from the Iowa District Court for Black Hawk County, Kellyann
M. Lekar, Judge.
defendant challenges his sentence for failure to comply with
the sex offender registry.
Messamer of Parrish Kruidenier Dunn Boles Gribble Gentry
Brown & Bergmann LLP, Des Moines, for appellant.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
1997, Kenneth Shadlow was convicted of sexual exploitation of
a minor. As part of his sentence, he was required to comply
with the sex offender registry. In 2016, Shadlow pleaded
guilty to failure to comply with the sex offender registry
(second offense), in violation of Iowa Code sections 692A.104
and 692A.111 (2016), as a habitual offender, in violation of
Iowa Code sections 902.8 and 902.9. The district court
sentenced him to an indeterminate term of incarceration not
to exceed fifteen years, suspended the sentence, and placed
him on probation.
direct appeal, Shadlow claims continued application of the
registry requirements to him is an illegal sentence imposed
in violation of the ex post facto clause. "The ex post
facto clauses of the federal and state constitutions forbid
enactment of laws that impose punishment for an act that was
not punishable when committed or that increases the quantum
of punishment provided for the crime when it was
committed." State v. Pickens, 558 N.W.2d 396,
397 (Iowa 1997).
claim is not preserved for appellate review. This court is a
statutory court authorized to correct legal error.
See Iowa Code § 602.5103 (2018) (providing the
court of appeals "constitutes a court for correction of
errors at law"). Shadlow failed to present his claim to
the district court. There is thus no decision to review.
See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa
2002) ("It is a fundamental doctrine of appellate review
that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.").
contends this court can nonetheless address the claim on the
merits because his claim is a challenge to an illegal
sentence, which can be raised at any time. See State v.
Lathrop, 781 N.W.2d 288, 293 (Iowa 2010)
("Therefore, the defendant's claim may be urged on
appeal notwithstanding trial counsel's failure to object
to imposition of the sentence of lifetime parole.
Accordingly, we will consider the defendant's ex post
facto challenge to this aspect of his sentence directly and
not under an ineffective-assistance-of-counsel
framework."). Shadlow's contention fails.
Shadlow styles his claim as a challenge to his sentence in
this case, he is actually challenging his conviction in this
case. The sentence in this case is the habitual offender
sentence imposed pursuant to section 902.8 following the
defendant's conviction for failure to comply with the sex
offender registry. Here, the defendant does not contend his
sentence for violating the sex offender registry was
unlawful. Instead, he contends he could not legally be
convicted of violating the sex offender registry because the
registry requirement has now become unconstitutional. The
defendant is really challenging the legality of his 1997
sentence and not the sentence in this case. Our supreme court
has already rejected the same claim as a mis-styled ex post
We also do not believe that the statute increases the
punishment for a crime after its commission. While
Seering's prior offenses may serve as a factual basis for
application of the statute, it is the violation of the
residency restriction statute itself that makes him subject
to a new punishment. We have previously rejected similar ex
post facto claims based on alleged increases in punishment
for offenders previously convicted of offenses that make them
subject to a new criminal penalty for a new statutory
violation. The residency restriction statute makes Seering
potentially subject to further criminal penalty based on his
status as a sex offender, but does not 'enhance the
sentence imposed by the court for the offense originally
committed'-namely, his prior sex offenses. Instead, the
residency restriction carries its own penalty for a violation
of the statute based on conduct subsequent to the prior
criminal activities of an offender.
State v. Seering, 701 N.W.2d 655, 669 (Iowa 2005)
even if the claim were properly before this court, the claim
fails. Controlling cases have rejected materially
indistinguishable claims. See Smith v. Doe, 538 U.S.
84, 105-06 (2003) (holding a similar law was a "civil
regulatory scheme" and its retroactive application did
not violate the ex post facto clause); Seering, 701
N.W.2d at 668 ("Considering all these factors, we cannot
conclude that the statute imposes criminal punishment under
this record. Notwithstanding, even if it was sufficiently
penal in nature, we do not believe the statute punishes
action that has occurred prior to the statute's enactment
or increases the punishment for a crime after its
commission."); Pickens, 558 N.W.2d at 400
("We conclude that Iowa's sex offender registration
statute, Iowa Code ...