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State v. Guise

Court of Appeals of Iowa

May 2, 2018

STATE OF IOWA, Plaintiff-Appellee,
MONTEZ GUISE, Defendant-Appellant.

          Appeal from the Iowa District Court for Cerro Gordo County, Colleen D. Weiland, Judge.

         Montez Guise challenges the district court's use of a risk assessment tool in sentencing him. SENTENCE VACATED AND REMANDED FOR RESENTENCING.

          Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney General, for appellee.

         Heard En Banc.

          VAITHESWARAN, Judge.

         We must decide whether the district court abused its discretion in considering the "Iowa Risk Revised" in sentencing a defendant to prison.

         I. Background Proceedings

         Montez Guise kicked down the door of his ex-girlfriend's apartment, in violation of a no-contact order. He pled guilty to second-degree burglary.

         The department of correctional services prepared a presentence investigation report (PSI), which included the following sentence: "As part of the PSI interview process an Iowa Risk Revised was completed indicating the Defendant should be supervised at an intensive level." The officer who prepared the report recommended imprisonment.

         At the sentencing hearing, the prosecutor recommended a suspended sentence and probation, as set forth in the written plea agreement. The district court rejected the recommendation, relying in part on the PSI evaluator's reference to the need for intensive supervision. The court's complete reasoning was as follows:

Mr. Guise, [defense counsel] has probably talked to you about the three goals that I am supposed to aim for when I am deciding a sentence for you. They are your rehabilitation, protection of society, and deterrence, meaning trying to convince you and other people not to perform criminal acts, so those three goals I keep in mind when I apply what I've learned about you from the case file, from the presentence investigation, and from what you folks have told me today.
The whole of that information convinces me that you cannot be rehabilitated in the community and that you are a danger to society if we keep you in the community. You may well have a good heart, I have no reason to think otherwise, but both things can be true. You can be dangerous to us, you can be difficult to rehabilitate in the community when you still have a good heart because sometimes intentions are not enough. Your criminal history is significant in itself but includes a number of probation and parole revocations. When you were on partial release for this matter, you had a new charge and resisted arrest-or interfered with official acts, I should say, when the police tried to execute a warrant for you when you had been released when you'd been convicted for this. That doesn't bode well for us being able to help you with treatment and other things that you need in society and in the community. The presentence investigator also noted that you need intensive-I don't want to say supervision. I have to get the right word that they used. It is supervision. That your risk level is such that you should be supervised at an intensive level. So for that reason, I'm not accepting the plea agreement.

(Emphasis added.) The court sentenced Guise to a prison term not exceeding ten years.

         On appeal, Guise (1) challenges the district court's reliance on the "Iowa Risk Revised" (IRR) and (2) contends the district court considered an "unproven allegation" of assault in sentencing him.

         II. Iowa Risk Revised

         Guise maintains "the consideration of the IRR assessment violated [his] due process rights." In the alternative, he argues, the sentencing court's consideration of and reliance on the IRR "was an abuse of discretion." Finally, he raises an ineffective assistance of counsel claim, arguing "[i]f error was not preserved, . . . he was prejudiced by counsel's failure."

         The State responds by questioning whether Guise preserved error on his "constitutional challenge to certain unobjected to evidence used in sentencing him." The State does not raise an error preservation concern with respect to the alternative abuse of discretion argument.[1]

         We find it unnecessary to address the constitutional argument, either directly or under an ineffective-assistance-of-counsel rubric. Cf. Crowell v. State Pub. Def, 845 N.W.2d 676, 689 (Iowa 2014) ("Ordinarily, we look to statutory issues first in order to avoid unnecessary constitutional questions."). We will focus on the alternative argument-whether the district court abused its discretion in using the IRR in the sentencing decision. See State v. Boltz, 542 N.W.2d 9, 10 (Iowa 1995) (reviewing court's application of sentencing factors for an abuse of discretion). We proceed to the merits.

         Much has been written about risk assessment tools and their use in various criminal contexts, including sentencing. See, e.g., Paula M. Casey et al., National Center for State Courts (NCSC), Using Offender Risk and Needs Assessment Information at Sentencing: Guidance for Courts from a National Working Group (2011),; Jessica Corey, Risky Business: Critiquing Pennsylvania's Actuarial Risk Assessment in Sentencing, 7 Colum. J. Race & L. 150 (2016); Jessica M. Eaglin, Constructing Recidivism Risk, 67 Emory L.J. 59 (2017); Melissa Hamilton, Back to the Future: The Influence of Criminal History on Risk Assessments, 20 Berkeley J. Crim. L. 75 (2015); Cecilia Klingele, The Promises and Perils of Evidence-Based Corrections, 91 Notre Dame L. Rev. 537 (2015); Dawinder S. Sidhu, Moneyball Sentencing, 56 B.C. L. Rev. 671 (2015).

         Virtually nothing has been written about the IRR assessment tool. See Iowa Dep't of Corr., Iowa Board of Corrections Agenda (April 7, 2017), of_corrections_handouts_-_mpcf_1.pdf [2]; Legislative Servies Agency, Budget Unit Brief FY 2017: Iowa Corrections Offender Network (Rev. 09/06/2016),

         The State does not cite a statute, rule, or manual authorizing use of the IRR in sentencing. Cf. Ky. Rev. Stat. Ann. § 532.007(3)(a) (2017) ("Sentencing judges shall consider . . . the results of a defendant's risk and needs assessment included in the presentence investigation."); La. Stat. Ann. § 15:326(A) (providing certain Louisiana courts "may use a single presentence investigation validated risk and needs assessment tool prior to sentencing an adult offender"); Ohio Rev. Code Ann. § 5120.114(A)(1)-(3) (stating Ohio's department of rehabilitation and correction "shall select a single validated risk assessment tool for adult offenders" that shall be used for various purposes including sentencing); 42 Pa. Stat. and Cons. State. Ann. § 2154.7(a) ("The commission shall adopt a sentence risk assessment instrument for the sentencing court to use to help determine the appropriate sentence within the limits established by law. . . ."). Nor can we find such authority.

         Iowa Code section 901.2(1) authorizes the district court to receive "any information which may be offered which is relevant to the question of sentencing." Relevance is the key. On this record, we only know that the IRR authorized intensive supervision. We do not know what the IRR is, what factors led to the recommendation of intensive supervision, or whether the factors were appropriate for consideration in the sentencing context. It is impossible to determine whether the IRR was relevant to the question of sentencing within the meaning of section 901.2(1).

         We turn to sections 901.5 and 901.3(1)(a). Section 901.5 authorizes the court to "receiv[e] and examin[e] all pertinent information, including the presentence investigation report." Section 901.3(1)(a) authorizes a presentence investigator to inquire into "[t]he defendant's characteristics, family and financial circumstances, needs, and potentialities." Again, we do not know whether the IRR bears on these factors. If the IRR is "pertinent" information for purposes of sentencing and relates to the defendant's "needs" or "potentialities, " the district court and the reviewing court should know how and why. As it stands, the PS I report's single reference to the "Iowa Risk Revised" is devoid of context. The IRR could encompass impermissible factors such as unproven charges or it could include unreliable factors. We simply do not know. And, on this record, neither did the district court.

         We conclude the broad general language of the cited provisions cannot be read to authorize the use of an unspecified algorithm in sentencing (if that is what the IRR is). See State v. Lopez, 872 N.W.2d 159, 176 n.4 (Iowa 2015) (concluding a more specific statute controlled over the general language of these provisions). Even courts that have approved the use of algorithms at sentencing have set paramaters for their use. See Malenchik v. State, 928 N.E.2d 564, 574 (Ind. 2010) (concluding results of certain offender assessment instruments "are appropriate supplemental tools for judicial consideration at sentencing"); State v. Loomis, 881 N.W.2d 749, 753 (Wis. 2016) (concluding "if used properly, . . . a circuit court's consideration of a . . . risk assessment at sentencing does not violate a defendant's right to due process"). Our record contains no parameters.

         This brings us to subsections 901.11(1), (2), and (3), which are more specific. Section 901.11 is titled "Parole or work release eligibility determination-certain drug, child endangerment, and robbery offenses." Subsection 901.11(1) authorizes consideration of a "validated risk assessment" to determine when a person "shall first become eligible for parole or work release." Subsections 901.11 (2) and (3) authorize consideration of a "validated risk assessment" for the same purpose where the convictions are for child endangerment or robbery. Like the more general statutes, these provisions say nothing about the use of risk assessment tools in the sentencing decision. They do not expressly or impliedly authorize the use of the IRR in sentencing for second-degree burglary. But, even if they did, nothing in our record indicates the IRR was a validated risk assessment tool. See Eaglin, 67 Emory L.J. at 119 ("Those using the tools must be able to interpret the results. . . .").

         In sum, we find no legislative authority supporting the use of the IRR at sentencing. We also are unaware of any properly promulgated agency rules addressing the subject. In the absence of legislative or administrative authority with the force of law, we need not reach the question of how the IRR should be used at sentencing and, specifically, whether the instrument should be used only as a mitigating rather than an aggravating factor.[3]

         We return to our record. As noted, the PSI evaluator referred to the IRR in recommending intensive supervision and the district court relied on the recommendation in sentencing Guise. To reiterate, our record contains no information on what the IRR was intended to measure, how it was scored, what factors were considered in arriving at a score, or how the PSI evaluator applied the test to Guise. See Klingele, 91 Notre Dame L. Rev. at 576 ("As an initial matter, risk is a squishy concept and its variations (low, medium, and high) are subject to all manner of manipulation."). The IRR as described in Guise's PSI report was a black box, devoid of transparency.

         Without information allowing the court to gauge the IRR's reliability, the court's use of the test in the sentencing decision amounted to an abuse of discretion. See State v. White, 903 N.W.2d 331, 333-34 (Iowa 2017) (finding the sentencing court abused its discretion when it drew "critical conclusions" that were "not grounded in science but rather based on generalized attitudes of criminal behavior"); cf. Loomis, 881 N.W.2d at 763-64 ("[A]ny PSI containing a [Correctional Offender Management Profiling for Alternative Sanctions (COMPAS)] risk assessment must inform the sentencing court about the following cautions regarding a COMPAS risk assessment's accuracy: (1) the proprietary nature of COMPAS has been invoked to prevent disclosure of information relating to how factors are weighed or how risk scores are to be determined; (2) risk assessment compares defendants to a national sample, but no cross-validation study for a Wisconsin population has yet been completed; (3) some studies of COMPAS risk assessment scores have raised questions about whether they disproportionately classify minority offenders as having a higher risk of recidivism; and (4) risk assessment tools must be constantly monitored and re-normed for accuracy due to changing populations and subpopulations."); Klingele, 91 Notre Dame L. Rev. at 576 ("[R]isk assessment tools provide a good example of evidence-based practices that have been promulgated with insufficient attention to their limitations."); see also Eaglin, 67 Emory L.J. at 64, 88 ("Actuarial risk assessment tools obscure difficult normative choices about the administration of criminal justice. . . . With actuarial risk tools, normative judgments are more difficult or even impossible to discern."). We vacate the sentence and remand for resentencing without consideration of the IRR on this state of the record.

         III. Assault

         At sentencing, the district court referred to a domestic abuse surcharge. Defense counsel responded by informing the court, "There would be no domestic abuse surcharge on this." The court quickly corrected itself, stating, "[I]t's a burglary, so you're right." In that context, the court also stated, "I was thinking about the underlying assault."

         Guise contends the district court considered an unproven offense of assault. See State v. Grandberry, 619 N.W.2d 399');">619 N.W.2d 399, 401 (Iowa 2000) ("If a court in determining a sentence uses any improper consideration, resentencing of the defendant is required."). We disagree. The court did not find Guise committed an assault. And, as Guise concedes, intent to commit an assault was an element of second-degree burglary. See Iowa Code § 713.1 (2016) ("Any person, having the intent to commit a felony, assault or theft. . . ."). Finally, Guise admitted he possessed assaultive intent. We conclude the court did not consider an unproven offense.


          Danilson, C.J., and Potterfield, Tabor, and Bower, JJ., concur; Vogel, Doyle, Mullins, and McDonald, JJ, dissent.

          MCDONALD, Judge (dissenting)

         At issue in this case is a single, unchallenged sentence contained in a nineteen-page presentence investigation report: "As part of the PSI interview process an Iowa Risk Revised was completed indicating the Defendant should be supervised at an intensive level." Guise contends the district court's consideration of this single, unchallenged sentence violated his right to due process and constituted an abuse of discretion. The majority does not address the defendant's constitutional claim, but the majority holds the district court's consideration of this single, unchallenged sentence constituted an abuse of discretion. In so holding, the majority does not address the claim Guise presents on appeal. Instead, the majority undertakes the role of advocate and raises claims not raised or briefed by the parties. Even then, the majority wrongly decides the issues it raises. I dissent.


         Guise presents a narrow due process challenge to his sentence. He contends the district court's consideration of the statement regarding the risk assessment deprived him of due process when the statement was considered without "sufficient cautions for and limitations of the risk assessment tools." Specifically, he contends the presentence investigation report should have contained the following cautionary instructions or advisories: "1) the risk assessment scores are based on group data and not specific to this individual defendant; (2) the existence of validation studies, including any cross-validation for an Iowa population; (3) the extent of the disclosure of the information used to determine the score such as question and answers with the formulas used; and (4) the purpose of the tool and that the risk assessment tools were not developed for use at sentencing." Guise's due process claim, as presented, fails.


         To determine whether due process requires a sentencing court be given cautionary instructions regarding the use of risk assessment information, it is first necessary to establish what limits, if any, due process imposes on sentencing proceedings.

         The Fourteenth Amendment to the Federal Constitution provides no state shall "deprive any person of life, liberty, or property, without due process." Article I section 9 of the Iowa Constitution provides the same textual guarantee, stating "[N]o person shall be deprived of life, liberty, or property, without due process of law." The federal and state guarantees of due process apply to sentencing proceedings. See Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (noting the imposition of sentence is part of the criminal prosecution for due process purposes); State v. Delano, 161 N.W.2d 66, 72 (Iowa 1968) (stating that sentencing proceedings need not "conform with all of the requirements of a criminal trial or even of the usual administrative hearing . . . but the hearing must measure up to the essentials of due process and fair treatment").

         Federal due process places very few limitations on the categories or sources of information a sentencing court may consider in crafting and imposing sentence. The sentencing court may not consider the defendant's race, religion, or political affiliation (and presumably, other irrelevant classifications). See Zant v. Stephens, 462 U.S. 862, 885 (1983). In addition, the Supreme Court has stated due process protects a defendant from being sentenced based on materially false information the defendant did not have an opportunity to correct. See Townsend v. Burke, 334 U.S. 736, 741 (1948); West v. United States, 994 F.2d 510, 512 (8th Cir. 1993) (stating a defendant is not deprived of constitutional process when sentenced on incomplete or inaccurate information "as long as the defendant was afforded an adequate opportunity to challenge the information"). With these limited exceptions, the Supreme Court has repeatedly "reaffirmed the fundamental sentencing principle that a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." Roberts v. United States, 445 U.S. 552, 556 (1980); see Dean v. United States, 137 S.Ct. 1170, 1175 (2017) (stating sentencing courts have wide discretion in the type and sources of information considered at sentencing); Pepper v. United States, 562 U.S. 476, 488 (2011) (stating the sentencing court is allowed "to consider the widest possible breadth of information" in imposing sentence).

         Like the federal due process clause, the state due process clause does not impose any significant limitation on the categories or sources of information that can be considered at sentencing so long as the defendant had the opportunity to object to the information. The controlling case is Delano. 161 N.W.2d 66. In that case, the defendant challenged his sentence on the ground the district court received "information concerning the social and economic background and other offenses of the accused." Id. at 69. The Iowa Supreme Court stated the sentencing court may rely on any information to which the defendant did not object. See id. at 70. The court explained no violation could be found when neither defense counsel "nor defendant objected to the [presentence] report or made any effort to refute any part of it." Id. at 71. The court further stated the "defendant was well aware of the trial court's use of the presentence report . . . [and] [h]e did not see fit to make an objection . . . . We must assume that, in the absence of evidence to the contrary, the court made proper use of the report." Id.

         Similarly, in Rinehart v. State, 234 N.W.2d 649, 651 (Iowa 1975), the Iowa Supreme Court rejected a due process challenge that the defendant's "sentence . . . was predicated upon an improper basis." In that case, the sentencing judge took a "trip to Iowa City" and engaged in an "ex parte conversation" with a doctor who had examined the defendant. See id. at 660. In rejecting the defendant's due process claim, the supreme court explained "[d]ue process at sentencing does not require a full panoply of trial procedures." Id. at 661. The court reasoned due process was satisfied because the sentencing judge had disclosed the substance of the trip to counsel in a letter written by the doctor and "[a]t no time in the proceedings did counsel request they be afforded a fair opportunity to controvert the contents of the letter." Id. at 660.

         The general rule that a sentencing court may consider any category of information from any source is deeply-rooted in our historical traditions. "[B]oth before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law." Williams v. New York, 337 U.S. 241, 246 (1949). For example, "[o]ut-of-court affidavits have been used frequently, and of course in the smaller communities sentencing judges naturally have in mind their knowledge of the personalities and backgrounds of convicted offenders." Id. In addition, due process allows judges to consider "reports made by probation officers containing information about a convicted defendant, including such information as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant." Id.

         The historical rule is supported by "sound practical reasons." Id. For criminal trials, courts have fashioned rules of evidence that "narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged." Id. at 247. The rules of evidence are designed, in part, to prevent the finder of fact "from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct." Id. "A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined." Id. The concerns relating to the determination of guilt are not present at sentencing. Thus, "a sentencing judge [should] not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial." Id.

         With these constitutional principles in mind, it is clear the minimal dictates of due process have been satisfied in this case. Due process does not restrict the district court from considering risk assessment information. The risk assessment information was presented in a permissible presentence investigation report. See Williams, 337 U.S. at 249-50 (observing such "reports have been given a high value by conscientious judges who want to sentence persons on the best available information rather than on guesswork and inadequate information. To deprive sentencing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation"). Counsel was provided with the presentence investigation report at least one week prior to sentencing in compliance with the Code. See Iowa Code § 901.4 (2017) (providing defense counsel shall have access to the presentence investigation report at least three days prior to sentencing); cf. State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990) (stating the "basic requirements of due process and fair notice have been codified in Iowa Code sections 901.3 and 901.4, and we believe that failure to provide the statutory notice renders such evidence inadmissible on the issue of sentencing"). At the sentencing hearing, the district court afforded the defendant the opportunity to make additions, corrections, or objections to the presentence investigation report. Defense counsel did raise one issue not material to this appeal. Other than this immaterial issue, defense counsel stated, "[W]e have no additions or other corrections, no objection to the Court considering it for sentencing purposes."

         To the extent the defendant now contends cautionary instructions should have been contained in the presentence investigation report, it was the defendant's obligation to bring the issue to the district court's attention. See Delano, 161 N.W.2d at 71. The defendant's failure to request cautionary instructions at the time of sentencing forecloses his due process claim. See, e.g, State v. Dursunov, No. 35927, 2010 WL 9585664, at *2 (Idaho Ct. App. Mar. 17, 2010) ("There having been no objection to the psychosexual and polygraph examinations at the sentencing hearing, Dursunov cannot now claim a violation of due process through the court's reliance on those evaluations."); State v. Walker, 167 P.3d 879, 883 (Mont. 2007) (denying due process challenge where the defendant "never challenged the accuracy of the PSI during his own testimony before ...

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