from the Iowa District Court for Black Hawk County, Andrea J.
Dryer (motion to dismiss) and David P. Odekirk (trial and
defendant appeals her conviction of delivering or possessing
with the intent to deliver a simulated controlled substance
as a second offender.
W. Manning of Manning Law Office, PLLC, Urbandale, for
J. Miller, Attorney General, and Zachary C. Miller, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
undercover law enforcement agent contacted Samella Simone
Bailey about purchasing two ounces of crack cocaine. Bailey
agreed to sell the agent crack cocaine for a specified price.
The two met at a predetermined location, and Bailey handed
the agent a bag of suspected crack cocaine. The substance was
field tested and turned out not to be crack cocaine.
State charged Bailey with delivery or possession with intent
to deliver a simulated controlled substance (more than forty
grams of simulated cocaine base) as a second offender.
See Iowa Code §124.401(1)(a)(3)
(2017). The crime was a class "B"
felony. Bailey moved to dismiss the charge on the ground the
statute required an actual rather than simulated controlled
substance and she should have been charged under section
124.401(1)(a)(8), which was a class "C"
felony. The district court denied the motion.
Bailey waived her right to a jury trial, and the district
court found her guilty on the minutes of testimony. The court
sentenced Bailey to a prison term not exceeding twenty-five
years, with a one-third mandatory minimum. On appeal, Bailey
contends (1) the district court erred in denying her motion
to dismiss and (2) the sentence was illegal.
Motion to Dismiss
argues the structure of chapter 124 together with its plain
language required dismissal of the trial information. In her
view, the chapter "generally defines the criminal
activity," then "define[s] the punishments for
varying aggravating circumstances," and finally,
"defines the penalty for a violation of the chapter
without aggravating circumstances." She asserts all the
penalty provisions except one require "an actual
controlled substance." She contends the single exception
is section 124.401(1)(c)(8), which carries a penalty assigned
"without regard to . . . the existence of an actual
argument is appealing at first blush. See Iowa Code
§124.401. But it ignores key language in the provision
under which she was charged:
1. Except as authorized by this chapter, it is unlawful for
any person to manufacture, deliver, or possess with the
intent to manufacture or deliver, a controlled substance,
a counterfeit substance, a simulated controlled substance, or
an imitation controlled substance . . . .
a. Violation of this subsection, with respect to the
following controlled substances, counterfeit substances,
simulated controlled substances, or imitation controlled