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State v. Gordon

Court of Appeals of Iowa

May 2, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
SEAN DAVID GORDON, Defendant-Appellant.

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

         A convicted sex offender alleges the district court impermissibly considered his risk assessment scores in sentencing him to prison. SENTENCE VACATED AND REMANDED FOR RESENTENCING.

          Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney General, for appellee.

         Heard En Banc.

          TABOR, Judge.

         Sean Gordon pleaded guilty to the statutory rape of a fourteen-year-old girl. For this first offense, he received a prison sentence not to exceed ten years. He now asks to be resentenced, alleging the district court improperly decided he should be incarcerated based, in part, on his "risk level scores" derived from two sex-offender risk assessment tools included in a psychosexual evaluation appended to the presentencing investigation (PSI) report. Because we find no statutory authority for using these scores for this purpose, we reverse and remand for resentencing.

         I. Facts and Prior Proceedings

         Fourteen-year-old A.G. knew twenty-four-year-old Gordon as a family friend. They went disc golfing with other family members. But Gordon took a sexual interest in the teenager and encouraged her to exchange nude photographs with him. Eventually Gordon drove A.G. to a remote location where he perpetrated a vaginal sex act against her.

         After A.G. disclosed the incident to her mother, the Floyd County Attorney charged Gordon with sexual abuse in the third degree, a class "C" felony, in violation of Iowa Code section 709.4(1)(b)(3)(d) (2016) (criminalizing a sex act between a fourteen year old and a defendant four or more years older). Gordon pleaded guilty to the felony offense. As part of the plea agreement, both the defense and the State were free to advocate for any available sentence. The district court accepted Gordon's plea and ordered the district department of corrections to complete a PSI report.

          According to the PSI report, Gordon was charged with possession of methamphetamine two weeks after the plea proceeding. The report noted,

[S]ince the Defendant has [pleaded] guilty in this case he has continued to engage in high risk behavior. This is evident by the fact the Defendant was arrested in Chickasaw County on January 22, 2017 and charged with drug possession. Furthermore the Defendant was with a Juvenile female that was reported as missing by her parents.

         As part of the presentence investigation, Gordon's probation officer referred him for a psychosexual assessment. A staff psychologist for the department of correctional services performed the evaluation in late January 2017. The psychologist explained her report "was prepared to assess Mr. Gordon's potential risk to the community, treatment needs, and amenability to treatment." At the conclusion of her report, the psychologist noted her report was "prepared expressly for the Second District Department of Correctional Services." The psychologist's report included two sex-offender risk assessment tools: the STATIC-99R and the SOTIPS (Sex Offender Treatment Intervention and Progress Scale).

         The report described the STATIC-99R as an instrument based on ten "empirically driven risk factors" which was designed to "assist in the prediction of sexual and violent recidivism for sexual offenders."[1] The instrument scored offenders in five risk categories. The instrument's description contained the following caution: "The recidivism estimates provided by the STATIC-99R are group estimates based on reconvictions and were derived from groups of individuals with these characteristics. As such, these estimates do not directly correspond to the recidivism risk of an individual offender." The psychologist scored Gordon as an "average risk" on the STATIC-99R.

         The report described the SOTIPS instrument as "a sixteen-item statistically derived dynamic measure designed to aid in assessing risk, treatment, and supervision needs, and progress among adult male sex offenders."[2] The SOTIPS scores fall into three risk categories: low, moderate, and high. The psychologist recorded Gordon's score in the high-risk category.

         The author of the PSI report recommended Gordon receive a suspended sentence and, as a term of his probation, that he be placed at the BeJe Clark Center, a community-based residential facility, for 180 days or until maximum benefits were achieved. The recommendation for community supervision related to the author's concern that Gordon needed a more structured environment than street probation considering his post-plea arrest and his reluctance to take full responsibility for the offense.

         At the March 2017 sentencing hearing, A.G.'s mother gave a victim impact statement, telling the court that her daughter was in therapy and had significant "emotional scars" from the crime. The State recommended an indeterminate prison term of ten years. As a basis for its recommendation, the State cited Gordon's Chickasaw County arrest:

And during that arrest, he had a different minor female who was a runaway from Floyd County in his vehicle. And that provides a lot of concerns to the State as far as the safety of the community. It shows the types of choices that he's continuing to make and shows that there's nothing to stop him from reoffending in the future.

         Gordon's counsel objected to the court's consideration of the Chickasaw County arrest "as those are just charges." Counsel asked for a deferred judgment and street probation, noting her client had no criminal history and was starting to address his substance-abuse problem. In his allocution, Gordon took responsibility for his sex offense, saying he knew what he did was wrong. Gordon told the court he had moved back in with his parents, was staying away from his drug-using friends, and was trying to get a job. Gordon also addressed his post-plea arrest, admitting he had a juvenile in his vehicle, but saying he did not know she was a runaway and contending he was just giving her and her boyfriend a ride.

         In deciding what sentence to impose, the district court looked at Gordon's age, his prior record, his family circumstances, his financial condition, and his employment history. The court also considered Gordon's "potential for rehabilitation" and "if that can be accomplished in the community versus a more structured environment like prison." The court noted Gordon had not consistently taken responsibility for committing the sex offense, signaling he may not be "amenable" to treatment. The court also expressed concern about Gordon's "continued high-risk behavior being with a juvenile female who obviously has got other issues going on, and a possession of methamphetamine floating around there also." The court acknowledged the arrest was not a conviction but nevertheless considered Gordon's post-plea behavior as an indication he had not received the expected "wake-up call" from this prosecution. The court cited Gordon's "long history of drug abuse" and his admission that use of methamphetamine made him "less sexually inhibited."

The district court then addressed the psychosexual evaluation:
I note that on the STATIC-99R score, which was a risk level score, you were given a Level III, average risk. On the SOTIPS score, you were given a high risk assessment, placed in a high-risk category. And what that sex offender treatment intervention progress scale is supposed to tell me is your supervision needs, your progress- basically, what progress we can anticipate through treatment, taking responsibility, looks at a lot of different factors. And that places you as high risk. Treatment amenability is based upon looking at your willingness to admit your behavior and take responsibility and the level of risk you pose to the community.

         In the next breath, the court declared: "All of these things, in looking at it, tell me that an appropriate sentence in this matter would sentence you up to ten years in the Iowa state prison system." The court rejected the recommendation in the PSI report to suspend the sentence. Gordon appeals.

         II. Scope and Standards of Review

         Generally, we review sentencing decisions for correction of legal error. State v. Letscher, 888 N.W.2d 880, 883 (Iowa 2016). We review constitutional questions in sentencing cases de novo. State v. Bruegger, 773 N.W.2d 862, 869 (Iowa 2009).

         If the sentencing court "uses any improper consideration, resentencing of the defendant is required." State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000) (citing State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998)). Because we cannot speculate about the weight the sentencing court assigned to any given factor or divine which factor tipped the scales toward incarceration, resentencing is required even if the troubling factor was "merely a 'secondary consideration.'" See id. (quoting State v. Messer, 306 N.W.2d 731, 733 (Iowa 1981)).

         III. Analysis of Sentencing Issues

         Gordon complains about two aspects of the sentencing hearing.[3] First, he argues the district court violated his right to due process by considering and relying on the sex-offender-risk-assessment instruments attached to the PSI report.[4]Second, he contends the district court abused its discretion by relying on his post-plea arrest when imposing a sentence of incarceration.

         Gordon frames his objection to the risk assessments as a constitutional argument based on Townsend v. Burke, 334 U.S. 736, 741 (1948) (finding sentences based on material misinformation or erroneous assumptions violate due process). But not every mistake which occurs during sentencing gives rise to a due process violation. See State v. Foy, 574 N.W.2d 337, 339 (Iowa 1998) (noting Foy "attempts to place his appeal on constitutional grounds" by alleging his due process rights were violated when he was not allowed to withdraw his plea but finding no issue of "fundamental fairness" our supreme court reviewed for "abuse of discretion"); see also State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990) (explaining basic requirements of due process have been codified in Iowa Code section 901.3 regarding factors to be considered in the PSI). In addressing Gordon's first complaint, we decline to reach the constitutional attack on the sentencing court's decision.[5] "[W]e prefer to decide cases on nonconstitutional grounds when possible even though the constitutional issue has been properly presented." See State v. Ochoa, 244 N.W.2d 773, 775 (Iowa 1976); see also State v. Weitzel, 905 N.W.2d 397, 403 (Iowa 2017) (declining "to strictly demarcate a clear line between rule-based and due-process claims"); In re S.P., 672 N.W.2d 842, 846 (Iowa 2003) (confining analysis to statutory law because notice had to satisfy "Iowa statutory test as well as the test of due process" (citation omitted)). Because Gordon contends "it was improper for the district court to consider the risk assessment scores in determining the appropriate sentence" we treat his claim as contesting an impermissible sentencing factor.[6]

         A. Risk-Assessment Scores

         Gordon asserts the district court impermissibly relied on his risk-assessment scores when deciding incarceration was necessary.[7] He contends the district court was not aware of the limitations of these risk-assessment tools, and he faults the PSI report for not containing the necessary cautions concerning the appropriate use of the STATIC-99R and SOTIPS instruments. The State counters that because "Gordon does not contest the accuracy of the risk assessment instruments contained in the PSI" he cannot show his sentencing hearing was flawed. At oral argument, counsel for Gordon clarified the concern was not necessarily with the accuracy of his risk-assessment scores but with their "off-label" use as an aggravating factor at his sentencing hearing.[8]

         Gordon finds support for his position from Malenchik v. State, 928 N.E.2d 564, 568 (Ind. 2010) (analyzing sentencing court's use of "scoring models" or "assessment tools" known as Level of Service Inventory-Revised (LSI-R) and Substance Abuse Subtle Screening Inventory (SASSI)). The Malenchik court reasoned:

[N]either the LSI-R nor the SASSI are intended nor recommended to substitute for the judicial function of determining the length of sentence appropriate for each offender. But such evidence-based assessment instruments can be significant sources of valuable information for judicial consideration in deciding whether to suspend all or part of a sentence, how to design a probation program for the offender, whether to assign an offender to alternative treatment facilities or programs, and other such corollary sentencing matters.

928 N.E.2d at 573 (affirming sentence because trial court did not rely on risk assessments as an aggravating factor). The court further explained: "The results of an LSI-R or SASSI assessment are not in the nature of, nor do they provide evidence constituting, an aggravating or mitigating circumstance." Id. at 575. This principle from Malenchik was incorporated into a comprehensive report by the National Center for State Courts. Pamela M. Casey et al., Using Offender Risk and Needs Assessment Information at Sentencing: Guidance for Courts from a National Working Group, National Center for State Courts (2011) http://www.ncsc.org/~/media/microsites/files/csi/rna%20guid e%20final.ashx [hereinafter Casey]. The report opined: "Risk and need assessment information should be used in the sentencing decision to inform public safety considerations related to offender risk reduction and management. It should not be used as an aggravating or mitigating factor in determining the severity of an offender's sanction." Casey, supra, at 11.

         Gordon also relies on State v. Loomis, 881 N.W.2d 749, 753 & n.10 (Wis. 2016) (analyzing sentencing court's use of COMPAS (Correctional Offender Management Profiling for Alternative Sanctions)). The Loomis court concluded the COMPAS risk assessment could be used at sentencing but "circumscribed" its use by explaining "limitations" that Wisconsin sentencing courts "must observe in order to avoid potential due process violations." 881 N.W.2d at 757. For example, the court held, "[R]isk scores may not be used as the determinative factor in deciding whether the offender can be supervised safely and effectively in the community." Id. at 769 (citing Casey, supra, at 14).[9] Due process implications also compelled the Loomis court to caution its sentencing courts that risk assessment scores are "based on group data" and thus are able to identify groups of high-risk offenders, but "not a particular high risk individual." Id. at 765.

         Gordon acknowledges Iowa's appellate courts have yet to address the proper use of risk assessment tools in sentencing. But he argues the sentencing court's reference to his scores on the STATIC-99R and SOTIPS-as a tipping point in its decision to send him to prison-ran afoul of the cautions voiced by other state appellate courts in Malenchik and Loomis, as well as the report from the National Center for State Courts. In appraising Gordon's argument, we focus on Iowa's statutory guidelines for sentencing. Sentencing courts must keep in mind the societal goals of rehabilitating the offender and protecting the community from further offenses. Iowa Code § 901.5; State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). In determining if the punishment fits the crime, the sentencing court must weigh "the nature of the offense, the attending circumstances, defendant's age, character and propensities and chances of his reform." State v. Cupples, 152 N.W.2d 277, 280 (Iowa 1967). In addition, before deferring judgment or suspending a sentence, the district court must consider the following factors: the defendant's age, prior record, employment and family circumstances, mental-health and substance-abuse history, the nature of the offense, and other appropriate factors. Iowa Code § 907.5(1)(a)-(g).

         Presentence investigations assist sentencing courts in this process. See id. § 901.2(1) ("[T]he court shall receive from the state, from the judicial district department of correctional services, and from the defendant any information which may be offered which is relevant to the question of sentencing. The court may consider information from other sources."). PSI reports have a two-fold purpose: (1) "to provide the court pertinent information for purposes of sentencing" and (2) "to include suggestions for correctional planning for use by correctional authorities subsequent to sentencing." Id. § 901.2(4). PSI reports must inquire into the following: (1) the defendant's characteristics, family and financial circumstances, needs, and potentialities; (2) the defendant's criminal record and social history; (3) the circumstances of the offense; (4) the defendant's time in detention; (5) the harm to the victim, the victim's immediate family, and the community; (6) the defendant's potential as a candidate for community service; (7) any mitigating circumstances relating to the offense; and (8) whether the defendant has a history of mental health or substance abuse problems. Id. § 901.3(1)(a)-(h).

         Iowa's general sentencing statutes do not address risk-assessment tools such as the STATIC-99R and SOTIPS included in the psychosexual assessment attached to the PSI report in this case.[10] Our legislature has authorized the use of risk assessments in a few non-sentencing contexts. See, e.g., Id. §§ 692A.128(2)(c) (mandating an application to modify sex-offender registration requirements to include "a validated risk assessment approved by the department of corrections" showing the offender was a low risk to reoffend), 692A.124(2) (requiring determination to use electronic tracking and monitoring to supervise a sex offender be based, in part, upon "a validated risk assessment approved by the department of corrections"), 901.12(3) (compelling board of parole to consider "a validated risk assessment" among other information when deciding whether to release person on parole or work release), 904A.4(8)(a) (directing board of parole to implement risk assessment program). We also recognize our supreme court has recently promoted a pilot project where judges use a validated risk-assessment tool for making pretrial release decisions. See Polk County Begins Pretrial Public Safety Assessment, News Release (Jan. 16, 2018), https://www.iowacourts.gov/newsroom/news-releases/polk-county-begins-pretrial-public-safety-assessment/.

         But so far, our legislature's only mention of risk assessments in the sentencing arena appears in Iowa Code section 901.11. Effective July 1, 2017, at the time of sentencing for certain felony drug offenses, felony child endangerment, and second-degree robbery, the district court shall determine when a convicted person first becomes eligible for parole or work release within certain statutory parameters ...


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