Appeal from the Iowa District Court for Butler County, Chris Foy, Judge.
The opinion of the court was delivered by: Danilson, J.
Nicholas Wygle appeals the sentence entered following his Alford plea. SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.
Nicholas Wygle appeals the sentence entered following his Alford plea to assault with intent to commit sex abuse. Wygle contends the sentencing judge abused his discretion in sentencing him to two years in prison and considering unproven allegations and his own childhood victimization as support for incarceration. Finding the district court considered an impermissible factor outside of the record, we vacate the sentence and remand for resentencing.
I. Background Facts and Proceedings.
Nicholas Wygle was charged with two counts of sexual abuse in the
second degree, in violation of Iowa Code sections 709.1 and 709.3 (2009), and two counts of assault with intent to commit sexual abuse, in violation of sections 709.11 and 903B.2, after his five and fourteen-year-old step-daughters reported inappropriate sexual contact. Wygle submitted a written Alford plea to count III of the trial information in exchange for dismissal of the remaining counts.*fn1 During the plea proceedings, the court emphasized that it would not be bound by the recommendations of the parties. Pursuant to the plea bargain, the State did not resist Wygle's request for a deferred judgment and two years of supervised probation.
Wygle submitted to a psychosexual assessment in April 2012. The report noted Wygle "adamantly denied any sexual or otherwise inappropriate contact occurred between him and his accusers." However, his criminal history demonstrates that he has engaged in deviant sexual behavior with multiple female minors. Wygle was convicted of assault for an offense against two female minors that occurred in June 2007. During an interview with investigating officers about that incident, Wygle "admitted he told the girls he would give them ten dollars if they would kiss him on the lips. He also admitted that he held both girls down on his bed, against their will, so he could kiss them on their lips and cheeks." He later denied he ever engaged in inappropriate contact. Wygle also admitted to the evaluator that he was sexually abused as a child by an older male cousin.
A presentence investigation report was conducted June 4, 2012. The report noted Wygle's juvenile record, which stemmed from punching holes in walls and threatening his mother and sister with a butcher knife. Wygle was placed in psychiatric hospitalization on three occasions after "acting out" and reports of suicidal ideation. Wygle also admitted to the investigator that he sexually assaulted his sister by touching her inappropriately when he was twelve or thirteen years old and she was eight years old. He later denied that he fondled his sister but claimed "I was getting ready to." Wygle and his family attended counseling after the assault.
The investigator noted that the combined sex offender risk assessments conducted during the psychosexual evaluation placed Wygle in the "very high" range of risk to re-offend. The investigator further found:
Given the above information, this officer feels the defendant poses a significant risk to public safety. It is further believed that sentencing the defendant to a term of incarceration is the best option available to accomplish the goals of sentencing; protection of the community, deterrence to others and rehabilitation of the offender.
Ultimately, the investigator recommended incarceration for two years and a special ten-year sentence during which Wygle he would be required to register as a sex offender.
On July 13, 2012, the court sentenced Wygle to two years in prison. On appeal, Wygle contends the sentencing judge abused his discretion in sentencing him to two years in prison and considering unproven allegations and his ...