from the Iowa District Court for Scott County, Stuart P.
defendant appeals following his conviction for extortion.
C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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.
Background Facts & Proceedings
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.
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
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.
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.
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