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State v. Cutshall

Court of Appeals of Iowa

July 6, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
ALEXANDER CUTSHALL, Defendant-Appellant.

         Appeal from the Iowa District Court for Butler County, DeDra L. Schroeder, Judge.

         Alexander 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.

          Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant Appellate Defender, for appellant.

          Thomas 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.

         Alexander 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 capability."

         On 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 imposing sentence.

         I. Condition of Probation

         A 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.[1]

         II. Unproven Facts and Offenses

         The 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.

         Cutshall 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 ...


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