from the Iowa District Court for Floyd County, DeDra L.
Schroeder, Judge, (plea) and Peter B. Newell, District
Associate Judge (sentencing).
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).
C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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.
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.
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. . . .
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.
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.
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 ...