically relieved the State of its duty to prove him an habitual offender. See Iowa R.Crim. P. 18(9).

Oetken, however, contends the district court erred in accepting this stipulation without first determining whether he understood the consequences of admitting his criminal past. Oetken cites State v. Brady, 442 N.W.2d 57 (Iowa 1989), wherein defendant, Brady, was convicted of burglary and adjudicated an habitual offender. On appeal, Brady claimed his avowal of prior felonies under the habitual offender statute was tantamount to a guilty plea, and that the trial court was thus required to advise him in accordance with Iowa Rule of Criminal Procedure 8(2)(b) before accepting a voluntary concession. Brady, 442 N.W.2d at 57.

Although Brady’s claim did not survive on its merits, we did acknowledge “a defendant’s admission of prior felony convictions which provide the predicate for sentencing as an habitual offender is so closely analogous to a guilty plea that it is appropriate to refer to our rules governing pleas, specifically, rule 8(2)(b).... ” Id. at 58.

Rule 8(2)(b) provides in relevant part:

Pleas of guilty. The court may refuse to accept a plea of guilty, and shall not accept a plea of guilty without first determining that the plea is made voluntarily and intelligently and has a factual basis. Before accepting a plea of guilty, the court must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands the following:
(1) The nature of the charge to which the plea is offered.
(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.

There is nothing in the record to indicate Oetken failed to understand the nature of an habitual offender decree, or the significance of his admission. Oetken agreed to stipulate as to his habitual offender status during both trials. He also took the stand in his own defense and professed to having twice been convicted of felonies involving dishonesty. At Oetken’s allocution the possible implications with regard to the sentencing of an habitual offender were discussed at length. Defendant was then afforded an opportunity to speak on his own behalf. In hopes of inducing leniency, Oetken again admitted his criminal past, expressed his regrets, and conveyed his desire for a promising and productive future with his family. Even though defendant was fully cognizant of his rights, including those delineated under rule 18(9), no effort was made to deny his criminal record, or to object to the propriety of sentence enhancement. See Iowa R.Crim. P. 18(9).

The trial court discharged its duty to inform the defendant as to the ramifications of an habitual offender adjudication. Under the circumstances, there is little else the court could have done to more clearly explicate the matter. Accordingly, we find no error was committed.

D. Trial Counsel Was Ineffective for Not Filing a Motion to Sever

Oetken contends he received ineffective assistance of counsel because his attorney did not move to sever counts I and II of the trial information. Specifically, defendant maintains the burglaries were not part of a common scheme or plan and, in accordance with Iowa Rule of Criminal Procedure 6(1), should have been tried separately.

Rule 6(1) provides:

Two or more public offenses which arose from the same transaction or occurrence or from two or more transactions or occurrences constituting parts of a common scheme or plan may be alleged and prosecuted as separate counts in a single complaint, information or indictment, unless, for good cause shown, the trial court in its discretion determines otherwise.

Iowa R.Crim. P. 6(1).

A common scheme or plan requires more than the commission of two similar transgressions by a single person. State v. Wright, 191 N.W.2d 638, 641 (Iowa 1971). The offenses must have a common link. Id. In short, they must be the products of a single or continuing motive. State v. Robinson, 506 N.W.2d 769, 772 (Iowa 1993) (interpreting State v. Lam, 391 N.W.2d 245, 249-50 (Iowa 1986)). In making this determination we have found it helpful to consider factors such as intent, modus operandi, and the temporal and geographic proximity of the crimes. See Lam 391 N.W.2d at 249-50.

Oetken asserts the crimes with which he was charged were perpetrated on different days and by different means, and should not, therefore, have been deemed products of a single or continuing motive. Defendant’s position is not supported by Iowa case law. In Lam, for example, we held that two burglaries committed on the same day, in the same general location, using the same means of entry and transportation, were parts of a common scheme or plan to burglarize apartments during normal working hours. Id. at 250. We readily inferred both offenses were products of a single and continuing motive for obtaining small portable objects from apartments for money. Id.

We have held similarly in other cases. See State v. Thornton, 506 N.W.2d 777, 779 (Iowa 1993) (no severance required when crimes took place on two consecutive days); State v. Houston, 439 N.W.2d 173, 178 (Iowa 1989) (no severance required where offenses of burglary and possession of burglar’s tools were products of a single, continuing motive in a series of planned thefts); State v. Delaney, 526 N.W.2d 170, 174-75 (Iowa App.1994) (no severance required where money from eight loan transactions over an eleven-month period was obtained by similar methods accompanied by a continuing self-indulgent motive).

Oetken committed two burglaries, on two consecutive days, using similar methods of operation — ie., he traveled through the rural countryside in search of homes that were unoccupied during traditional work hours, he knocked to ascertain the abodes were indeed vacant, broke and entered the premises through the rear doors, and proceeded to steal small portable objects such as TVs, VCRs, and guns. This constitutes sufficient evidence of a common scheme or plan with a single continuing motive.

Notwithstanding, defendant avers there was insufficient evidence to convict him of either crime. He asserts the jury ascertained his guilt on the basis of the evidence as a whole, rather than compartmentalizing the facts with respect to each charge. Oetken maintains he would have been insulated from this prejudice had the offenses been tried separately.

Generally, we must balance any unfair prejudice that could result from a joint trial against the State’s interest in judicial economy. State v. Trudo, 253 N.W.2d 101, 104 (Iowa 1977); Delaney, 526 N.W.2d at 175. Here, evidence was adduced manifesting defendant’s guilt on both counts. Robby Inghram confessed to having committed the crimes with Oetken. Natalie Inghram attested to having seen Oetken carry guns and other stolen goods into her basement subsequent to each burglary. She further swore the two men admitted the items had been obtained illicitly and cautioned her to be calm. Jason Blunk testified he accompanied Oetken when defendant fenced two of the stolen TVs. Oetken had also apparently warned Inghram to discard the shoes he wore during commission of the offenses. Although Inghram neglected to do so, and as a result was later tied to both crime scenes, Corey Coleman revealed he had in fact been asked to dispose of Oetken’s shoes. In addition, rebuttal testimony was elicited to impugn defendant’s testimony and his alibi for the mornings in question.

The jury was presented with evidence which it could reason sufficiently linked defendant to both crimes. It was also admonished to consider Oetken’s guilt or innocence on each count separately. Defendant cannot point to a specific error on the part of the jury, nor has he proven prejudice by a preponderance of the evidence.

E. Inadequacy of the Record

Defendant claims trial counsel was ineffective because he did not request opening statements, closing arguments, or voir dire be reported for the record. Oetken does not, however, assert any specific error occurred during the course of those proceedings, or that he was prejudiced as a result of his trial counsel’s representation. Nor does he cite authority that requires an attorney solicit the memo-rialization of those events. Oetken simply alleges the omission resulted in the production of an inadequate record from which an appellate defender might elicit error.

In State v. Newman, 326 N.W.2d 796 (Iowa 1982), we expressed an inclination to give a defendant the benefit of the doubt on the question of prejudice when a specific allegation of impropriety is leveled in a trial in which the court refuses to have arguments reported. Newman, 326 N.W.2d at 800. Such is not the case here. The district court did not prohibit the transcription of arguments. Nor does Oetken maintain anything untoward occurred during any stage of these proceedings. Defendant’s claim is without merit.

IV. Conclusion

We have duly considered Oetken’s other assertions of error and have found them wholly without merit. Throughout, defendant has either neglected to aver a specific prejudice, or has consistently failed to meet his burden of proof. The judgment of the trial court is affirmed.

AFFIRMED.

All justices concur except CARTER and LAYORATO, JJ., who take no part.


author: VOGEL, J.

text:
    In the Interest of M.T. and S.T., Minor Children, J.H., Father of M.T., Appellant, C.H., Father of S.T., Appellant.
    No. 99-1012.
    Court of Appeals of Iowa.
    April 12, 2000.

      Scot L. Bauermeister of Fitzgibbons Law Finn, Estherville, for appellant-J.H.
    Pamela Wingert, Spirit Lake, for appellant-C.H.
    Thomas J. Miller, Attorney General, Charles K. Phillips and Janet L. Hoffman, Assistant Attorneys General, and Julie Fil-lenwarth, Specially Assigned County Attorney, for appellee.
    David Forsyth, Estherville, guardian ad litem for the minor children.
    Heard by VOGEL, P.J., VAITHESWARAN, J., and SCHLEGEL, S. J., but decided by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.

       Senior judge assigned by order pursuant to Iowa Code § 602.9206 (1999).

   VOGEL, J.

James and Chris, the respective fathers of Miranda and Shoshawna, appeal the termination of their parental rights. We affirm.

Background facts. Miranda T. was born to Melissa T. and James H. on April 6, 1995. Melissa and James lived together following Miranda’s birth, but Melissa moved out with Miranda in October of 1996 when James discovered Melissa had been having a relationship with his brother, Chris H. In May of 1997 Miranda was removed from Melissa’s care due to neglect, inadequate supervision, and unsafe conditions in the home. Miranda was immediately placed in foster care and remained there following her CINA adjudication in July of 1997.

At the time of Miranda’s removal, Melissa was several months pregnant with Chris’s child and was reportedly abusing alcohol. Shoshawna was born to Melissa on October 2, 1997, and was immediately removed from her care because of Melissa’s history and the home environment. She was adjudicated CINA on January 29, 1998, and placed in foster care with Miranda.

On March 10, 1999, the State moved for termination of James’s parental rights to Miranda and Chris’s rights to Shoshawna pursuant to Iowa Code sections 232.116(l)(d) and (g) (1997). Following a hearing held on May 12th and 13th of 1999, the juvenile court terminated James’s and Chris’s parental rights. Melissa consented to termination of her parental rights to both children and does not appeal.

Scope of review. The scope of review in termination cases is de novo. See In re M.N.W., 577 N.W.2d 874, 875 (Iowa App.1998). The grounds for termination must be proven by clear and convincing evidence. In re E.K., 568 N.W.2d 829, 830 (Iowa App.1997). Our primary concern is the best interests of the child; we look to both the child’s long-range and immediate interests. M.N.W., 577 N.W.2d at 875.

I. Chris’s parental rights.

a. Reasonable efforts. Chris asserts that he was never given the opportunity to prove he could care for Shoshawna due to her immediate removal and the lack of services provided. He contends the court erred in terminating his parental rights because there was a lack of reasonable efforts at reunification.

We would first note that Chris has been incarcerated since May 1998 and has a tentative release date of December 2000. The only service DHS was able to offer Chris during his incarceration was supervised visitation. Chris cannot fault DHS for being unable to provide him additional services when his own actions prevented him from taking advantage of them. See E.K., 568 N.W.2d at 831. In any ease, we find that Chris failed to timely demand additional services. See In re H.L.B.R., 567 N.W.2d 675, 679 (Iowa App.1997); In re C.D., 508 N.W.2d 97, 101 (Iowa App. 1993). Chris did not challenge the reasonableness of reunification services at the CINA proceedings and did not appeal the adjudication. Furthermore, the juvenile court ordered all parties in this matter to list the services requested, ordered and offered prior to the termination proceedings. Chris failed to comply with the order. For all of these reasons, we conclude Chris failed to preserve error on this issue. See In re J.L.W., 570 N.W.2d 778, 781 (Iowa App.1997).

b. Admission of juvenile records. Chris next contends the court committed reversible error by considering his juvenile history in determining whether his parental rights to Shoshawna should be terminated.

At the termination hearing, the State called a police officer to testify as to Chris’s criminal history. Chris objected to the admission of certain records on grounds of hearsay and because they contained his juvenile criminal history. In ruling on the objection, the court stated:

The objections to Exhibit 3 [Chris’s report] with regard to any entries relative to placements in juvenile facilities is sustained, and those items are stricken and will be given no consideration by the Court. The remainder of the exhibit is received and the objection to that portion thereof was overruled.

In its subsequent termination order, the juvenile court referenced Chris’s “numerous convictions for burglary, theft, and domestic abuse assault,” and the “dozens of burglaries” Chris had committed in the three years before entering prison in 1998. Chris asserts that he has only had five convictions as an adult, and that the court obviously considered his juvenile record in concluding that his rights should be terminated. We disagree. During his testimony, Chris admitted to committing between fifty and sixty burglaries in the three years before entering prison in 1998. Chris was twenty-four years old at the time of the termination hearing in May of 1999, therefore these “dozens” of burglaries were committed while he was an adult. We find no evidence that the court considered Chris’s juvenile record in making its decision. Having considered all of Chris’s claims properly before us on appeal, we find that the court’s termination of Chris’s parental rights to Shoshawna should be affirmed.

II. James’s parental rights.

In its petition, the State sought termination of James’s parental rights pursuant to Iowa Code sections 232.116(l)(d) and (g). Although the juvenile court’s order did not specify the code section or sections it based termination under, the State concedes that James’s parental rights were terminated only under Iowa Code section 232.116(l)(g).

a. Reasonable efforts. James argues the court erred in terminating his parental rights because there was a lack of reasonable efforts for reunification. However, James, like Chris, did not appeal the CINA adjudication and did not comply with the juvenile court’s order directing him to list requested services. We therefore find James has failed to preserve this issue for appeal,

b. Applicability of section 232.116(1) (g). Iowa Code section 232.116(l)(g) allows the juvenile court to terminate parental rights when:

(1) The child is three years of age or younger.
(2) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
(3) The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days.
(4) There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time.

At the time of filing the petition, Miranda was three years of age and this code section was, therefore, appropriately pled. However, on April 6, 1999, before the termination hearing began, Miranda turned four years old. Despite this fact, the juvenile court made a finding that Miranda was three at the time of the hearing. Apparently, neither James, the State, nor the juvenile court realized the error until well after the termination order had been entered. On appeal James argued the termination should be reversed and remanded to the juvenile court for further proceedings.

Following oral arguments, we ordered a limited remand, “to allow the State to seek leave to amend the petition to include the appropriate Iowa Code section, and to allow the court to receive additional evidence, if necessary.” Following notice to all parties, the Court granted the State’s amended petition alleging James’s parental rights should be terminated under Iowa Code section 232.116(l)(e). The court then entered this ruling: “After visiting with all counsel of record, the Court finds, there being no resistance, the State’s Motion for Leave to Amend to Conform to Proof is granted.”

We now review whether there was clear and convincing evidence to terminate James’s parental rights under the amended petition. The testimony in the record identified Miranda as a four year old child, and established that she had been removed from her parents’ care for more than twelve of the last eighteen months. The court found, and we agree, that Miranda had been out of the custody of her parents for twenty-four months at the time of trial. The only argument James made on appeal regarding the code section as originally pled was whether his parental rights could be terminated under an incorrect code section. He has not challenged the court’s findings as to the sufficiency of the evidence that Miranda could not be returned to his custody. Finding no resistance to the juvenile court’s conforming the amended petition to the proof, we affirm the termination of James’s parental rights under Iowa Code section 232.116(l)(e).

Conclusion. We hereby affirm the juvenile court’s termination of Chris’s parental rights to Shoshawna, and James’s parental rights to Miranda.

AFFIRMED.

SACKETT, C.J., takes no part.

      . Iowa Code § 232.116(l)(e) provides for termination of parental rights where:
      (1) The child is four years of age or older.
      (2) The child has been adjudicated a child in need of assistance pursuant to section 232.96.
      (3) The child has been removed from the physical custody of the child’s parents for at least twelve of the last eighteen months, or for the last twelve consecutive months and any trial period at home has been less than thirty days.
      (4) There is clear and convincing evidence that at the present time the child cannot be returned to the custody of the child's parents as provided in section 232.102.

      . During the termination hearing, Melissa testified as follows:
      Q: How old is Miranda? A: Miranda is four.
      Q: How long has she been, approximately, a child in need of assistance? A: Two years.
      Q: How long has she been removed from your custody? A: Two years.
      We note that James was not living with Melissa and Miranda at the time of removal in May of 1997 and had not been living with them since October of 1996.


author: STRINGER, Justice. GILBERT, Justice PAGE, J. PAUL H. ANDERSON, J.

text:
    Barbara L. FREYHOLTZ, Relator, v. BLACKDUCK SCHOOL DISTRICT # 32 and American Compensation Ins. Co./RTW, Inc., Respondents.
    No. C1-00-268.
    Supreme Court of Minnesota.
    July 13, 2000.
    Rehearing Denied Aug. 14, 2000.
    Hazelton & Rodgers, P.C., Mark L. Rodgers, Bemidji, for relator.
    Cousineau, McGuire & Anderson, Chartered, Thomas V. Maguire, Justin A. Hanson, Minneapolis, for respondent.
   OPINION

STRINGER, Justice.

This workers’ compensation matter comes before us by certiorari upon the petition of the employee to review a decision of the Workers’ Compensation Court of Appeals affirming the compensation judge’s determination that the employer did not have timely notice of the employee’s work-related back injury. We affirm.

On September 17, 1996, while engaged in cleaning work for the Blaekduek School District, employee Barbara Freyholtz had an onset of back pain while moving a desk. She reported the injury to her chiropractor the next day when she was seen at a previously scheduled appointment for unrelated, pre-existing medical conditions. The chiropractor told the employee that her back injury was causally related to the work incident. The employee was reluctant to report the injury to her employer, however, as she “felt maybe it wasn’t too big of a deal” and “didn’t take it too seriously at first,” although she continued to receive regular chiropractic care for her back. Ultimately, the employee reported the injury to her employer on October 22, 1996, and subsequently petitioned for workers’ compensation benefits. Following a hearing, benefits were denied by the compensation judge on finding that the employee had not provided timely notice of injury. On appeal, the Workers’ Compensation Court of Appeals affirmed.

By statute, where notice of injury is provided within 30 days from the occurrence of the injury, “no want, failure, or inaccuracy of a notice” will bar compensation unless the employer shows prejudice. Minn.Stat. § 176.141 (1998). Where notice is provided to the employer more than 30 days but less than 180 days from the occurrence of the injury, compensation is still payable if the employee “shows that failure to give prior notice was due to the employee’s * * * mistake, inadvertence, ignorance of fact or law, or inability, or to the fraud, misrepresentation, or deceit of the employer or agent.” Id. Late notice may also be excused by the trivial injury rule. See Issacson v. Minnetonka, Inc., 411 N.W.2d 865, 867 (Minn.1987). Here, the compensation judge found that the employee’s late notice was not excused by reason of mistake, inadvertence, ignorance of fact or law, inability, employer conduct or the trivial injury rule.

When a workers’ compensation matter comes to this court on certiorari, if the compensation judge’s findings have been reversed, we look at the record to see if the compensation judge’s findings had substantial evidentiary support. See, e.g, Ruether v. State, 455 N.W.2d 475, 478 (Minn.1990); Polaschek v. Asbestos Products, Inc., 361 N.W.2d 37, 42 (Minn.1985). If the findings have been affirmed, however, we will not intrude unless the findings are “manifestly contrary to the evidence” or unless “the evidence clearly requires reasonable minds to adopt a contrary conclusion.” Egeland v. City of Minneapolis, 344 N.W.2d 597, 601 (Minn.1984) (quoting McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 541 (Minn.1983)). We are also committed to the principle that if different inferences can justifiably be drawn from the same evidence in the case, the inference drawn by the factfinder will not be disturbed on appeal. See Dille v. Knox Lumber/Div. of Southwest Forest, 452 N.W.2d 679, 681 (Minn.1990) (citing Gerhardt v. Welch, 267 Minn. 206, 210, 125 N.W.2d 721, 724 (1964)). “It is not the function of this court to weigh the evidence to find facts to meet our preference.” Dille, 452 N.W.2d at 681 (citing Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60 (Minn.1984)). That we might have found the facts differently is not the basis for reversal in a case such as this where the facts, viewed in the light most favorable to the findings, sustain the determination of the compensation judge and the Workers’ Compensation Court of Appeals that the notice requirements of section 176.141 had not been met.

Affirmed.

GILBERT, Justice

(dissenting).

I respectfully dissent. The majority ignores the facts of this case to uphold an artificial application of our precedent with unreasonable consequences. At a time when there is a concern for frivolous litigation and unfounded workers’ compensation claims, the employee should not be penalized for the failure to notify the employer immediately when she did not take her injury too seriously at first, thought that her chiropractor could take care of the problem and continued on at work. As soon as the employee discovered that the injury was more serious than she originally believed and experienced problems from the injury that resulted in work-related consequences, such as having to miss work, she immediately took action to fully notify the employer of the injury.

The compensation judge’s conclusion that there was a failure to show mistake, inadvertence or ignorance of fact or law was made without any findings based on substantial evidentiary support. As the majority notes, the employee has the burden to show mistake of fact or law if notice of the injury was given to the employer more than 30 days after the occurrence of the injury, in order for compensation to be payable. The only relevant testimony in this record before the compensation judge on this issue was the employee’s testimony. The employee’s unimpeached testimony included statements that she did not think her injury was serious, that it would be easily corrected and that she did not believe she had a compensable injury until it affected her work. On this record, the compensation judge clearly erred when he stated that “[t]here was no evidence presented” to show mistake of fact or law. In order to conclude that “no evidence” was presented, the judge must have rejected the employee’s testimony. He did so without giving any reason or making any finding supported by substantial evidence. There is no conflicting evidence that the judge could have adjudged more credible, to which we must defer. There is no evidence to support the employer’s assertion that the judge must have determined that she was not credible on this point. See also Minn.Stat. § 176.371 (1998) (providing a memorandum attached to a compensation judge’s decision is not necessary unless “necessary to delineate the reasons for the decision or to discuss the credibility of witnesses”). The compensation judge found her credible on the other facets of her claim, finding that she did injure her middle and upper back in the course of her employment and that chiropractic treatment was reasonable for the first 12 weeks of treatment, but then found the claim barred by the alleged notice defect. Without such a finding on credibility or any other evidence in the record, it is not a reasonable inference of the employee’s testimony that it was deliberate rather than inadvertent conduct that resulted in the employee missing the 30-day limit on notice. The compensation judge’s finding of no mistake of fact or law is manifestly contrary to the evidence. We need not defer to the compensation judge’s decision when the judge has completely failed to explain his reasoning and support it with substantial evidence.

This error was compounded by the Workers’ Compensation Court of Appeals’ decision. The court conceded there was evidence that supported the contention that the employee failed to give early notice because she had the mistaken fact belief that she was not seriously injured and that the injury could be easily and promptly taken care of. A mistake of law was made by the Workers’ Compensation Court of Appeals in upholding the compensation judge’s erroneous finding of no mistake by summarily stating “In the absence of more definitive evidence on the point, the issue is one in which competing inferences may be drawn from the evidence.” However, there was' no need for “more definitive evidence” because there was no other relevant evidence on the question of mistake or inadvertence. There was also no support in the record or in the compensation judge’s findings for disregarding the employee’s testimony. Without such contrary evidence, there were no competing inferences that could be drawn. The employee went forward and met her burden of proof with no impeaching testimony offered by the employer. Because there was no substantial basis supporting the compensation judge’s finding, the Workers’ Compensation Court of Appeals’ conclusion that the finding was sufficiently supported was incorrect as a matter of law and should be reversed.

The fact that the employee’s burden of proof had been met is coupled with the fact that the employer suffered no prejudice on this record. This further supports the conclusion that the employee’s claim should proceed. See generally Minn.Stat. § 176 .141 (1998) (providing for the reduction of compensation where employer is prejudiced by failure to receive timely notice). The purpose of the notice requirement is to enable the employer to furnish prompt medical attention and timely investigate the circumstances of the injury. See Kling v. St. Barnabas Hosp., 291 Minn. 257, 261, 190 N.W.2d 674, 677 (1971). Here the employee promptly sought medical attention within the 30-day period and failing to receive notice on day 30 instead of day 34 did not prejudice the employer. I would reverse the Workers’ Compensation Court of Appeals and remand for trial.

PAGE, J.

I join in the dissent of Justice Gilbert.

PAUL H. ANDERSON, J.

I join in the dissent of Justice Gilbert.

      . The assertion of the dissent that there is no evidence to support the finding of the compensation judge that the employee's failure to give timely notice was not excused by mistake, inadvertence, or ignorance of fact or law is not supported by the record and is an overstatement.