from the Iowa District Court for Butler County, DeDra L.
Cutshall appeals the sentences entered upon his guilty pleas
to the charges of lascivious acts with a child and assault
with intent to commit sexual abuse.
C. Smith, State Appellate Defender, and Mary K. Conroy,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Darrel Mullins, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
VAITHESWARAN, PRESIDING JUDGE.
Cutshall pled guilty to lascivious acts with a child and
assault with intent to commit sexual abuse. See Iowa
Code §§ 709.8(1)(d), (2)(b), 709.11 (2015); see
also id. § 708.1. The district court sentenced
Cutshall to prison and jail but suspended the prison sentence
and most of the jail sentence and placed him on probation. As
a condition of probation, the court stated Cutshall could
"[n]ot have a phone or any device with internet
appeal, Cutshall (1) challenges the condition of probation
prohibiting access to the internet, (2) contends the district
court improperly considered unproven facts and offenses in
pronouncing sentence, and (3) argues the district court
should have considered his status as a juvenile offender in
Condition of Probation
condition of probation is only "reasonable when it
relates to the defendant's circumstances in a reasonable
manner . . . and is justified by the defendant's
circumstances." State v. Valin, 724 N.W.2d 440,
446 (Iowa 2006). Cutshall argues the prohibition of access to
the internet is unreasonable because the minutes of testimony
"do not indicate that [he] used the internet to find his
victims." The State agrees "[t]he sentencing order
prohibiting Cutshall from accessing the internet or
possessing any device with internet capability is
unreasonably restrictive given his offense." We vacate
this portion of the sentence and remand to have the district
court strike this condition of probation.
Unproven Facts and Offenses
State originally charged Cutshall with one count of
second-degree sexual abuse occurring January 1, 2008 through
December 31, 2012 and one count of third-degree sexual abuse
occurring January 1, 2012 through December 31, 2013. Cutshall
pled guilty to lesser charges, which incorporated the same
time frames. At sentencing, the district court stated:
[M]y thought is that based on the nature of the offenses,
based on the time frame we're talking about, and there
being two separate and distinct victims, which happened over
a period of time, that this isn't a case for a suspended
sentence, but I'm going to give you that opportunity to
prove me wrong.
argues "the district court believed [his] crimes
occurred over a period of time and during a separate period
of time" notwithstanding the absence of an admission by
him "that he assaulted the victims multiple times over a
period of time or that the offenses occurred in different
periods of time." "We will set aside a sentence and
remand a case to the district court for resentencing if the
sentencing court relied upon charges of an unprosecuted
offense that was ...