State v. Campie

• Docket Number: 22-1075
• Decision Date: 08 November 2023
• Parties: STATE OF IOWA, Plaintiff-Appellee, v. NICHOLAS LEE CAMPIE, Defendant-Appellant
• Court: Iowa Court of Appeals

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STATE OF IOWA, Plaintiff-Appellee, v. NICHOLAS LEE CAMPIE, Defendant-Appellant

No. 22-1075

Court of Appeals of Iowa

November 8, 2023

Appeal from the Iowa District Court for Clinton County, Stuart P Werling, Judge.

Defendant appeals his sentences following convictions for enticing a minor and lascivious acts with a child. Reversed and Remanded for Resentencing.

Kent A. Simmons, Bettendorf, for appellant.

Brenna Bird, Attorney General, and Thomas E. Bakke and Thomas J Ogden, Assistant Attorneys General, for appellee.

Considered by Greer, P.J., Ahlers, J., and Carr, S.J. ^[*]

CARR SENIOR JUDGE

Nicholas Campie appeals his sentences following convictions for enticing a minor and lascivious acts with a child. We conclude the district court abused its discretion by considering improper factors while sentencing Campie. The court considered matters that were not supported by the evidence. Campie is entitled to a new sentencing hearing before a different judge. We reverse Campie's sentences and remand for a new sentencing hearing.

I. Background Facts &Proceedings

Campie pled guilty to lascivious acts with a child, in violation of Iowa Code section 709.8(1)(b) (2020),^[1] a class "C" felony, and enticing a minor, in violation of section 710.10(2),^[2] a class "D" felony. The parties agreed there were no promises in regard to sentencing.

At the plea hearing, Campie did not admit to all of the minutes of testimony. For the charge of lascivious acts with a child, defense counsel clarified:

It's the agreement of the parties that he's entered the plea of guilty to subsection (b), so the portions of the Minutes that we are not contesting are those that relate to him permitting the individual to fondle or touch his genitalia. And it was our intention that the plea be to [section] 709.8(1)(b). Just to clarify that.

Campie gave a factual basis for the plea, stating:

I met a girl on Snapchat and I met up with her and-for a sex act and she turned out to not be the age that I thought she was. And- . . . . Okay. Well, after I picked her up, she like attempted to touch my penis, and it was-she did touch my penis. And after I got home, I didn't-I realized that she wasn't as old as she said she was, so I took her back home.

On the court's questioning, Campie stated he was eighteen years old at the time and the child was ten.

Campie also signed a written guilty plea to the charge of enticing a minor. The factual basis for this charge states:

On April 23, 2020, in Clinton County, Iowa, I met a girl on Snapchat. We made a plan for me to pick her up and go to my house to have sex. I did not take any steps to verify her age. I was 18 and she was under 13. She got in my vehicle for that purpose.

Campie accepted "the minutes of testimony as substantially true as to the elements of these charges, with the exclusion of the . . . statements" that he performed a sex act on the victim. The court accepted Campie's guilty pleas.

Prior to sentencing, Campie had a psychological evaluation with Dr. Luis Rosell. The report stated, "[Campie] reported not being aware of her age, and she agreed to the sexual encounter. By law, she cannot consent." Dr. Rosell found, "These appear to have been isolated incidents, and there is no pattern of this type of behavior." On testing,^[3] Campie was determined to have a low risk to reoffend. The report noted Campie was a teenager when the incident occurred.

When asked for his version of events for the pre-sentence investigation report (PSI), Campie stated, "I was present." The PSI stated Campie "fail[ed] to realize the seriousness of his actions and is clearly minimizing them."^[4] The PSI "strongly recommended" incarceration.

The sentencing hearing was held on May 26, 2022. Dr. Rosell testified Campie's risk to reoffend was low. Campie stated, "I wish that I took a different more responsible route rather than what is occurring but just like to apologize to the family is all."

The district court stated, "[T]he real issue is whether or not the defendant's a sexual predator because that's the issue that we need to confront in terms of sentencing." The court found that Campie knew at the time the victim entered his car that she was a child, stating, "There's simply no way that this defendant did not know that she was not eighteen years old, not fourteen years old." The court also noted Campie's lack of remorse, stating "he has not in fact expressed remorse, not in fact expressed an understanding of the seriousness, the real seriousness of the sexually predatory conduct that he engaged in."

Campie was sentenced to a term of imprisonment not to exceed ten years on the charge of lascivious acts with a child and five years on the charge of enticing a minor, to be served consecutively. He was ordered to pay fines and to serve a special sentence pursuant to section 903B.1. Campie appeals his sentences.

II. Standard of Review

A sentence that falls within the statutory limits is reviewed "with a strong presumption in its favor." State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). "To warrant reversal of a sentence, the record must show some 'abuse of discretion or some defect in the sentencing procedure.'" State v. Patten, 981 N.W.2d 126, 130 (Iowa 2022) (citation omitted). An abuse of discretion is shown when the court relies on a reason that is "clearly untenable or unreasonable." State v. Covel, 925 N.W.2d 183, 187 (Iowa 2018).

III. Sentencing

Campie contends the district court considered impermissible factors in sentencing him.^[5] He asserts that the court used uncharged, unprosecuted, and unproven conduct in crafting a sentence. Campie contends the court impermissibly considered whether he was a sexual predator, when this was not asserted by the State and there was no evidence to support such a finding. Campie also asserts that the court impermissibly determined Campie knew the victim was ten years old when he picked her up, when Campie did not make this admission in his guilty plea.

"A court abuses its discretion when it relies on impermissible factors to sentence a defendant." State v. West Vangen, 975 N.W.2d 344, 355 (Iowa 2022). "[A] defect in the sentencing procedure such as the trial court's consideration of impermissible factors" entitles the defendant to a new sentencing hearing. Id. (citation omitted). A court's reliance on an unproven offense is an impermissible factor. See State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001). "[W]e will set aside a sentence and remand a case to the district court for resentencing if the sentencing court relied upon charges of an unprosecuted offense that was neither admitted to by the defendant nor otherwise proved." State v. Sailer, 587 N.W.2d 756, 762 (Iowa 1998). The defendant has the burden to show the court relied upon improper evidence. Id. A defendant should be resentenced even if the improper evidence "was merely a 'secondary consideration' of the court." State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000) (citation omitted).

The Iowa Supreme Court has stated:

We have previously held that minutes of testimony attached to a trial information do not necessarily provide facts that may be relied upon and considered by a sentencing court. [State v. ]Black, 324 N.W.2d [313,] 316 [(Iowa 1982)]. Minutes can be used to establish a factual basis for a charge to which a defendant pleads guilty. Id. "The sentencing court should only consider those facts contained in the minutes that are admitted to or otherwise established as true." Id. Where portions of the minutes are not necessary to establish a factual basis for a plea, they are deemed denied by the defendant and are otherwise unproved and a sentencing court cannot consider or rely on them. See id.

State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998). "Information contained in the minutes of testimony is not a permissible sentencing consideration if unproven." State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014).

The district court stated:

[T]he real issue is whether or not the defendant's a sexual predator because that's the issue that we need to confront in terms of sentencing.

The defendant-to the extent that the defendant was misled by a date through Snapchat, I suspect that that conduct happens frequently, regularly and if not daily around the world. People present themselves to be other than what they are. Regardless, the defendant was an adult at the time and the victim in this case was a ten-year-old. There's just simply no way that this defendant did not know that she was not eighteen years old, not fourteen years old. When she walked out that door she is ten years old. She's a child. The defendant could have and should have simply rolled down the window and said, I'm sorry. This isn't going to work, and left and we wouldn't all be here today but he didn't. He decided to proceed and pursuant to his plea of guilty he at least allowed if not encouraged this ten-year-old child to perform a sex act on him. All of these things he did knowingly and intelligently and voluntarily realizing that the other person in the conduct was a child.

The State contends the district court properly used the terms "sexual predator" and "sexually predatory offense" because lascivious acts with a child is defined as a sexually predatory offense under section 901A.1(1)(a).^[6] The categorization of the offense as a sexually predatory offense is relevant when a person has a prior conviction for a sexually predatory offense, resulting in enhanced sentencing. See Iowa Code §901A.2. Campie did not have any prior sex-related offenses so the issue of enhanced sentencing for sexually predatory offenses under section 901A.2 did not arise. For this reason, there was no need for a determination of whether Campie was a "sexual...