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State v. Hintze

Court of Appeals of Iowa

March 6, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
GREGORY HINTZE, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.

         A defendant appeals following his conviction for extortion.

          Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant Appellate Defender, for appellant.

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

          Considered by Potterfield, P.J., and Tabor and Bower, JJ.

          BOWER, JUDGE.

         Gregory Hintze appeals following his conviction for extortion. Hintze claims the court abused its discretion in sentencing by allowing the victim's mother to provide a victim impact statement and by considering unproven and unprosecuted offenses. We vacate the defendant's sentence and remand for resentencing before a different judge.

         I. Background Facts & Proceedings

         In June and July 2017, Hintze posted nude photos of M.G. on the door of the apartment she lived in with her husband and threatened further distribution of the photos around the apartment complex if M.G. and her husband did not pay him money. The State charged Hintze with one count of extortion, in violation of Iowa Code section 711.4 (2017); two counts of first-degree harassment, in violation of section 708.7(2); and being a habitual offender, in violation of section 902.8.

         On May 18, 2018, pursuant to a plea agreement with the State, Hintze pleaded guilty to extortion, a class "D" felony. As part of the agreement, the State dropped the two counts of harassment and the habitual offender enhancement. The parties were free to argue over the appropriate sentence. For a factual basis, Hintze admitted to threatening to post photos of M.G., communicating the threat to M.G., having the intention of receiving something back, and that he did not have the right to do so. The court accepted Hintze's plea.

         The court held a sentencing hearing on July 24. Hintze requested probation, and the State requested imprisonment. According to the pre-sentence investigation report, Hintze's criminal history includes three convictions for second-degree sexual abuse of young children in 1990.

         M.G., the extortion victim, had died under unrelated circumstances in February 2018, and her mother asked to give a victim impact statement at the sentencing hearing. Hintze objected to the mother providing a statement, but the court overruled the objection. The mother's victim impact statement included implications Hintze requested M.G. procure a child for him. The court stated it was not taking the mother's statement into consideration in its sentencing decision. The court then cited the minutes of testimony as supporting the mother's allegations. Defense counsel objected as Hintze had not admitted that portion of the minutes, and the mother interjected, "It's true." In response, the court stated it "does not take into consideration the statements in the minutes of evidence that were not admitted to by the Defendant." The court then referred to Hintze's criminal history as "in and of itself sufficient for the Defendant to deserve the jail time that the Court will impose in this matter." The court also found jail time necessary for the protection of the public.

         The court entered judgment and imposed the statutory sentence of an indeterminate term of imprisonment not to exceed five years and the minimum required fine and surcharge. Hintze appeals, claiming the sentencing court abused its discretion by considering improper factors in sentencing him including an improper victim statement and unproven, unprosecuted offenses.

         II. ...


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