IN THE COURT OF APPEALS OF IOWA

No. 19-2001

Filed July 21, 2021

STATE OF IOWA,

Plaintiff-Appellee,

vs.

HUBERT TODD, JR.,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, David P. 

Odekirk, Judge.

Hubert Todd Jr. appeals the denial of his application to modify sex offender 

registration requirements. WRIT SUSTAINED AND REMANDED WITH 

DIRECTIONS.

John G. Daufeldt of Daufeldt Law Firm, P.C., Conroy, for appellant.

Thomas J. Miller, Attorney General, John R. Lundquist, Assistant Attorney 

General, and Kyle Crocker, Student Legal Intern, for appellee.

Heard by Doyle, P.J., and Mullins and May, JJ.
2

MULLINS, Judge.

I. Background

In March 1998, sentence was imposed upon Todd’s conviction of thirddegree sexual abuse. He was sentenced to an indeterminate term of incarceration 

not to exceed ten years and was ordered to register as a sex offender.1 The 

sentencing order did not require that he participate in a sex offender treatment 

program (SOTP). Todd’s sentence was discharged and he was released from 

prison in October 2002. The notice of release issued by the department of 

corrections (DOC) also did not note a requirement that Todd complete a SOTP. 

In November 2018, Todd filed an application to modify sex offender registry 

requirements, citing Iowa Code section 692A.128(6) (2018). The application noted 

he was still required to register as a sex offender until 2023. It also asserted he 

complied with the criteria for modification: (1) the date of his registry requirement 

was more than five years prior,2(2) he completed all SOTPs required of him, (3) 

he was not incarcerated, and (4) he was not under the supervision of the judicial 

district department of correctional services (DCS). See Iowa Code § 

692A.128(2)(a), (b), (d), (6). Todd requested the court to order the DOC to perform 

a risk assessment. See id. § 692A.128(2)(c), (6).

The DCS filed a risk assessment in October 2019. The assessment noted 

Todd met the requirements for modification contained in Iowa Code section 

 

1 Todd’s conviction and sentence were affirmed by the supreme court in 1999. The 

supreme court’s opinion is included in our record on appeal, but it does not appear 

to be available in legal research databases.

2 This durational requirement applies to tier two and three offenders; the durational 

requirement for tier one offenders is two years. Iowa Code § 692A.128(2)(a).
3

692A.128(2)(a), (c), and (d). As to the requirement contained in Iowa Code section 

692A.128(2)(b)—that Todd “has successfully completed all [SOTP]s that have 

been required”—neither the “Yes” or “No” boxes were marked by DCS. The 

assessment noted: 

Internal Movement Classification documentation dated October 31, 

2001 state the following:

It should be noted that the Iowa Board of Parole has 

recommended that inmate Todd participate in . . . the [SOTP]. 

Inmate Todd has informed the committee on several occasions that 

he is appealing his case, and therefore not willing to participate in the 

[SOTP] . . . .

. . . .

Inmate Todd was informed on this date that the only 

recommendation this committee would support would be a 

transfer . . . to participate in the [SOTP]. Inmate Todd indicated that 

he is currently appealing his case and it is in court. He is not willing 

to accept responsibility for his offense and not considered a suitable 

candidate for treatment at this time.

Other documentation, dated June 5, 2002, provided: “Inmate Todd, on advice of 

counsel, has maintained that he does not have a sexual problem and is unwilling 

to participate in [SOTP], as his case is still in court.” The assessment noted Todd 

was placed on probation in February 2004 for new, non-sex offenses, in relation 

to which he participated in a dual diagnosed offender program from October 2005 

to May 2006, completing all treatment requirements. He also completed a 

domestic violence program while in prison in 2016.

After Todd reported to the probation office in February 2019 and requested 

to initiate modification of his registry requirement, “DCS was unable to find 

confirmation of him having formally completed treatment.” “It was suggested” by 

DCS that Todd get an evaluation and complete treatment. Todd underwent an 

evaluation, and “the evaluator noted that there was nothing indicated that would 
4

warrant the need for treatment specifically to address sexual deviancy.” The 

assessment concluded on this point as follows: “Mr. Todd has not completed a 

‘treatment program’ but has been assessed . . . to not need treatment specifically 

focusing on his past sexually acting out behavior at this time.”

The matter proceeded to hearing, at which Michael Schreck, the treatment 

services manager for DCS, testified. As to the SOTP requirement contained in 

section 692A.128(2)(b), based on the information he gathered, he decided to 

“leave that up to the court’s discretion to determine” whether the requirement was 

satisfied. At the conclusion of the hearing, Todd’s counsel argued being evaluated 

with no ensuing recommendation for completion of a SOTP satisfied the statute. 

The State argued the statute was not satisfied. The State alternatively argued the 

court should, based on Todd’s criminal history, exercise its discretion under section 

692A.128A(5) and (6) and deny modification. In its ensuing brief, the State argued 

the DOC permissibly acted within its discretion in requiring Todd to participate in a 

SOTP. Todd responded he was never required to participate in treatment. In its 

ensuing order, the court concluded a SOTP had been required of Todd but not 

completed. So the court denied Todd’s modification application, and Todd 

appealed. 

Following the filing of Todd’s notice of appeal, our supreme court, on its own 

motion, directed Todd to file a statement addressing “whether he has a right of 

appeal from the challenged order and/or whether review is by some other means” 

and, if invoking appellate jurisdiction by some other means, file a statement in 

support of such a request. In his ensuing statement, Todd argued the court’s order 

denying his application amounted to a sentencing order so he was appealing as a 
5

matter of right. See Iowa Code § 814.6(1)(a). The State responded the application 

amounted to a motion to correct an illegal sentence, the only avenues for appellate 

jurisdiction of the same are discretionary review under section 814.6(2)(e) or 

petition for writ of certiorari under Iowa Rule of Appellate Procedure 6.107(1)(a), 

and Todd was not requesting either appropriate avenue. The supreme court 

ordered 

the issue of whether the appellant has a right of appeal or whether 

review is by discretionary review or by writ of certiorari . . . shall be 

submitted with the appeal. The parties shall brief the issue regarding 

the proper form of review, in addition to any other issues the parties 

with to raise.

II. Standard of Review

“[A] ‘court has inherent power to determine whether it has jurisdiction over 

the subject matter of the proceedings before it.’” State v. Propps, 897 N.W.2d 91, 

97 (Iowa 2017) (citation omitted). “[I]f a case is initiated by a notice of appeal, but 

another form of review is proper, we may choose to proceed as though the proper 

form of review was requested by the defendant rather than dismiss the action.” Id.

“Under Iowa Code section 692A.128 a district court may consider 

modification of a sex offender's registry requirement when certain mandatory 

criteria are met. Determining whether the mandatory criteria are met and any other 

questions of interpretation of section 692A.128 are reviewed for correction of errors 

at law.” Becher v. State, 957 N.W.2d 710, 714 (Iowa 2021); accord Fortune v. 

State, 957 N.W.2d 696, 702–03 (Iowa 2021).
6

III. Analysis

A. Jurisdiction

While the State has followed the supreme court’s direction to brief the issue 

of jurisdiction on appeal, Todd has not. Despite this failure, we have a 

responsibility to police our jurisdiction. Bribriesco-Ledger v. Klipsch, 957 N.W.2d 

646, 649 (2021). We proceed to the issue.

First, we disagree with Todd’s assertion in his pre-submission filing that the 

order denying his application is appealable as a matter of right as a final judgment 

of sentence; the order was not a judgment, it was a decision denying the 

application. See Propps, 897 N.W.2d at 96.3 

The State argues, while the code is unclear, the statute “contemplates that 

section 692A.128 modification proceedings be filed and conducted independently 

from an offender’s case of conviction” in “an original civil action.” But the State 

recognizes the statute confers jurisdiction on the district court to consider 

modification, and the issue of whether authority to consider the same lies in the 

criminal or civil court was not raised below. See Van Sloun v. Agan Bros., Inc., 

778 N.W.2d 174, 183 (Iowa 2010) (“[A] court’s lack of authority to hear a particular 

matter may be waived if it is not raised below, whereas an absence of subject 

matter jurisdiction may be raised . . . at any time.”).4 

 

3 Assuming the application was a motion to correct (really modify) a sentence, as 

the State frames it, the proper procedure for invoking appellate jurisdiction to 

challenge the same would have been through an application for discretionary 

review or petition for writ of certiorari. Propps, 897 N.W.2d at 96–97. So the order 

was not appealable as a matter of right. 

4 Section 692A.128(1) simply requires applications for modification to be filed in 

the district court, and the “provision grants the district court authority to modify 

registration obligations if certain conditions are met.” State v. Iowa Dist. Ct., 843 
7

In any event, the State goes on to concede, “because Todd’s claim is in 

essence that the district court exceeded its jurisdiction or otherwise acted illegally 

in denying his motion for modification,” he was allowed to commence an original 

certiorari action in the supreme court, and we may choose to address his notice of 

appeal as a petition for writ of certiorari. See Iowa Rs. App. P. 6.107(1)(a), .108; 

Propps, 897 N.W.2d at 97. We agree. So we treat Todd’s notice of appeal and 

brief as a petition for writ of certiorari, we grant the writ, and we proceed to the 

merits. See Propps, 897 N.W.2d at 97.

B. Merits

On appeal, Todd simply argues the court erred in concluding he failed to 

complete a “required” SOTP. The claim is that the court committed legal error in 

interpreting the statute. Among other criteria, in order for a sex offender to qualify 

for modification of his or her registration requirement, “[t]he sex offender [must 

have] completed all [SOTP]s that have been required.” Iowa Code § 692A.128(1), 

(2)(b) (emphasis added). 

Here, Todd’s 1998 sentence required him to register as a sex offender, but 

it did not require him to participate in a SOTP. Todd discharged his sentence and 

was released from prison in 2002. The notice of release issued by the DOC also 

did not note a requirement that Todd complete a SOTP. The assessment 

 

N.W.2d 76, 77 (Iowa 2014). While the issue of whether authority to consider 

modification lies in the criminal court or civil court has been waived by the State, it 

appears other applicants have pursued modification by initiating an original civil 

action, see, e.g., Becher, 957 N.W.2d at 712; Fortune, 957 N.W.2d at 700, while

other applications have been filed and heard in the underlying criminal proceeding. 

See, e.g., Iowa Dist. Ct., 843 N.W.2d at 78–79; State v. Wallace, No. 15-1448, 

2016 WL 6636681, at *1–2 (Iowa Ct. App. Nov. 9, 2016). 
8

completed in conjunction with Todd’s modification proceeding only disclosed he 

was variously “recommended” to participate in a treatment program prior to his 

discharge and release. Similarly in 2019, DCS merely “suggested” that Todd 

undergo a sex offender treatment evaluation and treatment. Todd underwent an 

evaluation but was assessed to not need treatment. 

To determine whether Todd qualifies for modification, we find it necessary 

to engage in statutory interpretation. “We start with the often-repeated goal of 

statutory interpretation which is to discover the true intention of the legislature.” 

Gardin v. Long Beach Mortg. Co., 661 N.W.2d 193, 197 (Iowa 2003). The “first 

step in ascertaining the true intention of the legislature is to look to the statute’s 

language.” Id. “If the statute is unambiguous, we look no further than the statute’s 

express language.” Kay-Decker v. Iowa State Bd. of Tax Review, 857 N.W.2d 

216, 223 (Iowa 2014) (quoting Rolfe State Bank v. Gunderson, 794 N.W.2d 561, 

564 (Iowa 2011)). “If, however, the statute is ambiguous, we inquire further to 

determine the legislature’s intent in promulgating the statute.” Id. “A statute is 

ambiguous when reasonable minds could disagree as to its meaning.” Naumann 

v. Iowa Prop. Assessment Appeal Bd., 791 N.W.2d 258, 261 (Iowa 2010).

The State invites us to go beyond the plain language of the statute, noting 

that “the purpose of Iowa Code chapter 692A is clear: ‘to require registration of sex 

offenders and thereby protect society from those who because of probation, 

parole, or other release are given access to members of the public.’” But we find 

the relevant and operative language of the statute—“required”— to be clear and 

unambiguous, so “we look no further than the statute’s express language.” KayDecker, 857 N.W.2d at 223 (quoting Gunderson, 794 N.W.2d at 564). 
9

The State goes on to argue: “Substantial evidence in the record did support 

the district court’s findings that the [DOC] in fact required Todd to complete 

[treatment] and that to date, Todd has repeatedly refused to participate in that and 

any other sex offender treatment programming.” The State highlights Schreck’s 

testimony that, based on his assessment of the reports noted in his assessment, 

the DOC required Todd to complete a SOTP. But the highlighted reports only note 

completion of a SOTP was merely “recommended.” At the hearing on Todd’s 

application, during the State’s cross-examination of Schreck, the following 

exchange occurred:

Q: On or about March 11th of 1998 he was ordered to serve 

a ten-year prison term? A: That’s correct.

Q: And he was ordered to complete sex offender treatment. 

Is that a yes? A: Yes, it is, based on that report. Yes, that’s what it 

says.

Q: And in your report it looks like there’s a number of times 

where the [DOC] tries to engage Mr. Todd in completion of that 

requirement.

[objection by defense, which was overruled.]

Q: Mr. Schreck, it looks like, at least in your report, you 

document a number of instances where Mr. Todd is offered these 

services and he refuses, correct? A: That’s correct. I was provided 

access to the prison records and these are reflections of those 

records.

Q: And at least in these reflection of the records, there’s two 

or three instances where the [DOC] tries to engage him in those 

services? A: That’s based on the information, that’s correct.

Q: And he continually refuses to comply? A: In the incidents 

that are cited, Mr. Todd refused each time.

(Emphasis added.) In oral argument, the State argued Schreck’s reference to a 

report was to a phantom order for SOTP in Todd’s prison file, which is not part of 

the record. We disagree with that interpretation of the testimony. Our review 

discloses Schreck’s reference to a report was to his assessment, not some rogue 

order as the State suggests. This is further illuminated by the fact that the State 
10

went on to question Schreck about his report and the various times Todd was 

engaged about participating in SOTP. So a review of the assessment discloses 

Schreck’s affirmative answer when questioned whether Todd was “required” to 

complete SOTP was an incorrect mischaracterization of the contents of the 

assessment. As noted, the assessment only disclosed Todd was merely 

“recommended” and “suggested” to complete SOTP. We reject the State’s 

characterization of the evidence.

So the question before us is whether the terms “recommend” or “suggest”

have the same plain meaning as “require.” We summarily answer that question in 

the negative. Compare Recommend, Merriam-Webster, https://www.merriamwebster.com/dictionary/recommend (“To suggest an act or course of action.” 

(emphasis added)), and Suggest, Merriam-Webster, https://www.merriamwebster.com/dictionary/suggest (“To mention or imply as a possibility.”), with 

Require, Merriam-Webster, https://www.merriam-webster.com/dictionary/require

(“To demand as necessary or essential.”). Nor did the DCS’s post-discharge 

“suggestion” that Todd complete treatment amount to a requirement. The record 

before us does not show the DOC documented a requirement Todd undergo a 

SOTP.

At the end of the day, there is not substantial evidence Todd was ever 

“required” to complete any sex offender treatment programming. Because no such 

programming was required section 692A.128(2)(b) was satisfied,5 and the district 

 

5 We are troubled that the parties neither briefed nor raised at oral arguments the 

issue of legal authority for the State’s position that Todd could be required to 

complete a SOTP. If his sentence was classified as a “Category ‘A’ sentence” at 

the time he served his sentence, he could have earned a reduction of sentence if 
11

court erred in denying Todd’s application for modification for want of satisfaction 

of that criteria based on a mere recommendation he complete a SOTP.

6

 

IV. Conclusion

We sustain the writ of certiorari, and we remand the matter to the district 

court to exercise its discretion under section 692A.128(5) and (6) in determining 

whether to grant modification. See Becher, 957 N.W.2d at 714 (noting a 

discretionary decision on whether to grant modification follows a determination that 

the criteria for modification are met); Fortune, 957 N.W.2d at 703 (same).

 

he participated satisfactorily in a SOTP. Iowa Code § 903A.2(1)(a)(4) (1998). The 

board of parole recommended he complete a SOTP, which we believe would have 

made him eligible for parole earlier. Todd did not complete a SOTP and was not 

granted parole, but he served his sentence and was discharged by the DOC. Thus, 

the authority of the board of parole and DOC expired as to his sex offense. At the 

time of his discharge in 2002, Todd was, however, required to comply with sex 

offender registry requirements and subsequent changes in registry requirements. 

See generally id. § 692A.2.

In 2005, the legislature adopted Iowa Code section 903B.1, which required 

a special sentence, including conditions of parole and compliance with rules. 2005 

Iowa Acts, ch. 158, § 39. Section 903B.1 does not apply to Todd because it was

adopted after he was sentenced and had, in fact, discharged his sentence. In 

2009, the legislature later amended Iowa Code chapter 692A and added section 

692A.128, as set forth in this opinion. 2009 Iowa Acts ch. 119, § 28. The interplay 

between section 903B.1 and section 692A.128 provides statutory authority for 

requiring a SOTP for post-incarcerated sex offenders as a precondition to seeking 

modification of sex offender registry requirements. Because he had discharged 

his sentence prior to passage of section 903B.1, and that section does not apply 

to Todd, we find no such statutory or regulatory authority for the DOC or anyone 

else to require Todd complete a SOTP after he discharged his sentence in 2002. 

The section 692A.128(2)(b) provision that the offender must have completed all 

SOTPs “that have been required” cannot apply to Todd because (1) any authority 

the DOC or BOP had to require him to complete SOTP had expired, and (2) he is 

not subject to section 903B.1 parole requirements. From and after the passage of 

section 692A.128, there has been no legal authority for anyone to “require” Todd 

to complete SOTP.

6 The criteria contained in section 692A.128(2)(a) and (d) are clearly satisfied. The 

requirement contained in section 692A.128(2)(e) does not apply. As to the 

requirement contained in section 692A.128(2)(c), the court specifically found the 

risk assessment classified Todd as being at a low risk to reoffend. 
12

WRIT SUSTAINED AND REMANDED WITH DIRECTIONS.

Doyle, P.J., concurs; May, J., dissents.
13

MAY, Judge (dissenting).

The question here is whether the district court erred in determining Hubert 

Todd had been required to complete a sex-offender treatment program (SOTP). 

We review this factual determination “for substantial evidence.” State v. Wallace, 

No. 15-1448, 2016 WL 6636681, at *2 (Iowa Ct. App. Nov. 9, 2016) (concluding 

we review “the underlying fact findings for substantial evidence”). “Substantial

evidence review is a deferential standard of review; the question is not whether the 

evidence supports a different finding but whether the evidence supports the finding 

actually made.” State v. Smith, 926 N.W.2d 760, 762 (Iowa 2019). Here, the First 

Judicial District Department of Correctional Services treatment services manager 

Mike Schreck testified without objection that Todd had been ordered to complete 

SOTP. In my view, this sworn testimony constitutes substantial evidence to 

support the district court’s finding that Todd had been required to complete SOTP. 

Accordingly, I would affirm. I respectfully dissent.