December 23, 2016
STATE OF IOWA, Plaintiff,
IOWA DISTRICT COURT FOR JONES COUNTY, Defendant.
to the Iowa District Court for Jones County, Lars G.
Department of Corrections appeals district court's ruling
reversing agency decision requiring inmate convicted of
domestic abuse assault to participate in sex offender
treatment program. WRIT SUSTAINED AND CASE REMANDED.
J. Miller, Attorney General, and John B. McCormally,
Assistant Attorney General, for plaintiff.
Smith, State Appellate Defender, and John Bishop, Cedar
Rapids, until withdrawal, and then Anthony Burton Irvin pro
appeal, we must decide whether the Iowa Department of
Corrections (IDOC) violated an inmate's rights by
requiring him to participate in the Sex Offender Treatment
Program (SOTP). The inmate pled guilty to domestic abuse
assault in a plea bargain that dismissed a related sex abuse
charge. The IDOC initially relied on the dismissed sex abuse
charge and the victim's detailed, written statement
included in a police report to refer him for mandatory SOTP.
An administrative law judge (ALJ) upheld that determination
following an evidentiary hearing based on the inmate's
admission that he assaulted his girlfriend during oral sex
and the victim's statement. The district court reversed
based on an unpublished, nonprecedential decision,
Lindsey v.State, No. 13-2042, 2015 WL 568560 (Iowa
Ct. App. Feb. 11, 2015), which held the IDOC cannot use
unproven charges to require SOTP. We granted the IDOC's
request for a writ of certiorari.
reasons explained below, we hold the IDOC may rely on the
victim's written statement in a police report for the
initial classification requiring SOTP, provided the inmate is
afforded due process, including an evidentiary hearing to
challenge that classification. The ALJ, in turn, may uphold
the classification based on the inmate's own testimony
admitting to a sexual component to the assault, along with
other evidence, including hearsay such as the victim's
detailed account. Accordingly, we sustain the writ, reverse
the judgment of the district court, and remand the case to
reinstate the IDOC's decision requiring this inmate's
participation in the treatment program.
Background Facts and Proceedings.
Irvin is an inmate at Anamosa State Penitentiary under the
custody of the IDOC serving a prison sentence for domestic
abuse assault following his guilty plea. The victim was his
live-in girlfriend. The minutes of testimony, which
incorporated by reference the police report with the
victim's detailed account, alleged that at 8:30 p.m. on
October 28, 2012, Irvin became angry upon finding calls to
another man made from his girlfriend's phone. Irvin
accused her of infidelity. When she attempted to explain, he
grabbed her by the throat and threw her across the room.
Irvin then began smoking crack cocaine and watching porn.
About 1:30 a.m., he forced his girlfriend to smoke crack and
perform oral sex on him. According to her statement, at
around 3:30 a.m., she told him she did not want to continue.
Irvin ordered her to keep going. She stopped and pulled away.
Irvin again grabbed her by the throat. She struggled, and
Irvin put her in a headlock and strangled her until she
passed out. When she awoke, she felt dizzy and found she had
urinated on herself. She began sobbing, and Irvin threatened
to kill her before she could call the police or neighbors.
She laid in bed until morning, when she went to work. The
police were contacted and came to her workplace. Her
statement and photos of her injuries were taken that day.
Police arrested Irvin at their home.
State charged Irvin with two counts: (1) domestic abuse
assault by knowingly impeding the normal breathing or
circulation of the blood of another person in violation of
Iowa Code 708.2A(2)(d) (2013); and (2) sexual abuse
in the third degree for performing a sex act by force in
violation of section 709.4. At that time, Irvin also had
prior charges of domestic abuse assault and sexual abuse in
the third degree pending for another incident with a
August 20, 2013, the State reached a plea agreement with
Irvin, who pled guilty to two counts of domestic abuse
assault in violation of section 708.2A(2)(d) in
exchange for the dismissal of both charges of sexual abuse in
the third degree. The court sentenced Irvin to an
indeterminate period of incarceration not to exceed two years
on each offense, to be served consecutively, and imposed a
$625 fine. Irvin was also sentenced on two unrelated theft
charges. Irvin's cumulative sentence totaled six years.
The sentencing order recommended that Irvin be enrolled in a
batterer's education treatment course. The district court
made no finding that the crimes to which Irvin pled were
sexually motivated and did not require Irvin to register as a
October 14, shortly after Irvin arrived at the IDOC's
Mount Pleasant Correctional Facility (MPCF), his counselor,
Kasey Bean, sent an email to Sean Crawford, the director of
the SOTP. Bean's email stated that based on Irvin's
original sexual abuse charge, she "believe[d] he may be
eligible for SOTP." Crawford responded a few weeks
later, stating, "Offender's file has been reviewed
and it is my opinion there is a sexual component involved in
his current conviction. DOC will require SOTP."
December 16, 2013, the IDOC notified Irvin that he had been
classified as an offender required to complete sex offender
treatment. The notice stated the classification "may
affect [his] future accrual of earned time and tentative
discharge date pursuant to Iowa Code §
903A.2(1)(a)." The notice set forth the reasons for
his classification in a section entitled,
"Classification Committee Justification/Evidence":
Offender Irvin is currently incarcerated on charges of
domestic abuse and 3rd degree theft. Originally
charged also with sex abuse 3rd, he ple[d] to the
current charges. Along with beating his victim up, he forced
the female to perform oral sex on him. Offender Irvin has
never completed any type of sex offender treatment program
and because of the sexual component to his crime the DOC/MPCF
will require he do so.
notice listed the evidence relied upon by the IDOC for
Irvin's classification, including the (1) program
records, (2) email by Sean Crawford, (3) trial information,
(4) police report, and (5) minutes of testimony. The police
report was attached to the minutes and noted that Irvin
"beat his victim up" and "force[d] her to
perform oral sex." The police report quoted a detailed
statement from the victim taken down the day after the
assault. The victim's account was also quoted in the
minutes. Finally, the notice informed Irvin "that an
in-person or telephonic hearing on your appeal of the sex
offender treatment program requirements will be held on
Wednesday, January, 8, " before an ALJ. The notice
stated that "[a]ll documents or other exhibits that
you want considered at the hearing" must be
submitted two business days before the hearing, and if Irvin
did not appear, a judgment would be entered against him. At
the bottom of the notice was a section an offender could sign
to waive the hearing. On December 17, Irvin signed to waive
February of 2014, Irvin was transferred from the MPCF to
Anamosa State Penitentiary. On April 14, Irvin wrote a letter
to John Baldwin, then director of the IDOC, and Jason
Carlstrom, then chair of the Iowa Board of Parole. Irvin
asserted that he should not be referred to SOTP because he
"had never been convicted of a sex charge, only accused
of one." He alleged the prosecutor dismissed the sex
counts because, during the course of trial preparation, the
prosecutor determined those charges to be unfounded. Irvin
noted neither the sentencing order nor the plea agreement
recommended that he participate in SOTP, only that he
participate in batterer's education. Sheryl Dahm, then
assistant deputy director at the IDOC, responded to
Irvin's letter on April 22, stating that Irvin's
classification was based on IDOC policy.
June, Irvin received another classification notice. The
notice mentioned that, due to an error, Irvin's accrual
of earned time had not been halted since the first December
classification notice. The June notice gave Irvin another
opportunity for an ALJ hearing scheduled for July 16. Irvin
acknowledged this notice, and this time did not waive the
hearing. At the hearing, Irvin submitted his affidavit; a
copy of the plea agreement; and a copy of Dykstra v. Iowa
District Court, 783 N.W.2d 473 (Iowa 2010). The hearing
25, the ALJ affirmed the IDOC's classification decision.
The ALJ specifically found that due process requirements for
the classification had been met: Irvin had been given notice
of the hearing and presented evidence, the ALJ provided an
explanation for the reasons behind the classification, and
the ALJ "was not involved in the [initial]
classification decision at issue, so he [could] be an
impartial decisionmaker in this matter." The ALJ
examined the two domestic abuse convictions, one arising out
of Irvin's altercation with his girlfriend and the other
arising from the separate incident with a different victim.
The ALJ determined the allegations in the separate incident
were "not sufficient to find that IRVIN needs SOTP"
because the violence was unrelated to a sex act. The ALJ
found the other charge involving Irvin's girlfriend
required SOTP because "[t]he evidence in the record
indicates that IRVIN's behavior shows that he currently
suffers from a problem for which treatment is needed to
rehabilitate him or that such treatment is needed to protect
the community from him."
determined that requiring SOTP would not violate Irvin's
plea agreement or sentencing order because both "were
silent about SOTP" and the IDOC retains the authority to
establish treatment program policies for offenders. The ALJ
rejected Irvin's claim that the prosecutor had dropped
the sex charge as unsubstantiated. The ALJ noted Irvin
produced no evidence to support that assertion, such as the
deposition transcripts that he claimed existed. The ALJ
observed the plea agreement stated that "charges could
be brought back if IRVIN raised challenges to the plea
agreement." In the ALJ's view, this showed the
prosecutor "still believed the charges could reasonably
be brought again if need be." Finally, the ALJ weighed
the victim's detailed statement together with Irvin's
testimony on his version of events. The ALJ found the
victim's statement to be "credible" after
testimony from Irvin that the victim "did not have to
fabricate a story if she wanted him to leave because she
could have simply told him to leave the house." In the
ALJ's view, Irvin "indicate[d] that [the victim] did
not have a reason to fabricate a story about what IRVIN did
to her." The ALJ also concluded that even under
Irvin's version of events, the conviction for domestic
abuse still had a sexual component, and thus, Irvin should be
required to complete SOTP:
IRVIN's version of events was that he pushed the victim
away by the throat when she bit his penis while performing
oral sex. As noted above, he pleaded guilty to
"knowingly" impeding her airway. Thus, his plea
indicated that he did not merely react, but purposely pushed
her hard in the neck. According to IRVIN his action was
because the sexual encounter he was having did not go as he
expected. Reacting with violence during a sex act also raises
the types of concerns that can properly be addressed in SOTP.
The ALJ finds that even under IRVIN's version of events
(as modified by his guilty plea), he should still be required
to take SOTP.
28, Irvin appealed the ALJ's determination to the warden
by completing the SOTP appeal form. See Iowa Code
§ 903A.3(2) ("The orders of the administrative law
judge are subject to appeal to the superintendent or warden
of the institution, . . . who may either affirm, modify,
remand for correction of procedural errors, or reverse an
order."). Irvin claimed the SOTP classification violated
his procedural due process rights. On August 4, the warden
affirmed the decision of the ALJ, ruling due process had been
followed and the ALJ "considered [Irvin's] statement
and the evidence when making this decision."
filed an application for postconviction relief under Iowa
Code section 822.2(1)(f) and (g) in the
Iowa district court. Irvin claimed he was denied due process
and equal protection of the law because the ALJ relied on the
unproven factual allegations. The district court held a
hearing on April 15, 2015. On May 20, the district court
found that it was error for the ALJ to rely on
"unadmitted minutes of testimony and police reports in
making its recommendation." The district court relied on
the unpublished decision of Lindsey, in which a
divided Iowa Court of Appeals concluded the IDOC lacked
authority to rely on unproven facts to require participation
in SOTP. 2015 WL 568560, at *5. In addition, the district
court relied on In re Detention of Stenzel, 827
N.W.2d 690, 708-10 (Iowa 2013), which disallowed expert
testimony in a district court civil commitment trial when the
expert relied on unproven facts in the minutes of testimony
to support his opinion that the individual was a sexually
violent predator. The district court concluded because the
IDOC had improperly relied on the minutes in making the
initial recommendation, "[n]o hearing should have
occurred in the first place."
IDOC sought a writ of certiorari, which we granted. We
retained the case.
II. Standard of Review.
normally review certiorari actions for correction of errors
at law." State v. Iowa Dist. Ct., 801 N.W.2d
513, 517 (Iowa 2011). "Generally, postconviction relief
proceedings are reviewed for correction of errors at
law." Dykstra, 783 N.W.2d at 477. "We
review questions of statutory construction, including . . .
the proper interpretation of Iowa Code section 903A.2, for
errors at law." Id. We review de novo the
evidence relevant to a constitutional claim. Iowa Dist.
Ct., 801 N.W.2d at 517.
decide two related questions: (1) whether the IDOC properly
relied on the victim's detailed statement to initially
refer Irvin for SOTP; and (2) whether the IDOC properly
required Irvin's participation in SOTP based on the
ALJ's finding that he admitted at his evidentiary hearing
to assaulting his girlfriend during a sex act and based on
the victim's statement, police report, and Irvin's
guilty plea. We first address the IDOC's broad discretion
to refer inmates to SOTP and require their participation. We
next review the permissible uses by the IDOC of a
victim's statement in a police report. We
conclude that the IDOC properly rejected Irvin's
challenges to his initial referral to SOTP and the decision
to mandate his participation following an evidentiary
The IDOC's Broad Discretion to Require SOTP.
was established for bona fide rehabilitative purposes."
Id. at 519.
There is a high rate of recidivism among untreated sex
offenders and a broad range of agreement among therapists and
correctional officers that clinical rehabilitation programs
"can enable sex offenders to manage their impulses and
in this way reduce recidivism."
Id. at 519 (quoting McKune v. Lile, 536
U.S. 24, 33, 122 S.Ct. 2017, 2024, 153 L.Ed.2d 47, 56-57
Code chapter 903A allows an inmate to "earn a reduction
of sentence" based on good conduct and satisfactory
participation in treatment programs identified by the IDOC
An inmate of an institution under the control of the
department of corrections . . . is eligible for a reduction
of sentence equal to one and two-tenths days for each day the
inmate demonstrates good conduct and satisfactorily
participates in any program or placement status identified by
the director to earn the reduction. The programs include but
are not limited to the following:
. . . .
(4) A treatment program established by the director.
Iowa Code § 903A.2(1)(a)(4). Sex offender
treatment is specifically addressed as follows:
"However, an inmate required to participate in a sex
offender treatment program shall not be eligible for a
reduction of sentence unless the inmate participates in and
completes a sex offender treatment program established by the
director." Id. § 903A.2(1)(a). An
inmate who fails to participate in sex offender treatment
required by the IDOC risks losing his or her ability to
obtain an earlier release from prison by accumulating earned
Code section 903A.4 authorizes the IDOC to develop policies
and procedures to implement these treatment programs with
The director of the Iowa department of corrections shall
develop policy and procedural rules to implement sections
903A.1 through 903A.3. The rules may specify disciplinary
offenses which may result in the loss of earned time, and the
amount of earned time which may be lost as a result of each
disciplinary offense. The director shall establish rules as
to what constitutes "satisfactory
participation" for purposes of a reduction of
sentence under section 903A.2, for programs that are
available or unavailable.
IDOC promulgated a policy that requires the department to
review and refer offenders to the SOTP director who "are
not incarcerated for a Sex Crime but have a sexual component
to their crime." Iowa Dep't of Corr., Policy &
Procedure, Sex Offender Program Referrals, OP-SOP-08 (2014).
The director then reviews the "current conviction and
circumstances of [the] offense" as well as the
"minutes of testimony/court documents" and
"prior arrests/convictions" to determine whether he
or she will refer an offender to SOTP. Id. From
there, if the inmate has not been convicted of a sex offense,
the matter proceeds to a hearing before an ALJ. If the ALJ
upholds the classification requiring SOTP, the "inmate
will no longer accrue any earned time after refusing to
attend SOTP, but will not lose any previously accrued earned
time." Dykstra, 783 N.W.2d at 478.
"legislative purpose of earned-time credits . . . is to
encourage prisoners to follow prison rules and participate in
rehabilitative programs." Kolzow v. State, 813
N.W.2d 731, 738 (Iowa 2012). "[C]ourts are obliged to
grant prison officials a wide berth in the execution of
policies and practices needed to maintain prison discipline
and security." Office of Citizens'
Aide/Ombudsman v. Edwards, 825 N.W.2d 8, 14 (Iowa 2012)
(quoting Citizens' Aide/Ombudsman v. Grossheim,
498 N.W.2d 405, 407 (Iowa 1993)). We addressed the IDOC's
"broad discretion" to require SOTP for inmates
convicted of nonsex offenses in Dykstra. 783 N.W.2d
at 479. John Dykstra pled guilty to a charge of simple
assault after he was initially charged with third-degree
sexual abuse. Id. at 476. The IDOC recommended
Dykstra participate in SOTP based on the circumstances
underlying the assault, as gleaned from the minutes of
testimony attached to the charging information. Id.
Because Dykstra refused to attend SOTP, the IDOC determined
he was no longer eligible to receive earned-time credit.
Id. at 477. Dykstra argued the IDOC lacked authority
to require SOTP because he was not convicted of a sex
offense. We disagreed, noting that "[t]he statute does
not set criteria for which inmates will be 'required to
participate.' " Id. at 478-79 (quoting Iowa
Code § 903A.2). We elaborated,
The broad discretion granted to IDOC does not limit
application of section 903A.2 to inmates serving sentences
for particular crimes or crimes labeled as "sex
offenses." There is no statutory limitation that would
prevent IDOC from recommending SOTP for an inmate convicted
of a crime that is not facially considered a sex offense
where the factual circumstances of the crime are of a sexual
Id. at 479. We held that the IDOC had authority to
stop all accrual of earned time for refusal to
participate in SOTP, even on sentences that were not served
for a sex-offense conviction. Id. at 479
("Section 903A.2 does not require that the
'sentence' be one connected to the reason IDOC has
required the inmate to attend SOTP."). Thus, so long as
SOTP was related to a "problem currently suffered"
by the offender, the IDOC had statutory authority to require
SOTP and halt the accrual of earned time. Id. at
479-80 (quoting State v. Valin, 724 N.W.2d 440, 447
emphasized in Dykstra that the IDOC's
classification procedures must satisfy the Due Process
Clauses of the Iowa and Federal Constitutions. See
id. at 483. We acknowledged a liberty interest at stake
in the initial SOTP classification because of "[t]he
stigmatizing consequence of being labeled as a sex offender,
the mandatory behavior modification treatment, and the
revocation of the inmate's ability to earn any time
should he refuse to participate." Id. We
adopted the procedural protections set forth in Wolff v.
McDonnell, 418 U.S. 539, 93 S.Ct. 2963, 41 L.Ed.2d 935
(1974), as a prerequisite for mandating SOTP. Id. at
Wolff, the Supreme Court evaluated what process was
due in a proceeding to forfeit an inmate's good-time
credits. 418 U.S. at 563-71, 94 S.Ct. at 2978-82, 41 L.Ed.2d
at 955-59. In Dykstra, we summarized the
Wolff requirements as follows:
(1) advance written notice of the claimed violation, (2) a
written statement of the factfinders as to the evidence
relied upon and the reasons for the disciplinary action
taken, (3) a hearing, at which the inmate must be allowed to
call witnesses and present documentary evidence, as long as
it would not be unduly hazardous, and (4) a sufficiently
783 N.W.2d at 482. We concluded the due process required by
Wolff was satisfied when the inmate had been tried
and convicted of a sex offense. Id. at 484; see
also Holm v. Iowa Dist. Ct., 767 N.W.2d 409, 418 (Iowa
2009) (concluding mandatory SOTP did not violate due process
when inmate was convicted of third-degree sexual abuse).
However, for inmates who were not convicted of a sex crime,
the IDOC must satisfy the Wolff procedural
safeguards. Dykstra, 783 N.W.2d at 484. We held the
IDOC violated Dykstra's due process rights by requiring
his participation in SOTP based on "unadmitted factual
allegations that did not result in a sex-offense
conviction" without the required procedural safeguards.
Id. at 483. Specifically, Dykstra was not provided
with "advance written notice, a written statement of
reasons and findings by the factfinder, and a neutral
contrast, Irvin was provided with the procedural protections
required by Dykstra. See id. Therefore, we
turn to whether the IDOC may rely on the victim's
detailed statement in the police report to initially classify
Irvin for SOTP and in the subsequent review by the ALJ.
The IDOC's Use of the Victim's Statement.
district court, citing Lindsey, ruled the IDOC
erroneously relied on unproven facts in the minutes of
testimony when initially referring Irvin to SOTP. Donzell
Lindsey was originally charged with first-degree burglary,
domestic assault, and third-degree sexual abuse.
Lindsey, 2015 WL 568560, at *1. He pled guilty under
a plea agreement to domestic abuse and burglary, with the
sexual abuse charge dismissed. Id. The IDOC
classified Lindsey for SOTP, concluding there was a
"sexual component" to his crimes based on the facts
alleged in the minutes of testimony. Id. The
district court vacated that decision and ordered the IDOC to
restore his earned time. Id. A panel of the court of
appeals affirmed over the dissent of one judge. Id.
at *6. The majority held the IDOC lacked the authority to
rely on the minutes of testimony when classifying offenders,
stating, "Dykstra does not extend [IDOC's]
authority to promulgation of policies and rules permitting
the consideration of unproven and unadmitted 'facts.'
" Id. at *3. The majority observed that
"even district courts may not rely on these types of
'facts' " and pointed to decisions excluding the
minutes from consideration in sentencing decisions.
Id. at *4. The dissenting judge stated, "I
would conclude IDOC can rely on unadmitted-to facts when
initially referring an inmate to SOTP, but, then,
due process requires a hearing before an independent
factfinder before participation in SOTP is
required." Id. at *6 (Vogel, P.J.,
dissenting). We now hold the IDOC's use of the
victim's statement quoted in the police report did not
exceed its statutory authority or violate Irvin's due
court of appeals majority in Lindsey, and the
district court in this case, erred by concluding the
limitations on a district court's use of minutes at trial
or sentencing precluded an IDOC ALJ from relying on a
detailed victim's statement that happened to be attached
to the minutes. The formal rules of evidence that govern
trials in district court do not apply to hearings before an
IDOC ALJ. See Dykstra, 783 N.W.2d at 485
("Prison proceedings 'are sui generis, governed by
neither the evidentiary rules of a civil trial, a criminal
trial, nor an administrative hearing. The only limitations
appear to be those imposed by due process, a statute, or
administrative regulations.' " (quoting 2 Michael B.
Mushlin, Rights of Prisoners § 9.20, at 208 (3d
ed. 2002))); see also Wolff, 418 U.S. at 556, 94
S.Ct. at 2975, 41 L.Ed.2d at 951 ("Prison disciplinary
proceedings are not part of a criminal prosecution, and the
full panoply of rights due a defendant in such proceedings
does not apply."); Dailey v. Neb. Dep't of Corr.
Servs., 578 N.W.2d 869, 874 (Neb. Ct. App. 1998)
("[T]he weight of authority in both federal and state
cases is that the [formal] rules of evidence do not
apply" in prison discipline proceedings.). Indeed, we
have affirmed prison discipline decisions that were based on
hearsay in written reports of confidential informants.
See, e.g., James v. State, 541 N.W.2d 864, 874 (Iowa
1995). "Under the 'some evidence'
standard, 'the relevant [legal] question is whether there
is any evidence in the record' that could
support the committee's decision." Id.
(alterations in original) (quoting Superintendent v.
Hill, 472 U.S. 445, 455-56, 105 S.Ct. 2768, 2774, 86
L.Ed.2d 356, 365 (1985)).
minutes of testimony set forth the factual circumstances
giving rise to the charges against Irvin. See Iowa
R. Crim. P. 2.5(3) (providing minutes shall contain "the
name and occupation of each witness upon whose expected
testimony the information is based, and a full and fair
statement of the witness' expected testimony").
Minutes must "be approved by a district judge" who
finds that the evidence contained in the minutes, "if
unexplained, would warrant a conviction by the trial
jury." Id. r. 2.5(4). The minutes provide a
description, both to the reviewing judge and to the offender,
of the circumstances alleged by the State to support the
minutes of testimony is limited in district court. District
courts are not permitted to consider "additional,
unproven, and unprosecuted charges" during sentencing,
unless "the facts before the court show defendant
committed those offenses or they are admitted by him."
State v. Messer, 306 N.W.2d 731, 733 (Iowa
1981). Similarly, minutes of testimony
"are not evidence" at trial. State v. De
Bont, 223 Iowa 721, 723, 273 N.W. 873, 874 (1937).
Stenzel, when reviewing an appeal from a judgment
committing the defendant as a sexually violent predator
(SVP), we found expert testimony based on unproven facts in
the minutes inadmissible as more prejudicial than probative.
827 N.W.2d at 710. Because the minutes are "a statement
of what the prosecution expected (at one point) to prove,
" we "question[ed] the basic fairness of the
State's using materials that it generated exclusively to
prosecute Stenzel criminally as a factual ground for
committing him as an SVP at the conclusion of his
sentence." Id. Stenzel applied the rules of
evidence governing trials in district court. Stenzel
is distinguishable from the present case because it was not a
prison classification proceeding, but a formal trial to
determine whether the defendant would be civilly committed at
the conclusion of his prison sentence. See id. at
692. Stenzel is further distinguishable because here
the IDOC and ALJ relied upon the victim's statement, not
the allegations as drafted by a prosecutor.
district court misapplied Stenzel to the IDOC
proceedings, in which use of hearsay is permitted. See
Wilson v. Farrier, 372 N.W.2d 499, 502 (Iowa 1985)
(affirming prison-discipline decision that relied on
informant's confidential statement). Here, we must decide
whether this detailed victim's statement, quoted in the
police report, may be used to support the IDOC
classification. We conclude the IDOC did not err in relying
on the victim's statement, either in its initial referral
to SOTP or in the ALJ's decision to require
participation. We address each phase in turn.
The IDOC'S initial referral to SOTP.
we conclude the IDOC may rely on a victim's account in a
police report prepared nearly contemporaneously with the
incident in classifying inmates for SOTP. The IDOC's
initial classification is just that-initial. No earned time
is withheld for lack of participation by an inmate who was
not convicted of a sex offense unless and until the inmate is
provided with the Wolff due process protections,
including an evidentiary hearing before an ALJ.
instructive to contrast the requirements for SOTP in Iowa
Code section 903A.4 to the statutory requirements for sex
offender registration. Iowa Code section 692A.103 requires a
person to register as a sex offender if the person has been
convicted of a "tier I, tier II, or tier III
offense." For certain offenses, the legislature has
expressly required a factual determination that the offense
was "sexually motivated" in order to qualify as a
tier I, II, or III offense. See, e.g., Iowa Code
§ 692A.102(1)(c)(19). "Sexually
motivated" means "one of the purposes for
commission of a crime is the purpose of sexual gratification
of the perpetrator of the crime." Id. §
229A.2(9); see also id. § 692A.101(29). For
certain convictions occurring after July 1, 2009, the statute
expressly provides that a judge or jury must make a factual
determination "beyond a reasonable doubt" that an
offense was sexually motivated in order to require an
individual to register. Id. § 692A.126(1).
analogous requirements exist for SOTP. Nowhere in chapter
903A does the legislature require a judge or jury to make a
factual finding that an offense was sexually motivated to
refer an inmate to SOTP. "[L]egislative intent is
expressed by omission as well as by inclusion of statutory
terms." Oyens Feed & Supply, Inc. v.
Primebank, 808 N.W.2d 186, 193 (Iowa 2011) (alteration
in original) (quoting Freedom Fin. Bank v. Estate of
Boesen, 805 N.W.2d 802, 812 (Iowa 2011)). When the
legislature selectively places language in one section and
avoids it in another, we presume it did so intentionally.
Id. That the legislature expressly required a judge
or jury to find sexual motivation beyond a reasonable doubt
in chapter 692A but omitted such a requirement in chapter
903A tells us the legislature intended to allow the IDOC
discretion to refer an inmate to SOTP without that level of
proof. See Dykstra, 783 N.W.2d at 484-85 ("We
note . . . the standard for prison administrative decisions
is 'some evidence' as opposed to the 'beyond a
reasonable doubt' required in criminal trials");
see also Wilson, 372 N.W.2d at 501 ("We hold
that the requirements of due process are satisfied if some
evidence supports the decisions by the prison disciplinary
board to revoke good time credits.").
concerns also support allowing IDOC to refer to factual
accounts such as victim statements in police reports when
making its initial classification. Most criminal charges are
resolved through plea bargains. The sex abuse charges may be dismissed to
secure a conviction on lesser assault charges, as happened
here. The IDOC and ALJ lacked access to sealed deposition
transcripts and Irvin did not provide them. Inmates who need
treatment would avoid SOTP if the information in the
victim's statement could not be used to trigger an
evidentiary hearing. We conclude that the IDOC may refer an
offender for SOTP based on a victim's detailed account in
a police report.
The ALJ's determination requiring SOTP.
address Irvin's hearing before the IDOC ALJ. An ALJ in a
prison disciplinary proceeding is an independent, impartial
adjudicator. See Edwards, 825 N.W.2d at 16-17
(noting IDOC ALJs report to and are supervised by the
IDOC's general counsel rather than the warden). An
ALJ's decision in a disciplinary proceeding affecting
earned-time credits will be affirmed so long as there is
"some evidence" in the record to support it.
Backstrom v. Iowa Dist. Ct., 508 N.W.2d 705, 710-11
(Iowa 1993) ("We further believe the federal
constitution requires only that state prison disciplinary
officials apply a 'some evidence' standard in their
initial determination of disciplinary proceedings.").
Hill, inmates challenged the decision of a prison
disciplinary board finding them guilty of violating a prison
rule prohibiting assault and revoking good-time credits. 472
U.S. at 448, 105 S.Ct. at 2770, 86 L.Ed.2d at 360. The
Massachusetts Supreme Court, "[w]ithout deciding whether
the appropriate standard of review [was] 'some
evidence' or the stricter test of 'substantial
evidence, ' " overturned the disciplinary
court's decision, finding the record failed to present
even "some evidence . . . [that] would rationally permit
the board's findings." Id. at 449, 105
S.Ct. at 2770, 86 L.Ed.2d at 360 (quoting Hill v.
Superintendent, 466 N.E.2d 818, 822 (Mass. 1984)). The
United States Supreme Court addressed whether the
"findings of a prison disciplinary board that result in
the loss of good time credits must be supported by a certain
amount of evidence in order to satisfy due process."
Id. at 453, 105 S.Ct. at 2773, 86 L.Ed.2d at 363.
The Court noted its prior cases failed to specify what
"quantum of evidence" was required "to support
the factfinder's decision" in a prison disciplinary
proceeding. Id. at 454, 105 S.Ct. at 2773, 86
L.Ed.2d at 364.
Hill Court determined that the "requirements of
due process are satisfied if some evidence supports the
decision by the disciplinary board to revoke good time
credits." Id. at 455, 105 S.Ct. at 2774, 86
L.Ed.2d at 365. The Court "decline[d] to adopt a more
stringent evidentiary standard as a constitutional
requirement, " reasoning,
Prison disciplinary proceedings take place in a highly
charged atmosphere, and prison administrators must often act
swiftly on the basis of evidence that might be insufficient
in less exigent circumstances. The fundamental fairness
guaranteed by the Due Process Clause does not require courts
to set aside decisions of prison administrators that have
some basis in fact. Revocation of good time credits is not
comparable to a criminal conviction, and neither the amount
of evidence necessary to support such a conviction, nor any
other standard greater than some evidence applies in this
Id. at 456, 105 S.Ct. at 2774, 86 L.Ed.2d at 365
(citations omitted). The Court determined the "some
evidence" standard would "prevent arbitrary
deprivations without threatening institutional interests or
imposing undue administrative burdens." Id. at
455, 105 S.Ct. at 2774, 86 L.Ed.2d at 364. Under this
standard, the Court concluded that the prison board had been
presented with sufficient evidence to find the inmates
violated the disciplinary rule and revoke good time credits.
Id. at 456, 105 S.Ct. at 2774-75, 86 L.Ed.2d at 365.
The court based its holding on testimony from the prison
guard and evidence that no other inmates were in the area at
the time of the assault. Id.
Farrier, we adopted the "some evidence"
standard as the appropriate standard of judicial review for
prison disciplinary proceedings. 372 N.W.2d at 501-02. An
inmate charged with committing a murder during an uprising
inside the Iowa State Penitentiary was acquitted in his
district court criminal trial. Id. at 500. The
prison disciplinary board, however, found him guilty of the
offense and forfeited all of his earned time. Id. We
adopted the "some evidence" standard followed by
the Supreme Court and federal circuits and upheld the
committee's sanction. Id. at 502.
years later, in Backstrom, we concluded the
"some evidence" standard applied to an IDOC
ALJ's factual findings. 508 N.W.2d at 710. An inmate
challenged a disciplinary committee's determination that
he smuggled alcohol into the prison. Id. at 708. The
disciplinary report was based on testimony from a
confidential informant. Id. We concluded that the
Supreme Court's language in Hill "clearly
refer[red] to the level of evidence used by prison
administrators in their factual determinations, " not
merely on judicial review. Id. at 711.
"Although the 'some evidence' standard may seem
harsh, " we noted it was sufficient to protect prisoners
from retaliatory treatment. Id. at 711. Under that
standard, we decided the ALJ had properly found Backstrom
guilty of the offense. Id. We reaffirmed application
of the "some evidence" standard a year later in
Marshall v. State, 524 N.W.2d 150, 152 (Iowa 1994)
(per curiam). Today, we reaffirm that the "some
evidence" standard applies to making and reviewing
factual findings in prison proceedings, including SOTP
threshold for determining whether some evidence exists is
low"; it can be satisfied by relying on hearsay
statements, such as statements from officers or confidential
informants. Johnson v. State, 542 N.W.2d 1, 2 (Iowa
Ct. App. 1995); see Mahers v. State, 437 N.W.2d 565,
569-70 (Iowa 1989) (relying on a report from a correctional
officer); Farrier, 372 N.W.2d at 502 (relying on
statement from confidential informant). Still, the "some
evidence" standard is not without teeth. When officials
use hearsay statements from a confidential informant to meet
the some evidence standard, the inmate's "interest
in a fair hearing requires that there be some indication of
the confidential informant's reliability."
James, 479 N.W.2d at 291. Specifically, "there
must be sufficient information in the record to convince a
reviewing authority that the [decision-maker] undertook such
inquiry and correctly concluded that the confidential
information was credible and reliable." Id. We
have recognized this standard can be satisfied by in
camera review of material documenting credibility or
corroboration with other statements or evidence. See
James, 479 N.W.2d at 292 (concluding informants reliable
because they incriminated themselves by providing
information, and other evidence corroborated their account);
Farrier, 372 N.W.2d at 502- 03 (concluding informant
was credible based on examination of documents in
camera). We have also found the standard
satisfied when a court determined "the confidential
information contain[ed] a great many details . . . [, and
t]here appear[ed] to be no bias motivating the source."
Key v. State, 577 N.W.2d 637, 641 (Iowa 1998). Our
precedent allows an IDOC ALJ to rely on hearsay reports of
confidential informants so long as there is an indicia of
reliability such that the ALJ can determine the information
is reliable and credible. The same requirement applies to
conclude that if the ALJ determines the victim's
statement from the underlying assault case to be reliable and
credible, it may be used to satisfy the "some
evidence" standard to classify the inmate for SOTP.
See Gwinn v. Awmiller, 354 F.3d 1211, 1219, 1221
(10th Cir. 2004) (rejecting inmate's challenge to his
classification as a sex offender by hearing panel that
"relied on a detailed written account from the victim of
the alleged sexual assault" denied by the inmate);
Vondra v. Colo. Dep't of Corr., 226 P.3d 1165,
1169-70 (Colo.App. 2009) (affirming prison hearing
panel's determination requiring sex offender treatment
based on police reports and victim's statements after
offender was provided Wolff due process
protections). An ALJ may also use the inmate's own
testimony in the hearing, alone or as corroboration with the
detailed victim statement, to decide whether SOTP should be
conclude the statement of Irvin's victim bears a
sufficient indicia of reliability. A police officer took the
victim's statement in Irvin's underlying assault case
on the morning after the incident; thus, it was a
near-contemporaneous factual account of the events while the
victim's memory was fresh. It is a crime to file a false
report with a police officer. See Iowa Code §
718.6(1) ("A person who reports or causes to be reported
false information to . . . a law enforcement authority . . .
knowing that the information is false . . . commits a serious
misdemeanor . . . ."); id. § 903.1
(stating serious misdemeanors are punishable by a fine of at
least $315 and imprisonment of up to a year).
reporting documents such as citations have been relied upon
in contested case administrative proceedings. Gaskey v.
Iowa Dep't of Transp., 537 N.W.2d 695, 696 (Iowa
1995) (relying upon "[t]he implied consent form, the
notice of revocation, the request for hearing, a stay order,
a computer printout of Gaskey's driving record, and a
copy of the citation issued to Gaskey" in license
revocation proceeding before ALJ); see also Schmitz v.
Iowa Dep't of Human Servs., 461 N.W.2d 603, 607-08
(Iowa Ct. App. 1990) (discussing use of hearsay evidence in
administrative hearings). Iowa Code chapter 17A provides,
A finding shall be based upon the kind of evidence on which
reasonably prudent persons are accustomed to rely for the
conduct of their serious affairs, and may be based upon such
evidence even if it would be inadmissible in a jury trial.
Iowa Code § 17A.14(1); see also Dykstra, 783
N.W.2d at 482 ("Generally, a person has a constitutional
due process right to an evidentiary hearing in accordance
with contested case procedures . . . ." (Emphasis
added.) (quoting Brummer v. Iowa Dep't of Corr.,
661 N.W.2d 167, 172 (Iowa 2003))). Irvin does not contend the
Iowa Administrative Procedure Act governs our review.
Nevertheless, we conclude this victim's statement would
be sufficiently credible and reliable to support the IDOC
ALJ's findings under section 17A.14(1) as well as the
"some evidence" standard.
Irvin's testimony at the hearing corroborated the
victim's statement. Irvin admitted during the hearing
that he pushed the victim away by the throat after she did
not perform oral sex in the way that he expected. Irvin also
testified at the hearing that the victim would not have to
"fabricate a story if she wanted him to leave, "
supporting the victim's credibility. The ALJ properly
relied on the victim's statement set forth in the police
report together with Irvin's admissions and guilty plea,
in which he acknowledged "knowingly" impeding his
victim's ability to breathe. We review that
decision under the governing "some evidence"
standard and uphold the ALJ's factual findings that are
supported by "any" evidence in the record.
Key, 577 N.W.2d at 641. Applying that standard of
review here, we uphold the ALJ's finding of a sexual
component to Irvin's assault conviction.
these reasons, we reject the reasoning in Lindsey.
We hold the ALJ properly relied on the victim's detailed
statement and Irvin's own testimony and guilty plea to
require Irvin to complete SOTP. The IDOC properly upheld the
ALJ's decision. The district court erred by reversing the
Irvin's Due Process Claim.
address whether the use of the victim's statement to
classify an offender for SOTP violates due process.
"Procedural due process 'act[s] as a constraint on
government action that infringes upon an individual's
liberty interest, such as the freedom from physical
restraint.' " Holm, 767 N.W.2d at 417
(quoting State v. Seering, 701 N.W.2d 655, 662 (Iowa
[p]risoners held in lawful confinement have their liberty
curtailed by definition, so the procedural protections to
which they are entitled are more limited than in cases where
the right at stake is the right to be free from confinement
Wilkinson v. Austin, 545 U.S. 209, 225, 125 S.Ct.
2384, 2395, 162 L.Ed.2d 174, 191 (2005); see also
Wolff, 418 U.S. at 556, 94 S.Ct. at 2975, 41 L.Ed.2d at
951 ("[T]he fact that prisoners retain rights under the
Due Process Clause in no way implies that these rights are
not subject to restrictions imposed by the nature of the
regime to which they have been lawfully committed.").
first step in any procedural due process inquiry is the
determination of 'whether a protected liberty or property
interest is involved.' " Dykstra, 783
N.W.2d at 480 (quoting Seering, 701 N.W.2d at 665).
If a liberty interest is involved, we analyze the following
First, the private interest that will be affected by the
official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and the
probable value, if any, of additional or substitute
procedural safeguards; and finally, the Government's
interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute
procedural requirement[s] would entail.
Seering, 701 N.W.2d at 665 (quoting Bowers v.
Polk Cty. Bd. of Supervisors, 638 N.W.2d 682, 691 (Iowa
argues that IDOC failed to provide due process for the
initial SOTP classification because the IDOC relied on the
victim's statement in its recommendation to the ALJ. In
Dykstra, we recognized a liberty interest in the
classification for SOTP based on the stigmatizing consequence
of being labeled a sex offender, the mandatory treatment, and
the revocation of earned time. Dykstra, 783 N.W.2d
at 481. We also observed that when a factual inquiry outside
"the face of the conviction" of the crime is
necessary, "resort to some tribunal must be available to
resolve disputes." Id. (quoting Kruse v.
Iowa Dist. Ct., 712 N.W.2d 695, 700-01 (Iowa 2006))
(observing that to comply with due process tribunal must be
available to resolve whether assault conviction required
offender to register); Brummer, 661 N.W.2d at 172
(stating, if proceeding involves "adjudicative
facts" particular to the parties, an evidentiary hearing
is necessary). In Dykstra, the initial decision made
by the IDOC regarding SOTP was also the final classification
determination. 783 N.W.2d at 482-83. Not so with Irvin.
Rather, Irvin's initial classification began the process.
Irvin was then provided the opportunity to challenge that
classification through an evidentiary hearing.
IDOC has a significant interest in rehabilitating sex
offenders before their release. See McKune, 536 U.S
at 32-33, 122 S.Ct. at 2024, 153 L.Ed.2d at 56-57. In
Wolff, the Supreme Court stressed that for due
process in prison discipline cases, "there must be
mutual accommodation between institutional needs and
objectives and the provisions of the Constitution that are of
general application." 418 U.S. at 556, 94 S.Ct. at 2975,
41 L.Ed.2d at 951.
[T]here would be great unwisdom in encasing the disciplinary
procedures in an inflexible constitutional straitjacket that
would necessarily call for adversary proceedings typical of a
criminal trial, very likely to raise the level of
confrontation between staff and inmate, and make more
difficult the utilization of the disciplinary process as a
tool to advance the rehabilitative goals of the institution.
Id. at 563, 94 S.Ct. at 2978, 41 L.Ed.2d at 955.
Irvin's due process claim fails because the IDOC complied
with the Wolff requirements. Id. at 763-71,
94 S.Ct. at 2978-82, 41 L.Ed.2d at 955-59.
Gwinn, a case directly on point, the United States
Court of Appeals for the Tenth Circuit affirmed a summary
judgment dismissing an inmate's due process claims
against Colorado correctional officials. 354 F.3d at 1221.
The inmate in state court initially was charged with sexual
assault, but that charge was dropped in a plea bargain
resulting in his conviction for robbery. Id. at
1217. The presentence report included the victim's
detailed written account of the sexual assault. Id.
at 1217, 1219. The inmate was provided a hearing consistent
with Wolff. Id. at 1218-19. He submitted a written
denial of the victim's allegations. Id. at 1219.
The prison hearing panel upheld his classification requiring
treatment based on the victim's statement. Id.
The federal district court upheld the classification and
dismissed the inmate's due process claims. Id.
at 1221. The Tenth Circuit affirmed, concluding the inmate
"received the procedural protections required by the Due
Process Clause" because he "was afforded notice of
the evidence against him and an opportunity to present
evidence in his own behalf, and he received a written
decision." Id. We reach the same conclusion as
received advance notice of his hearing before the ALJ. At the
hearing, he presented a factual statement signed by him,
caselaw supporting his position, and documents from his
underlying trial. He was allowed to testify. The ALJ was
impartial. See Edwards, 825 N.W.2d at 16. The ALJ
could find and did find Irvin's version of events not
credible in light of Irvin's admissions and the
victim's detailed statement. The ALJ relied on
Irvin's own admissions and testimony rather than relying
solely on unadmitted factual allegations. The ALJ's
factual findings of a sexual component to Irvin's assault
are clearly supported by "some evidence." See
Key, 577 N.W.2d at 641 ("On appellate review of a
prisoner's challenge to the evidentiary support of a
disciplinary matter, we ask whether the committee had
'some evidence' to support its decision."
(quoting Backstrom, 508 N.W.2d at 709). After the
hearing, Irvin received a written decision from the ALJ
detailing the reasons for the classification and was allowed
to appeal that decision to the warden. We conclude Irvin
received the due process to which he was entitled under
those reasons, we sustain the writ, vacate the district
court's ruling, and remand this case with instructions to
reinstate the IDOC's determination requiring SOTP for
SUSTAINED AND CASE REMANDED.
We applied Dykstra in the
companion cases of Reilly v. Iowa District Court,
783 N.W.2d 490 (Iowa 2010), and Waters v. Iowa District
Court, 783 N.W.2d 487 (Iowa 2010). In Waters,
we held that an inmate could be classified for SOTP even
though at the time of classification he was only serving a
sentence for operating while intoxicated (OWI) because he had
"entered prison to serve two sentences: the five-year
OWI sentence and a two-year sentence for assault with intent
to commit sexual abuse." 783 N.W.2d at 489. In
Reilly, we determined that removing an inmate from
SOTP implicated a similar liberty interest-the right to
accrue earned time. 783 N.W.2d at 495. However, we gave less
weight to the inmate's liberty interest because removal
was "a discretionary decision by prison officials . . .
whereas the initial inmate classification addressed in
Dykstra amounts to a specific factual determination
that the inmate has engaged in sexually inappropriate
behavior." Id. at 496. We decided that when
"the inquiry draws more on the experience of prison
administrators, " rather than "the search for
specific facts, " "the full panoply of protections
that would accompany a formal hearing" were unnecessary.
Id. at 496-97 (first quoting Wilkinson v.
Austin, 545 U.S. 209, 228-29, 125 S.Ct. 2384, 2397, 162
L.Ed.2d 174, 193 (2005)).
Nonetheless, facts set forth in the
minutes can be relied upon in district court in certain
instances. Courts may refer to the minutes of testimony to
find a factual basis for a guilty plea. State v.
Finney, 834 N.W.2d 46, 57 (Iowa 2013) (assessing whether
counsel had been ineffective in allowing defendant to plead
guilty and relying on the "entire record, "
including evidence provided in minutes). District courts may
rely on the charging documents of unprosecuted offenses in
determining conditions of release, in which "the nature
and circumstances of the offense charged" is the first
factor the statute instructs courts to consider. See
Iowa Code § 811.2(2); State v. Fenton, 170
N.W.2d 678, 679 (Iowa 1969) (setting bail based on
defendant's criminal history and "county
attorney's information" charging defendant with
rape). At probation revocation hearings, we allow charged,
but unconvicted, offenses to serve as the basis for
revocation when the State can show the defendant violated the
law by a preponderance of the evidence. Rheuport v.
State, 238 N.W.2d 770, 772 (Iowa 1976).
"An estimated ninety-five percent
of convictions are secured through the plea-bargaining
process." State v. Lopez, 872 N.W.2d 159, 161
n.1 (Iowa 2015) (quoting State v. Fannon, 799 N.W.2d
515, 520 n.2 (Iowa 2011)).