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State v. Kirk

Court of Appeals of Iowa

July 6, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
JEFFREY ALLAN KIRK, Defendant-Appellant.

         Appeal from the Iowa District Court for Floyd County, DeDra L. Schroeder, Judge, (plea) and Peter B. Newell, District Associate Judge (sentencing).

         The defendant challenges his sentence after pleading guilty to sexual exploitation of a minor, in violation of Iowa Code sections 728.12(3) and 903B.2 (2012).

          Mark C. Smith, State Appellate Defender, and Bradley M. Bender, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney General, for appellee.

          Considered by Vogel, P.J., and Doyle and McDonald, JJ.

          MCDONALD, JUDGE.

         Jeffery Kirk pled guilty to sexual exploitation of a minor, in violation of Iowa Code sections 728.12(3) and 903B.2 (2011). He was sentenced to an indeterminate prison term not to exceed two years. Kirk challenges his sentence.

         Our review is for the correction of legal error. See Iowa R. App. P. 6.907; State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not disturb the sentence imposed by the district court absent an abuse of discretion or defect in the sentencing procedure. See Formaro, 638 N.W.2d at 724-25.

         Kirk raises two challenges to his sentence. He first argues the district court abused its discretion in relying on just a single factor in imposing sentence-the nature of the offense. He contends the district court employed a fixed sentencing policy rather than making an individualized sentencing determination. At sentencing, the district court gave the following reasons for the sentence:

THE COURT: . . . Mr. Kirk, I've had a chance to review the Presentence Investigation; again, that's a very exclusive review of your life. I have had a chance to review the Psychosexual Evaluation. I have had a chance to consider the recommendations of the Department of Correctional Services. Mr. Kirk, I think that there are some crimes that are so serious that it's not appropriate even for someone that doesn't have a prior criminal history to receive a Deferred Judgment. I think that this is one of those crimes. The crime is the exploitation-sexual exploitation of a minor. I think that in the Presentence Investigation they make their recommendation to insure community safety and, again, I think it is important sometimes that we as a community express how serious an offense is by the imposition of a prison sentence. I think that this is an appropriate case for that sanction.
I am going to follow the recommendations of the State and the Department of Correctional Services. I think those are appropriate, well-thought-out sanctions. . . .

         In imposing a sentence, the district court must actually exercise discretion. State v. Jackson, 204 N.W.2d 915, 917 (Iowa 1973). "In applying its discretion the court should weigh and consider all pertinent matters in determining a proper sentence, including the nature of the offense, the attending circumstances, defendant's age, character, and propensity and chances for reform." State v. Lachman, No. 09-0630, 2010 WL 200819, at *1 (Iowa Ct. App. Jan. 22, 2010) (citing State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999)). "The court must exercise its discretion without application of a personal, inflexible policy relating only to one consideration." Id. (citing State v. Hildebrand, 280 N.W.2d 393, 397 (Iowa 1979) and State v. Kelley, 357 N.W.2d 638, 640 (Iowa Ct. App. 1984)).

         The application of a fixed sentencing policy constitutes the failure to exercise discretion, which we treat as an abuse of discretion for the purposes of appellate review. For example, in Hildebrand, the defendant pleaded guilty to operating under the influence. 280 N.W.2d at 394. The district court denied the defendant's request for a deferred sentence, stating, "I have the policy that when there is an accident involved, I do not and will not grant a deferred sentence." Id. at 395. On appeal, the supreme court held the fixed policy precluded the exercise of the sentencing court's discretion and remanded the matter for resentencing. See id. at 397. Similarly, in Lachman the district court explained it would not grant the defendant's request for a deferred judgment because deferred judgments were appropriate for "people who maybe are young and have made a mistake or who might lose permanently some job or some benefits if they have judgment entered against them and who have otherwise clean records." 2010 WL 200819, at *2. This court held the district court's statements evidenced a policy regarding deferred judgments, vacated the sentence, and remanded for resentencing. See id.

         We conclude the district court failed to exercise its discretion in applying a fixed policy regarding the nature of the offense. The district court stated, "[T]here are some crimes that are so serious that it's not appropriate even for someone that doesn't have a prior criminal history to receive a deferred judgment." The district court then identified the offense by name without identifying any of the specific underlying facts and circumstances of the offense. In short, the district court made a categorical determination those convicted of sexual exploitation of a minor should not receive a deferred judgment. A categorical determination a defendant should not be eligible to receive a deferred judgment is a legislative determination. See Iowa Code § 907.3(1)(a) (identifying circumstances in which the sentencing court may not defer judgment); Jackson, 204 N.W.2d at 916-17. The offense at issue in this case is not one of the offenses the legislature ...


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