author: STREIT, Justice.

text:
    TLC HOME HEALTH CARE, L.L.C., Appellant, v. IOWA DEPARTMENT OF HUMAN SERVICES, Appellee.
    No. 00-0255.
    Supreme Court of Iowa.
    Jan. 24, 2002.

      Robert Holz and Judith Boes of Davis, Brown, Koehn, Shors, & Roberts, P.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Janet Hoffman, Assistant Attorney General, for appellee.
   STREIT, Justice.

This is an appeal from a ruling on judicial review of agency action by the Iowa Department of Human Services pursuant to Iowa Code section 17A.19 (1999). The district court affirmed the decision by an administrative law judge that had been adopted as the final agency decision. The administrative law judge’s decision upheld the validity of the agency order finding that TLC Home Health Care, Inc. could not recover Medicaid payments at the rate of almost $14,000 per month for home health services rendered to Ardeth Blackwell and could not recover Medicare payments for the same services under Medicare’s insulin services exception. We find the Department’s denial of TLC’s claims under the Medicare insulin services exception was supported by substantial evidence. We also find the Department is required to provide home health care services on both a part-time and intermittent basis. We therefore affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

I. Facts

Ardeth Blackwell is an eighty-three-year-old woman suffering from diabetes. She has numerous other chronic illnesses. Due to some of these conditions, Blackwell is unable to administer her own insulin injections. She has no family willing or able to assist her with the injections. TLC Home Health Care provided home health care visits to Blackwell. Those visits in-eluded skilled nursing services providing Blackwell with insulin injections twice a day, with additional necessary injections depending on her blood glucose level. TLC charged nearly $14,000 a month to provide these home health care visits.

TLC first billed Medicare for the home health care services TLC provided to Blackwell. Medicare requires a person be considered homebound before he or she is eligible for Medicare coverage. See 42 U.S.C. § 1395f(a)(2)(C). Since Blackwell was not considered homebound, Medicare denied payment. Medicare is the primary source of payment for medical assistance for someone qualifying for both programs. After a denial of payment by Medicare, then an individual applies to Medicaid for coverage. Accordingly, TLC then billed Medicaid for the home health visits. Medicaid will pay for the services if the applicable Medicaid regulations are satisfied. In Blackwell’s case, Medicaid similarly refused payment because these particular home health visits were not a covered service under the Iowa Medicaid statutes.

TLC appealed to the Iowa Department of Human Services and an administrative law judge affirmed the denial of the claims. The judge determined TLC’s claims were not covered under Medicaid because Blackwell’s care was not intermittent as required by the Iowa Medicaid statutes. Further, the court found the Medicare insulin exception for the homebound did not apply because TLC continually argued Blackwell was not homebound. TLC sought review of the judge’s conclusions from the director of the Department of Human Services. The director affirmed the denial of the claims. TLC then petitioned for review in the district court and the court likewise affirmed. TLC appeals.

On appeal, TLC contends the Department erred in denying its claim for Medicaid payments because the federal Medicaid statute requires coverage of home health care services on both part-time and intermittent bases. TLC further argues the Medicare insulin exception applies to Blackwell. TLC contends the Department’s decision to deny the claims was not supported by substantial evidence and is unreasonable, arbitrary, and an abuse of discretion. The Department characterizes this case as a cost-containment case and argues it involves inappropriate claims for unauthorized services under Iowa Medicaid policies.

II. Scope of Review

Judicial review of agency action is guided by Iowa Code section 17A.19(8) (1999). Our review is limited “to determining whether the district court correctly applied the law in exercising its section 17A.19(8) judicial review function.” Ahrendsen ex rel. Ahrendsen v. Iowa Dep’t of Human Servs., 613 N.W.2d 674, 676 (Iowa 2000). The district court, as well as this court, is bound to the administrative law judge’s findings of fact if they are supported by substantial evidence. IBP, Inc. v. Iowa Employment Appeal Bd., 604 N.W.2d 307, 311 (Iowa 1999). Evidence is substantial if a reasonable person would find it adequate to reach a conclusion. Id. The district court acts “in an appellate capacity to correct errors of law on the part of the agency. In our review of such action by the district court, we merely apply the standards of section 17A.19(8) to the agency action to determine whether our conclusions are the same as those of the district court.” Teleconnect Co. v. Iowa State Commerce Comm’n, 404 N.W.2d 158, 161-62 (Iowa 1987) (citations omitted). If our conclusions are the same, we must affirm. Norland v. Iowa Dep’t of Job Serv., 412 N.W.2d 904, 908 (Iowa 1987). When an agency interprets its own regulations, it is entitled to substantial deference. See, e.g., Shalala v. Guernsey Mem. Hosp., 514 U.S. 87, 94-95, 115 S.Ct. 1232, 1236, 131 L.Ed.2d 106, 116 (1995); Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 2386, 129 L.Ed.2d 405, 415 (1994).

Under section 17A.19(8), relief may be granted only if agency action was “unreasonable, arbitrary, or capricious,” or is characterized by abuse of discretion. To be arbitrary or capricious, the agency action must be taken without regard to the law or consideration of the facts of the case. To constitute abuse of discretion, the action must be unreasonable and lack rationality.

Allen v. State, Dep’t of Personnel, 528 N.W.2d 583, 587 (Iowa 1995) (citations omitted).

III. The Merits

TLC first contends the Department’s denial of TLC’s claim for Medicaid payments is contrary to the applicable federal statutes and regulations. TLC also contends the Department’s decision to deny TLC’s claim for Medicaid payments was not supported by substantial evidence. Finally, TLC argues the Department’s decision to deny TLC’s claim for Medicaid payments is unreasonable, arbitrary, and an abuse of discretion. We first examine whether Iowa Medicaid law covers both intermittent and part-time home health care services. We then address whether the Medicare exception for insulin regulation applies in this case.

A. Part-time Versus Intermittent Home Health Care Services

TLC argues the Department’s interpretation of Iowa’s Medicaid regulations directly conflicts with federal Medicare and Medicaid statutes. Additionally, TLC contends the services provided by TLC comply with both Iowa and federal law and should be covered by the Department. Finally, TLC contends if we uphold the Department’s interpretation of 42 Code of Federal Regulations section 440.70, we must invalidate Iowa Administrative Code rule 441-78.9 because it directly conflicts with federal Medicaid statutes. Because it conflicts with federal law, TLC asserts we should apply Medicare regulations and overturn the agency finding denying TLC payment under Medicaid.

Before we turn to the merits of this issue, we first briefly examine the Medicaid program. The roots of Medicaid are found in federal legislation that became effective in 1967, which made grants available to the states for state-administered medical assistance programs. 42 U.S.C. §§ 1396 et seq. Medicaid is a “cooperative federal-state program through which the federal government provides financial assistance to states so that they may furnish medical care to needy individuals.” Madrid Home for the Aging v. Iowa Dep’t of Human Servs., 557 N.W.2d 507, 511 (Iowa 1996) (citing 42 U.S.C. § 1396 (1994)); Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 502, 110 S.Ct. 2510, 2513, 110 L.Ed.2d 455, 462 (1990). The Medicaid program was established by Congress as part of Title XIX of the Social Security Act. 42 U.S.C. §§ 1396-1696q. Medicaid is designed to “provid[e] federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons.” Harris v. McRae, 448 U.S. 297, 301, 100 S.Ct. 2671, 2680, 65 L.Ed.2d 784, 794 (1980). States electing to participate in Medicaid must develop state Medicaid plans consistent with the federal Medicaid statute, regulations, and administrative rules. Id. As a condition of receipt of federal Medicaid funds, a state plan must comply with federal laws and regulations. See Madrid Home for the Aging, 557 N.W.2d at 511 (citing Wilder, 496 U.S. at 502, 110 S.Ct. at 2513, 110 L.Ed.2d at 462). To qualify for federal assistance, a state must establish a plan and submit it to the Health Care Financing Administration (HCFA) for approval. Id. Upon approval of the state plan, the federal government will reimburse the state for a percentage of the program’s expenses, including administrative costs and other program-related expenses. Madrid Home for the Aging, 557 N.W.2d at 511 (citing Connecticut Hosp. Ass’n v. Weicker, 46 F.3d 211, 213 (2d Cir.1995)).

We now turn to the issue before us. At the heart of this issue is 42 Code of Federal Regulations section 440.70 which defines covered home health services, in part, as follows:

Home Health Services.

(a) “Home health services” means the services in paragraph (b) of this section that are provided to a recipient—
(b) Home health services include the following services and items. Those listed in paragraphs (b)(1), (2), and (3) of this section are required services; those in paragraph (b)(4) of this section are optional.
(1) Nursing service, as defined in the State Nurse Practice Act, that is provided on a part-time or intermittent basis by a home health agency as defined in paragraph (d) of this section,....

42 C.F.R. § 440.70.

TLC contends this section requires states to provide home health care services on both a part-time and intermittent basis. The Department maintains the phrase “part-time or intermittent” permits states to provide services either on a part-time or intermittent basis. Because the Department has adopted such a construction of 42 Code of Federal Regulations section 440.70, it chose to provide nursing services through home health agencies only on an intermittent basis. Iowa Administrative Code rule 441-78.9(3) provides, in part:

Skilled nursing services.
... Skilled nursing services shall be available only on an intermittent basis. Intermittent services for skilled nursing services shall be defined as a medically predictable recurring need requiring a skilled nursing service at least once every 60 days, not to exceed five days per week (except as provided below), with an attempt to have a predictable end. Daily visits (six or seven days per week) that are reasonable and necessary and show an attempt to have a predictable end shall be covered for up to three weeks. Coverage for additional daily visits beyond the initial anticipated time frame may be appropriate for a short period of time, based on the medical necessity of service.... Daily skilled nursing visits which are ordered for an indefinite period of time and designated as daily skilled nursing care do not meet the intermittent definition and shall be denied.

Iowa Administrative Code rule 441-78.9(3) (emphasis added). To determine whether 42 Code of Federal Regulations section 440.70 permits the states to choose the basis upon which they will provide services, we must refer to our rules of statutory construction.

It is a basic rule of statutory construction that we must “give effect, if possible, to every clause and word of a statute.” See United States v. Menasche, 348 U.S. 528, 538-39, 75 S.Ct. 513, 520, 99 L.Ed. 615, 624 (1955). (citing Inhabitants of the Township of Montclair v. Ramsdell, 107 U.S. 147, 153, 2 S.Ct. 391, 395, 27 L.Ed. 431, 433 (1883)). Upon examination of the words of the statute, we find four elements of the statute determinative of this issue. First, section 440.70(a) begins by stating the information in the section shall define what “home health services means.” Then, section 440.70(b) explicitly states “home health services include the following services and items.” (Emphasis added.) Finally, this subsection also clearly states the services and items in paragraph (b)(1) are “required services.” (Emphasis added.) Paragraph (b)(1) addresses nursing services provided on a “part-time or intermittent” basis.

The focus of statutory construction is to give effect to the intent of Congress. We first look to the plain language of the statute to establish this intent. In doing so, we give a plain, ordinary meaning to words, phrases, and punctuation. 3 Norman J. Singer, Sutherland Statutory Construction § 72.04, at 303 (5th ed. rev. vol.1992). In general, we attribute ordinary meaning to the words of a statute, unless there is contrary congressional intent. There is a presumption that no part of an act is intended to be superfluous and all parts of a Medicare statute are read as a whole. Id. § 72.04, at 304. In general, we construe Medicaid statutes in favor of coverage for the recipient. See, e.g., Cowan v. Myers, 187 Cal.App.3d 968, 995, 232 Cal.Rptr. 299, 316 (1986), cert. denied, 484 U.S. 846, 108 S.Ct. 140, 98 L.Ed.2d 97 (1987). We now turn to the textual cues we have been given by Congress.

First, Congress used the phrase “home health services means.” The intent behind this phrase was to restrict the definition of home health services to those things specifically stated in the statute. Second, Congress chose to use the phrase “home health services include the following.” The word “include” can enlarge the meaning of a word or it can function as a restriction. State Pub. Defender v. Iowa Dist. Ct., 633 N.W.2d 280, 283 (Iowa 2001). “Where a general term is followed by the word ‘including,’ which is itself followed by specific terms, the intent may be one of limitation.” Id. Here, Congress used the word synonymously with “means” or “comprise.” There is little doubt the legislative intent was to use the word “include” in the sense of limiting or restricting the class of covered home health services. The statute continues on to state the services and items listed in paragraph (b)(1) are required. This obligation read together with paragraph (b)(1) provides nursing services provided on a part-time or intermittent basis are required. The final step in this analysis requires us to determine the meaning of the word “or” within this context. In interpreting a statute, we will not rely too heavily upon characterizations such as “disjunctive” or “conjunctive” forms to resolve difficult issues, but we will look to all parts of the statute. 2A Norman J. Singer, Sutherland Statutory Construction § 46.05, at 203 (5th ed. rev.vol. 1992). Given the words and phrases preceding “or” in this particular statute, we conclude “or” means both and is used as a word of inclusion, rather than exclusion. In this context, we will not give “or” disjunctive character. There is nothing in the text that makes part-time nursing services inapplicable to this statute section.

Also important to our interpretation of this statute is the fact that remedial legislation, such as Medicaid, is ordinarily construed in favor of coverage for the recipient. See, e.g., Dingle v. Lam, 434 F.Supp. 1173, 1176 (D.C.Haw.1977); Cowan, 232 Cal.Rptr. at 316; Baez v. Bane, 220 A.D.2d 166, 173, 633 N.Y.S.2d 765, 769 (1995). The principal goal of Medicaid is to further the best interests of eligible recipients. Given this perspective, we may not construe this statute as providing Iowa discretion to limit the type of covered stilled nursing services. In requiring states to cover both part-time and intermittent services, the statute promotes the best interests of the recipient by covering the most appropriate care for each individual’s circumstances. Thus, the statute requires the states to provide skilled nursing services to recipients. Skilled nursing services are those services provided on either a part-time or intermittent basis, as is necessary.

Congress could have used a number of different words and phrases and intended the result urged by the Department. However, the four provisions discussed above are included in the statutory language and must be given meaning. Given these textual cues, it is not possible to interpret this statute in such a way as to permit the states to choose which nursing services it will provide. The statute clearly directs the states to provide both intermittent and part-time nursing services. In covering only intermittent services, the Iowa statute conflicts with the federal statute.

We therefore reject the Department’s implementation of 42 Code of Federal Regulations section 440.70. Since the Iowa Medicaid statute must be consistent with the Federal Medicaid statute, we invalidate only that portion of the Iowa Medicaid statute that is inconsistent with 42 Code of Federal Regulations section 440.70. We further remand with instructions that coverage be determined in accordance with the lawful interpretation of the Federal Medicaid statute requiring coverage for both part-time and intermittent services. We also note that a determination of whether TLC’s claims qualify for coverage under part-time skilled nursing services requires the district court on remand to determine what constitutes eight hours of skilled nursing services.

B. Medicare’s Exception for Insulin Services

TLC argues it is also entitled to coverage under the Medicare exception to the intermittent requirement allowing coverage for insulin injections. Medicare provides an exception to the intermittent requirement for skilled nursing services that permits daily home health care services for insulin injections. Medicare Guide to Billing for H[ome] H[ealth] A[gencie]s, at 38 (Jan. 1, 1997). Medicare contains a blanket requirement that a patient be considered homebound to be eligible for coverage under Medicare. See 42 U.S.C. § 1395f(a)(2)(C). The Medicare insulin injection exception to intermittent care accordingly requires that a patient be declared homebound to be eligible for coverage under this exception. Iowa’s Medicaid law does not provide an exception for insulin injections. TLC contends because Medicaid does not contain such an exception that it is silent on the issue; therefore, the Department must follow Medicare law and read the insulin injection exception into the Iowa Medicaid statute. We disagree and conclude Medicaid is not silent on the issue.

We must determine, from the words of the statute, if the Iowa Medicaid statute precisely addresses which skilled nursing services shall be covered in the state plan. Here, we must interpret what the legislature included, as well as excluded, in the Iowa Medicaid statute. We must give meaning to all of the terms included in the statute.

Federal Medicare defines Medicare coverage of services which includes an exception allowing coverage for insulin injections. This allowance for insulin injections is an exception to coverage under the Medicare intermittent services requirement. If an individual does not qualify for coverage under the intermittent requirement, he or she may apply for coverage under the insulin injection exception to this provision. The Iowa Medicaid statute also defines which services shall be covered in Iowa Administrative Code rule 441-78.9(3). This section clearly defines what constitutes covered “skilled nursing services.” It also provides an exception for additional daily visits beyond the allowed three-week time period for services based on the medical necessity of the service. Finally, this section concludes by clearly stating there are no other exceptions to the intermittent definition under which skilled nursing services will be provided. The language of the Iowa Medicaid statute does not speak “of vague generalities but in precise terms.” See Thomas Jefferson Univ., 512 U.S. at 517, 114 S.Ct. at 2389, 129 L.Ed.2d at 418. The Department was well within its discretion in interpreting this statute as to impose substantive restrictions on which services are considered covered skilled nursing services. See id. If we interpret the statute otherwise, it would allow the Department to create de facto a new exception to the intermittent requirement.

Given the words of the statute, it cannot be said the Iowa Medicaid statute is silent on the issue of coverage of Medicaid services. If the legislature intended an exception for insulin injections, it would have included the exception in Iowa Administrative Code rule 441-78.9(3). However, noticeably absent from the list of covered skilled nursing services is any mention of an exception for insulin injections. Gen-©rally, there is an inference that omissions are intentional. 2A Norman J. Singer, Sutherland Statutory Construction § 47.25, at 234 (5th ed. rev.vol.1992). Under the doctrine of inclusio unius est exelu-sio alterius, we will exclude from operation items not included in a list of elements that are given effect expressly by statutory language. Id. If the legislature intends such an exception, it is its duty, not the court’s, to provide the exception in the statute. Even if the legislature intended Medicaid to contain such an exception, as TLC contends, that is not clear from the words of the statute. We cannot and will not infer such a meaning and we decline to read the Medicare insulin injection exception into the Iowa Medicaid statutes.

Even assuming arguendo the Iowa Medicaid statute is silent on whether to allow an exception for insulin injections, our conclusion is still the same. TLC asserts if the state Medicaid statute is silent on whether to allow an exception for insulin injections, we must defer to the Medicare policies. As a result, TLC contends we must read the insulin injection exception into the state Medicaid statute. In support for this contention, TLC primarily relies on Iowa Administrative Code rule 441-79.9 which provides “Medicare definitions and policies shall apply to services provided unless specifically defined differently. ...” (Emphasis added.) TLC interprets this rule based on testimony from Connie Banks, a program manager in the Division of Medical Services at the Department of Human Services. Banks stated, “[I]f the administrative rules that govern the policies of the Department of Human Services addressed an issue, then that would take precedence over the Medicare, ... guidelines. If the administrative rules are silent, then the Medicare guidelines would be followed.”

TLC misconstrued Banks’ testimony and consequently incorrectly interpreted Iowa Administrative Code rule 441-79.9 to mean Medicaid must cover all of the services Medicare explicitly covers, but which are not explicitly included in the Medicaid statutes. Instead, this section means Medicare policies and definitions apply to services already explicitly provided for and covered by Medicaid. For example, if Medicare and Medicaid contain a similar policy provision, but Medicaid does not define a crucial word in the provision while Medicare provides such a definition, the Medicare definition should be applied. It does not mean all services and benefits provided by Medicare, but absent in Medicaid, must be included in Medicaid statutes.

In conclusion, nothing in the statute suggests each state is required to include the insulin injection exception in its particular state Medicaid plan. This issue depends on a particular state’s Medicaid coverage policy. At the time in question, Iowa had elected not to include this exception and we will not read it into the statute. The court ruled on the insulin injection exception issue, considering all of the evidence including Banks’ statements, and ruled against TLC. We find there was substantial evidence for the court to make factual findings and conclusions contrary to TLC’s contentions. We affirm.

IV. Conclusion

We find substantial evidence to support the Department’s finding that the Medicare insulin injection exception does not apply to allow TLC to recover its claims for Blackwell’s home health care services. We reject the Department’s implementation of 42 Code of Federal Regulations section 440.70 finding it is unreasonable, arbitrary, and an abuse of discretion. We invalidate only that part of the Iowa Medicaid statute in conflict with the federal Medicaid statute. We further remand this case with instructions that coverage be determined in accordance with the lawful interpretation of the federal Medicaid statute as it requires coverage for both part-time and intermittent services.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

      . Blackwell is eligible for both the Medicare and Medicaid program.

      . The Department denied TLC's claims because they did not meet the statutory requirements for intermittent skilled nursing services. "Intermittent services for skilled nursing services shall be defined as a medically predictable recurring need requiring a skilled nursing service at least once every 60 days, with an attempt to have a predictable end.” 441 Iowa Administrative Code rule 78.9(3).

      .The Department does not contest the reasonableness of the costs of the home health services TLC provided to Blackwell.

      . The Iowa Medicaid statute must include coverage for skilled nursing services offered on a part-time basis. Since Iowa Medicaid does not define "part-time,” the Medicare definition of part-time applies pursuant to Iowa Administrative Code rule 441-79.9. Medicare defines part-time as follows:
      A. Definition of Part-time. — Part-time means any number of days per week:— Up to and including 28 hours per week of skilled nursing and home health aide services combined on a less than daily basis;
      -Up to 35 hours per week of skilled nursing and home health aide services combined which are provided on a less than daily basis, subject to review by fiscal intermediaries on a case by case basis, based upon documentation justifying the need for and reasonableness of such additional care; or
      -Up to and including full-time (i.e., 8 hours per day) skilled nursing and home health aide services combined which are provided and needed 7 days per week for temporary, but not indefinite, periods of time of up to 21 days with allowances for extensions in exceptional circumstances where the need for care in excess of 21 days is finite and predictable.
      Home Health Agency Manual 11, § 206.7A.

      . We do not rule on this particular issue. The district court did not consider the issue of the definition of "eight hours” in its ruling on petition for judicial review of the Department’s actions.

      . Iowa Administrative Code rule 441-78.9(3) was amended on October 4, 2000. The amended section explicitly includes coverage for insulin injections. The section provides,
      daily skilled nursing visits or multiple visits for wound care or insulin injections shall be covered when ordered by a physician and included in a plan of care. Other daily skilled nursing visits which are ordered for an indefinite period of time and designated as daily skilled nursing care do not meet the intermittent definition and shall be denied.
      Iowa Administrative Code rule 441-78.9(3) (emphasis added). The amendment of this statute does not affect our analysis of the issues before us on appeal. Rather, we must decide these issues based on the statutes in effect at the time TLC rendered its services to Blackwell.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    PREFERRED RISK INSURANCE COMPANY n/k/a Guidant Elite Insurance Company, Appellant, v. Kenneth P. Cooper, Defendant, and Kimberly COOPER, Appellee.
    No. 00-0542.
    Supreme Court of Iowa.
    Jan. 24, 2002.
    Philip H. Dorff, Jr. and Michael C. Walker of Hopkins & Huebner, P.C., Davenport, for appellant.
    Michael K. Bush and James T. Carlin of Carlin, Hellstrom & Bittner, Davenport, for appellee.
   CARTER, Justice.

Preferred Risk Insurance Company, now known as Guidant Elite Insurance Company (Guidant), appeals from a declaratory judgment requiring it to provide un-derinsured motorist benefits to Kimberly Cooper, one of the named insureds under Guidant’s family auto policy. The district court’s ruling was in response to cross-motions for summary judgment. The court concluded that as a matter of law underinsured motorist coverage must be provided to Kimberly Cooper because the policy issued by Guidant included such coverage, and she did not join in a later declination of that existing coverage as required by Iowa Code section 516A.1 (1997). After reviewing the record and considering the arguments presented, we affirm the judgment of the district court.

Defendant, Kimberly Cooper, and her husband, Kenneth, owned five vehicles. They were all insured by Guidant. Because Guidant limited the number of vehicles that might be insured under a single policy to four vehicles, the fifth vehicle was insured under a second policy. The provisions of the second policy were identical with the provisions of the policy insuring four vehicles. Kenneth and Kimberly were each shown as named insureds on the declaration pages of both policies.

In May 1998 an agent of Guidant was reviewing the Coopers’ insurance coverage with Kenneth Cooper. Mr. Cooper expressed the view that his premiums were too high, and he would have to reduce his coverage in order to lower the premiums. This conversation led to a decision to delete the uninsured and underinsured motorist coverages that the existing policies provided.

To effect the deletion of uninsured and underinsured motorist coverage, Kenneth signed a written declination in compliance with Iowa Code section 516A.1.[] At the time this document was signed, it only bore an identifying policy number for the insurance policy covering four vehicles. When the document reached the insurance company’s home office, the policy number of the second policy insuring the fifth vehicle was added to the form declining uninsured and underinsured motorist coverage.

In August 1998 Kimberly Cooper and her daughter, Sarah, were involved in an automobile collision. The collision claimed Sarah’s life and caused serious permanent injury to Kimberly. The Coopers did receive some compensation from the insurance carrier of the other vehicle involved in the collision but Kimberly alleges that she was not compensated to the full extent of her damages.

In December 1998 Guidant filed a petition for declaratory judgment asking the court to determine that it was not obligated to pay underinsured motorist benefits to Kimberly Cooper. Both parties filed motions for summary judgment. Initially, the district court sustained Guidant’s motion for summary judgment on the theory that Kenneth’s declination of underinsured motorist benefits was binding on Kimberly. Following a series of 179(b) motions, the district court reversed its position and concluded that, as a matter of law, the under-insured motorist benefits of the policy continued to be available to Kimberly because she had not executed a declination in compliance with section 516A.1.

In seeking reversal of the district court’s judgment, Guidant relies on decisions from other jurisdictions, which have similar statutes, holding that in acquiring automobile insurance one spouse has the right to decline underinsured-motorist coverage on behalf of the other spouse. Those decisions are Messerly v. State Farm Mutual Automobile Insurance Co., 277 Ill.App.3d 1065, 214 Ill.Dec. 794, 662 N.E.2d 148, 149 (1996), and Hall v. Allstate Insurance Co., 53 Wash.App. 865, 770 P.2d 1082, 1083 (1989). The premise on which these cases were decided is that, if A relies on B to acquire insurance for A, A only receives the insurance for which B arranges.

We are convinced that the rationale of the Illinois and Washington appellate courts is flawed. If the insurance that is being acquired is subject to a statute mandating that the insurer include certain specified coverages in all policies unless expressly declined in writing by the named insured, a person relying on another to make him or her a named insured may reasonably expect that the coverages obtained will be those mandated by law. That is the conclusion reached by the Oklahoma Supreme Court in Plaster v. State Farm Mutual Automobile Insurance Co., 791 P.2d 813, 814-15 (Okla.1989) (when statute requires written rejection by named insured, rejection by one insured was inoperative as to another insured who had not executed a written rejection).

There is another reason why the rationale of the Illinois and Washington appellate courts is inapposite. That rationale is not relevant here because the situation involves a rejection of existing insurance rather than the acquisition of new insurance. We agree with the district court’s conclusion that, because Kimberly Cooper did not reject the underinsured motorist coverage existing under the family auto policy, that coverage continued in force as to her, notwithstanding Kenneth’s later declination of such coverage.

As a backup argument, Guidant urges that, even if Kenneth’s declination is determined not to be binding on Kimberly, factual issues remain in the case precluding the grant of summary judgment in Kimberly’s favor. In reviewing the motion papers, we find no facts asserted by Gui-dant that would defeat Kimberly’s claim. Its argument that factual issues remain only states that “[i]f allowed to present additional evidence, [Guidant] would show Kimberly Cooper was not involved in the procurement of the liability and/or under-insured motorist coverage.” The controversy involves the deletion of coverage from an existing policy in which Kimberly was a named insured. Consequently, her involvement at the time the underinsured motorist coverage was initially obtained is not relevant. With respect to her involvement at the time Kenneth attempted to delete that coverage, a lack of involvement on her part aids rather than detracts from her claim.

As a final issue, we consider Guidant’s invitation to hold as a result of our decision in Preferred Risk Mutual Insurance Co. v. Federated Mutual Insurance Co., 611 N.W.2d 283 (Iowa 2000), that Kimberly’s coverage, if any exists, is limited to the minimum coverage required by law. As we have noted, the issue that has been presented is whether Kimberly later declined the underinsured motorist coverage that existed when the policy was issued. Based on our conclusion that she did not, the limits are those that the policy provided.

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

AFFIRMED.

      . The applicable provisions of section 516A.1 provide:
      No automobile liability or motor vehicle liability insurance policy insuring against liability for bodily injury or death arising out of the ownership, maintenance, or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state, unless coverage is provided in such policy or supplemental thereto, for the protection of persons insured under such policy who are legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or a hit-and-run motor vehicle or an under-insured motor vehicle because of bodily injury, sickness, or disease, including death resulting therefrom, caused by accident and arising out of the ownership, maintenance, or use of such uninsured or underinsured motor vehicle, or arising out of the physical contact of such hit-and-run motor vehicle with the person insured or with a motor vehicle which the person insured is occupying at the time of the accident....
      However, the named insured may reject all of such coverage, or reject the uninsured motor vehicle (hit-and-run motor vehicle) coverage, or reject the underinsured motor vehicle coverage, by written rejections signed by the named insured. If rejection is made on a form or document furnished by an insurance company or insurance agent, it shall be on a separate sheet of paper which contains only the rejection and information directly related to it. Such coverage need not be provided in or supplemental to a renewal policy if the named insured has rejected the coverage in connection with a policy previously issued to the named insured by the same insurer. In order to carry out the manifest intent of this legislation, we are convinced that a subsequent change in an insurance policy deleting the mandatory coverages must be carried out in the same manner as is required upon the issuance or delivery of the policy.


author: CADY, Justice.

text:
    STATE of Iowa, Appellee, v. Robert Paul FORMARO, Appellant.
    No. 00-1082.
    Supreme Court of Iowa.
    Jan. 24, 2002.

      Alfredo Parrish and Tammy Westhoff of Parrish, Kruidenier, Moss, Dunn & Montgomery, L.L.P., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, John P. Sarcone, County Attorney, and Nan Horvat and James Ward, Assistant County Attorneys, for appellee.
   CADY, Justice.

This is an appeal by Robert Formaro from a judgment and sentence for burglary in the second degree. He contends the district court relied upon unprosecuted and unproven charges in imposing the sentence and abused its discretion by failing to suspend the sentence of incarceration or grant a deferred judgment. Formaro further claims the appeal bond set by the district court in the sentencing order was excessive, and the district court lacked jurisdiction to later increase the amount of the appeal bond in response to an application for review of the bond filed by the State after the appeal was perfected. We transferred the case to the court of appeals. It affirmed the sentence imposed by the district court, as well as the original appeal bond, but vacated the decision by the district court to increase the bond. We granted further review sought by For-maro and the State. We affirm the sentencing order of the district court and further conclude the district court had jurisdiction to consider the request to review the appeal bond following the appeal, and that Formaro failed to perfect a separate appeal from the order by the district court to increase the appeal bond.

I. Background Facts and Proceedings.

During the evening hours of December 15, 1999, six men forcibly entered an apartment of a woman on the east side of Des Moines. The men ostensibly went to the apartment to collect a drug debt. One of the men was armed with a pistol. After entering, the men began to remove various items of property from the apartment, and they forced the woman to disrobe in their presence. Two of the men sexually abused the woman in her bedroom. The woman called the police after the men left her apartment, and they were eventually arrested. One of the men arrested was Robert Formaro.

Formaro was seventeen years old at the time and was a senior in high school. He was charged with burglary in the first degree. His participation in the crime was more limited than the other men. Forma-ro was present when access was gained to the apartment, but he left and returned to a car parked near the apartment building after one of the men brandished the pistol. He did not participate in the sexual abuse.

On April 11, 2000, Formaro pled guilty to the amended charge of burglary in the second degree, in violation of Iowa Code sections 713.1 and 713.5 (1999). Sentence was delayed until June 29, 2000. Formaro graduated from high school prior to the sentencing hearing, and was employed. Formaro was very proficient with computers, and excelled in mathematics.

A psychiatric evaluation revealed For-maro had been sexually abused as a child over a period of several years by a cousin. He was also diagnosed with an attention deficit disorder. The examiner felt For-maro had made substantial gains since his arrest, and was not a high risk to re-offend.

The presentence investigation report recommended Formaro receive a suspended sentence. It stated he was an appropriate candidate for a deferred judgment except for the seriousness of the offense. The report also revealed Formaro, when he was fifteen years old, sexually abused a young boy he was babysitting. Formaro was placed on juvenile probation for the crime, and successfully completed counseling and treatment.

The district court denied Formaro’s request for a deferred judgment and sentenced him to an indeterminate term of incarceration not to exceed ten years. It set an appeal bond of $50,000. The court specifically indicated the appeal bond was to be paid in cash.

Formaro filed a notice of appeal on June 29, 2000, shortly after the sentencing hearing. He also requested a reduction of the appeal bond. The court held a hearing on the request to reduce the appeal bond on June 30, 2000, and denied the request. Formaro subsequently posted the appeal bond, and was released.

On July 11, 2000, the State filed an application to review the appeal bond. The application alleged that on July 5, 2000, an investigator for the Des Moines Police Department, posing as a thirteen-year-old boy, entered a chat room on the Internet called “Iowa M4M.” The investigator received a message while in the chat room from a person using the identity “Good Lickin Male.” During the chat room conversation, the person provided personal background information and eventually inquired about engaging in sex. The person also emailed his picture to the police investigator. The police identified the person as Formaro. The Internet conversation continued the next day, when arrangements were made to meet. The following day, the police investigator observed Formaro arriving at the fair grounds at the designated meeting time and place.

Based on this information, the State requested the appeal bond be revoked or that additional conditions be imposed. Formaro asserted the district court had no jurisdiction to hear the application to review the appeal bond. He claimed the district court lost jurisdiction over the case once the notice of appeal was filed. He also claimed the issues he intended to present on appeal included the excessive amount of the appeal bond.

The district court held a hearing on the application to review the bond, and received testimony from the police investigator who conversed with Formaro on the Internet and later observed him at the fair grounds. The district court increased the appeal bond to $100,000, and imposed additional restrictions and conditions on his release pending the appeal. Formaro did not file a separate notice of appeal from this order.

On appeal, Formaro claimed the district court abused its discretion by failing to suspend the sentence or grant a deferred judgment. He also claimed the district court improperly considered the sexual abuse incident involved in the burglary offense. Formaro further claimed the district court had no jurisdiction to hear the State’s application to review the appeal bond. Finally, Formaro claimed the district court abused its discretion by imposing the $50,000 appeal bond at the time of sentencing.

We transferred the case to the court of appeals. It affirmed the sentence of the district court, as well as the imposition of the $50,000 appeal bond. It further determined the district court had no jurisdiction to address the merits of the State’s application to review the appeal bond after the appeal was perfected. It vacated the order imposing the $100,000 appeal bond, and reinstated the bond of $50,000. We granted further review.

II. Standard of Review.

Our review of a sentence imposed in a criminal case is for correction of errors at law. Iowa R.App. P. 4; State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). We will not reverse the decision of the district court absent an abuse of discretion or some defect in the sentencing procedure. Witham, 583 N.W.2d at 678. Similarly, we review the amount and conditions of an appeal bond for an abuse of discretion. State v. Kellogg, 534 N.W.2d 431, 433 (Iowa 1995). Questions of jurisdiction are also reviewed for correction of errors at law. In re Marriage of Engler, 532 N.W.2d 747, 748 (Iowa 1995).

III. Sentence.

We begin our analysis of the challenge to the sentence in this case by observing that the decision of the district court to impose a particular sentence within the statutory limits is cloaked with a strong presumption in its favor, and will only be overturned for an abuse of discretion or the consideration of inappropriate matters. State v. Pappas, 337 N.W.2d 490, 494 (Iowa 1983). An abuse of discretion will not be found unless we are able to discern that the decision was exercised on grounds or for reasons that were clearly untenable or unreasonable. State v. Loyd, 530 N.W.2d 708, 713 (Iowa 1995).

In applying the abuse of discretion standard to sentencing decisions, it is important to consider the societal goals of sentencing criminal offenders, which focus on rehabilitation of the offender and the protection of the community from further offenses. See Iowa Code § 901.5. It is equally important to consider the host of factors that weigh in on the often arduous task of sentencing a criminal offender, including the nature of the offense, the attending circumstances, the age, character and propensity of the offender, and the chances of reform. See State v. August, 589 N.W.2d 740, 744 (Iowa 1999). Furthermore, before deferring judgment or suspending sentence, the court must additionally consider the defendant’s prior record of convictions or deferred judgments, employment status, family circumstances, and any other relevant factors, as well as which of the sentencing options would satisfy the societal goals of sentencing. Pappas, 337 N.W.2d at 493 (identifying factors listed in section 907.5 (standards for release on probation)). The application of these goals and factors to an individual case, of course, will not always lead to the same sentence. Yet, this does not mean the choice of one particular sentencing option over another constitutes error. Instead, it explains the discretionary nature of judging and the source of the respect afforded by the appellate process.

Judicial discretion imparts the power to act within legal parameters according to the dictates of a judge’s own conscience, uncontrolled by the judgment of others. See id. at 493-94. It is essential to judging because judicial decisions frequently are not colored in black and white. Instead, they deal in differing shades of gray, and discretion is needed to give the necessary latitude to the decision-making process. This inherent latitude in the process properly limits our review. See State v. Gartin, 271 N.W.2d 902, 910 (Iowa 1978). Thus, our task on appeal is not to second guess the decision made by the district court, but to determine if it was unreasonable or based on untenable grounds. See id.

It is clear that the district court in this case would have been justified in granting probation to Formaro. However, it is equally clear under our standard of review that the district court was justified in imposing incarceration. Formaro committed a very serious criminal offense. Additionally, he committed the offense only a short time after completing probation for a very serious juvenile offense. Based on these factors, the sentence imposed by the district court cannot be considered unreasonable. The sentence imposed conforms to the goals of the sentencing process, and was not based on reasons that were untenable.

Notwithstanding, Formaro argues that the district court considered the sexual abuse charge brought against the other men involved in the burglary in sentencing him. It is a well-established rule that a sentencing court may not rely upon additional, unproven, and unprosecuted charges unless the defendant admits to the charges or there are facts presented to show the defendant committed the offenses. State v. Black, 324 N.W.2d 313, 315-16 (Iowa 1982). If a district court improperly considers unprosecuted and unproven additional charges, we will remand the case for resentencing. Id. at 315.

In stating the reasons for the sentence imposed in this case, the district court told Formaro probation posed a risk “given the history that you have here.... ” Formaro asserts the “history” referred to by the district court was the sexual abuse incident which occurred during the course of the burglary. However, the implication Formaro attempts to draw has no support in the record. We will not draw an inference of improper sentencing considerations which are not apparent from the record. Furthermore, the district court clarified any confusion during the sentencing hearing in response to a specific objection by-counsel for Formaro. The district court emphasized that Formaro was sentenced only for his conduct in the burglary conviction.

The district court did not consider any improper factors in imposing sentence. Furthermore, the district court did not abuse its discretion. Thus, we will not disturb the sentence imposed on Formaro by the district court.

IV. Appeal Bond.

The primary purpose of imposing conditions or restrictions on bail following the appeal of a bailable offense is to assure the future appearance of the defendant upon completion of the appeal and to provide for the safety of others during the course of the appeal. See Kellogg, 534 N.W.2d at 434 (citing Iowa Code section 811.2(1)). Courts have discretion to set the amount and conditions of an appeal bond consistent with this purpose. See id. at 433.

District courts are permitted to consider a variety of factors in setting the amount and conditions of an appeal bond. See id. at 434-35; see generally Michael A. DiSa-batino, Annotation, Right of Defendant in State Court to Bail Pending Appeal From Conviction — Modern Cases, 28 A.L.R.4th 227, 281-316 (1984) (particular factors considered by courts in exercising discretion). These factors include the seriousness of the offense and the defendant’s prior record. Kellogg, 534 N.W.2d at 435.

In this case, the same reasons that motivated the district court to impose a sentence of incarceration also support the reasonableness of a $50,000 cash appeal bond. Although the amount of the bond was high, particularly in light of the condition that it would be paid in cash, we cannot conclude the bond was excessive to the point of constituting an abuse of discretion. The two main circumstances in this case relied upon by the district court in refusing to suspend the sentence of incarceration — seriousness of the offense and commission of the offense shortly after completing a term of probation- — give rise to concerns for the safety of others if the defendant is released pending the appeal. Although there was ample evidence to suggest Formaro was not a risk to others, the district court was permitted to give more weight to some factors than to others in determining the conditions of bail. Id.

V. Jurisdiction of District Court to Review Bail.

As a general rule, a district court loses jurisdiction of the merits of a controversy once an appeal is perfected. State v. Brooks, 630 N.W.2d 815, 818 (Iowa 2001); Shedlock v. Iowa Dist. Ct., 534 N.W.2d 656, 658 (Iowa 1995). An exception to this rule, however, permits the district court to retain jurisdiction over disputes that are collateral to the subject matter of the appeal. Id. This exception exists to expedite the resolution of disputes in cases where collateral matters commonly surface during appeals. Shedlock, 534 N.W.2d at 658. It also allows a district court to address fluid and changing conditions that can arise in cases following the entry of a judgment, and to resolve matters outside the issues on appeal. See In re B.L., 470 N.W.2d 343, 347 (Iowa 1991). Although we have previously addressed the issue of the imposition of terms of bail on appeal by the district court, we have never specifically examined the jurisdiction of the district court to review the terms of bail following the notice of appeal. In this case, we must determine if the district court retained jurisdiction of the issue of bail following the appeal.

The right of a defendant to be admitted to bail following a judgment and sentence in certain criminal cases is strictly statutory. See State v. Stradt, 556 N.W.2d 149, 150 (Iowa 1996); see also Iowa Code § 811.1 (bail on appeal is not permitted for certain criminal cases). In Iowa, all bailable defendants must be admitted to bail “[ajfter conviction, upon appeal to the appellate court....” Iowa Code § 811.5. Thus, the statute contemplates that a defendant is admitted to bail only after taking an appeal. See State v. Jackson, 488 N.W.2d 701, 704 (Iowa 1992). This is consistent with the purpose of bail on appeal, which is to suspend the execution of the judgment and maintain the status quo pending appellate review. Orr v. Jackson, 149 Iowa 641, 643, 128 N.W. 958, 960 (1910). If no appeal is taken, the judgment and sentence of the court controls, and the issue of bail never arises.

Our statutory scheme for bail on appeal clearly reveals that bail is triggered by the filing of a notice of appeal. See Iowa Code § 811.5. Thus, the statute contemplates that bail for the purpose of an appeal is a stand-alone issue. It is separate and independent from the underlying judgment and sentence entered by the court. The statute further reveals that the intent of our legislature was to make bail following conviction collateral to the merits of any issues raised on appeal from the judgment and sentence, and to authorize the district court to consider motions and applications regarding the bail during the appeal. See B.L., 470 N.W.2d at 347 (juvenile code reveals the legislative intent for juvenile court to maintain jurisdiction during pen-dency of appeal to entertain child’s request for status report and review hearing).

We recognize, as in this case, that the terms and conditions of bail are normally contained in a judgment and sentence entered prior to the filing of any appeal. Thus, a subsequent notice of appeal from such a judgment and sentence by the district court would permit a defendant to assert a challenge on appeal to the terms and conditions of bail set forth in the judgment. Notice of appeal from a judgment permits the appealing party to raise all issues properly preserved. See Iowa Dep’t of Human Servs. ex rel. Greenhaw v. Stewart, 579 N.W.2d 321, 323 (Iowa 1998).

Nevertheless, we recognize that rulings on collateral or independent issues after final judgment are separately appealable as final judgments. Bd. of Water Works Trs. v. City of Des Moines, 469 N.W.2d 700, 702 (Iowa 1991). Thus, when a court addresses the issue of bail following the entry of a judgment and sentence, any appeal from a ruling on the issue must be separately appealed. A defendant cannot rely upon the notice of appeal from the judgment and sentence of the district court.

We conclude the district court had jurisdiction to rule on the application to review the appeal bond after Formaro filed his notice of appeal from the final judgment and sentence of the district court. However, Formaro never filed a separate notice of appeal from the ruling on the application to review bond. Accordingly, the issue of the additional terms imposed on the bail is not properly before us on this appeal.

VI. Conclusion.

We conclude the district court properly imposed the sentence in this case. We further conclude the district court did not abuse its discretion in setting the appeal bond in the amount of $50,000. The issue of the court’s decision to increase the appeal bond during the pendency of the appeal is not properly before us.

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

All justices concur except LAVORATO, C.J. and STREIT, J., who take no part.


author: TERNUS, Justice.

text:
    STATE of Iowa, Appellant, v. Daunte Dominique BULLOCK, Appellee.
    No. 00-1570.
    Supreme Court of Iowa.
    Jan. 24, 2002.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Andrew B. Prosser, Assistant County Attorney, for appellant.
    Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellee.
   TERNUS, Justice.

After a four-day jury trial, the defendant, Daunte Bullock, was convicted of first-degree burglary and second-degree sexual abuse. The district court merged the sexual-abuse conviction into the burglary conviction and sentenced the defendant to an indeterminate term of incarceration on the burglary charge. The court also ordered the defendant to register “as a sex offender for the remainder of his life.”

The State appealed the trial court’s merger decision. The defendant cross-appealed the court’s order that he register as a sex offender for the rest of his life. We conclude the defendant’s convictions should not have been merged and the court did not have authority to determine the defendant’s registration obligation. Therefore, we vacate the defendant’s sentence and remand for entry of judgment of conviction for both offenses and for resen-tencing.

I. Propriety of Appeal.

Before we address the substantive issues in this case, we consider the propriety of the appeal filed by the State. The State initially filed a notice of appeal pursuant to Iowa Code section 814.5 (1999). Subsequently, the State, concerned that an appeal may not have been the appropriate procedural vehicle for review, filed a petition for writ of certiorari pursuant to Iowa Rule of Appellate Procedure 301.

Iowa Code chapter 814 governs criminal appeals. An appeal is defined as “the right of both the defendant and the state to have specified actions of the district court considered by an appellate court.” Iowa Code § 814.1. This statute provides that the State has the right of appeal from

(a) An order dismissing an indictment, information, or any count thereof.
(b) A judgment for the defendant on a motion to the indictment or the information.
(c) An order arresting judgment or granting a new trial.

Id. § 814.5(1). The Code also provides for discretionary review of “specified matters not subject to appeal as a matter of right.” Id. § 814.1. One of the “specified matters” is “[a] final judgment or order raising a question of law important to the judiciary and the profession.” Id. § 814.5(2)(d). The court’s discretionary power of review is exercised “in like manner as under the rules pertaining to interlocutory appeals and certiorari in civil cases.” Id. § 814.1(2).

Citing our decisions in State v. Lekin, 271 N.W.2d 697 (Iowa 1978), and State v. Beecher, 616 N.W.2d 532 (Iowa 2000), the State contends that it has a right to appeal under section 814.5(1)(b). As noted above, this statute gives the State a right of appeal from “[a] judgment for the defendant on a motion to the indictment or the information.” Iowa Code § 814.5(1)©.

In Lekin, this court held that an order sustaining a demurrer to some, but not all, counts in a trial information was an ap-pealable final judgment where the charges were separable. 271 N.W.2d at 700. The obvious distinction between Lekin and the case before us is that the dismissal in Lekin, unlike the judgment here, occurred pre-trial. This distinction is material because the appeal as of right granted by the legislature is extended to a “judgment for the defendant on a motion to the indictment or the information.” Iowa Code § 814.5(1)© (emphasis added). Notwithstanding this express statutory language, the State reasons that a defendant who requests merger is being granted a judgment on the count merged, and the similarity of this result to the dismissal of a count upon a pre-trial ruling justifies treating a merger decision as an appealable order as of right under section 814.5(1)(6). We do not think the statute permits such an interpretation. The matter before us is simply not a judgment “on motion to the indictment or the information” so to fall within the parameters for an appeal as of right.

The Beecher case also fails to support the State’s argument that it has a right to appeal. In Beecher, this court granted the State’s application for discretionary review of a district court’s ruling on a defendant’s motion to dismiss on grounds of double jeopardy. 616 N.W.2d at 535. We held that the defendant’s double jeopardy claim was not ripe for review because jeopardy had not yet attached. Id. at 536. The State surmises from this holding that once jeopardy does attach, an appeal can be taken by the State as a matter of right. The State reads too much into our Beecher opinion. Beecher, dealing as it did with a pre-trial motion, simply does not address the nature of the State’s appeal rights upon an adverse decision after trial.

We conclude that neither section 814.5(1)(6) nor our case law supports the State’s argument that it has an appeal as of right. This conclusion does not, however, mandate a dismissal of the State’s improvidently filed appeal. Our rules provide that if a case is erroneously brought as an appeal, it may proceed “as though the proper form of review had been sought.” Iowa R.App. P. 304; see also Bousman v. Iowa Dist. Ct., 630 N.W.2d 789, 793-94 (Iowa 2001) (considering notice of appeal as a petition for writ of certiora-ri). Therefore, we will consider whether discretionary review should be granted under section 814.5(2).

One basis for discretionary review is “[a] final judgment or order raising a question of law important to the judiciary and the profession.” Iowa Code § 814.5(2)(d). We conclude that review should be granted on this basis. The appropriateness of merging second-degree sexual abuse into a conviction for first-degree burglary is a matter important to judges presiding over criminal cases and the defense lawyers and county attorneys litigating these cases.

Our conclusion to grant discretionary review makes it unnecessary to consider whether review should be permitted pursuant to the State’s application for writ of certiorari. We annul the writ on the basis of mootness.

II. Merger Decision.

The defendant was found guilty by a jury of two crimes: (1) second-degree sexual abuse, see id. § 709.3(1); and (2) first-degree burglary, see id. § 713.3. These offenses were based on the same incident occurring on June 25, 1999. Both crimes are class “B” felonies, for which the penalty is an indeterminate twenty-five-year term of incarceration. See id. §§ 709.3(1), 713.3, 902.3, 902.9.

At sentencing, the court, over the State’s objection, ruled that the defendant’s convictions should be merged pursuant to Iowa Code section 701.9. The district court concluded that second-degree sexual abuse was a lesser-included offense of first-degree burglary. Therefore, no judgment was entered on the sexual-abuse conviction. Rather, the court sentenced the defendant to a twenty-five-year indeterminate term on the burglary conviction.

The State claims on appeal that merger of the defendant’s convictions was illegal and not authorized by section 701.9. We review challenges to the legality of a district court’s merger decision for correction of errors at law. See State v. Anderson, 565 N.W.2d 340, 342 (Iowa 1997).

Iowa Code section 701.9 provides:

No person shall be convicted of a public offense which is necessarily included in another public offense of which the person is convicted. If the jury returns a verdict of guilty of more than one offense and such verdict conflicts with this section, the court shall enter judgment of guilty of the greater of the offenses only.

We have held that this statute “codifies the double jeopardy protection against cumulative punishment.” State v. Gallup, 500 N.W.2d 437, 445 (Iowa 1993). Thus, we look to legislative intent to determine whether merger is required under section 701.9. See id. Legislative intent is indicated, in part, by whether the crimes at issue meet the legal elements test for lesser-included offenses. See State v. Halliburton, 539 N.W.2d 339, 344 (Iowa 1995). See generally Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932) (applying legal-elements test to determine whether one act constituted two offenses). Even though a crime may meet the so-called Blockburger test for lesser-included offenses, it may still be separately punished if legislative intent for multiple punishments is otherwise indicated. See Halliburton, 539 N.W.2d at 344.

The defendant contends that we should rethink our interpretation of section 701.9 and hold that it merely codifies the Blockburger legal elements test for lesser-included offenses. Under this interpretation of the statute, all included offenses must be merged into the greater offense. See State v. Daniels, 588 N.W.2d 682, 685 (Iowa 1998) (Carter, J., concurring specially). No further exploration for legislative intent is necessary because the statute itself indicates legislative intent that lesser-included offenses be merged. See id.

We find no need to decide whether the interpretation of section 701.9 adopted in Gallup should be revisited. That is because the crime of second-degree sexual abuse does not meet the Blockburger test for a lesser-included offense of first-degree burglary. Therefore, even under the more restricted test advocated by the defendant, merger is not authorized. We turn now to a comparison of the elements of first-degree burglary and second-degree sexual abuse.

The defendant was charged with and convicted of the following alternative of burglary in the first degree:

A person commits burglary in the first degree if, while perpetrating a burglary in or upon an occupied structure in which one or more persons are present, any of the following circumstances apply:
d. The person performs or participates in a sex act with any person which would constitute sexual abuse under section 709.1.

Iowa Code § 713.3(l)(cZ). The defendant’s second-degree sexual abuse offense is defined as follows:

A person commits sexual abuse in the second degree when the person commits sexual abuse under any of the following circumstances:
1. During the commission of sexual abuse the person displays in a threatening manner a dangerous weapon, or uses or threatens to use force creating a substantial risk of death or serious injury to any person.

Id. § 709.3(1). The defendant claims that the elements of second-degree sexual abuse are subsumed in the aggravating circumstance contained in subparagraph (d) of the first-degree burglary definition. Compare id. § 713.3(l)(d), with id. § 709.3(1). In other words, he claims that he could not have committed first-degree burglary without also committing second-degree sexual abuse. See generally State v. Jeffries, 430 N.W.2d 728, 730 (Iowa 1988) (“ ‘To be necessarily included in the greater offense the lesser must be such that it is impossible to commit the greater without first having committed the lesser.’ ” (Citation omitted.)). We disagree.

The aggravating element that raises a simple burglary to first-degree burglary is the commission of “sexual abuse under section 709.1.” Iowa Code § 713.3(l)(d) (emphasis added). Section 709.1 defines sexual abuse as “[a]ny sex act” when “[t]he act is done by force or against the will of the other.” Id. § 709.1(1). Notably absent from this definition is any requirement that the person committing “sexual abuse” display a dangerous weapon during commission of the sex act, or that the person use or threaten to use “force creating a substantial risk of death or serious injury to any person.” See id. § 709.3(1). Proof of one of these circumstances is, however, required for a conviction of second-degree sexual abuse under the alternative charged here. See id.

As this comparison of the elements of first-degree burglary and second-degree sexual abuse shows, each crime contains an element or elements not present in the other offense. Therefore, it is possible to commit first-degree burglary under the sexual-abuse alternative without also committing second-degree sexual abuse. Accordingly, sexual abuse in the second degree does not meet the legal elements test for a lesser-included offense of first-degree burglary. See Jeffries, 430 N.W.2d at 730 (“If the lesser offense contains an element that is not part of the greater offense, the lesser cannot be included in the greater.”).

This conclusion is not inconsistent with our cases holding that first-degree sexual abuse and second-degree sexual abuse are lesser-included offenses of first-degree kidnapping. See State v. Morgan, 559 N.W.2d 603, 611 (Iowa 1997) (first-degree sexual abuse); State v. Whitfield, 315 N.W.2d 753, 755 (Iowa 1982) (second-degree sexual abuse). The greater offense in those cases — first-degree kidnapping — includes as an element of the crime that the person kidnapped “ ‘is intentionally subjected to ... sexual abuse.’ ” Morgan, 559 N.W.2d at 611 (quoting Iowa Code § 710.2 (1993)). We have interpreted the statutory language, “sexual abuse,” broadly to refer to any crime of sexual abuse as defined in chapter 709. See Morgan, 559 N.W.2d at 611; Whitfield, 315 N.W.2d at 755. This interpretation of the first-degree kidnapping statute is consistent with the basic definition of “kidnapping” set forth in chapter 710:

A person commits kidnapping when he or she either confines a person or removes a person from one place to another, knowing that he or she has neither the authority nor the consent of the other to do so; provided, that to constitute kidnapping the act must be accompanied by one or more of the following:
3. The intent to inflict serious injury upon such person, or to subject the person to a sexual abuse.

Iowa Code § 710.1(3) (1979) (emphasis added). As this court has noted, the word “a” is often used in the sense of “any.” See Voss v. Iowa Dep’t of Transp., 621 N.W.2d 208, 211 (Iowa 2001). Thus, by including as an element any sexual abuse, the legislature did not distinguish between degrees of sexual abuse in defining the crime of kidnapping.

In contrast, the legislature clearly limited the sexual abuse requirement in the first-degree burglary statute to sexual abuse as defined in section 709.1. See Iowa Code § 713.3(l)(d) (requiring “sexual abuse under section 709.1”). Section 709.1 contains the basic definition of sexual abuse and does not include any of the aggravating circumstances that are necessary to elevate the crime to sexual abuse in the second degree. This court is not at liberty to broaden the sexual abuse element of the burglary offense, which the legislature has expressly defined in a narrow manner, to include any sexual abuse crime in chapter 709. It follows, therefore, that the burglary statute is not susceptible to the broad interpretation of the kidnapping statute adopted in the Morgan and Whitfield cases.

In summary, the crime of second-degree sexual abuse is not a lesser-included offense of the crime of burglary in the first degree. Therefore, the trial court erred in holding that these crimes met the test for merger under section 701.9.

III. Order to Register as a Sex Offender.

In its judgment entry, the district court ordered the defendant to “register as a sex offender for the remainder of his life.” In his cross-appeal, the defendant contends that this order is erroneous, as he is only required to register for ten years. Compare Iowa Code § 692A.2 (1999) (requiring lifetime registration only upon a second or subsequent offense; otherwise, imposing a ten-year registration requirement), with id. § 692A.2 (Supp. 1999) (broadening lifetime registration to include persons convicted of an “aggravated offense,” and defining such an offense to include burglary in the first degree in violation of section 713.3(l)(d), see id. § 692A.1(1)(/) (Supp.1999)). The State argues that the issue is not ripe for review because sex offender registration is an administrative process that does not commence for an incarcerated individual until he is released from prison. We agree that the issue is not ripe, and, therefore, we do not determine for what length of time the defendant must register.

“A ease is ripe for adjudication when it presents an actual, present controversy, as opposed to one that is merely hypothetical or speculative.” State v. Iowa Dist. Ct., 616 N.W.2d 575, 578 (Iowa 2000). The basic rationale for the ripeness doctrine is particularly apropos here. That rationale is “to protect [administrative] agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Lab. v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681, 691 (1967), overruled on other grounds by Califano v. Sanders, 430 U.S. 99, 105, 97 S.Ct. 980, 984, 51 L.Ed.2d 192, 199 (1977).

An incarcerated defendant’s duty to register commences upon his release from prison. See Iowa Code § 692A.3(1) (requiring registration within ten days of “a release from custody, or placement on probation, parole, or work release”). A person required to register does so with the county sheriff, not the court. See id. Maintenance of registry records is the responsibility of the Department of Public Safety, not the court. See id. § 692A.10(2). Of even greater relevance here is the statutory provision that allows a person who has registered to apply to the Department of Public Safety for a determination “whether the period of time during which the person is obligated to register under this chapter has expired.” Id. § 692A.8. The court’s involvement in the registration process is restricted (1) to informing convicted defendants who are not sentenced to confinement of their duty to register and (2) to the collection of specified information from such defendants. See id. § 692A.5(1). Of course, these limited duties are not applicable here, where the defendant is sentenced to a term of imprisonment.

Based on the statutory scheme we have just reviewed, it is at once apparent that the determination of the length of any required registration is an administrative decision initially committed to the Department of Public Safety. We conclude, therefore, that the sentencing court was without authority to determine the length of any future registration by the defendant. See Iowa Dep’t of Transp. v. Iowa Dist. Ct., 534 N.W.2d 457, 460 (Iowa 1995) (holding that district court had no authority to determine whether criminal defendant was subject to law requiring revocation of driver’s license where matter had been entrusted to administrative agency and no petition for judicial review of agency action had been filed). Until the Department has made a decision on the defendant’s term of registration, there is no concrete controversy. Any adjudication by the district court prior to an administrative decision and a request for judicial review of that decision is premature. Therefore, the nature and extent of the defendant’s registration obligation are issues that are not ripe for our review.

IV. Disposition.

We vacate the court’s sentence and remand for entry of a judgment of conviction on both burglary in the first degree and sexual abuse in the second degree, and for sentencing on both convictions. The court’s sentencing order shall not include any determination of the defendant’s responsibility to register as a sex offender.

SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING ON APPEAL AND ON CROSS-APPEAL.

      . The statutory definition of "sexual abuse” also includes sex acts between persons when one participant "is suffering from a mental defect or incapacity which precludes giving consent” or "lacks the mental capacity to know the right and wrong of conduct in sexual matters.” Iowa Code § 709.1(2). In addition, sexual abuse includes a sex act when one of the participants is a minor. See id. § 709.1(3). These alternatives of the statutory definition are not implicated in the case before us.

      . In his brief, the defendant focuses on the court's instructions to the jury, arguing that, as these offenses were submitted to the jury, "it was impossible to commit [first-degree] burglary ... without also committing the crime of sexual abuse.” The court's instructions to the jury on the burglary offense included as an element the requirement that the defendant entered the victim's residence “with the specific intent to commit ... sexual abuse in the second degree....” In addition, the State was required to prove that the defendant "performed or participated in a sex act with any person which would constitute sexual abuse.” The term "sexual abuse” was defined in a separate instruction as "[a]ny sex act ... performed with the other participant by force or against the will of the other.” Thus, the instructions to the jury, although requiring an intent to commit second-degree sexual abuse, did not require proof that a second-degree sexual abuse had been committed, but rather only required proof that an unaggravated sexual abuse as defined in section 709.1 had been committed. Thus, contrary to the defendant's position, the court’s instructions did not include second-degree sexual abuse as an element of first-degree burglary.

      . We do not examine legislative intent beyond determining whether the sexual abuse crime of which the defendant was convicted is a lesser-included offense of the burglary crime because the defendant has pointed to no other factors indicating a legislative intent not to impose separate punishment for these felonies.


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Michael Gene MOORE, Appellant.
    No. 00-2080.
    Supreme Court of Iowa.
    Jan. 24, 2002.

      Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson and Shellie L. Knipfer, Assistant State Appellate Defenders, for appellant.
    Thomas J. Miller, Attorney General, Donald D. Stanley, Jr., Assistant Attorney General, Denver D. Dillard, County Attorney, and Russell Keast, Assistant County Attorney, for appellee.
   LARSON, Justice.

Michael Moore pled guilty to using a stolen credit card in violation of Iowa Code section 715A.6 (1999), and he was sentenced to a prison term not to exceed five years. He appealed, contending the court failed to follow the guilty-plea requirements of Iowa Rule of Criminal Procedure 8(2)(b) (requiring court to personally address defendant to determine the plea is knowing and voluntary and supported by the facts). See State v. Hook, 623 N.W.2d 865, 869-70 (Iowa 2001) (requiring literal compliance with guilty-plea procedure of rule 8(2)(b) in felony cases). While the plea proceedings did not comply with the rule, Moore failed to challenge the plea by a motion in arrest of judgment under Iowa Rule of Criminal Procedure 23(3). Moore claims his failure to file a motion in arrest of judgment was the result of ineffective assistance of counsel. We reject Moore’s request that we adopt a per se ineffective-assistance-of-counsel rule in guilty-plea cases and therefore affirm.

Moore was charged on August 1, 2000, and he initially pled not guilty. On October 5, 2000, he executed a written application to withdraw his not-guilty plea. He provided some information in his own handwriting, listing the elements and stating he was aware of the minimum and maximum punishment provided. Moore then personally initialed nine statements on the written form as to the rights he would waive by pleading guilty.

In addition to filing this application to withdraw his not-guilty plea, Moore appeared in open court and engaged in a colloquy with the judge. The judge addressed Moore and asked him if it was his intention to change his plea to guilty. Moore responded that this was his intention. The court then explained what was necessary before the court could accept his guilty plea.

THE COURT: Stand up, please. Before I can accept a plea of guilty from you, sir, I need to determine that you understand essentially what’s going on here, and there are four areas that we look at. One, that you understand your rights and are knowingly giving those rights up to enter your plea of guilty; two, that you understand the consequence of your plea, what the penalties are, what does the law say that a person who is guilty of this, what’s their penalty or what are the different options; thirdly, that you are entering your plea here today voluntarily, no one is making you plead guilty; and finally, there is a factual basis, you did, in fact, do something that makes you guilty of false use of a credit card.

The court then informed Moore it was going to ask him some questions, asked him to answer these questions out loud, advised him not to answer questions he did not understand, and reminded him he could stop the questioning and consult his attorney whenever he needed to do so. The district court then began the following colloquy with Moore:

THE COURT: The application to withdraw not guilty plea form, which has been executed here, is signed on the last page by your attorney, and on the next to the last page there is a line there, then there’s printed the word Defendant and then there is a signature, it says Mike Moore. Did you sign that? A. Yes.
Q. You just executed that this morning? A. Yes.
Q. Did you go through all of this form with your attorney? A. Yes.
Q. Did you read it? A. Yes.
Q. Did you understand it? A. Yes.
Q. Were you able to ask any questions that you might have had? A, Yes.
Q. Was your attorney able to answer those questions? A. Yes.
Q. Are you satisfied with his advice and services? A. Yes.
Q. Now, as you know then from having read and understood this form that it explains to you the rights that you are giving up by pleading guilty. Do you understand that? A. Yes.
Q. And it also sets out and explains what it is that the maximum penalty is for this offense. A. Yes.
Q. It also sets out what it is that the State of Iowa would have to prove beyond a reasonable doubt before you could be found guilty of that offense. A. Yeah.

The court asked questions of Moore to establish a factual basis and to establish he was making the plea voluntarily. It then made a finding that Moore’s plea had been made voluntarily and that there was a factual basis to support the plea. After ordering a presentence investigation and setting a date for sentencing, the court further advised Moore of his rights and responsibilities in contesting the guilty plea he had just entered.

THE COURT:....
Mr. Moore, if you believe there have been any mistakes made in the Court’s accepting your guilty plea here today, it’s up to you to complain about that, or bring it up, say something about it, before you get sentenced. If you don’t, you can’t complaint about it after you get sentenced.
The way that you do that is in what we call a motion in arrest of judgment. And the law says that if you’re going to file such a motion, you must do so no later than 45 days from today but in any case not less than five days before the sentencing. If you fail to raise those alleged errors in that written motion, you give up your right to later raise them on appeal.
If you have any questions about that, be sure and ask your attorney.

Moore did not file a motion in arrest of judgment. On December 1, 2000, the court sentenced Moore to a prison term not to exceed five years.

Moore appeals on the basis the court did not address him personally as to all of the matters required by Iowa Rule of Criminal Procedure 8(2)(b), but rather relied in part on Moore’s written application to withdraw his not-guilty plea. The crime charged in this case is a felony when the value of the property taken exceeds $1000, as it did here. See Iowa Code § 715A.6(2). Our recent Hook case made it clear that, in a felony case, the court may not rely, to any extent, on a written plea of guilty to satisfy the requirements of rule 8(2)(b). This rule provides:

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.
(3) That the defendant has the right to be tried by a jury, and at trial has the right to assistance of counsel, the right to confront and cross-examine witnesses against the defendant, the right not to be compelled to incriminate oneself, and the right to present witnesses in the defendant’s own behalf and to have compulsory process in securing them attendance.
(4) That if the defendant pleads guilty there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial.

Iowa R.Crim. P. 8(2)(b) (emphasis added).

Unfortunately, the Hook case was filed after the guilty plea in this case, so the trial court did not have the benefit of that ruling. Nevertheless, the wording of rule 8(2)(b), which was in place at the time of Moore’s plea, made it clear that a court could not waive literal compliance with the rule in a felony case:

The court may, in its discretion and with the approval of the defendant, waive the above procedures in a plea of guilty to a serious or aggravated misdemeanor.

Iowa R.Crim. P. 8(2)(b)(4)(second unnumbered paragraph) (emphasis added). Under this rule, substantial compliance might be sufficient in serious- or aggravated-misdemeanor cases, but it is not sufficient in felony cases. See Hook, 623 N.W.2d at 869.

The court obviously spent considerable time to assure the guilty plea was properly entered, but a court in a felony case must literally, not just substantially, comply with rule 8(2)(b). Literal compliance, by personally addressing the defendant on the record, establishing a factual basis for the plea, its voluntariness, and the defendant’s understanding of the required matters, is well scripted in rule 8(2)(b). If economy of time prompts the use of written forms in lieu of literal compliance, we believe full compliance with the rule would actually take less time than it would take a court to partially comply with the rule and weave into the colloquy the supplemental application to withdraw the not-guilty plea. In any event, compliance with the rule is time well spent. •.

The Supreme Court has instructed: “It is ... not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and determine whether they understand the action they are taking.”

Hook, 623 N.W.2d at 870 (quoting McCarthy v. United States, 394 U.S. 459, 472, 89 S.Ct. 1166, 1174, 22 L.Ed.2d 418, 428-29 (1969)). The State concedes this plea was insufficient for the reasons discussed but argues that the defendant’s failure to file a motion in arrest of judgment prevents his appeal.

As we discuss later, the defendant’s failure to file a motion in arrest of judgment is dispositive of the issue in this case, and it would not have been necessary for us to discuss the application of rule 8(2)(b). Nevertheless, we have addressed the sufficiency of the guilty plea to again stress that a court taking a guilty plea to a felony must literally follow the requirements of rule 8(2)(b).

Moore responds that his attorney was ineffective in allowing Moore to plead guilty under the circumstances of this case and by .not filing a motion in arrest of judgment. See State v. Thede, No. 00-0469, 2001 WL 709428, at *2 (Iowa Ct.App. June 13, 2001) (distinguishing Hook from situations in which the defendant is personally advised by the court of the right to file a motion in arrest of judgment, but recognizing defendant may still have a claim of ineffective assistance of counsel). However, Moore does not claim he suffered prejudice, which ordinarily is held to be a prerequisite to relief in effective-assistance cases arising out of guilty pleas. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985) (“[I]n order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”). Instead, Moore argues he is excused from showing prejudice because this is a case of per se ineffective assistance of counsel. He submits that this court should find, because of the substantial societal interests involved in felony guilty pleas, his counsel’s failure to insist on a full open-court colloquy required by rule 8(2)(b) is per se ineffective assistance of counsel. He cites no authority that recognizes per se ineffective assistance of counsel under these circumstances.

Courts have evidenced a narrow view of per se ineffective assistance. Per se-ineffective-assistance cases are strictly limited to those situations in which counsel has totally abrogated his duties, effectively depriving the defendant of counsel. See, e.g., Irving v. State, 533 N.W.2d 538, 541 (Iowa 1995) (“The failure of counsel to investigate or move to suppress a questionable confession does not constitute per se ineffective assistance of counsel.”); State v. Chadwick, 586 N.W.2d 391, 393-94 (Iowa Ct.App.1998) (not per se ineffective assistance of counsel if defendant is represented by otherwise licensed attorney who was not properly admitted to practice before the court in question). But see United States v. Cancilla, 725 F.2d 867, 870 (2d Cir.1984) (per se ineffective assistance of counsel if counsel is implicated in defendant’s crimes); Nixon v. State, 572 So.2d 1336, 1339 (Fla.1991) (citing jurisdictions that have held counsel is ineffective per se if counsel concedes defendant’s guilt without defendant’s consent). “ ‘Per se rules frequently are fashioned when there is an unusually high risk of prejudice to a party and the proofs of prejudice may be difficult to establish; or when an important social policy will be served by a prophylactic rule...'" Bumgardner v. State, 401 N.W.2d 211, 213 (Iowa Ct.App.1986) (quoting Dawson v. Cowan, 531 F.2d 1374, 1376 (6th Cir.1976)). It has been said that per se ineffective assistance is found only in limited circumstances and “without enthusiasm.” Bellamy v. Cogdell, 974 F.2d 302, 306 (2d Cir.1992).

When, unlike in Hook, a defendant has been personally informed of the motion-in-arrest-of-judgment requirement of rule 23(3), a per se rule permitting defendant to ignore this requirement would allow a defendant to wait and see if a sentence is favorable before raising issues regarding the adequacy of the guilty-plea proceeding. This would seriously undermine the purpose of rule 23(3), which is to avoid unnecessary appeals by requiring a motion in arrest of judgment. We reject the defendant’s argument for a per se rule.

AFFIRMED.


text:
    STATE of Iowa, Appellee, v. Anthony John FORMARO, Jr., Appellant.
    No. 01-0464.
    Supreme Court of Iowa.
    Jan. 24, 2002.
    Charles P. Pritchard, Jr. of the Nading Law Firm, Ankeny, for appellant.
    Thomas J. Miller, Attorney General, Kristin Mueller, Assistant Attorney General, John P. Sarcone, County Attorney, and Gary Kendall, Assistant County Attorney, for appellee.
   CARTER, Justice.

Defendant, Anthony John Formaro, Jr., convicted on a plea of guilty of the offense of possession of marijuana with intent to deliver as a habitual offender in violation of Iowa Code sections 124.401(l)(d) and 902.9(2) (1999), appeals from the resulting sentence of imprisonment. He urges that the sentencing judge failed to recognize and thus failed to exercise the discretion vested in him to suspend a portion of defendant’s fifteen-year prison term. The State urges that a sentencing judge has no authority to suspend a portion of an indeterminate sentence. We agree with the State’s contention and affirm the judgment of the district court.

Defendant had been originally charged with several other offenses in addition to the offense of which he was convicted. Pursuant to plea negotiations, the State agreed to dismiss the additional charges in exchange for his plea of guilty to a violation of section 124.401(l)(d) as a habitual offender. As part of the negotiated plea, defendant agreed that he would not ask for probation but would ask the court to suspend ten years of the fifteen-year sentence. The sentencing judge concluded that he had no discretion to suspend a portion of an indeterminate sentence. Defendant asserts that the sentencing judge did have discretion to suspend a portion of his fifteen-year, indeterminate sentence because there is no specific prohibition against doing so, and Iowa Code section 901.5(3) provides that a sentencing judge may “pronounce judgment and impose a fine or sentence the defendant to confinement, or both, and suspend the execution of the sentence or any part of it as provided in chapter 907.” (Emphasis added.)

General sentencing provisions must be read in pari materia with specific sentencing statutes. State v. Goodson, 503 N.W.2d 395, 398 (Iowa 1993). Defendant was sentenced under Iowa Code section 902.9(2), which orders that a habitual offender “shall be confined for no more than fifteen years.” Iowa Code section 902.3 states, in relevant part,

[w]hen a judgment of conviction of a felony other than a class “A” felony is entered against a person, the court, in imposing a sentence of confinement, shall commit the person into the custody of the director of the Iowa department of corrections for an indeterminate term, the maximum length of which shall not exceed the limits as fixed by section 707.3 or section 902.9 nor shall the term be less than the minimum term imposed by law, if a minimum sentence is provided.

This statute is known as the Iowa indeterminate sentencing law.

In State v. Dohrn, 300 N.W.2d 162 (Iowa 1981), we determined that the words “shall commit the person into the custody of the director of the Iowa department of corrections for an indeterminate term” created a sentencing scheme under which the board of parole was responsible for determining the ultimate length of confinement. Dohrn, 300 N.W.2d at 163-64. We further concluded that the sentencing judge lacked authority to establish a lesser maximum sentence than that established by statute. Id. at 164.

The conclusion reached in Dohrn is not new. In 1912 an opinion of the attorney general was directed to the warden of the state reformatory. The warden was faced with a sentencing order from a district judge providing that a portion of an indeterminate sentence be suspended. The warden questioned his authority to release the prisoner without regard to the granting of a parole by the board of parole. In informing the warden that he might not release the prisoner absent a granting of parole, the attorney general stated:

The power to suspend a sentence is quite different than the power given to the governor and the board of parole to determine the time a prisoner should be released from the penitentiary or reformatory. This may not be known in advance but should be determined largely by the conduct of the prisoner while in confinement. Indeed, if the order of the court should stand, it would place in the hands of the district judges of the state the absolute power to nullify the indeterminate sentence law.

1912 Op. Iowa Att’y Gen. 127.

We conclude that the language in section 901.5(3), which authorizes a sentencing judge to “suspend the execution of the sentence or any part of it,” is only intended to authorize the suspension of a portion of a sentence in regard to determinate sentencing orders. No such authority exists with respect to an indeterminate sentence.

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

AFFIRMED.

      . After July 1, 2001, sentencing judges have authority to bifurcate sentences for certain class "D” felonies and impose a determinate sentence for a portion thereof. 2001 Iowa Acts ch. 165, § 1 (codified as Iowa Code § 902.3A (Supp.2001)). This statute does not affect the present case because it is not retroactive.