Vahid Aria v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 22-1315
Filed December 20, 2023

VAHID ARIA,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Warren County, Randy V. Hefner,

Judge.

Vahid Aria appeals the dismissal of his application for postconviction relief.

AFFIRMED.

John C. Heinicke of Kragnes & Associates, P.C., Des Moines, for appellant.

Brenna Bird, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee State.

Considered by Tabor, P.J., Chicchelly, J., and Doyle, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2023).
2

DOYLE, Senior Judge.

Vahid Aria appeals the dismissal of his application for postconviction relief

(PCR) following revocation of his deferred judgment and resentencing on a forgery

charge and sentencing on his guilty plea to possession of methamphetamine. He

maintains dismissal was improper because the PCR court did not comply with

statutory notice requirements under Iowa Code section 822.6(2) (2022). Aria also

argues a Double Jeopardy Clause violation in his resentencing because he did not

receive credit for the days he was on probation and parole. We conclude the PCR

court complied with relevant procedure and there were no other notice

requirements. We also conclude Aria’s resentencing did not violate the Double

Jeopardy Clause as his sentences do not impose punishment greater than

intended by the legislature. So we find no merit in Aria’s “day for day probationary

and parole credit” argument. Finding no error in the dismissal of Aria’s PCR

application, we affirm.

I. Background Facts and Proceedings.

In 2016, Aria pleaded guilty to one count of forgery. In exchange for Aria’s

plea, the district court entered a deferred judgment, dismissed two other counts,

and placed Aria on probation to the Fifth Judicial District Department of

Correctional Services for two years. Less than three months after being placed on

probation, the State charged Aria with possession of methamphetamine. And Aria

incurred several written reports of violation of the terms of his probation. Aria

stipulated that he had violated the terms of his probation. His deferred judgment

and probation were revoked, he was adjudged guilty of forgery and sentenced to

five years of incarceration. Aria also pleaded guilty to the possession charge and
3

was sentenced to ten years of incarceration. The sentences were ordered to be

served consecutively.

In 2022, Aria filed his pro se PCR application and brief asserting his

sentence was illegal. He argued it violated the Double Jeopardy Clause because

he did not receive day for day credit for the time he spent on probation and parole.1

The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution prohibits imposing multiple punishments for the same offense. Aria

was given permission to apply for court-appointed counsel, and a trial scheduling

conference was set. Because of an EDMS outage, the hearing was not held. The

PCR court scheduled a hearing to determine whether Aria’s PCR application

should be summarily dismissed. The court’s order cited Iowa Code section 907.3.2

Aria filed a pro se motion to amend adding more constitutional grounds to his day-

for-day-credit argument. A telephone hearing was held. Aria argued his case.

The State responded affirmatively when asked by the court if it was going to move

for summary judgment. The court warned Aria there was a distinction between the

cases he relied on and his factual situation. The court said it would look at the

court files and then file a written ruling. The court ordered the State to move for

summary judgment. Three days later, the State moved for summary disposition.

1 The record is unclear, but it appears Aria’s parole time relates to a drug
manufacturing conviction not related to the sentences that are pertinent to the PCR
action.
2 Iowa Code section 907.3 concerns deferred judgments, deferred sentences, or

suspended sentences.
4

Aria did not respond. Two weeks after the State filed its motion, the PCR court

entered its ruling summarily dismissing Aria’s PCR application. Aria appeals.3

II. Review.

“We normally review postconviction proceedings for errors at law. This

includes summary dismissals of applications for postconviction relief. . . . We

review postconviction proceedings that raise constitutional infirmities de novo.”

Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011) (internal citations omitted).

III. Discussion.

A. Notice of intent to dismiss PCR application. Aria asserts he did not

receive proper notice of the PCR court’s intention to dismiss the case under Iowa

Code section 822.6(2). Under this section, if a PCR court is inclined to sua sponte

dismiss an applicant’s application, “the court may indicate to the parties its

intention to dismiss the application and the reason for the dismissal.” Iowa Code

§ 822.6(2). In its order setting hearing, the PCR court stated: “A hearing will be

set to determine whether Petitioner’s application for post-conviction relief should

be summarily dismissed. Iowa Code section 907.3.” Aria claims a pro se litigant,

like him, “would have no idea that the trial court had the authority to sua sponte

notify the parties of its intention to dismiss the application for post conviction relief

3 In an all-too-common assertion, Aria states error was preserved by timely filing a

notice of appeal. As we have stated over and over—more than sixty times since
our published opinion of State v. Lange, 831 N.W.2d 844, 846–47 (Iowa Ct. App.
2013)—the filing of a notice of appeal does not preserve error for our review. See
Thomas A. Mayes & Anuradha Vaitheswaran, Error Preservation in Civil Appeals
in Iowa: Perspectives on Present Practice, 55 Drake L. Rev. 39, 48 (2006)
(“However error is preserved, it is not preserved by filing a notice of appeal. While
this is a common statement in briefs, it is erroneous, for the notice of appeal has
nothing to do with error preservation.”).
5

under Iowa Code section 822.6(2).” The flaw in Aria’s argument is that his PCR

application was not dismissed sua sponte under section 822.6(2). Because the

PCR court’s dismissal responded to the State’s motion for summary disposition, it

falls under section 822.6(3), which requires no extra notice like the one in

section 822.6(2). Aria was on notice at the hearing and after the State filed its

motion that his application could be summarily dismissed. He took no action after

the State filed its motion. The PCR court dismissed the application on the merits.

We conclude there was no procedural error on the part of the PCR court in

dismissing the application.

B. Parole credit. Aria also asserts the PCR court erred in denying him day-

for-day probationary and parole credit. We first address the parole credit issue.

The PCR court addressed only the probation credit issue, not the parole credit

issue. It is axiomatic under our error-preservation rules that an issue must not only

be raised before the district court, it must also be ruled on before we will decide it

on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). If the

“district court fails to rule on an issue properly raised by a party, the party who

raised the issue must file a motion requesting a ruling in order to preserve error for

appeal.” Id. There are, of course, exceptions to the rule. For instance, the error-

preservation rule generally does not apply “to void, illegal or procedurally defective

sentences.” State v. Richardson, 890 N.W.2d 609, 615 (Iowa 2017). The PCR

court considered Aria’s application as also requesting correction of an illegal

sentence.

It appears from the record that the parole time Aria refers to is for a

conviction not related to the sentence he now challenges. We are given no
6

explanation for how Aria’s parole time is in any way relevant to the issue before

us. A random mention of an issue, without elaboration or supportive authority, is

not enough to raise an issue for review. See EnviroGas, L.P. v. Cedar Rapids/Linn

Cnty. Solid Waste Agency, 641 N.W.2d 776, 785 (Iowa 2002) (citing Soo Line R.R.

v. Iowa Dep’t. of Transp., 521 N.W.2d 685, 689 (Iowa 1994)). We do not consider

conclusory statements not supported by legal argument. See, e.g., Baker v. City

of Iowa City, 750 N.W.2d 93, 103 (Iowa 2008) (holding that a party’s “conclusory

contention” was waived when the party failed to support it with an argument and

legal authorities); State v. Piper, 663 N.W.2d 894, 913–14 (Iowa 2003); McCleeary

v. Wirtz, 222 N.W.2d 409, 417 (Iowa 1974) (holding that a “subject will not be

considered” where a “random discussion” is not supported by a legal argument

and citation to authority); see also United States v. Dunkel, 927 F.2d 955, 956 (7th

Cir. 1991) (“A skeletal ‘argument’, really nothing more than an assertion, does not

preserve a claim. . . . Judges are not like pigs, hunting for truffles buried in

briefs.”). “When a party, in an appellate brief, fails to state, argue, or cite to

authority in support of an issue, the issue may be deemed waived.” State v. Adney,

639 N.W.2d 246, 250 (Iowa Ct. App. 2001). A party’s failure in a brief to cite

authority in support of an issue may be deemed waiver of that issue. See Iowa R.

App. P. 6.903(2)(g)(3) (stating the argument section must include “[a]n argument

containing the appellant’s contentions and the reasons for them with citations to

the authorities relied on and references to the pertinent parts of the record . . . [and

f]ailure to cite authority in support of an issue may be deemed waiver of that

issue”); see also State v. McCright, 569 N.W.2d 605, 607 (Iowa 1997); Metro.

Jacobson Dev. Venture v. Bd. of Rev. of Des Moines, 476 N.W.2d 726, 729 (Iowa
7

Ct. App. 1991). We conclude Aria waived his claim related to the issue of credit

for time served on parole. See State v. Root, 801 N.W.2d 29, 30 n.1 (Iowa Ct.

App. 2011) (finding defendant waived issues because of failure to follow the rules

of appellate procedure). Even if not waived, any parole time Aria served was not

for the same offense as he was sentenced to after his probation revocation and

would therefore not be subject to the protections of the Double Jeopardy Clause.

C. Probation credit. We move on to Aria’s argument related to a day-for-

day credit for probation time served on the forgery charge. It is based on his

reading of State v. Jepsen, 907 N.W.2d 495 (Iowa 2018). Jepsen was convicted

of two counts of sexual abuse, including a forcible felony. Id. at 497. His prison

sentence was suspended, and a five-year term of probation was ordered. Id. After

Jepsen served four years and four months on probation, the district court vacated

the suspended sentence for illegality4 and resentenced Jepsen to two concurrent

terms of incarceration. Id. The district court declined to credit the time spent on

probation against the new term of imprisonment. Jepsen cried foul and appealed.

The Jepsen court held, “when a defendant has been sentenced to a term of

probation and is subsequently resentenced to a term of incarceration for the same

offense, the Double Jeopardy Clause requires the defendant’s new prison term be

reduced by one day for each day spent on probation.” Id. at 504. The court

ordered Jepsen’s time spent on probation be fully credited against his corrected

sentence of incarceration. Id.

4 Provisions for deferred judgments, deferred sentences, and suspended
sentences do not apply to forcible felonies. Iowa Code § 907.3
8

Aria readily acknowledges the differences between his situation and

Jepsen’s. Jepsen received an illegal probationary sentence—a sentence which

was not permitted under the Iowa Code. Aria acknowledges he received a legal

sentence. The essence of Aria’s argument on appeal is that “[t]here really is no

logical reason why the dicta in Jepsen is not applicable to Aria.” The Jepsen

language he cites is:

The guarantee under the Double Jeopardy Clause relevant to
this case protects against the imposition of punishment greater than
that intended by the legislature. Thus, the requirement of a credit
under Pearce served to guard against the imposition of greater
punishment. This constitutional mandate of a credit was not
concerned with the risk that it might result in a lesser sentence, but
served to guarantee against the risk of a greater sentence.
Therefore, this guarantee necessarily accepts the risk of a lesser
sentence to ensure the guarantee of no greater sentence. Justice
can often be served by a context-specific inquiry, but such an inquiry
still needs a meaningful standard that ensures no constitutional
violation occurs. A credit that is inherently imprecise and arbitrary
can risk both greater and lesser punishment, but the Double
Jeopardy Clause does not. It demands a bright-line day-for-day
credit that eliminates all risk of greater punishment. Any standard
that does less must measure and quantify time by something other
than time.

Id. at 504.

The State counters that Aria’s sentence “is exactly what the legislature

intended.” It points out that Iowa Code section 907.3(3) provides, “A person so

committed who has probation revoked shall not be given credit for such time

served.”5 But that statutory provision concerns only situations when the

defendant’s sentence has been suspended and defendant is placed on probation.

5 The statute provides an exception. “However, a person committed to an alternate

jail facility or a community correctional residential treatment facility who has
probation revoked shall be given credit for time served in the facility.” Iowa Code
§ 907.3(3).
9

Iowa Code § 907.3(3). Aria did not receive a suspended sentence. He originally

received a deferred judgment and was placed on probation. His probation was

later revoked. Iowa Code section 907.3(1), not section 907.3(3), governs deferred

judgments. It provides, “Upon a showing that the defendant is not cooperating with

the program of probation or is not responding to it, the court may withdraw the

defendant from the program, pronounce judgment, and impose any sentence

authorized by law.” Iowa Code § 907.3(1)(b). Unlike section 907.3(3), there is no

mention of probation credits in section 907.3(1). We also note that Iowa Code

section 908.11(4) concerning probation violations provides that upon probation

revocation “if imposition of sentence was deferred, [the court] may impose any

sentence which might originally have been imposed.” Iowa Code § 908.11(4). Aria

makes no challenge to the constitutionality of the applicable statutes.

Aria’s sentence imposed on probation revocation was authorized by law and

one that could have been originally imposed. Upon revocation of his probation,

Aria was adjudged guilty of forgery, a Class “D” felony. The maximum sentence

for a Class “D” felony is five years. Iowa Code § 902.9(1)(e). And that’s what the

district court imposed after Aria’s probation revocation.

We go back to Jepsen. Although the language of Jepsen’s last holding

paragraph, set forth above, can be read broadly, the opinion contains significant

limiting language: “When an initial sentence is voided for illegality, any

punishments already endured must be credited against the corrected sentence.

We hold that all time spent on probation pursuant to a voided sentence must be

fully credited against a corrected sentence of incarceration.” Jepsen, 907 N.W.2d

at 497. And “[t]herefore, we conclude that when a defendant’s original sentence
10

is voided for illegality and the defendant is subsequently resentenced without being

again convicted, [North Carolina v.] Pearce, [395 U.S. 711 (1969)], requires courts

to fully credit any punishment already endured against the new sentence.” Id. at

500. Aria acknowledges that Jepsen “is particularly problematic for him.” Indeed,

Jepsen is significantly different than Aria’s circumstances. Jepsen had an illegal

probationary sentence imposed—one not permitted under the Code. Aria

acknowledges he received legal sentences. Aria was not resentenced after

imposition of an illegal sentence. Aria’s deferred judgment and probation were

statutorily permitted. His original sentence carried with it the consequences of

adjudication of guilt and imposition of a prison sentence if Aria violated the terms

of probation.

We will not expand the application of Jepsen beyond the circumstances

presented in it. We leave it to our supreme court to determine whether its holding

in Jepsen should be expanded. See Rosauer Corp. v. Sapp Dev., L.L.C., 856

N.W.2d 906, 907 (Iowa 2014) (noting court of appeals “appropriately” deferred to

supreme court on expansion of implied warranty). As an intermediate appellate

court, “[w]e are not at liberty to overrule controlling supreme court precedent.”

State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014).

IV. Conclusion.

After concluding there was no procedural error on the part of the PCR court

in dismissing the application, and that Aria’s sentences do not violate the Double

Jeopardy Clause, we find Aria’s arguments lack merit. We therefore affirm the

district court’s dismissal of Aria’s PCR application.

AFFIRMED.