author: WIGGINS, Justice.

text:
    STATE of Iowa, Appellee, v. Jesse Lee SIMMONS, Appellant.
    No. 04-1327.
    Supreme Court of Iowa.
    May 19, 2006.

      Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney General, Richard Davidson, County Attorney, and Paul Walter and Tony Almquist, Assistant County Attorneys, for appellee.
   WIGGINS, Justice.

The defendant was found guilty of manufacturing methamphetamine in violation of Iowa Code section 124.401(1)(6 )(7) (2003). In this appeal, the defendant challenges the district court’s ruling on his motion to suppress as to the items seized from his apartment and the statements he made to police officers. Additionally, he claims his trial counsel provided ineffective assistance of counsel by failing to challenge the constitutionality of a sentencing statute, Iowa Code section 901.10(2). Because we find the defendant’s claims are without merit, we affirm the judgment of the district court.

I. Background Facts and Proceedings.

At approximately 11:37 p.m. on December 3, 2003, police officer Jesse Hitt responded to a complaint of loud music coming from apartment eight of Parkview Apartments in Clarinda, Iowa. The access to the apartments is from the outside, requiring Hitt to go up an outside set of stairs and then enter a door into a hallway where the apartments are located. While he was at apartment eight, Hitt smelled what he suspected to be anhydrous ammonia coming from apartment nine across the hall.

Hitt did not perceive an emergency to prompt him to evacuate the apartment building when he first detected the odor. Hitt went to the police station and contacted lieutenant Keith Brothers at his home at approximately 12:08 a.m. Having safety concerns for the tenants of the apartment building and fearful of a potential fire or explosion, Brothers advised Hitt to contact sergeant David Rine, a state-certified clandestine methamphetamine lab expert. Brothers wanted Hitt and Rine to go to the apartment building so Rine could verify the odor as that of anhydrous ammonia. Brothers further advised Hitt if Rine believed a working methamphetamine lab was inside the apartment, he should knock, announce, and make entry without a warrant.

Hitt contacted Rine at his home and they met at the police station. They and another officer went to the apartment building at 12:43 a.m. Rine confirmed the odor in the hallway was that of anhydrous ammonia. Rine was not aware of any legitimate purpose for possessing anhydrous ammonia in an apartment, but he knew it is used to manufacture methamphetamine. Rine also knew the risks created by a methamphetamine laboratory include fires created from the fumes, chemical exposures, inhalation exposures from the toxic fumes, and waste products left over from the chemical reactions. Rine further knew these risks not only affect the people making the methamphetamine, but also affect other residents in a multiple-occupant dwelling.

Hitt knocked on the door and a woman asked who was there. Hitt announced it was the police. The woman then asked what they wanted. Hitt responded they were there for a safety check because they could smell anhydrous ammonia, and said the door needed to be opened immediately. Receiving no response, Hitt knocked again because the officers could hear something in the apartment, and advised her to open the door or they would force it open. At this time, Rine became concerned about the strong odor of anhydrous ammonia. Rine did not know whether there was a working methamphetamine lab or a container leaking anhydrous ammonia. He was worried about the safety of the occupants of the apartment as well as the safety of the other occupants of the building.

Again receiving no response from the occupants of the apartment, the officers forcibly entered the apartment with guns drawn. The odor of anhydrous ammonia was strong. The officers observed Cindy Cordell standing in the middle of the room and ordered her to get down on the floor. The defendant, Jesse Lee Simmons, walked into the room from the back of the apartment. Rine had his gun pointed at Simmons. The strong smell of anhydrous ammonia caused Rine’s eyes to water. Rine asked Simmons if there was an active methamphetamine lab in the apartment. Simmons responded there was. Rine asked where the lab was located and Simmons told him it was in the bathroom. Rine then asked what stage it was in to determine the chemicals and risks involved. Simmons answered by stating the lab was in the first rinse stage, the lab belonged to him, and Cordell was not involved with the lab.

The officers handcuffed Cordell and Simmons, removed them from the apartment, and gave them decontamination suits to wear. Due to the risk of chemical exposure, Rine was unable to conduct a safety sweep of the apartment at that time. He was not concerned about other individuals being in the apartment because either Cordell or Simmons told him no one else was in the apartment. Rine closed the door to the apartment. The officers also evacuated the occupants of apartment eight.

Rine then contacted dispatch, performed a perimeter sweep of the building for other risks, and discussed a possible evacuation of the remainder of the building with the fire chief. He reentered the apartment in protective gear with a second lab tech to conduct a safety sweep and remove the containers and chemicals from the apartment. Upon reentry, Rine tested the anhydrous ammonia levels in the apartment. The levels were almost three times the acceptable OSHA levels for short-term exposure. The officers found, among other items, a glass one-gallon container in the bathtub containing a bluish tinted liquid, a funnel, and a blue shop towel. There was also some off-white sludge residue in the bathtub. The officers removed these items and preserved them as evidence. After neutralizing the problem in the apartment by removing the hazardous items and ventilating the apartment, the officers left the apartment and waited for Brothers’ instructions.

Brothers arrived at the apartment building twenty to thirty minutes after the initial entry into the apartment. Simmons was in handcuffs and accompanied by an officer. Upon seeing Simmons, Brothers said, “[H]ello, Jesse, what’s going on.” Simmons responded by repeating what he told Rine, that the lab was all his and Cordell had nothing to do with it. Later, Brothers talked to Simmons again. This conversation took place in a police car. After Brothers advised Simmons of his Miranda rights, Simmons again stated the lab was his and Cordell had nothing to do with it.

Brothers talked to Cordell when she was in a police car. Brothers asked her to consent to a search of the apartment. She eventually did so after some discussion between her and Brothers. After receiving Cordell’s consent, Rine entered the apartment for a third time and collected non-hazardous items used in the methamphetamine-making process.

Simmons was charged with two counts: (1) conspiring or acting with others to manufacture, deliver, or possess more than five grams of a schedule II controlled substance (methamphetamine) with intent to manufacture or deliver in the presence of a minor and within one thousand feet of certain real property, in violation of Iowa Code sections 124.401(1)(6)(7), 124.401A, and 124.401CCL), (2)(6)-(c), 2(e); and (2) unlawful possession of a precursor substance in violation of Iowa Code section 124.401(4)(&). The State filed an amendment to the trial information alleging Simmons was a habitual offender in count two in violation of Iowa Code sections 902.8 and 902.9(3).

Simmons pled not guilty and filed a motion to suppress evidence and a waiver of jury trial. He subsequently filed an amended motion to suppress. The district court overruled the motion to suppress.

The parties submitted the case to the court based on the minutes of testimony in order to preserve Simmons’ right to appeal the suppression ruling. The State agreed to amend count one by deleting all enhancing charges and dismiss count two. The court found Simmons guilty of manufacturing methamphetamine in violation of Iowa Code section 124.401(1)(6 )(7), a class “B” felony. The court sentenced Simmons to a term of imprisonment not to exceed twenty-five years. Simmons appeals.

II. Issues.

There are two issues on appeal: (1) whether the district court erred in overruling Simmons’ motion to suppress evidence as to the search of the apartment and the statements made to officers; and (2) whether Simmons’ trial counsel provided effective assistance of counsel in regards to the failure to challenge the constitutionality of Iowa Code section 901.10(2).

III. Scope of Review.

The first issue presented in this case is whether the district court erred in not suppressing certain physical evidence and statements. Simmons claims the district court should have granted his motion to suppress based on the federal and state constitutions; therefore, our review is de novo. State v. Freeman, 705 N.W.2d 293, 297 (Iowa 2005). This review requires us to “ ‘make an independent evaluation of the totality of the circumstances as shown by the entire record.’ ” State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001) (citation omitted). We give deference to the factual findings of the district court due to its opportunity to evaluate the credibility of the witnesses, but we are not bound by such findings. Id.

The second issue presented in this case is whether Simmons’ trial counsel provided effective assistance of counsel in regards to the failure to challenge the constitutionality of Iowa Code section 901.10(2). Simmons asserts his ineffective-assistance-of-counsel claim based on the federal and state constitutions. Although these claims are typically preserved for postconviction relief actions, “we will address such claims on direct appeal when the record is sufficient to permit a ruling.” State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005).

IV.Analysis.

A. The initial search of the apartment. Simmons asserts the initial search of the apartment was in contravention of the Fourth Amendment to the United States Constitution. The Fourth Amendment assures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. The Fourth Amendment is binding on the states through the Fourteenth Amendment of the federal constitution. Freeman, 705 N.W.2d at 297.

Simmons also asserts the search violated article I, section 8 of the Iowa Constitution. That section guarantees “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable seizures and searches shall not be violated.” Iowa Const, art. I, § 8. “Because [Simmons] has not asserted and we have not found a basis to distinguish the protection afforded by the Iowa Constitution from those afforded by the federal constitution under the facts of this case, our analysis applies equally to both the state and federal grounds.” State v. Carter, 696 N.W.2d 31, 37 (Iowa 2005).

Unless a recognized exception to the warrant requirement exists, searches and seizures conducted without a warrant are per se unreasonable. Freeman, 705 N.W.2d at 297. These exceptions include “ ‘searches based on consent, plain view, probable cause coupled with exigent circumstances, searches incident to arrest, and those based on the emergency aid exception.’ ” Id. (citation omitted).

The State is required to prove a recognized exception to the warrant requirement by a preponderance of the evidence. Id. A court cannot admit evidence obtained in violation of the Fourth Amendment. Id. In determining if one of the recognized exceptions is applicable, the court must assess a police officer’s conduct based on an objective standard. Id. A search’s legality does not depend on the actual motivations of the police officers involved in the search. Id.

We must first determine whether Simmons had a legitimate expectation of privacy, both subjectively and objectively, in the premises searched. State v. Lovig, 675 N.W.2d 557, 562-63 (Iowa 2004). We make this determination based on the unique facts of each case. Id. at 563. We have said the Fourth Amendment clearly protects physical entry into one’s home. Id. We have acknowledged a legitimate expectation of privacy may extend to protect an overnight guest in the host’s home, but we have also recognized there is no legitimate expectation of privacy if a guest is there simply to conduct a business transaction. Id.

Neither the State nor Simmons challenge Simmons’ legitimate expectation of privacy in the apartment. At the time of the search, Simmons claimed to be living with Cordell in the apartment for approximately six weeks. Although he listed a friend’s address in his application for court-appointed counsel, Simmons kept clothing and personal belongings at the apartment. He testified he used his friend’s address as a mailing address because he works on the road. Cordell confirmed Simmons had lived in the apartment for six weeks and he kept clothes and personal belongings there. Considering the circumstances of this case in view of the values of the Fourth Amendment, Simmons did have a legitimate expectation of privacy in the apartment.

Next, we must determine whether the State proved an exception to the warrant requirement by a preponderance of the evidence. The State contends probable cause coupled with exigent circumstances relieved the officers from the obligation to obtain a warrant. Probable cause to search exists if, given the totality of the circumstances, “a person of reasonable prudence would believe that evidence of a crime might be located on the premises to be searched.” State v. Davis, 679 N.W.2d 651, 656 (Iowa 2004).

While it does not appear we have previously addressed the effect an odor may have on probable cause to search under circumstances such as those presented here, we have found probable cause in a somewhat similar situation. See State v. Eubanks, 355 N.W.2d 57, 59 (Iowa 1984) (finding an officer had sufficient probable cause to search a vehicle and its contents based on the odor of marijuana drifting from the vehicle). The Supreme Court has discussed when the detection of an odor establishes sufficient probable cause for a magistrate to issue a search warrant. Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 369, 92 L.Ed. 436, 440 (1948). There the Court stated:

If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.

Id

In this case, Hitt smelled what he suspected to be anhydrous ammonia. Not being an expert in the area of methamphetamine labs, Hitt contacted his superi- or, Brothers, for instructions on how to proceed. Brothers advised Hitt to meet with Rine, a state-certified clandestine methamphetamine lab expert, to assess the situation. Rine, who had experience in handling clandestine methamphetamine labs, determined the distinctive odor in the hallway was in fact that of anhydrous ammonia. Rine knew there was no legitimate purpose for possessing anhydrous ammonia in an apartment and he knew it is used to manufacture methamphetamine. Based on Rine’s training and experience, coupled with the distinct odor of anhydrous ammonia and the lack of household uses for it, we find the officers had probable cause to believe the occupants of the apartment were engaged in criminal activity. See United States v. Clayton, 210 F.3d 841, 845 (8th Cir.2000) (finding an officer’s perception of an odor associated with methamphetamine production constituted probable cause for a search); Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1393-94 (5th Cir.1994) (finding a chemical odor associated with the manufacturing of amphetamines, detected by an officer familiar with such odors through experience and training, may alone establish probable cause); United States v. Sweeney, 688 F.2d 1131, 1137 (7th Cir.1982) (finding an officer who is qualified to identify an odor, which is sufficiently distinctive to identify the manufacture of methamphetamine, may establish probable cause for a search warrant).

Finally, we must determine whether exigent circumstances existed to allow the warrantless search. We have found exigent circumstances to exist where a danger of violence and injury to officers or others is present. State v. Holtz, 300 N.W.2d 888, 893 (Iowa 1981). When an exigency poses a threat of danger to others, officers can perform a limited search to remove the immediate risk. United States v. Walsh, 299 F.3d 729, 734 (8th Cir.2002).

The volatile nature of and the dangers created by methamphetamine labs can be exigent circumstances justifying an immediate limited search of premises harboring such a lab. Kleinholz v. United States, 339 F.3d 674, 677 (8th Cir.2003). In this case, Rine’s confirmation of the odor as anhydrous ammonia, its use in manufacturing methamphetamine, and the risks created by a methamphetamine lab in a multiple-occupant dwelling support a finding of exigency. Numerous cases have upheld limited searches conducted by officers without a warrant to eliminate the potential hazards of a methamphetamine lab when the officers had probable cause to believe they had discovered an ongoing methamphetamine lab. United States v. Lloyd, 396 F.3d 948, 954 (8th Cir.2005); see also Walsh, 299 F.3d at 734 (collecting precedent from other federal circuit courts of appeals).

Here, the testimony of the officers establishes the dangers of methamphetamine manufacturing. Besides the risk of fire or explosion, the exposure to the fumes of anhydrous ammonia posed a serious threat to the persons manufacturing the drug, the officers who entered the apartment, and the neighbors who were evacuated from their apartment across the hall. During the initial search of the apartment, the officers conducted a limited search, only removing the hazardous items that posed an immediate threat. After determining the levels of anhydrous ammonia in the apartment exceeded the acceptable OSHA levels for short-term exposure by almost three times, the officers ventilated the apartment, left the apartment, and waited for further instructions before entry was made for the third time.

Simmons argues the officers’ conduct in this case, such as the time delay between Hitt’s detection and Rine’s confirmation of the odor, and the lack of consideration to evacuate the other tenants before Rine’s confirmation of the odor, was inconsistent with the claimed exigency. It is possible that an officer’s conduct “which is in any way inconsistent with the purported reason for the entry is a just cause for healthy skepticism by the courts.” See 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 6.6(a) (4th ed. 2004). However, Simmons’ argument misses the mark here because an officer is required to have specific, articulable grounds justifying a finding of exigency, and a warrantless search’s legality is not determined by the subjective beliefs of the officer involved. State v. Naujoks, 637 N.W.2d 101, 109 (Iowa 2001). Thus, the alleged inconsistency of the officers’ actions in the instant case, which supposedly evidences their subjective beliefs as to the lack of exigency of the situation, is irrelevant to the objective assessment of whether the search was reasonable based on exigent circumstances.

When Hitt first detected the odor of what he suspected was anhydrous ammonia, his lack of experience did not allow him to fully comprehend the gravity of the situation. When he returned to the apartment building with Rine, the dangers of a working methamphetamine lab continued to exist and nothing in this record suggests the exigency had disappeared by the time Hitt and Rine arrived at the building. Moreover, the conclusion that a bona fide exigency existed is supported by the officers’ conduct, which included removing Cordell and Simmons from the apartment, giving them decontamination suits, evacuating the occupants of apartment eight, discussing a possible evacuation of the remainder of the building with the fire chief, and reentering the apartment in protective gear to remove the hazardous items from the apartment.

Accordingly, there were exigent circumstances present in this case. Therefore, the presence of probable cause coupled with exigent circumstances makes the initial search of the apartment an exception to the warrant requirement.

B. The first statements made by Simmons when the officers entered the apartment. The Fifth Amendment to the United States Constitution states “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const, amend. V. The right against self-incrimination applies to the states because it is incorporated into the Due Process Clause of the Fourteenth Amendment. Turner, 630 N.W.2d at 606. Before a person in custody may be interrogated, the person must be advised as to the right to remain silent and the right to have appointed counsel present. Id. at 607. These Miranda requirements do not come into play unless both custody and interrogation are present. Id. Custodial interrogation is defined as “ ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ ” Id. (citation omitted).

In regards to custody, we use an objective test where the inquiry is how a reasonable person in the suspect’s position would have understood the situation. Id. In making this determination, we may consider “ ‘the language used to summon the individual, the purpose, place and manner of the interrogation, the extent to which the defendant is confronted with evidence of his guilt, and whether the defendant is free to leave the place of questioning.’ ” State v. Smith, 546 N.W.2d 916, 922 (Iowa 1996) (citations omitted). For purposes of this appeal, we will assume without deciding Simmons was in custody at this time.

We have recognized a public safety exception to the Miranda requirements. State v. Deases, 518 N.W.2d 784, 790-91 (Iowa 1994). Such an exception exists where “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” New York v. Quarles, 467 U.S. 649, 657, 104 S.Ct. 2626, 2632, 81 L.Ed.2d 550, 558 (1984). The exception applies if the officer’s question is not “designed solely to elicit testimonial evidence from a suspect.” Id. at 658-59, 104 S.Ct. at 2633, 81 L.Ed.2d at 559.

When Rine entered the apartment, the strong odor of anhydrous ammonia was present. This odor posed a safety risk to him, his fellow officers, the occupants of the apartment, and the neighbors. At that point, Rine did not know if an ignition source was available or if a fire or explosion could occur. We conclude Rine’s inquiries as to the presence and status of a methamphetamine lab were for the purpose of obtaining information that would help him safely address the potentially volatile and dangerous situation confronting the officers at the scene, and not solely to obtain incriminating information from Simmons. Therefore, Simmons’ admissions in response to Rine’s inquiries are admissible in spite of the fact Rine did not advise him of his Miranda rights.

C. The other statements made by Simmons to Brothers. Simmons asserts the statements he made to Brothers while he was handcuffed and accompanied by an officer are inadmissible due to Brothers’ failure to advise him of his Miranda rights prior to Brothers stating to him, “[H]ello, Jesse, what’s going on.” Simmons also asserts the statements he made to Brothers in the police car after receiving his Miranda rights are also inadmissible because there was no break in the causal connection between the alleged illegal police actions and the statements obtained after Simmons received his Miranda rights. Even if we assume without deciding these statements were inadmissible, we find their admission was harmless beyond a reasonable doubt.

“In order for a constitutional error to be harmless, the court must be able to declare it harmless beyond a reasonable doubt.” Deases, 518 N.W.2d at 791. In assessing whether a constitutional error was harmless, we have stated:

There are two steps in the harmless error analysis. We first consider all of the evidence the jury actually considered, and then we weigh the probative force of that evidence against the erroneously admitted evidence. The inquiry is not whether in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.

State v. Canas, 597 N.W.2d 488, 493-94 (Iowa 1999) (citations omitted), abrogated on other grounds by Turner, 630 N.W.2d at 606 n. 2.

Here, the statements Simmons gave to Brothers in each of the above instances were substantially the same statements Simmons gave to Rine in the apartment. We have already concluded Simmons’ statements to Rine were admissible under the public safety exception to the Miranda requirements. “If substantially the same evidence is in the record, erroneously admitted evidence is not considered prejudicial.” Deases, 518 N.W.2d at 791. Consequently, the district court’s finding of guilt could not be attributable to the second or third statements made to Brothers. Therefore, any alleged error is harmless beyond a reasonable doubt.

D. Evidence seized after Brothers obtained Cordell’s consent to search the apartment. Simmons asserts the consent Cordell gave Brothers to enter the apartment for a third time was not given voluntarily and the items seized based on such consent should have been suppressed. Again, even if we assume without deciding these items were inadmissible, their admission was harmless beyond a reasonable doubt. We have already determined the containers and chemicals seized during the initial limited search were admissible. The DCI Criminalistics Laboratory tested these items and determined they contained methamphetamine or precursors of methamphetamine. The items seized after receiving Cordell’s consent were the nonhazardous items used to manufacture methamphetamine.

In applying the constitutional harmless error test, we are satisfied beyond a reasonable doubt the district court’s finding of guilt could not be attributable to the evidence of the non-hazardous items. The properly seized evidence coupled with the admission of Simmons that it was his lab overwhelmingly establishes Simmons was guilty of manufacturing methamphetamine. Accordingly, any alleged error is harmless beyond a reasonable doubt.

E. Ineffective-assistance-of-counsel claim. “In order for a defendant to succeed on a claim of ineffective assistance of counsel, the defendant must prove: (1) counsel failed to perform an essential duty and (2) prejudice resulted.” Wills, 696 N.W.2d at 22. In order to satisfy the first element, “ ‘counsel’s performance is measured against the standard of a reasonably competent practitioner with the presumption that the attorney performed his duties in a competent manner.’ ” State v. Doggett, 687 N.W.2d 97, 100 (Iowa 2004) (citations omitted). Prejudice exists where “ ‘there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Wills, 696 N.W.2d at 22 (citations omitted).

Simmons argues his trial counsel had a duty to challenge the constitutionality of Iowa Code section 901.10(2) under equal protection principles as it effectively penalizes defendants for exercising their right against self-incrimination and their right to a jury trial. Section 901.10(1) allows a sentencing court to sentence a person for a first conviction “to a term less than provided by the statute if mitigating circumstances exist and those circumstances are stated specifically in the record.” Iowa Code § 901.10(1). However, the sentencing court is not allowed to reduce the sentence for a first conviction “if the sentence under section 124.413 involves an amphetamine or methamphetamine offense under section 124.401, subsection 1, paragraph ⅛’ or V ” unless the defendant pleads guilty. Id. § 901.10(2). Simmons claims a strict scrutiny review should apply here because fundamental rights are implicated. He asserts the statute fails such review because there is no compelling state interest in treating methamphetamine offenses constituting a class “B” felony different than other class “B” felony drug offenses or class “C” felony methamphetamine offenses based on whether the defendant pleads guilty or goes to trial.

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution disallows states from “denying] to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. The Iowa Constitution states “[a]ll laws of a general nature shall have a uniform operation; the general assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms shall not equally belong to all citizens.” Iowa Const, art. I, § 6. We acknowledge we have the obligation to determine whether a challenged law violates Iowa’s constitutional equality provision. Racing Ass’n of Cent. Iowa v. Fitzgerald, 675 N.W.2d 1, 4 (Iowa 2004). While the judgment of the Supreme Court under the federal Equal Protection Clause is persuasive, it does not bind this court’s evaluation of the law under the Iowa Constitution. Id. at 5. Nevertheless, “[bjecause neither party in this case has argued that our equal protection analysis under the Iowa Constitution should differ in any way from our analysis under the Federal Constitution, we decline to apply divergent analy-ses in this case.” Sanchez v. State, 692 N.W.2d 812, 817 (Iowa 2005).

We subject laws to different levels of review based on their classifications and the rights they affect. Id.

If a statute affects a fundamental right or classifies individuals on the basis of race, alienage, or national origin, it is subjected to strict scrutiny review. The State must prove it is narrowly tailored to the achievement of a compelling state interest. If a statute classifies individuals on the basis of gender or legitimacy, it is subject to intermediate scrutiny and will only be upheld if it is substantially related to an important state interest.

Id. (citations omitted). However,

“[t]he general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest. When social or economic legislation is at issue, the Equal Protection Clause allows the States wide latitude, and the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes.”

Id. (alteration in original) (citation omitted). Rational basis review requires only that the law “be rationally related to a legitimate state interest.” Id. at 817-18. Such review allows a State to act on the basis of certain differences where a rational relationship exists between the disparity in treatment and some legitimate government purpose. Id. at 818.

In State v. Biddle, we applied the rational basis test and determined section 901.10(2) is “rationally related to the government’s interest in curbing the increasing and widespread use of methamphetamine, a highly addictive drug.” 652 N.W.2d 191, 203 (Iowa 2002). In Biddle, we did not examine the statute under a strict scrutiny analysis because the defendant failed to preserve error on the application of this test. Id. However, the Supreme Court has addressed an equal protection challenge alleging a similar statutory scheme penalized a defendant for exercising a fundamental right. Corbitt v. New Jersey, 439 U.S. 212, 225, 99 S.Ct. 492, 500, 58 L.Ed.2d 466, 478 (1978).

There a New Jersey statutory scheme provided for mandatory punishment of life imprisonment for a defendant convicted by a jury of first-degree murder, but allowed the possibility of a sentence of less than life imprisonment for a defendant who entered a plea of no contest. Id. at 214-16, 99 S.Ct. at 495-96, 58 L.Ed.2d at 471-72. In rejecting the defendant’s argument “that the sentencing scheme infringes [on a defendant’s] right to equal protection under the Fourteenth Amendment because it penalizes the exercise of a ‘fundamental right,’ ” the Court stated:

We rejected a similar argument ... noting that “[t]o fit the problem ... into an equal protection framework is a task too Procrustean to be rationally accomplished.” All New Jersey defendants are given the same choice. Those electing to contest their guilt face a certainty of life imprisonment if convicted of first-degree murder; but they may be acquitted instead or, in a proper case, may be convicted of a lesser degree of homicide and receive a sentence of less than life. Furthermore, a plea of [no contest] may itself result in a life sentence. The result, therefore, “may depend upon a particular combination of infinite variables peculiar to each individual trial. It simply cannot be said that a state has invidiously ‘classified’ ....” It cannot be said that defendants found guilty by a jury are “penalized” for exercising the right to a jury trial any more than defendants who plead guilty are penalized because they give up the chance of acquittal at trial. In each instance, the defendant faces a multitude of possible outcomes and freely makes his choice. Equal protection does not free those who made a bad assessment of risks or a bad choice from the consequences of their decision.

Id. at 225-26, 99 S.Ct. at 500-01, 58 L.Ed.2d at 478 (citations omitted). Accordingly, if Simmons’ trial counsel had raised this issue, the trial court should have found the statutory scheme did not violate the state or federal Equal Protection Clauses. Therefore, Simmons’ claim of ineffective assistance of counsel must fail. See Wills, 696 N.W.2d at 24 (finding trial counsel was not ineffective for failing to raise an issue with no merit).

V. Summary and Disposition.

We find no error in the district court’s ruling on the motion to suppress regarding the initial search of the apartment and the first statements made by Simmons when the officers entered the apartment. We do not reach the other issues raised by Simmons regarding the motion to suppress because any constitutional error alleged was harmless beyond a reasonable doubt. Finally, we find Simmons’ trial counsel was not ineffective in failing to challenge the constitutionality of Iowa Code section 901.10(2). Therefore, we affirm the judgment of the district court.

AFFIRMED.


source: Caselaw Access Project

author: TERNUS, Justice.

license: Public Domain

text:
    In the Interest of M.T., M.T., and T.B., Minor Children.
    No. 05-0179.
    Supreme Court of Iowa.
    May 19, 2006.

      Michelle M. Dreibelbis, Sioux .City, for appellants, minor children.
    Thomas S. Mullin, County Attorney, and David A. Dawson, Assistant County Attorney, for appellants, State of Iowa and Woodbury County Attorney.
    Thomas J. Miller, Attorney General, and Bruce Kempkes, Assistant Attorney General, for appellee, Iowa Department of Human Services.
    Martha M. McMinn, Sioux City, for ap-pellee, The Winnebago Tribe of Nebraska.
    Jeffrey S. Rasmussen of Olson, Allen & Rasmussen, L.L.C., Bloomington, Minnesota, Thomas D. Grabinski, Grinnell Wilford Stone of Lynch Dallas, P.C., Cedar Rapids, for amicus curiae, The Sac <& Fox Tribe of the Mississippi in Iowa.
    Molly Yakulskas-Joly, Sioux City, for the father of M.T. and M.T.
    H. Allan Sturgeon, Sioux City, for the mother of the minor children.
   TERNUS, Justice.

The district court allowed The Winnebago Tribe of Nebraska to intervene in this child-in-need-of-assistance action. The children’s attorney and the Woodbury County Attorney challenge this ruling, claiming the Iowa Indian Child Welfare Act, under which the court authorized the tribe’s intervention, is unconstitutional. We do not reach this issue, however, because we are compelled to conclude the appeal must be dismissed on jurisdictional grounds.

I. Background Facts and Proceedings.

The county attorney commenced this proceeding under Iowa Code chapter 232, alleging the minor children, M.T., M.T., and T.B., were children in need of assistance and asking that their care, custody, and control be transferred to DHS for placement in family foster care. More than twelve months after The Winnebago Tribe of Nebraska- was notified of this action, it sought to intervene pursuant to the Iowa Indian Child Welfare Act (“Iowa ICWA”). See Iowa Code § 232B.4(3) (Supp.2003). Rejecting the constitutional challenges made to the Iowa ICWA by the children’s attorney and the county attorney, the district court permitted the tribe to become a party to the proceeding. After the children’s attorney’s and the county attorney’s motions to reconsider under Iowa Rule of Civil Procedure 1.904(2) were denied, these parties filed notices of appeal.

At this point, the Iowa Attorney General filed a statement with the Iowa supreme court,' claiming the county attorney had improperly asserted authority to appeal on the State’s behalf. The attorney general claimed, contrary to the position of the county attorney, that the Iowa ICWA could be defended against any constitutional challenge. Subsequently, the attorney general filed a motion to dismiss the appeal on the basis it was untimely. The attorney general claimed the appellants’ post-ruling motions were not properly filed under rule 1.904(2) and so did not toll the time for appeal. Being unpersuaded by the county attorney’s resistancé to the attorney general’s motion to dismiss, a three-justice panel of this court held the post-ruling motions did not toll the period for appealing and so dismissed the appeal. The dismissal order was filed on May 5, 2005, and procedendo was issued the next day on May 6, 2005, sending the matter back to the district court.

On May 11, 2005, the county attorney filed a petition for rehearing in the supreme court, arguing, the panel had erred in dismissing the appeal. On June 14, 2005, the panel set aside the dismissal and ordered the clerk of the supreme court to recall procedendo. The question of appellate jurisdiction was ordered to be submitted with the appeal.

The attorney general subsequently filed a motion to vacate this court’s June 14, 2005 order, claiming the panel lacked authority to withdraw procedendo and reinstate the dismissed appeal. Alternatively, the attorney general claimed that even if the court had authority to recall proceden-do, the circumstances of this case did not warrant the exercise of this extraordinary power. The county attorney responded that this court’s “jurisdiction did not cease when procedendo was quickly, but mistakenly, issued on May 6, 2005.”

Although the parties dispute whether the county attorney or the attorney general properly represents the interests of the State in this appeal, we need not resolve this dispute prior to determining our jurisdiction in this matter. Questions concerning this court’s jurisdiction may be raised upon the court’s own motion. See River Excursions, Inc. v. City of Davenport, 359 N.W.2d 475, 477 (Iowa 1984) (“Even though neither party has questioned our jurisdiction to hear and decide this case, we will sua sponte dismiss an appeal that is neither authorized by our rules nor permitted by court order.”); Budde v. City Dev. Bd., 276 N.W.2d 846, 849 (Iowa 1979) (“Although petitioners moved to dismiss the appeal, we are obliged to do so even on our own motion when an appeal is not authorized by rule.”). Therefore, the attorney general’s standing to challenge our jurisdiction is irrelevant. Accordingly, we proceed directly to a consideration of the propriety of this court’s recall of procedendo and reinstatement of this appeal.

II. Discussion.

'An appellate court must have some method of remanding a case to the lower court after the reviewing court has made its decision. See State v. Banning, 205 Iowa 826, 828, 218 N.W. 572, 574 (1928). In Iowa, remand is accomplished by the issuance of a procedendo. See State v. Henderson, 215 Iowa 276, 278, 243 N.W. 289, 290 (1932) (“The bar and the courts of this state have uniformly referred to the order which goes from this court to the district court to proceed with the trial of a cause as a ‘procedendo.’ ”). See generally 62B Am.Jur.2d Procedendo § 1, at 579 (2005) (“In some jurisdictions, the term ‘procedendo’ is used interchangeably with ‘remittitur’ and ‘mandate’ to denote the order issued by a court of review on the decision of a cause on appeal ....”). The issuance of procedendo is within the court’s inherent power. See Banning, 205 Iowa at 828, 218 N.W. at 574.

This court has adopted several appellate rules that address the issuance of proce-dendo. Iowa Rule of Appellate Procedure 6.30 states that no procedendo will issue “for 15 days after an opinion of the supreme court is filed, nor thereafter while a petition for rehearing, filed according to these rules, is pending.” Iowa R.App. P. 6.30. In contrast, procedendo must issue immediately when the court denies an application for further review or renders a decision in an abortion notification appeal. See Iowa Rs.App. P. 6.402(6), 6.502(3).

Once procedendo has issued, the jurisdiction of the supreme court ceases. See Henderson, 215 Iowa at 278, 243 N.W. at 290; Iowa Code § 814.25 (providing in reference to criminal matters that “[t]he jurisdiction of the appellate court shall cease when procedendo is issued”); id. § 631.16(7) (setting forth same principle pertaining to discretionary review of small claims actions); see also Iowa R.App. P. 6.12(6) (stating in cases of voluntary dismissal of an appeal that “[t]he issuance of procedendo shall constitute a final adjudication with prejudice”). Indeed, the entire purpose of a procedendo is to notify the lower court that the case is transferred back to that court. See Banning, 205 Iowa at 829, 218 N.W. at 574.

We have found no Iowa cases discussing the court’s power to recall procedendo or the parameters of such a power.' Nonetheless, it appears this court has recalled procedendo in at least two documented cases. In Fenton v. Way, 44 Iowa 438 (1876), the defendant filed a petition for rehearing after this court had filed its opinion and issued procedendo. 44 Iowa at 438-39. The supreme court ordered that procedendo be returned and subsequently overruled the petition for rehearing. Id. at 439. This court’s recall of procedendo was not challenged or explained, but the facts showed the proce-dendo had issued prior to the expiration of the time for filing a petition for rehearing. Id. at 438. In Hasted v. Dodge, 39 N.W. 668 (1888), this court, on its own motion, ordered a rehearing after an opinion had been filed and procedendo had been issued. 39 N.W. at 668. It appears the court discovered a conflict between the filed opinion and a prior decision of the court. Id. It is not apparent from the opinion whether the time for rehearing had expired at the time the court ordered a rehearing on its own accord. Because the court’s withdrawal of procedendo was not challenged in Fenton or Hasted, these decisions provide little assistance in the present appeal. Therefore, we turn for guidance to the general principles followed by other courts with respect to the recall of procedendo, mandate, or remittitur.

It is widely recognized that an appellate court has inherent power to recall a procedendo. See Haw. Hous. Auth. v. Midkiff, 463 U.S. 1323, 1324, 104 S.Ct. 7, 8, 77 L.Ed.2d 1426, 1428 (Rehnquist, Circuit Justice, 9th Cir.1983); Nelson v. James, 722 F.2d 207, 208 (5th Cir.1984); Greater Boston Television Corp. v. FCC, 463 F.2d 268, 277 (D.C.Cir.1971); 5 Am. Jur.2d Appellate Review §§ 797, - 798, at 463 (1995). Nonetheless, due to the strong interest in finality of judgments, the power of recall is considered an extraordinary remedy to be used sparingly and only to prevent injustice. See Nelson, 722 F.2d at 208; Powers v. Bethlehem Steel Corp., 483 F.2d 963, 964 (1st Cir.1973); Greater Boston Television Corp., 463 F.2d at 277-78; 5 Am.Jur.2d Appellate Review § 798, at 463. “The clearest reason for recall or revision of appellate mandate is ... to correct clerical mistakes or to make the judgment consistent with the opinion.” Greater Boston Television Corp., 463 F.2d at 278 (footnote omitted); accord 5 Am. Jur.2d Appellate Review §§ 800, 801, at 465. A recall of procedendo is also appropriate to protect judicial integrity. See Greater Boston Television Corp., 463 F.2d at 278; 5 Am.Jur.2d Appellate Review § 803, at 465-66. “Thus, a mandate may be set aside if it was procured by fraud on the court.” 5 Am.Jur.2d Appellate Review § 803, at 466; accord Greater Boston Television Corp., 463 F.2d at 278. On the other hand, “[ajlleged erroneous rulings of law are generally not held to be sufficiently unconscionable to justify [the recall of procedendo].” Powers, 483 F.2d at 964; accord State v. Waddell, 191 Minn. 475, 254 N.W. 627, 627 (1934) (holding remitti-tur will not be recalled absent “some irregularity in connection with the remittitur”).

Turning to the present appeal, we note the appellants have suggested two bases upon which procedendo was properly withdrawn: (1) procedendo was “mistakenly” issued by the clerk; and (2) our dismissal order was erroneous. Adhering to the principles set forth above, we conclude neither ground is sufficient to justify the recall of procedendo in this case.

We first consider the argument that the supreme court clerk improvidently issued procedendo the day after our dismissal order was filed. The only rule requiring the clerk to delay the issuance of procedendo is rule 6.30, which instructs the clerk not to issue procedendo for fifteen days after an “opinion” is filed or thereafter while a petition for rehearing is pending. Iowa R.App. P. 6.30. The fifteen-day delay is apparently intended to maintain jurisdiction in the supreme court during the fourteen-day period for filing a petition for rehearing. See Iowa R.App. P. 6.27(1) (allowing a party to file a petition for rehearing “within 14 days after the filing of an opinion by the supreme court”). Rule 6.30 has no application to the dismissal order of the three-justice panel in this case, however, because the dismissal order is not an opinion. It is clear from a review of this court’s procedural rules that an order that disposes of a motion is not considered an “opinion.” For example, Iowa Rule of Appellate Procedure 6.502, which concerns abortion notification appeals, states that the supreme court’s “decision may be rendered by order or opinion.” Iowa R.App. P. 6.502(3) (emphasis added). In addition, Iowa Court Rule 21.25, a rule governing the organization and procedures of appellate courts, provides for the publishing of “[o]pinions of the supreme court” by West Publishing Company. Iowa R.App. P. 21.25. Clearly, this court does not forward orders rendered on motions to dismiss to West Publishing Company for inclusion in the Northwestern Reporter. The panel’s dismissal order in this appeal was not an opinion. Therefore, the clerk was not prohibited by rule 6.30 from promptly issuing procedendo.

For the same reason, the appellants’ petition for rehearing of the panel’s dismissal order did not provide a basis to recall procedendo. Although the petition was purportedly filed under the authority of rale 6.27, that rule allows a party to file a petition for rehearing only after the filing of an “opinion.” Because the dismissal order was not an opinion, rule 6.27 did not authorize the appellants’ petition for rehearing. We have examined our rules of appellate procedure and conclude no provision is made for the review or rehearing of three-justice orders. Therefore, the present case is unlike the situation in Fenton when we recalled a procedendo issued before the time for rehearing had expired. Here, there was no period in which the appellants could ask for rehearing, and consequently, there was no irregularity in the immediate issuance of procedendo.

Finally, we consider the appellants’ assertion that this court could properly recall procedendo in order to correct its allegedly erroneous dismissal order. Even if we assume our dismissal order was wrong, that fact would not provide a basis to recall procedendo. The importance of finality in judgments constrains the exercise of our inherent power to recall proce-dendo and resubmit the appeal in the absence of an irregularity in the proceedings that affected the integrity or fairness of the court process. The only irregularity in the process suggested by the appellants is the clerk’s prompt issuance of procedendo. But as we have already discussed, the clerk’s action was entirely consistent with our appellate rules. Therefore, the appellants received the process to which they were entitled under our rules, procedendo was properly issued, and the dismissal is final.

III. Disposition.

Procedendo was improperly recalled in this matter because there was no factual or legal basis for the exercise of this extraordinary power. Accordingly, we vacate this court’s June 14, 2005 order recalling procedendo. The three-justice order dismissing the appeal stands as this court’s final decision.

APPEAL DISMISSED.

All justices concur except CARTER, J., who dissents without opinion.

      . Although the supreme court has inherent power to issue a procedendo, this authority has been codified by the legislature for criminal cases and small claims actions. See Iowa Code § 814.24 (2005) (stating with respect to criminal appeals: "The decision of the appellate court with any opinion filed or judgment rendered must be recorded by its clerk. Pro-cedendo shall be issued as provided in the rules of appellate procedure.”); id. § 631.16(6) (setting forth same principles pertaining to discretionary review of small claims actions).

      . Jurisdiction of a reviewing court may also end without the issuance of procedendo if the reviewing court has issued its decision, the time for rehearing has expired, and the lower court has resumed jurisdiction with all parties having notice. Henderson, 215 Iowa at 278, 243 N.W. at 290; Banning, 205 Iowa at 829, 218 N.W. at 574; Becker v. Becker, 50 Iowa 139, 140-41 (1878). "Under such circumstances, we have held that by appearance the parties consent to the jurisdiction of the lower court, and thereby waive the filing of a proce-dendo." Henderson, 215 Iowa at 278, 243 N.W. at 290.

      . The finality of a three-justice dismissal order is not unique under our rules. Abortion notification appeals are submitted to a three-justice panel, the panel's decision is not subject to review or rehearing, and the clerk is instructed to promptly issue procedendo once an order or opinion is filed. Iowa R.App. P. 6.502(3).


author: PAGE, Justice.

text:
    In re the Marriage of Thomas Caroll RUBEY, Appellant, v. Valerie Ann VANNETT, Respondent.
    No. A05-310.
    Supreme Court of Minnesota.
    May 4, 2006.
    Rehearing Denied June 8, 2006.

      Mark A. Olson, Olson Law Office, Burnsville, MN, for Appellant.
    Valerie Ann Vannett, Apple Valley, MN, Pro Se Respondent.
    John Remington Graham, Amicus Curiae R-Kids of Minnesota.
   OPINION

PAGE, Justice.

This case arises from the dissolution of appellant Thomas Rubey and respondent Valerie Vannett’s marriage. Although they settled some issues, Rubey and Van-nett went to trial to determine who would be awarded physical custody of their child. After the trial, the district court issued an order granting sole physical and legal custody to Vannett. Rubey filed a motion for a new trial or amended findings (new trial/amended findings motion). Because the hearing on the motion occurred outside of the 60-day time frame required by Minn. R. Civ. P 59.03, the district court found that it lacked jurisdiction and dismissed the motion. Rubey appealed and the court of appeals dismissed the appeal for lack of jurisdiction, determining that, under Minn. R. CivApp. P. 104.01, subd. 2, the appeal was untimely. We granted review and now reverse and remand to the court of appeals for further proceedings.

Rubey and Vannett were married in 1999 and had one child before separating in October 2002. As part of their dissolution, Rubey and Vannett stipulated to a property settlement, maintenance, and legal custody of their child, but were unable to resolve who would have physical custody of their child.

After a trial on that issue, the trial court issued its Findings of Facts, Conclusions of Law, Order for Judgment, and Judgment and Decree on June 21, 2004. The order for judgment granted Vannett sole physical and legal custody of the child. Vannett served Rubey with a Notice of Filing and Entry of Decree by mail on June 23, 2004. After being served with the Notice of Filing and Entry of Decree, Ru-bey had 30 days in which to serve new trial and amended findings motions. Minn. R. Civ. P. 59.03.

Rubey served and filed a motion for new trial/amended findings on July 23, 2004. It is undisputed that Rubey served the motion within the required 30-day time period. In addition to requiring that the motion be served within 30 days, the rule requires that a new trial motion be heard within 60 days of service of the Notice of Filing and Entry of Decree “unless the time for hearing be extended by the court within the 60-day period for good cause shown.” Id. To comply with Rule 59.03, the hearing here should have taken place or an extension granted on or before August 25, 2004. Rubey’s notice of motion and motion did not provide a date certain for the hearing. On July 28, 2004, Rubey’s attorney telephoned the trial court’s scheduling clerk to schedule a date for the hearing on the motion. The only dates the court had available for the hearing were more than 60 days after Vannett served Rubey with the Notice of Filing and Entry of Decree. The date selected for the hearing was September 17, 2004.

On August 30, 2004, after the 60-day period had run, Vannett moved to dismiss Rubey’s motion based on the court’s lack of jurisdiction. In the alternative, Vannett sought to have Rubey’s motion denied on the merits. According to Vannett, the district court lost jurisdiction over Rubey’s motion when no extension had been granted and the hearing had not occurred within the required 60-day period.

On September 17, 2004, rather than hearing Rubey’s motion on its merits, the district court heard arguments on the court’s jurisdiction to hear the motion. At the hearing, the attorneys for each of the parties appeared and the court’s scheduling clerk testified. According to an affidavit filed by Rubey’s attorney, during his July 28 conversation with the scheduling clerk, after being told the court’s available dates, he “asked the scheduling clerk if the Judge would be issuing an order extending the time for hearing. [He] was told that the Judge would issue an order since he was not available to hear the matter until September 17, 2004.” In contrast, the scheduling clerk testified that she did not tell Rubey’s attorney that the court would prepare an order and did not recall having a conversation with Rubey’s attorney regarding the court preparing an order. Moreover, the scheduling clerk testified: “I don’t believe I would ever say the court would prepare an order,” and that it was not the judge’s or his law clerk’s practice to prepare an order without a motion.

According to Rubey’s attorney, based on the July 28 conversation, he “did not pursue the matter any further, expecting that the Court would take care of the order.” On August 20, Rubey’s attorney sent a letter to Vannett’s attorney informing her that the court had scheduled the hearing for September 17. That same day, Ru-bey’s attorney left a voice message for the scheduling clerk confirming the hearing date of September 17 and inquiring about the status of the extension.

Based on that voice message, on August 23, the scheduling clerk pulled the file for the case and did not find any order granting an extension. The scheduling clerk testified that she left a voice message for Rubey’s attorney and faxed a letter to both Rubey and Vannett’s attorneys explaining that there was no order in the file. Vannett’s attorney received the fax and had subsequent conversations with the scheduling clerk regarding the hearing date. However, the fax that the scheduling clerk sent to Rubey’s attorney did not reach him because it was sent to the wrong fax number. Rubey’s attorney also claimed that he did not receive a voice message from the scheduling clerk on August 23. Rubey’s attorney asserted that when he did not hear back from the scheduling clerk, he “assumed that the matter had been taken care of.” The record indicates that Rubey’s attorney did not make a formal motion or any other request, other than his conversations with the scheduling clerk, asking the court to extend the time for the new trial/amended findings motion hearing beyond the 60-day limit.

On December 9, 2004, the district court issued an order concluding that the court lacked jurisdiction to hear the new trial/amended findings motion because Rubey “failed to schedule the hearing with in [sic] the sixty-day time limit, to obtain an order to extend the sixty-day time limit, and to demonstrate that good cause exists to hear his motion.” Considering the possibility that its jurisdictional determination might be in error, the court, in the alternative, denied Rubey’s new trial/amended findings motion on the merits.

On February 14, 2005, Rubey appealed the underlying judgment and decree of dissolution and the December 9, 2004, order disposing of his new trial/amended findings motion. Under Minn. R. Civ.App. P. 104.01, subd. 1, a party generally has 60 days to appeal a judgment or order. A proper and timely motion for a new trial will toll the period for appeal, and the 60 days will run from the service of notice of filing of the order disposing of the motion for a new trial/amended findings. Minn. R. Civ.App. P. 104.01, subd. 2(b), (d).

The court of appeals dismissed Rubey’s appeal, holding that Rubey’s new trial/amended findings motion was untimely because no hearing on the motion took place within the required 60-day period and the time for hearing the motion had not been extended by the district court. Based on that holding, the court of appeals further held that Rubey’s new trial/amended findings motion did not toll the time to appeal the underlying judgment. Finally, the court of appeals declined to consider due process arguments raised by Rubey because they were not raised below. We granted Rubey’s petition for review and now reverse and remand to the court of appeals.

This case requires us to interpret Minn. R. Civ. P. 59.03 and Minn. R. Civ. App. P. 104.01, subds. 1, 2. Interpretation of procedural rules presents questions of law, which we review de novo. Madson v. Minn. Mining & Mfg. Co., 612 N.W.2d 168, 170 (Minn.2000). In construing procedural rules, we first look to the plain language of the rule and its purpose. See id. at 171. We also review jurisdictional questions de novo. See id. at 170.

I.

We first address whether the district court was deprived of jurisdiction over Rubey’s motion because the motion was not heard within 60 days of the service of notice of filing and entry of decree. Rubey argues that the 60-day period is merely directional and that failure to comply with the 60-day requirement does not deprive the district court of jurisdiction. Vannett argues, and the district court and court of appeals concluded, that a district court has no jurisdiction to hear a motion outside the required 60-day time period unless the party bringing the motion sought, and the court granted, an extension for good cause.

Our case law in this area has, at best, been confusing. In a number of cases predating Rule 59.03, we suggested that the failure to comply with the time period for hearing a new trial/amended findings motion was jurisdictional. See, e.g., Farmers Co-op. Ass’n of Bertha, Minn. v. Kotz, 222 Minn. 153, 156, 23 N.W.2d 576, 578 (1946) (‘When heard, the motion for new trial could no longer be entertained by the court on the minutes, since its authority to hear the motion had ceased.”); Edelstein v. Levine, 179 Minn. 136, 137, 228 N.W. 558, 558 (1930) (holding that, when the plaintiff had moved for a new trial outside the allotted 30 days without getting an extension from the court, “[t]he power or authority of the court to hear the motion had ceased”). In at least one other case, however, while we indicated that the timing of the hearing was a jurisdictional issue, we deemed the opposing party to have waived the timeliness issue. In re Hore’s Estate, 220 Minn. 365, 367, 19 N.W.2d 778, 780 (1945). We deemed the issue waived notwithstanding the fact that subject matter jurisdiction cannot be waived. Id.; see Tischer v. Hous. & Redev. Auth. of Cambridge, 693 N.W.2d 426, 430 (Minn.2005).

Further, although we have not, since the adoption of Rule 59.03, addressed whether the timing of a new trial/amended findings motion hearing is jurisdictional, we have excused untimely hearings based on the actions of the court or court employees. Am. Standard Ins. Co. v. Le, 551 N.W.2d 923, 925-26 (Minn.1996) (excusing an untimely hearing because a court administrator unilaterally changed the hearing date without a request from the parties or permission from the judge); Woodrow v. Tobler, 269 N.W.2d 910, 914 (Minn.1978) (excusing an untimely hearing when the hearing was originally scheduled within the required time period but was postponed because of the judge’s unavailability).

Our decisions in these cases cannot be reconciled with a conclusion that the 60-day period for hearing a new trial/amended findings motion is jurisdictional. We therefore conclude that the 60-day time limit for hearing new trial/amended findings motions is a procedural tool and does not divest the district court of jurisdiction. See Eberhart v. United States, 546 U.S. —, —, 126 S.Ct. 403, 405, 163 L.Ed.2d 14 (2005) (discussing the distinction between jurisdictional rules and “claims processing” rules).

II.

We next address Rubey’s argument that Vannett waived her objection to the untimely hearing date by not objecting before the 60-day period had expired. A district court may grant an order extending the time for hearing a new trial/amended findings motion beyond the 60-day period for hearing such motions any time during the 60-day period. Minn. R. Civ. P. 59.03. It stands to reason that, until the 60-day period has passed with no hearing having been held and no extension having been granted, the opposing party has no basis for an objection based on the timeliness of the hearing on the motion. Therefore, we conclude that Vannett did not waive her objection to the untimely hearing by waiting until after the 60-day time limit expired to file her objection.

III.

Having determined that the district court retained jurisdiction over the motion and that Vannett did not waive her objection to the untimeliness of the hearing, we must next determine whether the district court erred when it dismissed Rubey’s new trial/amended findings motion because the hearing was untimely. Rubey argues, based on the actions of the court’s scheduling clerk and his attorney’s past dealings with the district court, that his attorney reasonably understood that the court had extended the time for hearing his motion. Vannett argues that the time was not extended because (1) the rule requires affirmative action by the court to extend the time, (2) it was unreasonable for Rubey to rely on the scheduling clerk’s lack of response and assume the time was extended, and (3) only strict application of the rule fulfills the rule’s intent.

We review the district court’s factual findings for clear error. Chafoulias v. Peterson, 668 N.W.2d 642, 662-63 (Minn.2003). Here, the district court found that Rubey’s attorney had requested a hearing date, that the scheduling clerk granted a hearing date of September 17, 2004, which was beyond the 60-day requirement, that neither party nor their attorneys requested an extension for holding the hearing beyond the 60-day period, and that no such extension had been granted. The court found that both attorneys were experienced trial attorneys and were familiar with the Rules of Civil Procedure. The court noted that Rubey’s attorney had “faced this very issue in a similar case before Judge Muehlberg, where [Rubey’s attorney] submitted a proposed order to extend when the hearing date was set beyond the mandatory sixty-days by the Court’s Scheduling Clerk.”

The district court also found that, despite the fact that Rubey’s attorney claimed he relied on assurances made by the scheduling clerk that the court would issue an order extending the time for hearing, the scheduling clerk testified that she did not tell Rubey’s attorney that the court would grant such an order, that the scheduling clerk did not have the authority to extend deadlines or draft proposed orders, and that the district court was not aware of the scheduling clerk engaging in those practices. The court further found that, “[d]espite any assurances the Court’s Scheduling Clerk may have made, [Ru-bey’s attorney] is solely responsible for obtaining either a timely hearing date or an order to extend, by filing either a proper motion or, at a minimum, submitting a cover letter with a proposed order.” The evidence in the record supports the district court’s findings and therefore we conclude that the findings are not clearly erroneous.

Based on these findings, the district court concluded that Rubey had not shown that good cause existed to hear his motion, which we interpret to mean Rubey’s attorney did not show that he reasonably relied on any alleged representation by the scheduling clerk. The district court also concluded that it “lack[ed] jurisdiction,” and dismissed the motion as untimely.

Having concluded that the district court did not lose jurisdiction because of the untimely hearing on the motion and that its findings are not clearly erroneous, we must next determine whether the district court’s dismissal of Rubey’s new trial/amended findings motion was proper. As we have articulated in the past:

Particularly in cases of this kind, where the trial court is weighing statutory criteria in light of the found basic facts, the trial court’s conclusion of law will include determination of mixed questions of law and fact, determination of “ultimate” facts, and legal conclusions. In such a blend, the appellate court may correct erroneous applications of the law. As to the trial court’s conclusions on the ultimate issues, mindful of the discretion accorded the trial court * * * the reviewing court reviews under an abuse of discretion standard.

Maxfield v. Maxfield, 452 N.W.2d 219, 221 (Minn.1990). Therefore, we review the district court’s decision to dismiss the motion for an abuse of discretion.

The facts before the district court support its decision to dismiss Rubey’s motion because the hearing was untimely. Specifically, Rubey did not request an extension and did not submit a proposed order granting an extension, Rubey claimed that he relied on information that was given to him by the judge’s scheduling clerk, who was not authorized to grant an extension, and after he inquired about the extension on August 20, he relied on the lack of a response from the scheduling clerk as an affirmation that an extension had been granted. Moreover, Rubey’s attorney had, under similar circumstances in a previous case, submitted a proposed order for an extension of time. These facts led the district court to conclude that Ru-bey’s lawyer’s reliance on the scheduling clerk was not justified. See Le, 551 N.W.2d at 926. Based on the record presented, we cannot say that it was an abuse of discretion for the district court to dismiss Rubey’s new trial/amended findings motion as untimely.

IV.

Rubey claims that Rule 59.03, as applied to him, violates his right to due process. Generally, a party waives the right to raise a constitutional claim when the party does not make that claim in the district court. See Olson v. Ford Motor Co., 558 N.W.2d 491, 496 (Minn.1997). Ru-bey did not raise this due process claim in the district court. Therefore, we decline to address the claim in this case.

V.

Having concluded that the untimely hearing on Rubey’s new trial/amended findings motion did not divest the lower court of subject matter jurisdiction, but that the hearing was properly dismissed as untimely, we must, next determine whether the court of appeals properly dismissed Rubey’s appeal of the underlying judgment as untimely based on the untimeliness of the hearing on the new trial/amended findings motion. Rule 104.01, subdivision 1, provides that a party has 60 days from the date of entry of judgment during which to file an appeal. However,

if any party serves and files a proper and timely motion [for a new trial/amended findings under Rule 59.03], the time for appeal of the order or judgment that is the subject of such motion runs for all parties from the service by any party of notice of filing of the order disposing of the last such motion outstanding.

Minn. R. Civ.App. P. 104.01, subd. 2 (emphasis added). Rubey argues that Rule 104.01, subdivision 2, requires only that the service and filing of the motion be timely to toll the time for appeal. Therefore, according to Rubey, because he served and filed his new trial/amended findings motion on July 23, 2004, which was within 30 days of Vannett’s service of the notice and filing of decree, the time for appealing the district court’s June 21, 2004, order for judgment was tolled until the trial court’s December 9, 2004, order disposing of the new trial/amended findings motion. Vannett argues, and the court of appeals agreed, that to be timely and proper Rubey’s new trial/amended findings motion had to be timely heard and, because it was not, the time to appeal the underlying judgment was not tolled.

The plain language of the rule provides that the time for appeal is tolled if any party “seryes and files a proper and timely motion.” Minn. R. Civ.App. P. 104.01, subd. 2; see Huntsman v. Huntsman, 633 N.W.2d 852, 855 (Minn.2001) (declining to construe the period to appeal as running from the entry of amended findings filed before the last tolling motion was resolved because “[s]uch a construction would undermine our policy of preserving the right to appeal, simplifying practice, and lessening confusion”). The rule says nothing about a timely hearing. Here, there is no question that Rubey’s new trial/amended findings motion was timely served and filed. That the hearing on the motion may have been untimely does not alter the fact that the motion itself was timely. To hold that the untimely motion hearing caused the time for appeal to run from the date of the underlying judgment would require us to read into Rule 104.01, subdivision 2, that which is not there. As with reading Wisconsin’s excusable neglect standard into Rule 59.03, we decline to do so. Moreover, allowing tolling to turn on whether a new trial/amended findings motion is timely heard, even after that motion 'is timely filed and served, would inject into Rule 104.01, subdivision 2, an element of uncertainty and create confusion as to when a party’s appeal must be filed.

To the extent that Vannett argues that Rubey’s motion was not proper because the notice of motion did not state the time and place for the hearing, we note this argument was not raised in the district court and therefore is not properly before us. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). Vannett makes no other argument that the motion was not proper.

Because the time for filing Rubey’s appeal began to run when Vannett served the notice of filing of the order disposing of Rubey’s new trial/amended findings motion, we conclude that the court of appeals erred when it dismissed, as untimely, Ru-bey’s appeal of the underlying order for judgment and judgment decree. We, therefore, remand this case to the court of appeals for review of the underlying judgment as though no new trial/amended findings motion had been made and review to determine “whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.” Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).

Reversed and remanded.

GILDEA, J., not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

      . The same time limitations apply to a motion for amended Endings that, as here, is filed with a motion for a new trial. Minn. R. Civ. P. 52.02.

      . Rubey makes an additional argument that we should specifically adopt an "excusable neglect” standard for determining whether a motion is timely. As persuasive authority he relies on a Wisconsin statute that is similar to Rule 59.03. That statute provides that "[i]f the motion is made after the expiration of the specified time, it shall not be granted unless the court finds that the failure to act was the result of excusable neglect.” Wis. Stat. § 801.15(2)(a) (2004). Unlike the Wisconsin statute, Rule 59.03 does not specifically provide for an excusable neglect standard. Thus, in order to adopt the excusable neglect standard, we would have to read into the rule that which the rule's drafters left out. We decline to amend the rule in this way.

      . We have stressed that "prudent counsel will obtain a written confirmation of any extension issued by the court within the limitation period.” U.S. Leasing Corp. v. Biba Info. Processing Servs., Inc., 489 N.W.2d 231, 232 (Minn.1992). Absent a formal request for an extension and an affirmative response from the court, parties cannot be assured that an extension has been granted.

      . Rubey raised a separate constitutional issue in the district court, which was based on the underlying judgment and not on the application of Rule 59.03. That issue has not been raised in this appeal.


author: Russell A. Anderson Chief Justice

text:
    In the Matter of DETAILING CRITERIA AND STANDARDS FOR MEASURING AN ELECTRIC UTILITY’S GOOD FAITH EFFORTS IN MEETING THE RENEWABLE ENERGY OBJECTIVES UNDER MINN. STAT. § 216B.1691.
    No. A04-1742.
    Supreme Court of Minnesota.
    May 22, 2006.
   ORDER

Based upon all the files, records, and proceedings herein, and upon an evenly divided court,

IT IS HEREBY ORDERED that the decision of the court of appeals filed July 26, 2005, be, and the same is, affirmed without opinion.

BY THE COURT:

Russell A. Anderson Chief Justice

ANDERSON, G. BARRY, J„ took no part in the consideration or decision of this case.


author: /s/Helen M. Meyer Associate Justice

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Karen K. RENSHAW, a Minnesota Attorney, Registration No. 221983.
    No. A05-941.
    Supreme Court of Minnesota.
    May 24, 2006.
   ORDER

The Director of the Office of Lawyers Professional Responsibility has filed a petition for disciplinary action alleging that respondent Karen K. Renshaw committed professional misconduct warranting public discipline, namely, unintentional misappropriation of closing funds and failure to cooperate with the Director’s investigation, in violation of Minn. R. Prof. Conduct 1.15(a), (c), and (h), 8.4(c) and 8.1(a)(3), as well as Rule 25, Rules on Lawyers Professional Responsibility (RLPR), related to the erroneous deposit of funds to respondent’s operating account by a bank in connection with a real estate closing conducted by respondent’s title agency. Respondent fully and promptly repaid the funds in question when made aware of the bank’s error.

Respondent admits her conduct violated the Minnesota Rules of Professional Conduct, waives her rights pursuant to Rule 14, RLPR, and has entered into a stipulation with the Director in which they jointly recommended that the appropriate discipline is a six-month suspension from practice, effective as of the date of this order. By order dated March 30, 2006, this court invited the parties to submit memoranda explaining why a suspension of six months, and not some shorter period, is appropriate discipline for the misconduct alleged in this matter. The court has received and considered the parties’ memoranda.

Based upon all the files, records, and proceedings herein,

IT IS HEREBY ORDERED that respondent Karen K. Renshaw is suspended from the practice of law for 90 days, effective 10 days from the date of this order, subject to the following conditions:

(a) Respondent shall comply with Rule 26, RLPR, requiring notice of her suspension to clients, opposing counsel, and tribunals.
(b) The reinstatement hearing provided for in Rule 18(a) through (e), RLPR, is hereby waived. Respondent may apply for reinstatement under Rule 18(f), RLPR.
(c) Upon respondent’s reinstatement to active practice, respondent shall be subject to supervised probation for a period of two years. Respondent shall be supervised by a licensed Minnesota attorney, appointed by the Director to monitor compliance with the terms of this probation. Respondent shall provide to the Director, with her application for reinstatement, the names of four attorneys who have agreed to be nominated as respondent’s supervisor. If, after diligent effort, respondent is unable to locate a supervisor acceptable to the Director, the Director will seek to appoint a supervisor. Until a supervisor has signed a consent to supervise, respondent shall on the first day of each month provide the Director with an inventory of active client files described in paragraph (d) below. Respondent shall make active client files available to the Director upon request.
(d) Respondent shall cooperate fully with the supervisor in his/her efforts to monitor compliance with this probation. Respondent shall contact the supervisor and schedule a minimum of one in-person meeting per calendar quarter. Respondent shall submit to the supervisor an inventory of all active client files by the first day of each month during the probation. With respect to each active file, the inventory . shall disclose the client name, type of representation, date opened, most recent activity, next anticipated action, and anticipated closing date. Respondent’s supervisor shall file written reports with the Director at least quarterly, or at such more frequent intervals as may reasonably be requested by the Director.
(e) Respondent shall successfully complete the professional responsibility portion of the state bar examination within one year of the date of this order, but not as a condition of reinstatement to active practice.
(f) Respondent shall maintain law office and trust account books and records in compliance with Minn. R. Prof. Conduct 1.15 and Lawyers Professional Responsibility Board Opinion No. 9. Such books and records shall be made available to the Director with respondent’s application for reinstatement and thereafter as the Director deems necessary to determine respondent’s compliance.
(g) Respondent shall pay $900 in costs pursuant to Rule 24(a), RLPR.

BY THE COURT:

/s/Helen M. Meyer Associate Justice

      . Citations are to the Minnesota Rules of Professional Conduct as they read prior to the amendments that took effect October 1, 2005, and the Rules on Lawyers Professional Responsibility as they read prior to the amendments that took effect September 1, 2005.


author: /s/Sam Hanson Associate Justice

text:
    Alvin V. AHO, Respondent, v. DULUTH TRANSIT AUTHORITY, and State Fund Mutual Insurance Company, Relators.
    No. A06-490.
    Supreme Court of Minnesota.
    May 24, 2006.
    Russell J. LaCourse, LaCourse Law Office, P.A., Duluth, MN, for Respondent.
    Andrew W. Lynn, Lynn, Scharfenberg & Associates, Minneapolis, MN, for Appellants.
   ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the decision of the Workers’ Compensation Court of Appeals filed March 1, 2006, be, and the same is, affirmed without opinion. See Hoff v. Kempton, 317 N.W.2d 361, 366 (Minn.1982) (summary affirmances have no precedential value because they do not commit the court to any particular point of view, doing no more than establishing the law of the case).

Employee is awarded $1,200 in attorney fees.

BY THE COURT:

/s/Sam Hanson Associate Justice