State v. Gordon, 17-0395

Citation919 N.W.2d 635 (Table)
Decision Date02 May 2018
Docket NumberNo. 17-0395,17-0395
Parties STATE of Iowa, Plaintiff-Appellee, v. Sean David GORDON, Defendant-Appellant.
CourtCourt of Appeals of Iowa

919 N.W.2d 635 (Table)

STATE of Iowa, Plaintiff-Appellee,
v.
Sean David GORDON, Defendant-Appellant.

No. 17-0395

Court of Appeals of Iowa.

Filed May 2, 2018


Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney General, for appellee.

Heard En Banc.

TABOR, Judge.

Sean Gordon pleaded guilty to the statutory rape of a fourteen-year-old girl. For this first offense, he received a prison sentence not to exceed ten years. He now asks to be resentenced, alleging the district court improperly decided he should be incarcerated based, in part, on his "risk level scores" derived from two sex-offender risk assessment tools included in a psychosexual evaluation appended to the presentencing investigation (PSI) report. Because we find no statutory authority for using these scores for this purpose, we reverse and remand for resentencing.

I. Facts and Prior Proceedings

Fourteen-year-old A.G. knew twenty-four-year-old Gordon as a family friend. They went disc golfing with other family members. But Gordon took a sexual interest in the teenager and encouraged her to exchange nude photographs with him. Eventually Gordon drove A.G. to a remote location where he perpetrated a vaginal sex act against her.

After A.G. disclosed the incident to her mother, the Floyd County Attorney charged Gordon with sexual abuse in the third degree, a class "C" felony, in violation of Iowa Code section 709.4(1)(b)(3)(d) (2016) (criminalizing a sex act between a fourteen year old and a defendant four or more years older). Gordon pleaded guilty to the felony offense. As part of the plea agreement, both the defense and the State were free to advocate for any available sentence. The district court accepted Gordon’s plea and ordered the district department of corrections to complete a PSI report.

According to the PSI report, Gordon was charged with possession of methamphetamine two weeks after the plea proceeding. The report noted,

[S]ince the Defendant has [pleaded] guilty in this case he has continued to engage in high risk behavior. This is evident by the fact the 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.

As part of the presentence investigation, Gordon’s probation officer referred him for a psychosexual assessment. A staff psychologist for the department of correctional services performed the evaluation in late January 2017. The psychologist explained her report "was prepared to assess Mr. Gordon’s potential risk to the community, treatment needs, and amenability to treatment." At the conclusion of her report, the psychologist noted her report was "prepared expressly for the Second District Department of Correctional Services." The psychologist’s report included two sex-offender risk assessment tools: the STATIC-99R and the SOTIPS (Sex Offender Treatment Intervention and Progress Scale).

The report described the STATIC-99R as an instrument based on ten "empirically driven risk factors" which was designed to "assist in the prediction of sexual and violent recidivism for sexual offenders."1 The instrument scored offenders in five risk categories. The instrument’s description contained the following caution: "The recidivism estimates provided by the STATIC-99R are group estimates based on reconvictions and were derived from groups of individuals with these characteristics. As such, these estimates do not directly correspond to the recidivism risk of an individual offender." The psychologist scored Gordon as an "average risk" on the STATIC-99R.

The report described the SOTIPS instrument as "a sixteen-item statistically derived dynamic measure designed to aid in assessing risk, treatment, and supervision needs, and progress among adult male sex offenders."2 The SOTIPS scores fall into three risk categories: low, moderate, and high. The psychologist recorded Gordon’s score in the high-risk category.

The author of the PSI report recommended Gordon receive a suspended sentence and, as a term of his probation, that he be placed at the BeJe Clark Center, a community-based residential facility, for 180 days or until maximum benefits were achieved. The recommendation for community supervision related to the author’s concern that Gordon needed a more structured environment than street probation considering his post-plea arrest and his reluctance to take full responsibility for the offense.

At the March 2017 sentencing hearing, A.G.’s mother gave a victim impact statement, telling the court that her daughter was in therapy and had significant "emotional scars" from the crime. The State recommended an indeterminate prison term of ten years. As a basis for its recommendation, the State cited Gordon’s Chickasaw County arrest:

And during that arrest, he had a different minor female who was a runaway from Floyd County in his vehicle. And that provides a lot of concerns to the State as far as the safety of the community. It shows the types of choices that he’s continuing to make and shows that there’s nothing to stop him from reoffending in the future.

Gordon’s counsel objected to the court’s consideration of the Chickasaw County arrest "as those are just charges." Counsel asked for a deferred judgment and street probation, noting her client had no criminal history and was starting to address his substance-abuse problem. In his allocution, Gordon took responsibility for his sex offense, saying he knew what he did was wrong. Gordon told the court he had moved back in with his parents, was staying away from his drug-using friends, and was trying to get a job. Gordon also addressed his post-plea arrest, admitting he had a juvenile in his vehicle, but saying he did not know she was a runaway and contending he was just giving her and her boyfriend a ride.

In deciding what sentence to impose, the district court looked at Gordon’s age, his prior record, his family circumstances, his financial condition, and his employment history. The court also considered Gordon’s "potential for rehabilitation" and "if that can be accomplished in the community versus a more structured environment like prison." The court noted Gordon had not consistently taken responsibility for committing the sex offense, signaling he may not be "amenable" to treatment. The court also expressed concern about Gordon’s "continued high-risk behavior being with a juvenile female who obviously has got other issues going on, and a possession of methamphetamine floating around there also." The court acknowledged the arrest was not a conviction but nevertheless considered Gordon’s post-plea behavior as an indication he had not received the expected "wake-up call" from this prosecution. The court cited Gordon’s "long history of drug abuse" and his admission that use of methamphetamine made him "less sexually inhibited."

The district court then addressed the psychosexual evaluation:

I note that on the STATIC-99R score, which was a risk level score, you were given a Level III, average risk. On the SOTIPS score, you were given a high risk assessment, placed in a high-risk category. And what that sex offender treatment intervention progress scale is supposed to tell me is your supervision needs, your progress—basically, what progress we can anticipate through treatment, taking responsibility, looks at a lot of different factors. And that places you as high risk. Treatment amenability is based upon looking at your willingness to admit your behavior and take responsibility and the level of risk you pose to the community.

In the next breath, the court declared: "All of these things, in looking at it, tell me that an appropriate sentence in this matter would sentence you up to ten years in the Iowa state prison system." The court rejected the recommendation in the PSI report to suspend the sentence. Gordon appeals.

II. Scope and Standards of Review

Generally, we review sentencing decisions for correction of legal error. State v. Letscher , 888 N.W.2d 880, 883 (Iowa 2016). We review constitutional questions in sentencing cases de novo. State v. Bruegger , 773 N.W.2d 862, 869 (Iowa 2009).

If the sentencing court "uses any improper consideration, resentencing of the defendant is required." State v. Grandberry , 619 N.W.2d 399, 401 (Iowa 2000) (citing State v. Gonzalez , 582 N.W.2d 515, 517 (Iowa 1998) ). Because we cannot speculate about the weight the sentencing court assigned to any given factor or divine which factor tipped the scales toward incarceration, resentencing is required even if the troubling factor was "merely a ‘secondary consideration.’ " See id. (quoting State v. Messer , 306 N.W.2d 731, 733 (Iowa 1981) ).

III. Analysis of Sentencing Issues

Gordon complains about two aspects of the sentencing hearing.3 First, he argues the district court violated his right to due process by considering and relying on the sex-offender-risk-assessment instruments attached to the PSI report.4 Second, he contends the district court abused its discretion by relying on his post-plea arrest when imposing a sentence of incarceration.

Gordon frames his objection to the risk assessments as a...

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