from the Iowa District Court for Madison County, Gregory A.
defendant appeals the sentence imposed following his plea of
guilty to incest. SENTENCE AFFIRMED IN PART, VACATED IN PART,
AND REMANDED WITH DIRECTIONS.
C. Smith, State Appellate Defender, and Patricia Reynolds,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
Jean appeals the sentence imposed following his guilty plea
to incest. He claims the district court abused its discretion
by ordering a prison term and by prohibiting his contact with
minors. We conclude the court properly exercised its
discretion in denying probation, but we remand for the court
to strike language from the sentencing order that forbids
Jean from having contact with persons under eighteen years of
Facts and Prior Proceedings
State charged Jean, age fifty-two, with two counts-sexual
abuse in the third degree, a class "C" felony, in
violation of Iowa Code section 709.4(1) (2016), and incest, a
class "D" felony, in violation of Iowa Code section
726.2. The minutes of evidence alleged Jean inserted his
finger into the vagina of his twenty-one-year-old daughter,
who had an intellectual disability. Jean reached a plea
agreement with the State and pleaded guilty to incest,
admitting he committed a sex act with his daughter. In
exchange, the State dismissed the other charge. The parties
were free to argue for the appropriate sentence.
sentencing hearing, the victim read a statement explaining
the toll her father's crime had taken on her:
I have had many nights that I could not sleep. I have been
emotionally affected by not trusting people like I used to. I
have had a lot of people say that I have trusted in the past
that I no longer am able to trust, including many of my
friends. I have been more of a homebody.
prosecutor sought a five-year prison term and sex-offender
treatment, arguing Jean did not understand that his actions
"really impacted [his daughter], impacted [her] mom,
[and] impacted his roommate who discovered it."
contrast, defense counsel urged the sentencing court to
follow the recommendation of the presentence investigation
(PSI) report for a suspended prison sentence and supervision
within the community. Counsel emphasized that Jean had no
prior criminal history and a solid employment record. Counsel
also pointed to sex-offender assessments that rated Jean as a
low risk to reoffend. Counsel stated Jean was willing to have
"no contact with minors until approved by the
program." Jean then addressed the court and
apologized for his actions.
district court noted "the victim in this case was
seemingly not able to protect herself because of her own
restrictions and disability." The court surmised
Jean's behavior had "a substantial effect" upon
her. The court rejected the PSI report's recommendation
of probation, finding it would "unduly depreciate the
seriousness of the offense." The court also expressed
concern that Jean could not concentrate on sex-offender
treatment outside of prison because he was "struggling
to find a place to live" and a "means to support
himself." The court imposed a period of incarceration
not to exceed five years and a ten-year special sentence
under Iowa Code section 903B.2. In addition, the court issued
an order of protection prohibiting Jean from having contact