Fortune v. State

• Decision Date: 09 April 2021
• Docket Number: No. 19-1721,19-1721
• Citation: 957 N.W.2d 696
• Parties: Ron FORTUNE, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

957 N.W.2d 696

Ron FORTUNE, Appellant,

v.STATE of Iowa, Appellee.

No. 19-1721

Supreme Court of Iowa.

Submitted February 16, 2021

Filed April 9, 2021

Philip B. Mears (argued) of Mears Law Office, Iowa City, for appellant.

Thomas J. Miller, Attorney General, and John R. Lundquist (argued), Assistant Attorney General, for appellee.

Appel, J., delivered the opinion of the court, in which all justices joined.

APPEL, Justice.

In this case, Ronny Fortune appeals a decision of the district court denying his application under Iowa Code section 692A.128 (2018) to modify the requirement that he register as a sex offender. The question of the proper method of handling such modification applications has been a recurrent issue in the district courts.

In 2003, Fortune was convicted of three counts of lascivious acts with a child in violation of Iowa Code section 709.8 (2003). He was sentenced to three consecutive five-year sentences and two years of work release or parole. Although he entered an Alford plea to the criminal charges, Fortune told the evaluating professional conducting his risk assessment that he engaged in inappropriate sexual conduct with a seven-year-old child over the course of approximately two years.

As a result of his convictions, Fortune is a tier III sex offender. See Iowa Code § 692A.102(1)(c )(12) (2018). A tier III offender is required to report to the sheriff's office four times a year. Id. § 692A.108(1)(c ). Because his offense was against a minor, he is subject to the exclusion zone restrictions set forth in Iowa Code section 692A.113. Finally, because his lascivious acts conviction qualified as an "aggravated offense," Fortune is subject to lifetime registration as a sex offender. Iowa Code §§ 692A.101(1)(a )(4), .106(5).

Fortune filed an application for modification of his sex offender registration requirements. After holding an evidentiary hearing, the district court denied Fortune's modification application. The district court denied a posttrial motion to reconsider, enlarge, or amend the findings. Fortune appealed. For the reasons expressed below, we vacate the order of the district court and remand for further proceedings.

I. Background Facts and Proceedings.

A. Introduction. After his conviction for three sexual offenses, Ronny Fortune was sentenced to three consecutive prison terms totaling fifteen years, with two years of work release. Fortune served his prison sentence, completed some sex offender treatment in prison, and was transferred to work release on June 9, 2009. Fortune was paroled on December 16. In January 2010 Fortune completed all sex offender treatment. He successfully completed parole and was discharged from his sentence on January 3, 2011.

On February 6, 2013, Fortune was convicted of disorderly conduct. The charge originated as a domestic abuse assault. On June 16, 2017, Fortune was convicted of failure to comply with the sex offender registry requirements. The charge arose from his failure to report an alias Facebook profile he created after Facebook took down the profile in his name as a result of a report to Facebook from Fortune's wife's ex-husband that Fortune was a sex offender.

On August 3, 2018, Fortune filed an application to modify his sex offender registration requirements in Humboldt County pursuant to Iowa Code section 692A.128.

B. Department of Corrections Risk Assessments.

1. Overview. The Iowa Department of Corrections (DOC) and the Department of Correctional Services (DCS) utilize three tools to assess the risk posed by sexual offenders: the STATIC-99R, the Iowa Sex Offense Risk Assessment (ISORA), and the STABLE 2007. DOC and DCS policy requires that all three tests be used in modification assessments.

In addition to these three tests, there are methods for "combined" scores. The STATIC-99R can be combined with the ISORA, and again with the STABLE 2007 for a composite score which is also generally described in terms of risk. Thus, in the usual workup in a modification matter, DOC and DCS provide five assessments based on tests or a combination of tests.

In this case, DCS's assessment for Fortune based on the above tools was as follows:

STATIC-99R	Average risk
ISORA	Low risk
STATIC-99R/ISORA Combined	Low risk
STABLE 2007	Low risk
STATIC-99R/STABLE 2007 Combined	Low risk.

While the general category descriptors are helpful, the tests merit further examination for a full understanding of their meaning.

2. STATIC-99R. Two features of the STATIC-99R suggest that the general description of "average risk" may be overstated in Fortune's case. First, the age of the offender is calculated at the time of release from prison. At that time, Fortune was under 34.9 which earned him a point on the assessment and tended to make his evaluation less favorable. At the time of the hearing, of course, Fortune was well over the age of 40.

In addition, the STATIC-99R assesses risk at the time of release from prison. An offender's risk of reoffense declines the longer the offender has been released into the community without another sex offense. Conviction of a nonsexual criminal offense, however, tends to lessen this decreased risk of reoffense. For the STATIC-99R, the rate of reoffense for a person whose risk is rated as average is 4–8%.

3. ISORA. ISORA is a newer tool that was developed by the DOC in 2010. On this test, Fortune scored a 2, which put him in the low-risk range to reoffend. A DOC study found that individuals in the low-risk category have less than a 1% recidivism rate for another sexual offense.

4. STABLE 2007. STABLE 2007 is an additional scoring measure that is essentially a clinical impression based on the offender's interview with a qualified assessor. Fortune scored a 3 on that test. A score of 3 carries a low-risk designation.

5. Combined scores. According to DCS, combined scoring more effectively determines the recidivism risk level for males. On both combined scores, Fortune was classified as low risk.

C. Testimony at the District Court Hearing.

1. Ashley Lappe. Ashley Lappe, a psychologist for the First Judicial District who prepared Fortune's assessment, testified at the hearing. She confirmed many details about the testing methodology described above. She indicated that the risk for sexual reoffending in general is cut in half for every five years of unsupervised release without sexual reoffending. She testified that Fortune's registration violation bothered her to some degree but that it would not impact the scores on the ISORA or STATIC-99R.

2. Ronny Fortune. Fortune testified that since his release from prison, he received a degree in criminal justice, training as a paramedic, and a degree in culinary arts and hospitality. He has been working full time since his release from prison in a glove factory, as a sales executive, and more recently in the culinary and hospitality sector.

Fortune married in 2013 and has four stepchildren with his wife. Prior to their marriage, Fortune's wife's ex-husband discovered that Fortune was on the registry and threatened to report them for child endangerment. Fortune and his wife met with a lawyer and they decided to get married. By getting married, Fortune could attend to the children without fear of a child endangerment offense.

Fortune testified about his violation of the sex offender registry provision in 2017. He stated that his wife's ex-husband reported him to Facebook and Facebook deleted his account. Fortune then created a Facebook profile using his mother's maiden name without notifying the sheriff.

Fortune testified that he volunteered as a paramedic for a year. During that time, he tried to become a volunteer firefighter. Due in part to the publicity surrounding his registration violation, he was told to wait until he was off the registry before becoming a volunteer firefighter.

D. Ruling of the District Court. The district court denied Fortune's application. In denying the application, the district court noted that Fortune's sex offender risk assessment test scores were not uniformly low risk, that he committed two offenses since his release from prison, that the circumstances of his marriage were alarming because of the presence of children in the home, that the nature of the underlying offense was appalling, that Fortune did not present a stipulation to modification from the DCS, that Fortune lacked remorse for the underlying offense and showed resentment of registration, and that Fortune did not present a compelling reason for release from the registry.

II. Standard of Review.

Iowa Code section 692A.128 provides that the district court may consider modification of the sex offender registration obligation if certain criteria are met. This initial threshold determination is reviewed for correction of errors at law. State v. Iowa Dist. Ct. , 843 N.W.2d 76, 79–80 (Iowa 2014). Any other questions involving interpretation of Iowa Code chapter 692A are also reviewable for correction of errors at law. See Schaefer v. Putnam , 841 N.W.2d 68, 74 (Iowa 2013).

Once the initial threshold is met, the district court may grant modification. Iowa Code § 692A.128(5). As will be explained in greater detail below, the term "may" ordinarily vests the trial court with discretion. See, e.g. , State v. Adams , 554 N.W.2d 686, 690 (Iowa 1996) ("The use of the word ‘may’ shows the legislature's intention to confer a discretionary power, not to impose a requirement."). "An abuse of discretion occurs when a district court exercises its discretion on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Wilson , 878 N.W.2d 203, 210–11 (Iowa 2016). "A ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." State v. Gomez Garcia , 904 N.W.2d 172, 177 (Iowa 2017) (quoting Graber v. City of Ankeny , 616 N.W.2d 633, 638 (Iowa 2000) (en banc)).

III. Discussion.

A. Statutory Framework. The provision for modification of sex offender registry requirements...