State of Iowa v. Sean David Gordon , 921 N.W.2d 19 ( 2018 )

IN THE SUPREME COURT OF IOWA
No. 17–0395
Filed December 14, 2018
STATE OF IOWA,
Appellee,
vs.
SEAN DAVID GORDON,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Floyd County, DeDra L.
Schroeder, Judge.
The State seeks further review of a court of appeals decision
reversing the sentence of the defendant. DECISION OF COURT OF
APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant
Attorney General, and Rachel Ginbey, County Attorney, for appellee.
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WIGGINS, Justice.
On appeal, for the first time, the defendant raised the issue that the
court’s use of risk assessment tools in sentencing the defendant violated
his due process rights. The defendant also claimed the court used an
unproven or unprosecuted offense when it sentenced him. We transferred
the case to the court of appeals. The court of appeals reversed the
defendant’s sentence, finding no statutory authority for courts to utilize
sex offender risk assessment tools in sentencing. The State asked for
further review, which we granted. On further review, we find the defendant
failed to preserve error on his due process claim and the record is
insufficient to reach this claim on direct appeal. We also find the district
court did not use an unproven or unprosecuted offense when it sentenced
the defendant. Therefore, we vacate the court of appeals decision finding
no indication the legislature deemed sex offender risk assessment tools
relevant in imposing prison sentences, and we affirm the judgment of the
district court.
I. Factual and Procedural Background.
Twenty-four-year-old Sean Gordon met fourteen-year-old A.G. at a
family gathering. Gordon’s brother knew A.G.’s parents, and A.G. thought
of Gordon as a family friend. After meeting, Gordon and A.G. exchanged
Facebook and Snapchat messages, including nude photographs. In mid-
June 2016, Gordon drove A.G. into the countryside and Gordon
perpetrated a vaginal sex act against her. A.G. eventually told a counselor
what Gordon had done to her, and an investigation ensued.
On October 4, a Floyd County Deputy Sheriff interviewed Gordon at
the Floyd County Courthouse. During the interview, Gordon admitted to
having sex with A.G., who was fourteen years old at the time of the act.
The State charged Gordon with sexual abuse in the third degree, a class
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“C” felony in violation of Iowa Code sections 709.1, 709.4(1)(b)(3)(d), and
903B.1 (2016). Gordon originally pled not guilty, but on January 4, 2017,
Gordon filed a record of plea change and pled guilty to third-degree sexual
abuse. The district court set sentencing for March 13 and ordered the
department of correctional services to prepare a presentence investigation
report (PSI).
On January 22, while awaiting sentencing, Chickasaw County
officers arrested Gordon and charged him with possession of
methamphetamine. At the time of his arrest, Gordon was with a juvenile
female whose parents had reported her as missing.
On January 27, as part of the PSI, Gordon underwent a
psychosexual evaluation involving a file review, structured interview, and
testing. The Psychosexual Assessment Report (PAR) was prepared to
assess Gordon’s potential risk to the community, treatment needs, and
amenability to treatment. Among other things contained in the PAR were
Gordon’s scores from two risk assessment tools—the STATIC-99R and the
Sex Offender Treatment Intervention and Progress Scale (SOTIPS).
Gordon’s STATIC-99R score indicated he was a level III, average risk for
recidivism. His SOTIPS score indicated he was a high-risk individual for
recidivism.
Gordon’s sentencing hearing took place on March 13. At the
sentencing hearing, the district court judge stated, “The Court does have
in front of it a presentence investigation report. I have reviewed that as
well as the attached psychosexual assessment report.” The judge then
asked Gordon’s defense counsel, “Miss O’Mara, have you and your client
had an adequate opportunity to review that report?” Defense counsel
stated,
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Yes, Your Honor. We don’t object to its use except for in the
recommendation, the request of the Department of
Corrections to hold the Defendant pending placement since
he’s been released during the time between plea change and
sentencing, we don’t think that’s a legal part of the sentence.
But, otherwise, we don’t object to its use.
Gordon’s counsel asked for a deferred judgment and asked the court
not to consider Gordon’s January 22 arrest, which occurred between his
pleading guilty and his sentencing, as it was “just charges” and the
incident was unrelated to his current conviction. The State recommended
the court sentence Gordon to prison for a term not to exceed ten years.
The State argued that it should be able to consider all information in the
PSI in its recommendation, including the January 22 arrest.
The district court sentenced Gordon to prison for a term not to
exceed ten years.
Gordon filed a timely appeal. We transferred the case to the court
of appeals. The court of appeals found no indication the legislature
authorized the use of sex offender risk assessment tools in imposing prison
sentences. Thus, the court of appeals reversed the district court’s decision
and remanded for resentencing. The State sought further review, which
we granted.
II. Issues Raised on Appeal.
On appeal, Gordon did not raise the issue addressed by the court of
appeals. Thus on further review, we will not consider whether the
legislature deemed sex offender risk assessment tools relevant in imposing
prison sentences.
Gordon did raise three issues on appeal that we will consider on
further review. First, whether the district court violated Gordon’s due
process rights by consideration of and reliance on the sex offender risk
assessment tools in imposing its sentence. Second, if counsel did not
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preserve error on this issue, whether counsel provided ineffective
assistance of counsel by failing to object to the sentencing proceeding
because the court’s consideration of and reliance on the sex offender risk
assessment tools violated Gordon’s due process rights. Third, whether in
sentencing Gordon, the district court abused its discretion by relying on
an unproven or unprosecuted offense.
III. Whether the District Court Violated Gordon’s Due Process
Rights by Consideration of and Reliance on the Sex Offender Risk
Assessment Tools in Imposing Its Sentence.
Our appellate courts have held that a defendant need not first
challenge a district court’s abuse of discretion at the time of sentencing to
have the matter directly reviewed on appeal. See, e.g., State v. Ayers, 590
N.W.2d 25, 27 (Iowa 1999) (rejecting state’s claim that defendant failed to
preserve error “because [the defendant] did not claim at the sentencing
that the court had failed to exercise its discretion” in sentencing him);
State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998) (rejecting state’s claim
that defendant failed to preserve error, precluding his sentencing error
challenge); State v. Young, 292 N.W.2d 432, 435 (Iowa 1980) (rejecting
state’s error preservation argument regarding defendant’s claim the
district court considered an improper factor in determining the proper
sentence); State v. Thomas, 520 N.W.2d 311, 312–13 (Iowa Ct. App. 1994)
(rejecting state’s argument “that [the] defendant was required to object
during the sentencing” that the district court improperly considered
department of corrections’ parole policies in choosing appropriate
sentence). We stated,
It strikes us as 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. As our court of appeals noted in a similar
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situation, it would be “incongruous” to apply ordinary
preservation-of-error principles in this context.
Cooley, 587 N.W.2d at 754 (quoting Thomas, 520 N.W.2d at 313).
We have also held a defendant need not challenge the illegality of a
sentence in the district court at the time of sentencing because a defendant
can raise a claim of an illegal sentence at any time. State v. Lathrop, 781
N.W.2d 288, 293 (Iowa 2010).
These error preservation rules do not apply under the facts of this
case. On appeal, Gordon is 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. If it were that simple, we would examine the record and
determine whether the court abused its discretion in light of that record.
However, the error claimed by Gordon is more complex. He claims the use
of the risk assessment tools violates his due process rights.
Gordon and his attorney had access to the PSI report prior to
sentencing. After reviewing the report, the defendant did not object to the
court’s use of the risk assessment tools. See Iowa Code § 901.4 (“The
defendant or the defendant’s attorney may file with the presentence
investigation report, a denial or refutation of the allegations, or both,
contained in the report. The denial or refutation shall be included in the
report.”). Yet, Gordon raises his due process claim for the first time on
appeal.
Quoting State v. Drake, 259 N.W.2d 862, 867 (Iowa 1977), Gordon
argues the use of the risk assessment tools “manifest[s] inherent
unfairness and injustice, or [is] conduct which offends the public sense of
fair play.” He further claims “[a] defendant has a constitutionally due
process right to be sentenced on accurate information.” See Townsend v.
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Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 1255 (1948). Applying these
authorities, he claims the use of these risk assessment tools violates his
due process rights because he is unable to challenge the scientific validity
of these tools.
However, Gordon is not claiming his sentence is intrinsically
unconstitutional. If this were the case, he would not need to preserve error
for us to decide the issue on appeal. See State v. Bruegger, 773 N.W.2d
862, 871 (Iowa 2009). Rather, his claim is that the use of the risk
assessment tools violates his due process rights. There are distinctions
between claiming the sentence is intrinsically unconstitutional and
claiming errors in the proceedings prior to imposition of sentence. Id. at
871–72. Gordon’s claim is that the error occurred in the proceedings prior
to imposition of sentence. Because Gordon’s claim does not involve the
inherent power of the court to sentence him for his crime, the normal rules
of error preservation apply. Id.The distinction in Bruegger makes perfect sense under the facts of
this case. How are we to determine the due process implications of the
district court’s use of risk assessment tools, when we do not know
anything about the tools and Gordon failed to object to their use? If, as
Gordon argues, we need further evidence to determine whether the court
violated his due process rights by using these risk assessment tools, the
defendant must bring that matter to the court’s attention at the time of
sentencing. It is unfair to the State for us to reverse the district court’s
sentence for allegedly considering an improper factor 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.
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Another application of this error preservation rule is when a PSI
contains an inaccurate criminal record, the defendant fails to alert the
court as to the PSI’s inaccuracy, and evidence is needed to prove the
inaccuracy of the defendant’s criminal record. A court has a right to rely
on the information in the PSI when the defendant fails to object to the
information contained in the PSI. State v. Grandberry, 619 N.W.2d 399,
402 (Iowa 2000). Here, Gordon failed to object to the risk assessment tools
in the PSI and their use at sentencing. Under, these circumstances the
court had a right to rely on the assessments.
We find Gordon failed to preserve his due process claim for direct
appeal.
IV. Whether Counsel Provided Ineffective Assistance of Counsel
by Failing to Object to the Sentencing Proceeding Because the Court’s
Consideration of and Reliance on the Sex Offender Risk Assessment
Tools Violated Gordon’s Due Process Rights.
When counsel fails to preserve error at trial, we can reach an
ineffective-assistance-of-counsel claim on a direct appeal if the record is
sufficient to reach it. State v. Brubaker, 805 N.W.2d 164, 170 (Iowa 2011).
If the record is insufficient to allow for review on direct appeal, we allow
the defendant to raise the claim in a separate postconviction-relief action.
Id.In order to determine if the court’s consideration of and reliance on
the sex offender risk assessment tools violated Gordon’s due process
rights, it is necessary for us to understand the nature of the tools used by
the sentencing judge. This requires evidence. As one leading author in
the field noted, “[I]f risk assessment is a legitimate state exercise, it needs
to be cabined by principles that demand that the methods used to
implement it are legally germane, accurate, and fairly applied.”
Christopher Slobogin, Principles of Risk Assessment: Sentencing and
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Policing, 15 Ohio St. J. Crim. L. 583, 596 (2018). After all, “[o]ur law
punishes people for what they do, not who they are.” Buck v. Davis, 580
U.S. ___, ___, 137 S. Ct. 759, 778 (2017).
For these reasons, we cannot reach Gordon’s due process claim on
direct appeal. Of course, Gordon may bring a separate postconviction-
relief action claiming ineffective assistance of counsel based on due
process, if he so wishes.
V. Whether in Sentencing Gordon, the District Court Abused Its
Discretion by Relying On an Unproven or Unprosecuted Offense.
We review sentencing decisions for an abuse of discretion when the
sentence is within the statutory limits. State v. Seats, 865 N.W.2d 545,
552 (Iowa 2015). We will find an abuse of discretion when “the district
court exercises its discretion on grounds or for reasons that were clearly
untenable or unreasonable.” State v. Thompson, 856 N.W.2d 915, 918
(Iowa 2014). A ruling is untenable when the court bases it on an erroneous
application of law. Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa
2000). If the evidence supports the sentence, the district court did not
abuse its discretion. State v. Valin, 724 N.W.2d 440, 445 (Iowa 2006).
“A court may not consider an unproven or unprosecuted offense
when sentencing a defendant unless (1) the facts before the court show
the accused committed the offense, or (2) the defendant admits it.” State
v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). “In determining a
defendant’s sentence, a district court is free to consider portions of a
presentence investigation report that are not challenged by the defendant.”
Grandberry, 619 N.W.2d at 402. Finally, if a defendant challenges a
sentence claiming the court used an illegal factor at sentencing, a
defendant need not object at sentencing for us to address the issue on
appeal if the issue can be decided without further evidence.
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The PSI included information that Gordon “reports his last usage of
methamphetamine was on January 21 and 22, 2017” and he
“acknowledges his parents just discovered on January 22, 2017 that he
had a problem with methamphetamine . . . due to his recent arrest.” The
PSI also stated, “[T]he Defendant was arrested in Chickasaw County on
January 22, 2017 and charged with drug possession. Furthermore, the
Defendant was with a juvenile female that was reported as missing by her
parents.”
When sentencing Gordon, the district court referenced Gordon’s
January 22, 2017 arrest saying,
I also have concerns about the continued high-risk
behavior being in—being with a juvenile female who obviously
has got other issues going on, and a possession of
methamphetamine floating around there also. I get that it’s
not a conviction, and I distinguish that, and I understand
that, but I look at a person’s behavior after they’ve been
charged with something like this and if that’s a wake-up call
to them.
Gordon’s counsel objected to the district court’s consideration of the
charges.
In State v. Gonzalez, we held statements made by the defendant to
a PSI investigator concerning the defendant’s participation in the sale of
cocaine constituted an admission. 582 N.W.2d 515, 517 (Iowa 1998).
Thus, we found the court did not abuse its discretion in considering the
unproven charge when sentencing the defendant, because the defendant
did not make any material corrections to the PSI when he reviewed it. Id.Here, Gordon admitted to the PSI investigator that he used
methamphetamine on January 22, and his parents discovered he had a
substance abuse problem on January 22 due to his arrest. This
constituted an admission to his possession of methamphetamine on
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January 22. See id. Further, Gordon did not challenge the information in
the PSI concerning his arrest and drug possession charge, or the
circumstances surrounding his arrest in the company of a missing juvenile
female. Gordon also told the judge at the sentencing hearing that he had
the female juvenile in his car at the time the police stopped him.
Because Gordon admitted to possessing methamphetamine on
January 22, admitted to the district court that he was with the juvenile
when he was arrested, and failed to object to any of the information
contained within the PSI regarding his arrest, the district court did not
abuse its discretion in relying on the unprosecuted charge or surrounding
circumstances. See Grandberry, 619 N.W.2d at 402; see also State v.
Longo, 608 N.W.2d 471, 474 (Iowa 2000) (holding when a challenge is
made to a criminal sentence based on the court improperly considering
unproven criminal activity, “the issue presented is simply one of the
sufficiency of the record to establish the matters relied on”).
Accordingly, the court did not use an unproven or unprosecuted
offense when it sentenced Gordon.
VI. Disposition.
We vacate the court of appeals decision finding no statutory
authority for sentencing courts to utilize sex offender risk assessment tools
in imposing prison sentences. We do not reach Gordon’s due process
arguments because Gordon failed to raise the issue in the district court
and the record is insufficient to reach the issue on direct appeal. We also
find the district court did not use an unproven or unprosecuted offense
when it sentenced Gordon. Therefore, we affirm the judgment of the
district court. Gordon may bring a separate postconviction-relief action
claiming ineffective assistance of counsel based on due process, if he so
wishes.
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DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT AFFIRMED.
All justices concur except Appel, J., who concurs specially.
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#17–0395, State v. Gordon
APPEL, Justice (concurring specially).
Because of the lack of a contemporaneous objection and the need
for a more developed record, I concur in the result in this case. See State
v. Guise, ___ N.W.2d ___, ___ (2018) (Appel, J. concurring).