IN THE COURT OF APPEALS OF IOWA

No. 22-1325

Filed June 7, 2023

STATE OF IOWA,

Plaintiff-Appellee,

vs.

SHOL JOSEPH MABENG,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Coleman McAllister, 

Judge.

Shol Joseph Mabeng appeals, asserting the district court lacked authority 

to order him to remain in jail pending an opening in a residential correctional facility. 

APPEAL DISMISSED.

Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy, Assistant 

Appellate Defender, for appellant.

Brenna Bird, Attorney General, and Zachary Miller, Assistant Attorney 

General, for appellee.

Considered by Bower, C.J., and Tabor and Greer, JJ.
2

BOWER, Chief Judge.

Shol Joseph Mabeng appeals, asserting the district court lacked authority 

to order him to remain in jail pending an opening in a community-based residential 

facility. The State argues the appeal is moot because Mabeng is no longer in jail. 

We dismiss the appeal.

In February 2021, Mabeng pleaded guilty to first-degree theft and 

possession of marijuana. The court deferred judgment and placed him on 

probation for two years. In October, it was alleged Mabeng violated the terms of 

his probation. Mabeng later stipulated to having violated the terms of his probation 

and received a thirty-day contempt sentence; his probation was continued. 

Other reports of probation violations were filed in April and July 2022, and 

Mabeng incurred a new eluding charge. At an August 5 hearing, Mabeng admitted 

the probation violations and pleaded guilty to the new charge of eluding. The 

parties filed a stipulation, which defense counsel explained as including a joint 

recommendation that Mabeng serve two days in jail on a possession of marijuana 

charge with credit for time served.1 With regard to the deferred judgment for theft:

[T]here is a general agreement from the parties. As the court knows, 

we’re going to ask for a slightly different disposition regarding part of 

this. But other than—the defendant’s deferred judgment would be 

revoked. He would have a ten-year prison sentence. That would be 

suspended. 

He would be continued on the probation he’s currently on. 

Along with that he would have to complete a substance abuse 

evaluation, mental health evaluation, complete the Fort Des Moines 

or, as we are going to request, another halfway or three-quarters 

house, just complete that placement. It would be the minimum fine,

surcharge. And then the only other piece we would be arguing is 

whether Mr. Mabeng would have to remain in or out of custody 

pending any further placement.

1 This appeal does not challenge that sentence.
3

The parties agreed the court was not bound to follow the joint recommendation.

The parties acknowledged that a bed at the Fort Des Moines residential

facility was not currently available and would not likely be available for three to six 

months. Mabeng requested he be released with GPS monitoring pending 

placement at either Fort Des Moines or another residential facility. The State 

requested Mabeng remain in jail until a bed became available at Fort Des Moines 

because of his prior probation violations and the new eluding charge. 

The court imposed the jointly recommended sentence, suspended the tenyear term, and placed Mabeng on probation subject to the agreed-upon conditions 

for a period of three years. The district court ordered Mabeng “remain in jail until 

space is available at the assigned facility.” Mabeng appeals, asserting the court 

was without authority to order he remain in jail pending facility availability.2

2 The cases the defense cites in support of this proposition are based upon 

instances in which the defendant was not confined to jail at the time of his 

sentencing. See State v. Cottrell, No. 14-0594, 2014 WL 7343448, at *2 (Iowa Ct. 

App. Dec. 24, 2014) (“Where a defendant is not confined to jail at the time of 

sentencing and is placed on probation as a result of sentencing, the court may not 

confine that person to jail pending arrangements being made for his housing or 

employment. Instead, the court is only permitted to order him to remain in the 

same county and report his whereabouts to the county sheriff.”); accord State v. 

Lame, No. 15-1666, 2016 WL 1703018, at *1 (Iowa Ct. App. Apr. 27, 2016) (noting 

State conceded illegal sentence per Cottrell). But see State v. Davis, 544 N.W.2d 

453, 456 (Iowa 1996) (“Both section 901.7 (governing incarceration) and section 

907.8 (governing probation) authorize the district court to provide for temporary 

custody before transfer to the custody of the entity or person responsible for a 

defendant’s custody, care, and supervision. As we said, we have interpreted 

broadly the temporary custody provision in section 901.7. We likewise interpret 

broadly the temporary custody provision in section 907.8.”); State v. Fetner, No. 

14-0363, 2014 WL 5862141, at *1–2 (Iowa Ct. App. Nov. 13, 2014) (affirming 

court’s authority to require defendant to remain in jail pending placement at the 

residential facility per Davis). 
4

“We begin with the threshold question of mootness.” Vasquez v Iowa Dep’t 

of Hum. Servs., ___ N.W.2d ___, ___, 2023 WL 3397460, at *4 (Iowa 2023) (noting 

“[c]ourts exist to decide cases, not academic questions of law” and “a court will 

generally decline to hear a case when, because of changed circumstances, the 

court’s decision will no longer matter” (internal citations omitted)). “[C]ourts do not 

decide cases when the underlying controversy is moot.” Rhiner v. State, 703 

N.W.2d 174, 176 (Iowa 2005). “The key in assessing whether an appeal is moot 

is determining whether the opinion would be of force or effect in the underlying 

controversy.” State v. Avalos Valdez, 934 N.W.2d 585, 589 (Iowa 2019) (citation 

omitted). 

Mabeng acknowledges he has been transferred from jail to placement at 

the Fort Des Moines Residential Facility. But he claims 

the issue raised is not wholly academic to Mabeng, as it would impact 

any jail fee obligations ($50 a day) tied to the statutorily unauthorized 

requirement that he be held in jail for the days between the August 

5, 2022 sentencing and the November 29, 2022 date that a bed 

became available at the residential facility.

The State argues there is no indication in this record Mabeng has been ordered to 

pay jail fees.3 

“[J]usticiability doctrines define the judicial role; they 

determine when it is appropriate for the . . . courts to review a matter 

and when it is necessary to defer to the other branches of 

government.” Erwin Chemerinsky, Constitutional Law: Principles 

and Policies 49 (4th ed. 2011). “The constitutional requirement of 

ripeness is basically a manifestation of the rule that courts should not 

address hypothetical questions.” 3 Chester James Antieau & William 

J. Rich, Modern Constitutional Law § 48.30, at 610 (2d ed. 1997). “A 

case is ripe for adjudication when it presents an actual, present 

controversy, as opposed to one that is merely hypothetical or 

3 The State also notes the sheriff would need to file a separate action under Iowa 

Code section 356.7(4), at which time Mabeng could raise the issue. 
5

speculative.” State v. Wade, 757 N.W.2d 618, 627 (Iowa 2008) 

[(citation omitted)].

Taft v. Iowa Dist. Ct., 879 N.W.2d 634, 638 (Iowa 2016) (first two alterations in 

original). Because the issue of confinement is moot and there is no “actual, present 

controversy” as to fees, we dismiss the appeal. 

APPEAL DISMISSED.