State v. Valin

Decision Date01 December 2006
Docket NumberNo. 05-0781.,05-0781.
Citation724 N.W.2d 440
PartiesSTATE of Iowa, Appellee, v. Christopher Lawrence VALIN, Appellant.
CourtIowa Supreme Court

Linda Del Gallo, State Appellate Defender, and Shellie Knipfer, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John P. Sarcone, County Attorney, and Ramonda Belcher Ford, Assistant County Attorney, for appellee.

CADY, Justice.

In this appeal we must decide if special conditions of probation not directly related to the crime of conviction, but related to a prior conviction, may be imposed as a part of a sentence. We reverse the decision of the district court.

I. Background Facts and Proceedings.

Christopher Valin was convicted of operating while intoxicated (OWI), second offense, following his arrest in September of 2004. In April 2005, the district court sentenced Valin to a term of imprisonment not to exceed two years and suspended all but seven days of the term. The court imposed a fine of $1500, and placed Valin on probation for two years. He was also required to undergo a substance abuse evaluation and treatment program, and attend a weekend class offered by the Des Moines Area Community College for OWI offenders. Valin was placed under the supervision of the department of correctional services (DCS). The sentencing order specifically required Valin to "submit to the supervision of DCS during probation and ... comply with all terms imposed by the assigned probation officer, including any additional programs and classes not set forth herein." Valin filed a notice of appeal on May 10, 2005.

Valin signed a DCS probation agreement on May 19, 2005. It contained several standard rules and conditions, but also contained the following "special conditions":

401. I shall participate in a sex offender or mental health counseling program as directed by my supervising officer.

403. I shall successfully complete the Fifth Judicial District Department of Correctional Services Sex Offender Treatment Program and comply with any treatment recommended as a result of the program.

404. I shall not initiate, establish, or maintain contact with victim(s) unless approved by my supervising officer.

405. I shall not initiate, establish, or maintain contact with any minor child (under the age of 18) unless approved by my supervising officer.

406. I shall not initiate, establish, or maintain contact with my children unless approved by my supervising officer.

408. I shall not reside with my children unless approved by my supervising officer.

409. I shall avoid any verbal or physical contact with any child or groups of children. I shall avoid contact with establishments, groups or organizations whose primary purpose is the care of minor children unless I have the prior written approval of my supervising officer.

411. I shall not be in possession of any sexually explicit materials, videos, books, magazines, pictures, posters, letters, etc., without express written approval from my supervising officer and a sex offender treatment team.

412. I will not subscribe, nor will I attempt to access, to the internet without prior approval from my supervising officer. I also will not engage in or visit computer-generated chat rooms under any circumstances. [Handwritten:] internet banking, check email-ONLY

801. I shall participate in the Fifth Judicial District Department of Correctional Services Sex Offender Treatment Program unless my supervising officer determines otherwise.

Valin objected to the special terms of probation and filed a motion in the district court for the court to "determine" the terms of his probation.1 Valin primarily objected to the requirement that he undergo sex offender treatment. At a hearing on the motion, the DCS justified the special conditions based on Valin's conviction in 1999 for assault with intent to commit sexual abuse. The offense arose from an incident when Valin was in college during a night of excessive consumption of alcohol. Specifically, Valin fondled and groped the breasts and vaginal area of an adult female student without her consent after the two ended up at an apartment. Valin was placed on probation following the conviction and was required to complete sex offender treatment. Valin successfully completed the treatment, and was discharged from probation in 2001. Notwithstanding, the DCS recommended Valin complete sex offender treatment again because the DCS had a policy that required such treatment and special terms of probation when persons have previously been convicted of a sex offense. The policy is based on the proposition that a person who has committed a sex offense always has the potential to commit a sex offense again in the future.2 The treatment begins with a relapse assessment, which allows the DCS to "assess how much [the defendant has] learned in previous treatment." The relapse assessment is followed by aftercare treatment or more aggressive treatment, depending upon the results of the relapse assessment.

After the hearing to determine the terms of Valin's probation, the court entered an order requiring Valin to comply with all terms except one. Because there did not "appear to be any `evidence' that would require a limitation of [Valin's] contact with minor children," the court permitted Valin "to have contact with minor children unless a psychological evaluation or other testing" indicated otherwise. However, the court held Valin must complete his sex offender treatment. It found the sentencing order clearly stated Valin must submit to the supervision of the DCS, it was in the best interests of the community for Valin to undergo treatment, and there was a strong nexus between Valin's substance abuse and his criminal activity. Valin then filed a second notice of appeal on July 19, 2005.

Following the hearing, the DCS required Valin to submit to a penal plethysmograph (PPG) test as part of his relapse assessment. This test measures deviant sexual arousal. It requires the subject to place a gauge on his penis while he is shown images and told sexual stories. The gauge then records computerized results based on the subject's responses to the visual and audio stimuli. It takes anywhere between ninety minutes and two hours to complete, and the defendant must contribute $250 for the procedure. Typically, the DCS requires a PPG the first time a defendant receives sex offender treatment in order to determine if the offender has any other paraphilias, or areas of sexually deviant arousal. Such a test is then usually relied upon by the DCS during the probationer's participation in relapse assessment. Valin, however, was not given this procedure during his first treatment because the DCS did not have a sufficient budget at the time to perform the test. As a result, the DCS wanted to perform it now, during his relapse assessment, to help evaluate other possible areas of sexual deviancy and to specifically determine whether Valin should be allowed contact with minor children, including his own newly born child.

Valin refused to submit to the PPG test and requested a hearing before the district court. The hearing revealed that Valin successfully completed the prior treatment program. Furthermore, there was no evidence presented that Valin had engaged in any sexually deviant behavior following his prior conviction, or had ever engaged in any inappropriate contact with children, although the use of alcohol was identified during his prior sex abuse treatment as a potential relapse factor. Nevertheless, the court required Valin to submit to the PPG test as a part of his treatment program. Although the court found no evidence that he was a threat to his child, it required that visitation with the child be supervised pending the outcome of the sex offender treatment.

All three of his appeals have been consolidated. The issue on appeal is whether Valin is subject to his special conditions of probation, including the PPG test.

II. Standard of Review.

We have articulated two different standards of review when a defendant challenges his or her sentence on appeal. Depending upon the nature of the challenge, the standard of review is for the correction of errors at law or for an abuse of discretion. Compare State v. Freeman, 705 N.W.2d 286, 287 (Iowa 2005) ("We review the district court's sentence for correction of errors at law.") (citing State v. Kapell, 510 N.W.2d 878, 879 (Iowa 1994); Iowa R.App. P. 6.4), and State v. Shearon, 660 N.W.2d 52, 57 (Iowa 2003) (noting that the appellant challenged "the legality of his sentencing," and that "[o]ur review is for the correction of errors at law"), with State v. Alloway, 707 N.W.2d 582, 584 (Iowa 2006) ("We normally review sentencing decisions for abuse of discretion." (citing State v. Evans, 671 N.W.2d 720, 727 (Iowa 2003))), and State v. Jose, 636 N.W.2d 38, 41 (Iowa 2001) (stating we review a sentence that does not fall outside the statutory limits for an abuse of discretion (citing State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998)), and State v. Neary, 470 N.W.2d 27, 29 (Iowa 1991) ("When a sentence is imposed within statutory limits, it will be set aside only for an abuse of discretion."). Ultimately, however, we review a defendant's sentence for the correction of errors at law. See State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996); Iowa R.App. P. 6.4. Nevertheless, in some circumstances it is necessary to determine whether legal error occurred because the district court abused its discretion. Such a circumstance occurs when the sentence imposed is within the statutory limits or the defendant's challenge to his or her sentence does not suggest it is outside the statutory limits. See Neary, 470 N.W.2d at 29 (noting that when the sentence imposed is within the statutory limits it is reviewed for an abuse of discretion); Thomas, 547 N.W.2d at 225 (noting that when "a defendant does not assert that the...

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