from the Iowa District Court for Floyd County, DeDra L.
convicted sex offender alleges the district court
impermissibly considered his risk assessment scores in
sentencing him to prison. SENTENCE VACATED AND
REMANDED FOR RESENTENCING.
C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Linda J. Hines, Assistant
Attorney General, for appellee.
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.
Facts and Prior Proceedings
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.
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.
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).
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." 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.
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." The SOTIPS scores fall into three risk
categories: low, moderate, and high. The psychologist
recorded Gordon's score in the high-risk category.
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.
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
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.
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.
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
The district court then addressed the psychosexual
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
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.
Scope and Standards of Review
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
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
Analysis of Sentencing Issues
complains about two aspects of the sentencing
hearing. 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.Second, he contends the district court
abused its discretion by relying on his post-plea arrest when
imposing a sentence of incarceration.
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. "[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.
asserts the district court impermissibly relied on his
risk-assessment scores when deciding incarceration was
necessary. 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.
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
[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
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)
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.
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
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.
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).
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. §
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. 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.
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 ...