State of Iowa v. Jesse Arnold Hunter

IN THE COURT OF APPEALS OF IOWA
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No. 24-1999
Filed April 1, 2026
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State of Iowa,
Plaintiff–Appellee,
v.
Jesse Arnold Hunter,
Defendant–Appellant.
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Appeal from the Iowa District Court for Boone County,
The Honorable Ashley Beisch, Judge.
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AFFIRMED
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Martha J. Lucey, State Appellate Defender, Cory Engle (until withdrawal)
and Melinda J. Nye, Assistant Appellate Defenders, attorneys for appellant.

Brenna Bird, Attorney General, and Joshua Henry, Assistant Attorney
General, attorneys for appellee.
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Considered without oral argument
by Chicchelly, P.J., and Buller and Langholz, JJ.
Opinion by Chicchelly, J. Concurrence dubitante by Buller, J.

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CHICCHELLY, Judge.

Jesse Hunter challenges the district court’s entry of a no-contact order
after a jury convicted him of assault causing bodily injury. At sentencing, the
district court sentenced him to one year in jail with all but thirty days
suspended and placed Hunter on probation. At sentencing, the district court
terminated the previously entered temporary no-contact order between
Hunter and the victim and replaced it with a five-year permanent no-contact
order. Hunter argues the new no-contact order was an illegal sentence
because the district court failed to make factual findings, explain its
reasoning, or outline the evidentiary standards it based its decision on. Upon
our review, we affirm the district court’s entry of a permanent no-contact
order.

At the threshold, the State challenges our jurisdiction to hear this
appeal. Iowa Rule of Criminal Procedure 2.72(1) provides “an appeal may
only be taken by the defendant and only upon a judgment of conviction.”
And Iowa Code section 814.6 (2024) provides criminal defendants a right of
appeal from final judgment of sentence. So, we must decide whether the no-
contact order is a part of Hunter’s sentence.

“In determining whether a provision can be challenged as an illegal
sentence, the relevant question is whether the provision was included in the
sentencing order.” State v. Boruch, No. 14-1757, 2016 WL 4801325, at *5
(Iowa Ct. App. Sep. 14, 2016). Here, the sentencing order indicated “the No
Contact Order previously entered is extended by separate order.” And
because the no-contact order was extended as part of Hunter’s sentencing
order, we conclude it was part of his sentence. And we find there is an appeal
as a matter of right based on the phrasing of the district court’s order in this

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case. See Iowa Code § 814.6. So, we conclude we have jurisdiction over
Hunter’s direct appeal.

Next, the State contests error preservation because Hunter never
objected to the entry of the no-contact order in the district court. Hunter
responds that the entry of the no-contact order is a procedurally defective
sentence. See State v. Chawech, 15 N.W.3d 78, 83–84 (Iowa 2024) (holding
procedurally defective sentences are among the exceptions to error
preservation). Given this appeal concerns a challenge to a no-contact order
entered at sentencing, we find error preservation was not required given
recent guidance from our supreme court. See State v. Kieffer, 17 N.W.3d 651,
662 (Iowa 2025) (considering a challenge to a firearm prohibition contained
in a no-contact order included in the defendant’s sentence absent an
objection in district court); State v. Hall, 740 N.W.2d 200, 202 (Iowa Ct. App.
2007) (considering a constitutional challenge to no-contact order included in
the defendant’s sentence over the state’s argument that the issue was not
preserved because it was not presented in district court); see also State v.
Hallock, 31 N.W.3d 36, 42–43 (Iowa 2026) (“[W]e have observed that it is
ʻexceedingly unfair to urge that a defendant, on the threshold of being
sentenced, must question the court’s exercise of discretion or forever waive
the right to assign the error on appeal.’” (quoting State v. Cooley, 587 N.W.2d
752, 754 (Iowa 1998))).

Turning to the merits, we review the entry of a permanent no-contact
order under Iowa Code section 664A.5 for correction of errors at law. State
v. Epping, 878 N.W.2d 277, 278 (Iowa Ct. App. 2016); see also State v. Demers,
No. 23-0367, 2024 WL 960915, at *2 (Iowa Ct. App. Mar. 6, 2024). At
sentencing, the district court terminated the previously entered no-contact
order and entered a new five-year permanent no-contact order. The

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procedure for the entry of this permanent no-contact order is outlined in
Iowa Code section 664A.5:
If a defendant is convicted of, receives a deferred judgment for, or pleads
guilty to a public offense referred to in section 664A.2, subsection 1, or is
held in contempt for a violation of a no-contact order issued under section
664A.3 or for a violation of a protective order issued pursuant to chapter
232, 235F, 236, 236A, 598, or 915, the court shall either terminate or
modify the temporary no-contact order issued by the magistrate. The
court may enter a no-contact order or continue the no-contact order
already in effect for a period of five years from the date the judgment is
entered or the deferred judgment is granted, regardless of whether the
defendant is placed on probation.

And Hunter was convicted of assault causing bodily injury which is a public
offense because it “is prohibited by statute and is punishable by fine or
imprisonment.” See Iowa Code § 701.2. So, we conclude the district court
had the authority to terminate, modify, or enter a no-contact order for a
period of five years. See Iowa Code § 664A.5.

Next Hunter argues the district court was required to make fact-
findings or explain its reasoning for entering the permanent no-contact order.
In advancing his argument, he relies on the evidentiary standard outlined by
the supreme court for extensions of no-contact orders in Iowa Code section
664A.8. See Vance v. Iowa Dist. Ct., 907 N.W.2d 473, 482 (Iowa 2018). But
section 664A.8 requires the district court to extend a no-contact order
“unless the court finds that the defendant no longer poses a threat to the
safety of the [protected party].” And section 664A.5 requires no such
showing. Compare Iowa Code § 664A.5 with § 664A.8. The only condition
precedent in section 664A.5 is a conviction, deferred judgment, guilty plea,
or contempt finding. Based on the text of the statute, the district court would
likely have to make factual findings if it found the defendant “no longer poses
a threat to the safety of the [protected party]”and terminated the no-contact

4
order. See Iowa Code §§ 664A.5, .8. Finally, Hunter was given notice that
the State was seeking a permanent no-contact order and an opportunity to
challenge the no-contact order at sentencing, so we find no due process
violation. Stogdill v. City of Windsor Heights, 991 N.W.2d 719, 730 (Iowa
2023) (describing procedural due process as requiring “notice and an
opportunity to be heard on the issue”). Because that condition was met, we
find the district court did not commit legal error in entering a permanent no
contact order. Therefore, we affirm Hunter’s sentences.

AFFIRMED.

Langholz, J., concurs; Buller, J., concurs dubitante.

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BULLER, Judge (dubitante).

I agree with the majority that no legal error appears on this record. And
I understand why the majority concludes Hunter did not have to preserve
error on his no-contact-order challenge, given recent pronouncements from
the supreme court. But I do not believe those pronouncements can be
reconciled with longstanding principles of Iowa law and appellate procedure
or our role as a court for the correction of errors at law. I therefore write
separately dubitante,1 to explain why I doubt deciding unpreserved errors is
consistent with my oath to abide by the Iowa Constitution and lawful
enactments of the elected branches.

In our state, “[i]t 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.” Meier v. Senecaut, 641 N.W.2d 532, 537
(Iowa 2002). Preservation of error is required by our governing statutes and
our constitution, both of which limit appellate jurisdiction to the “correction
of errors at law.” See Iowa Const. art. V, § 4; Iowa Code § 602.5103(1)
(2024). And both our court and the supreme court have recently reaffirmed
in controlling cases that we cannot correct an “error” that the district court
never made or had the opportunity to correct. See State v. Hernandez, 20
N.W.3d 502, 509 (Iowa Ct. App. 2025) (en banc); State v. Gomez Medina, 7
N.W.3d 350, 355 (Iowa 2024). This principle is not new—it dates back to
before the modern state constitution. See Danforth, Davis & Co. v. Carter, 1
Iowa 546, 553 (1855) (identifying the principles underlying the error-

1
See Jason J. Czarnezki, The Dubitante Opinion, 39 Akron L. Rev. 1, 2
(2006) (“A dubitante . . . opinion indicates that the judge doubted a legal
point but was unwilling to state that it was wrong.” (citation omitted)).

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preservation rules and declaring “[o]ur courts should enforce this system . . .
to prevent surprise and prejudice” to courts and litigants).

Here, Hunter’s complaint about the no-contact order is that the
district court should have known to make fact-findings and explain its
reasoning for entering the permanent no-contact order at sentencing—even
though he never asked the court to do so. The transcript reveals that, after
the State requested the court enter the no-contact order, Hunter never
resisted, objected, or asked for any of the things he now complains of on
appeal. This is a textbook unpreserved error. And, following our vast array of
cases holding that failure to timely object waives a claim, this should end the
analysis. See State v. Rutledge, 600 N.W.2d 324, 326 (Iowa 1999) (“Our cases
are legion that hold error is waived unless preserved by a timely trial
objection.”). But, unfortunately for judges and practitioners that depend on
clarity in the case law, the supreme court’s recent decisions have eroded the
bedrock principles of error preservation when it comes to sentencing. And
this erosion has led to outcomes like the majority opinion.

Our tale begins with the supreme court’s recognition that a criminal
defendant should not have to object mid-stream to the exercise of discretion
in sentencing decisions (e.g. prison or probation), based on the supposition it
would be “exceedingly unfair to urge that a defendant, on the threshold of
being sentenced, must question the court’s exercise of discretion or forever
waive the right to assign the error on appeal.” State v. Cooley, 587 N.W.2d 752,
754 (Iowa 1998). Setting aside that surely this same concern has occurred to
every Iowa lawyer compelled to object and potentially irritate a trial judge or
jury in order to preserve error, the rule captured in Cooley was at least a
bright-line exception. It has no bearing on the no-contact-order argument at

7
issue here, which is entirely about process rather than the court’s ultimate
discretionary decision.

Independent of cases like Cooley, our rules have long recognized that
“illegal sentences” are void and can be corrected at any time. See Iowa R.
Crim. P. 2.24(5)(b). The best early-modern distillation of this rule was in
State v. Ohnmacht, where the attorney general moved to correct an illegal
sentence after a district court—without objection by the county attorney—
placed an offender on probation after conviction for a forcible felony. 342
N.W.2d 838, 843 (Iowa 1983). That sentence was illegal on its face. Id. at 842.
As the supreme court put it, “the district court contravened the legislative
mandate in several respects,” by entering a void judgment not authorized by
statute. Id. In finding the claim properly before it, the supreme court held:
“Void sentences are not subject to the usual concepts of waiver, whether
from a failure to seek review or other omissions of error preservation.” Id. at
843. Again, this was a bright-line exception allowing challenges to facially
illegal sentences not authorized by statute. See also State v. Hess, 533 N.W.2d
525, 527 (Iowa 1995) (“When a court imposes a sentence which statutory law
does not permit, the sentence is illegal, and such a sentence is void and we
will vacate it.”).

Recognizing the need for clarity to preserve the bright-line rules by the
early aughts, the supreme court in Tindell v. State reinforced that the illegal-
sentence exception applied only to sentences “not authorized by statute,”
which are “beyond the jurisdiction of the court and therefore void.” 629
N.W.2d 357, 359–60 (Iowa 2001). The court expressly held that procedural
defects did not fall under this illegal-sentence rubric and were bound by the
normal principles of error preservation. Id. at 360. And the court warned: “If
we were to expand that concept [the illegal-sentence exception] to encompass

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redress for underlying procedural defects, as well, it would open up a virtual
Pandora’s box of complaints with no statutorily prescribed procedures for
their disposition nor any time limits for their implementation.” Id. The
Tindell court’s fears, it turns out, were well placed—though it would take
more than twenty years of case law for those fears to fully toboggan down the
slippery slope.

In the first decade after Tindell, the supreme court largely adhered to
the view that the illegal-sentence exception was “narrowly interpreted.”
State v. Lathrop, 781 N.W.2d 288, 292 (Iowa 2010). Synthesizing
developments in the case law, the Lathrop court used slightly different
language to cast the exception as governing sentences that are “inherently
illegal, whether based on constitution or statute.” Id. at 293 (quoting State v.
Bruegger, 773 N.W.2d 862, 872 (Iowa 2009)). Again, at least conceptually a
bright-line rule. And consistent with Ohnmacht’s recognition that only
facially unauthorized sentences can be corrected without preserved error. See
342 N.W.2d at 843.

For another decade, the court abided by the distinction between
illegal-sentence challenges and procedurally-defective sentences. A good
example of this line-drawing was in State v. Gordon, where the court held that
a defendant who failed to object to the use of a risk assessment in the district
court could not raise such a challenge for the first time on appeal. 921 N.W.2d
19, 24 (Iowa 2018). The court emphasized that “Gordon [wa]s not arguing
the district court abused its discretion by imposing a sentence that is too
harsh, illegal, or relies on a factor whose illegality is clear without the
consideration of further evidence,” but instead he was “claiming errors in the
proceedings prior to imposition of sentence.” See id. at 23. Consistent with
Tindell and the broader corpus of case law, the court explained that the

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former did not require preservation of error and the latter did. See id. at
22–24. And so, the court concluded, it was “unfair” to reverse the district
court “when the court needed more information to determine if the factor it
considered was improper and the defendant failed to bring that issue to the
attention of the court at the time of sentencing.” Id. at 24. The law remained
in more or less this state for another decade,2 until things came to a head—
and the Tindell court’s warning flashed bright red—in two recent cases.

First, in State v. Chawech, the court cited the revised rules of criminal
procedure to assert for the first time that the illegal-sentence exception
applies to all claims that “a sentence . . . could not have been lawfully
imposed.” 15 N.W.3d 78, 85 (Iowa 2024) (quoting Iowa R. Crim.
P. 2.24(5)(b)). Two problems. First, I have trouble imagining a legal brief with
a sentencing challenge that doesn’t assert a problem with whether the
sentence is “lawful”; this is by definition an exception that swallows the rule.
Second, the supreme court when adopting revised rule 2.24 expressly
commented that “the revised rule is not intended to affect existing law
regarding the authority of appellate courts to correct illegal sentences.” Iowa
R. Crim. P. 2.24(5)(a) cmt. This comment was not present in the proposed
rules filed by the court in March 2020; it was instead added in 2022, after the
public comment period3—indicating it was added in response to concerns
from either interested parties or the General Assembly. I am deeply

2
During this time the General Assembly also expressed a preference for not
deciding unpreserved errors on appeal by amending Iowa Code section 814.7, shifting all
ineffective-assistance claims to postconviction relief proceedings rather allowing courts to
decide them unpreserved on direct appeal. See 2019 Iowa Acts ch. 140, § 31.
3
Compare Proposed Amendments: Iowa Court Rules of Criminal Procedure
(2020), https://perma.cc/Q5CG-Y3RB, with Amendments to the Iowa Court Rules of
Criminal Procedure (2022), https://perma.cc/ND7F-V3SW.

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concerned by any claim that the rule supports a change in the law when the
supreme court expressly promised the opposite in response to public
comment. Based in part on this misstatement of the avowed purpose in
revising rule 2.24, the court in Chawech declared that “both illegal-sentence
challenges and procedural-defect challenges are excepted from our error
preservation requirements.” 15 N.W.3d at 85. And the court turned the
longstanding description of the illegal-sentence exception on its head,
asserting instead that “most sentencing challenges are not subject to error
preservation rules.” Id. As I think my survey of the past cases demonstrates,
this is not historically accurate.

Despite the apparent sea change—declaring an exception to actually
be the rule—in State v. Hallock this term, the supreme court asserted that
“Chawech didn’t make new law.” 31 N.W.3d 36, 42 (Iowa 2026). Another
statement hard to square with the evolution of the case law. And made even
more confusing by the court not overruling Ohnmacht, Tindell, Gordon, or the
numerous other published and unpublished cases that restate those
decisions’ principles. The court went on to deploy its new understanding of
the illegal-sentence doctrine to allow a defendant to challenge a victim impact
statement for the first time on appeal despite the opportunity to object below
and failure to do so. Id.

That brings us to this case. Hunter’s claim is that the district court was
allowed to enter a no-contact order but had to follow certain procedures first.
This is plainly not the Cooley type of sentencing-decision discretion where
we excuse the lack of objection. It’s not like the kind of facially unauthorized
sentence at issue in Ohnmacht or Lathrop. But it is exactly the kind of
procedural defect the Tindell court wisely closed the box on, and Gordon re-
affirmed requires a timely objection below. There is no honest way to square

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this case law with Chawech and Hallock. But I also cannot fault the majority
for feeling trapped by the two recent decisions, even though they are a
material departure from established law.

As worker bees on an intermediate appellate court, we are bound to
implement the supreme court’s decisions as best we can. See State v. Beck,
854 N.W.2d 56, 64 (Iowa Ct. App. 2014). But we also took an oath to follow
the law, including the Iowa Constitution and the lawful enactments of the
General Assembly. Iowa Code § 63.6. Because I doubt eviscerating the error-
preservation rules, as Chawech and Hallock seem to compel, is consistent with
fidelity to the code and constitution, I feel I must issue this separate dubitante
writing. Absent those recent cases, I would conclude—as the Tindell and
Gordon courts did—that challenges to procedurally defective sentences must
be preserved and the failure to do so bars relief.

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