IN THE SUPREME COURT OF IOWA No. 15–0948
Filed December 23, 2016
Amended February 27, 2017
STATE OF IOWA,
Plaintiff,
vs.
IOWA DISTRICT COURT FOR JONES COUNTY,
Defendant.
Certiorari to the Iowa District Court for Jones County, Lars G.
Anderson, Judge.
Iowa Department of Corrections appeals district court’s ruling
reversing agency decision requiring inmate convicted of domestic abuse
assault to participate in sex offender treatment program. WRIT
SUSTAINED AND CASE REMANDED.
Thomas J. Miller, Attorney General, and John B. McCormally,
Assistant Attorney General, for plaintiff.
Mark Smith, State Appellate Defender, and John Bishop,
Cedar Rapids, until withdrawal, and then Anthony Burton Irvin pro se. 2
WATERMAN, Justice.
In this appeal, we must decide whether the Iowa Department of
Corrections (IDOC) violated an inmate’s rights by requiring him to
participate in the Sex Offender Treatment Program (SOTP). The inmate
pled guilty to domestic abuse assault in a plea bargain that dismissed a
related sex abuse charge. The IDOC initially relied on the dismissed sex
abuse charge and the victim’s detailed, written statement included in a
police report to refer him for mandatory SOTP. An administrative law
judge (ALJ) upheld that determination following an evidentiary hearing
based on the inmate’s admission that he assaulted his girlfriend during
oral sex and the victim’s statement. The district court reversed based on
an unpublished, nonprecedential decision, Lindsey v. State, No. 13–
2042, 2015 WL 568560 (Iowa Ct. App. Feb. 11, 2015), which held the
IDOC cannot use unproven charges to require SOTP. We granted the
IDOC’s request for a writ of certiorari.
For the reasons explained below, we hold the IDOC may rely on the
victim’s written statement in a police report for the initial classification
requiring SOTP, provided the inmate is afforded due process, including
an evidentiary hearing to challenge that classification. The ALJ, in turn,
may uphold the classification based on the inmate’s own testimony
admitting to a sexual component to the assault, along with other
evidence, including hearsay such as the victim’s detailed account.
Accordingly, we sustain the writ, reverse the judgment of the district
court, and remand the case to reinstate the IDOC’s decision requiring
this inmate’s participation in the treatment program.
I. Background Facts and Proceedings.
Anthony Irvin is an inmate at Anamosa State Penitentiary under
the custody of the IDOC serving a prison sentence for domestic abuse 3
assault following his guilty plea. The victim was his live-in girlfriend.
The minutes of testimony, which incorporated by reference the police
report with the victim’s detailed account, alleged that at 8:30 p.m. on
October 28, 2012, Irvin became angry upon finding calls to another man
made from his girlfriend’s phone. Irvin accused her of infidelity. When
she attempted to explain, he grabbed her by the throat and threw her
across the room. Irvin then began smoking crack cocaine and watching
porn. About 1:30 a.m., he forced his girlfriend to smoke crack and
perform oral sex on him. According to her statement, at around 3:30
a.m., she told him she did not want to continue. Irvin ordered her to
keep going. She stopped and pulled away. Irvin again grabbed her by
the throat. She struggled, and Irvin put her in a headlock and strangled
her until she passed out. When she awoke, she felt dizzy and found she
had urinated on herself. She began sobbing, and Irvin threatened to kill
her before she could call the police or neighbors. She laid in bed until
morning, when she went to work. The police were contacted and came to
her workplace. Her statement and photos of her injuries were taken that
day. Police arrested Irvin at their home.
The State charged Irvin with two counts: (1) domestic abuse
assault by knowingly impeding the normal breathing or circulation of the
blood of another person in violation of Iowa Code section 708.2A(2)(d)
(2013); and (2) sexual abuse in the third degree for performing a sex act
by force in violation of section 709.4. At that time, Irvin also had prior
charges of domestic abuse assault and sexual abuse in the third degree
pending for another incident with a different victim.
On August 20, 2013, the State reached a plea agreement with
Irvin, who pled guilty to two counts of domestic abuse assault in
violation of section 708.2A(2)(d) in exchange for the dismissal of both 4
charges of sexual abuse in the third degree. The court sentenced Irvin to
an indeterminate period of incarceration not to exceed two years on each
offense, to be served consecutively, and imposed a $625 fine. Irvin was
also sentenced on two unrelated theft charges. Irvin’s cumulative
sentence totaled six years. The sentencing order recommended that Irvin
be enrolled in a batterer’s education treatment course. The district court
made no finding that the crimes to which Irvin pled were sexually
motivated and did not require Irvin to register as a sex offender.
On October 14, shortly after Irvin arrived at the IDOC’s
Mount Pleasant Correctional Facility (MPCF), his counselor, Kasey Bean,
sent an email to Sean Crawford, the director of the SOTP. Bean’s email
stated that based on Irvin’s original sexual abuse charge, she “believe[d]
he may be eligible for SOTP.” Crawford responded a few weeks later,
stating, “Offender’s file has been reviewed and it is my opinion there is a
sexual component involved in his current conviction. DOC will require
SOTP.”
On December 16, the IDOC notified Irvin that he had been
classified as an offender required to complete sex offender treatment.
The notice stated the classification “may affect [his] future accrual of
earned time and tentative discharge date pursuant to Iowa Code
§ 903A.2(1)(a).” The notice set forth the reasons for his classification in
a section entitled, “Classification Committee Justification/Evidence”:
Offender Irvin is currently incarcerated on charges of domestic abuse and 3rd degree theft. Originally charged also with sex abuse 3rd, he ple[d] to the current charges. Along with beating his victim up, he forced the female to perform oral sex on him. Offender Irvin has never completed any type of sex offender treatment program and because of the sexual component to his crime the DOC/MPCF will require he do so. 5
The notice listed the evidence relied upon by the IDOC for Irvin’s
classification, including the (1) program records, (2) email by Sean
Crawford, (3) trial information, (4) police report, and (5) minutes of
testimony. The police report was attached to the minutes and noted that
Irvin “beat his victim up” and “force[d] her to perform oral sex.” The
police report quoted a detailed statement from the victim taken down the
day after the assault. The victim’s account was also quoted in the
minutes. Finally, the notice informed Irvin “that an in-person or
telephonic hearing on your appeal of the sex offender treatment program
requirements will be held on Wednesday, January 8,” before an ALJ. The
notice stated that “[a]ll documents or other exhibits that you want
considered at the hearing” must be submitted two business days before
the hearing, and if Irvin did not appear, a judgment would be entered
against him. At the bottom of the notice was a section an offender could
sign to waive the hearing. On December 17, Irvin signed to waive the
hearing.
In February of 2014, Irvin was transferred from the MPCF to
Anamosa State Penitentiary. On April 14, Irvin wrote a letter to John
Baldwin, then director of the IDOC, and Jason Carlstrom, then chair of the Iowa Board of Parole. Irvin asserted that he should not be referred to
SOTP because he “had never been convicted of a sex charge, only
accused of one.” He alleged the prosecutor dismissed the sex counts
because, during the course of trial preparation, the prosecutor
determined those charges to be unfounded. Irvin noted neither the
sentencing order nor the plea agreement recommended that he
participate in SOTP, only that he participate in batterer’s education.
Sheryl Dahm, then assistant deputy director at the IDOC, responded to 6
Irvin’s letter on April 22, stating that Irvin’s classification was based on
IDOC policy.
In June, Irvin received another classification notice. The notice
mentioned that, due to an error, Irvin’s accrual of earned time had not
been halted since the first December classification notice. The June
notice gave Irvin another opportunity for an ALJ hearing scheduled for
July 16. Irvin acknowledged this notice, and this time did not waive the
hearing. At the hearing, Irvin submitted his affidavit; a copy of the plea
agreement; and a copy of Dykstra v. Iowa District Court, 783 N.W.2d 473
(Iowa 2010). The hearing was unreported.
On July 25, the ALJ affirmed the IDOC’s classification decision.
The ALJ specifically found that due process requirements for the
classification had been met: Irvin had been given notice of the hearing
and presented evidence, the ALJ provided an explanation for the reasons
behind the classification, and the ALJ “was not involved in the [initial]
classification decision at issue, so he [could] be an impartial
decisionmaker in this matter.” The ALJ examined the two domestic
abuse convictions, one arising out of Irvin’s altercation with his girlfriend
and the other arising from the separate incident with a different victim.
The ALJ determined the allegations in the separate incident were “not
sufficient to find that IRVIN needs SOTP” because the violence was
unrelated to a sex act. The ALJ found the other charge involving Irvin’s
girlfriend required SOTP because “[t]he evidence in the record indicates
that IRVIN’s behavior shows that he currently suffers from a problem for
which treatment is needed to rehabilitate him or that such treatment is
needed to protect the community from him.”
The ALJ determined that requiring SOTP would not violate Irvin’s
plea agreement or sentencing order because both “were silent about 7
SOTP” and the IDOC retains the authority to establish treatment
program policies for offenders. The ALJ rejected Irvin’s claim that the
prosecutor had dropped the sex charge as unsubstantiated. The ALJ
noted Irvin produced no evidence to support that assertion, such as the
deposition transcripts that he claimed existed. The ALJ observed the
plea agreement stated that “charges could be brought back if IRVIN
raised challenges to the plea agreement.” In the ALJ’s view, this showed
the prosecutor “still believed the charges could reasonably be brought
again if need be.” Finally, the ALJ weighed the victim’s detailed
statement together with Irvin’s testimony on his version of events. The
ALJ found the victim’s statement to be “credible” after testimony from
Irvin that the victim “did not have to fabricate a story if she wanted him
to leave because she could have simply told him to leave the house.” In
the ALJ’s view, Irvin “indicate[d] that [the victim] did not have a reason to
fabricate a story about what IRVIN did to her.” The ALJ also concluded
that even under Irvin’s version of events, the conviction for domestic
abuse still had a sexual component, and thus, Irvin should be required
to complete SOTP:
IRVIN’s version of events was that he pushed the victim away by the throat when she bit his penis while performing oral sex. As noted above, he pleaded guilty to “knowingly” impeding her airway. Thus, his plea indicated that he did not merely react, but purposely pushed her hard in the neck. According to IRVIN his action was because the sexual encounter he was having did not go as he expected. Reacting with violence during a sex act also raises the types of concerns that can properly be addressed in SOTP. The ALJ finds that even under IRVIN’s version of events (as modified by his guilty plea), he should still be required to take SOTP.
On July 28, Irvin appealed the ALJ’s determination to the warden
by completing the SOTP appeal form. See Iowa Code § 903A.3(2) (“The 8
orders of the administrative law judge are subject to appeal to the
superintendent or warden of the institution, . . . who may either affirm,
modify, remand for correction of procedural errors, or reverse an order.”).
Irvin claimed the SOTP classification violated his procedural due process
rights. On August 4, the warden affirmed the decision of the ALJ, ruling
due process had been followed and the ALJ “considered [Irvin’s]
statement and the evidence when making this decision.”
Irvin filed an application for postconviction relief under Iowa Code
section 822.2(1)(f) and (g) in the Iowa district court. Irvin claimed he was
denied due process and equal protection of the law because the ALJ
relied on the unproven factual allegations. The district court held a
hearing on April 15, 2015. On May 20, the district court found that it
was error for the ALJ to rely on “unadmitted minutes of testimony and
police reports in making its recommendation.” The district court relied
on the unpublished decision of Lindsey, in which a divided Iowa Court of
Appeals concluded the IDOC lacked authority to rely on unproven facts
to require participation in SOTP. 2015 WL 568560, at *5. In addition,
the district court relied on In re Detention of Stenzel, 827 N.W.2d 690,
708–10 (Iowa 2013), which disallowed expert testimony in a district court
civil commitment trial when the expert relied on unproven facts in the
minutes of testimony to support his opinion that the individual was a
sexually violent predator. The district court concluded because the IDOC
had improperly relied on the minutes in making the initial
recommendation, “[n]o hearing should have occurred in the first place.”
The IDOC sought a writ of certiorari, which we granted. We
retained the case. 9
II. Standard of Review.
“We normally review certiorari actions for correction of errors at
law.” State v. Iowa Dist. Ct., 801 N.W.2d 513, 517 (Iowa 2011).
“Generally, postconviction relief proceedings are reviewed for correction
of errors at law.” Dykstra, 783 N.W.2d at 477. “We review questions of
statutory construction, including . . . the proper interpretation of Iowa
Code section 903A.2, for errors at law.” Id. We review de novo the
evidence relevant to a constitutional claim. Iowa Dist. Ct., 801 N.W.2d at
517.
III. Analysis.
We must decide two related questions: (1) whether the IDOC
properly relied on the victim’s detailed statement to initially refer Irvin for
SOTP; and (2) whether the IDOC properly required Irvin’s participation in
SOTP based on the ALJ’s finding that he admitted at his evidentiary
hearing to assaulting his girlfriend during a sex act and based on the
victim’s statement, police report, and Irvin’s guilty plea. We first address
the IDOC’s broad discretion to refer inmates to SOTP and require their
participation. We next review the permissible uses by the IDOC of a
victim’s statement in a police report. We conclude that the IDOC
properly rejected Irvin’s challenges to his initial referral to SOTP and the
decision to mandate his participation following an evidentiary hearing.
A. The IDOC’s Broad Discretion to Require SOTP. “SOTP was
established for bona fide rehabilitative purposes.” Id. at 519.
There is a high rate of recidivism among untreated sex offenders and a broad range of agreement among therapists and correctional officers that clinical rehabilitation programs “can enable sex offenders to manage their impulses and in this way reduce recidivism.” 10
Id. at 519 (quoting McKune v. Lile, 536 U.S. 24, 33, 122 S. Ct. 2017,
2024, 153 L. Ed. 2d 47, 56–57 (2002)).
Iowa Code chapter 903A allows an inmate to “earn a reduction of
sentence” based on good conduct and satisfactory participation in
treatment programs identified by the IDOC director:
An inmate of an institution under the control of the department of corrections . . . is eligible for a reduction of sentence equal to one and two-tenths days for each day the inmate demonstrates good conduct and satisfactorily participates in any program or placement status identified by the director to earn the reduction. The programs include but are not limited to the following: .... (4) A treatment program established by the director.
Iowa Code § 903A.2(1)(a)(4). Sex offender treatment is specifically
addressed as follows: “However, an inmate required to participate in a
sex offender treatment program shall not be eligible for a reduction of
sentence unless the inmate participates in and completes a sex offender
treatment program established by the director.” Id. § 903A.2(1)(a). An
inmate who fails to participate in sex offender treatment required by the
IDOC risks losing his or her ability to obtain an earlier release from
prison by accumulating earned time.
Iowa Code section 903A.4 authorizes the IDOC to develop policies
and procedures to implement these treatment programs with earned-
time incentives:
The director of the Iowa department of corrections shall develop policy and procedural rules to implement sections 903A.1 through 903A.3. The rules may specify disciplinary offenses which may result in the loss of earned time, and the amount of earned time which may be lost as a result of each disciplinary offense. The director shall establish rules as to what constitutes “satisfactory participation” for purposes of a reduction of sentence under section 903A.2, for programs that are available or unavailable. 11
(Emphasis added.)
The IDOC promulgated a policy that requires the department to
review and refer offenders to the SOTP director who “are not incarcerated
for a Sex Crime but have a sexual component to their crime.” Iowa Dep’t
of Corr., Policy & Procedure, Sex Offender Program Referrals, OP–SOP–08
(2014). The director then reviews the “current conviction and
circumstances of [the] offense” as well as the “minutes of
testimony/court documents” and “prior arrests/convictions” to
determine whether he or she will refer an offender to SOTP. Id. From
there, if the inmate has not been convicted of a sex offense, the matter
proceeds to a hearing before an ALJ. If the ALJ upholds the
classification requiring SOTP, the “inmate will no longer accrue any
earned time after refusing to attend SOTP, but will not lose any
previously accrued earned time.” Dykstra, 783 N.W.2d at 478.
The “legislative purpose of earned-time credits . . . is to encourage
prisoners to follow prison rules and participate in rehabilitative
programs.” Kolzow v. State, 813 N.W.2d 731, 738 (Iowa 2012). “[C]ourts
are obliged to grant prison officials a wide berth in the execution of
policies and practices needed to maintain prison discipline and security.”
Office of Citizens’ Aide/Ombudsman v. Edwards, 825 N.W.2d 8, 14 (Iowa
2012) (quoting Citizens’ Aide/Ombudsman v. Grossheim, 498 N.W.2d
405, 407 (Iowa 1993)). We addressed the IDOC’s “broad discretion” to
require SOTP for inmates convicted of nonsex offenses in Dykstra. 783
N.W.2d at 479. John Dykstra pled guilty to a charge of simple assault
after he was initially charged with third-degree sexual abuse. Id. at 476.
The IDOC recommended Dykstra participate in SOTP based on the
circumstances underlying the assault, as gleaned from the minutes of
testimony attached to the charging information. Id. Because Dykstra 12
refused to attend SOTP, the IDOC determined he was no longer eligible to
receive earned-time credit. Id. at 477. Dykstra argued the IDOC lacked
authority to require SOTP because he was not convicted of a sex offense.
We disagreed, noting that “[t]he statute does not set criteria for which
inmates will be ‘required to participate.’ ” Id. at 478–79 (quoting Iowa
Code § 903A.2). We elaborated,
The broad discretion granted to IDOC does not limit application of section 903A.2 to inmates serving sentences for particular crimes or crimes labeled as “sex offenses.” There is no statutory limitation that would prevent IDOC from recommending SOTP for an inmate convicted of a crime that is not facially considered a sex offense where the factual circumstances of the crime are of a sexual nature.
Id. at 479. We held that the IDOC had authority to stop all accrual of
earned time for refusal to participate in SOTP, even on sentences that
were not served for a sex-offense conviction. Id. (“Section 903A.2 does
not require that the ‘sentence’ be one connected to the reason IDOC has
required the inmate to attend SOTP.”). Thus, so long as SOTP was
related to a “problem currently suffered” by the offender, the IDOC had
statutory authority to require SOTP and halt the accrual of earned time.
Id. at 479–80 (quoting State v. Valin, 724 N.W.2d 440, 447 (Iowa 2006)). We emphasized in Dykstra that the IDOC’s classification
procedures must satisfy the Due Process Clauses of the Iowa and Federal
Constitutions. See id. at 483. We acknowledged a liberty interest at
stake in the initial SOTP classification because of “[t]he stigmatizing
consequence of being labeled as a sex offender, the mandatory behavior
modification treatment, and the revocation of the inmate’s ability to earn
any time should he refuse to participate.” Id. We adopted the procedural
protections set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 13
41 L. Ed. 2d 935 (1974), as a prerequisite for mandating SOTP. Id. at
482.
In Wolff, the Supreme Court evaluated what process was due in a
proceeding to forfeit an inmate’s good-time credits. 418 U.S. at 563–71,
94 S. Ct. at 2978–82, 41 L. Ed. 2d at 955–59. In Dykstra, we
summarized the Wolff requirements as follows:
(1) advance written notice of the claimed violation, (2) a written statement of the factfinders as to the evidence relied upon and the reasons for the disciplinary action taken, (3) a hearing, at which the inmate must be allowed to call witnesses and present documentary evidence, as long as it would not be unduly hazardous, and (4) a sufficiently impartial decisionmaker.
783 N.W.2d at 482. We concluded the due process required by Wolff was
satisfied when the inmate had been tried and convicted of a sex offense.
Id. at 484; see also Holm v. Iowa Dist. Ct., 767 N.W.2d 409, 418 (Iowa
2009) (concluding mandatory SOTP did not violate due process when
inmate was convicted of third-degree sexual abuse). However, for
inmates who were not convicted of a sex crime, the IDOC must satisfy
the Wolff procedural safeguards. Dykstra, 783 N.W.2d at 484. We held
the IDOC violated Dykstra’s due process rights by requiring his participation in SOTP based on “unadmitted factual allegations that did
not result in a sex-offense conviction” without the required procedural
safeguards. Id. at 483. Specifically, Dykstra was not provided with
“advance written notice, a written statement of reasons and findings by
the factfinder, and a neutral factfinder.” Id. 1
1We applied Dykstra in the companion cases of Reilly v. Iowa District Court, 783 N.W.2d 490 (Iowa 2010), and Waters v. Iowa District Court, 783 N.W.2d 487 (Iowa 2010). In Waters, we held that an inmate could be classified for SOTP even though at the time of classification he was only serving a sentence for operating while intoxicated (OWI) because he had “entered prison to serve two sentences: the five-year OWI sentence and a two-year sentence for 14
In contrast, Irvin was provided with the procedural protections
required by Dykstra. See id. Therefore, we turn to whether the IDOC
may rely on the victim’s detailed statement in the police report to initially
classify Irvin for SOTP and in the subsequent review by the ALJ.
B. The IDOC’s Use of the Victim’s Statement. The district
court, citing Lindsey, ruled the IDOC erroneously relied on unproven
facts in the minutes of testimony when initially referring Irvin to SOTP.
Donzell Lindsey was originally charged with first-degree burglary,
domestic assault, and third-degree sexual abuse. Lindsey, 2015
WL 568560, at *1. He pled guilty under a plea agreement to domestic
abuse and burglary, with the sexual abuse charge dismissed. Id. The
IDOC classified Lindsey for SOTP, concluding there was a “sexual
component” to his crimes based on the facts alleged in the minutes of
testimony. Id. The district court vacated that decision and ordered the
IDOC to restore his earned time. Id. A panel of the court of appeals
affirmed over the dissent of one judge. Id. at *6. The majority held the
IDOC lacked the authority to rely on the minutes of testimony when
classifying offenders, stating, “Dykstra does not extend [IDOC’s]
authority to promulgation of policies and rules permitting the
consideration of unproven and unadmitted ‘facts.’ ” Id. at *3. The _________________________ assault with intent to commit sexual abuse.” 783 N.W.2d at 489. In Reilly, we determined that removing an inmate from SOTP implicated a similar liberty interest—the right to accrue earned time. 783 N.W.2d at 495. However, we gave less weight to the inmate’s liberty interest because removal was “a discretionary decision by prison officials . . . whereas the initial inmate classification addressed in Dykstra amounts to a specific factual determination that the inmate has engaged in sexually inappropriate behavior.” Id. at 496. We decided that when “the inquiry draws more on the experience of prison administrators,” rather than “the search for specific facts,” “the full panoply of protections that would accompany a formal hearing” were unnecessary. Id. at 496–97 (first quoting Wilkinson v. Austin, 545 U.S. 209, 228–29, 125 S. Ct. 2384, 2397, 162 L. Ed. 2d 174, 193 (2005)). 15
majority observed that “even district courts may not rely on these types
of ‘facts’ ” and pointed to decisions excluding the minutes from
consideration in sentencing decisions. Id. at *4. The dissenting judge
stated, “I would conclude IDOC can rely on unadmitted-to facts when
initially referring an inmate to SOTP, but, then, due process requires a
hearing before an independent factfinder before participation in SOTP is
required.” Id. at *6 (Vogel, P.J., dissenting). We now hold the IDOC’s use
of the victim’s statement quoted in the police report did not exceed its
statutory authority or violate Irvin’s due process rights.
The court of appeals majority in Lindsey, and the district court in
this case, erred by concluding the limitations on a district court’s use of
minutes at trial or sentencing precluded an IDOC ALJ from relying on a
detailed victim’s statement that happened to be attached to the minutes.
The formal rules of evidence that govern trials in district court do not
apply to hearings before an IDOC ALJ. See Dykstra, 783 N.W.2d at 485
(“Prison proceedings ‘are sui generis, governed by neither the evidentiary
rules of a civil trial, a criminal trial, nor an administrative hearing. The
only limitations appear to be those imposed by due process, a statute, or
administrative regulations.’ ” (quoting 2 Michael B. Mushlin, Rights of
Prisoners § 9.20, at 208 (3d ed. 2002))); see also Wolff, 418 U.S. at 556,
94 S. Ct. at 2975, 41 L. Ed. 2d at 951 (“Prison disciplinary proceedings
are not part of a criminal prosecution, and the full panoply of rights due
a defendant in such proceedings does not apply.”); Dailey v. Neb. Dep’t of
Corr. Servs., 578 N.W.2d 869, 874 (Neb. Ct. App. 1998) (“[T]he weight of
authority in both federal and state cases is that the [formal] rules of
evidence do not apply” in prison discipline proceedings.). Indeed, we
have affirmed prison discipline decisions that were based on hearsay in
written reports of confidential informants. See, e.g., James v. State, 541 16
N.W.2d 864, 874 (Iowa 1995). “Under the ‘some evidence’ standard, ‘the
relevant [legal] question is whether there is any evidence in the record’
that could support the committee’s decision.” Id. (alterations in original)
(quoting Superintendent v. Hill, 472 U.S. 445, 455–56, 105 S. Ct. 2768,
2774, 86 L. Ed. 2d 356, 365 (1985)).
The minutes of testimony set forth the factual circumstances
giving rise to the charges against Irvin. See Iowa R. Crim. P. 2.5(3)
(providing minutes shall contain “the name and occupation of each
witness upon whose expected testimony the information is based, and a
full and fair statement of the witness’ expected testimony”). Minutes
must “be approved by a district judge” who finds that the evidence
contained in the minutes, “if unexplained, would warrant a conviction by
the trial jury.” Id. r. 2.5(4). The minutes provide a description, both to
the reviewing judge and to the offender, of the circumstances alleged by
the State to support the charge.
Use of minutes of testimony is limited in district court. District
courts are not permitted to consider “additional, unproven, and
unprosecuted charges” during sentencing, unless “the facts before the
court show defendant committed those offenses or they are admitted by
him.” State v. Messer, 306 N.W.2d 731, 733 (Iowa 1981). 2 Similarly,
2Nonetheless, facts set forth in the minutes can be relied upon in district
court in certain instances. Courts may refer to the minutes of testimony to find a factual basis for a guilty plea. State v. Finney, 834 N.W.2d 46, 57 (Iowa 2013) (assessing whether counsel had been ineffective in allowing defendant to plead guilty and relying on the “entire record,” including evidence provided in minutes). District courts may rely on the charging documents of unprosecuted offenses in determining conditions of release, in which “the nature and circumstances of the offense charged” is the first factor the statute instructs courts to consider. See Iowa Code § 811.2(2); State v. Fenton, 170 N.W.2d 678, 679 (Iowa 1969) (setting bail based on defendant’s criminal history and “county attorney’s information” charging defendant with rape). At probation revocation hearings, we allow charged, but unconvicted, offenses to serve as the basis for 17
minutes of testimony “are not evidence” at trial. State v. De Bont, 223
Iowa 721, 723, 273 N.W. 873, 874 (1937).
In Stenzel, when reviewing an appeal from a judgment committing
the defendant as a sexually violent predator (SVP), we found expert
testimony based on unproven facts in the minutes inadmissible as more
prejudicial than probative. 827 N.W.2d at 710. Because the minutes are
“a statement of what the prosecution expected (at one point) to prove,” we
“question[ed] the basic fairness of the State’s using materials that it
generated exclusively to prosecute Stenzel criminally as a factual ground
for committing him as an SVP at the conclusion of his sentence.” Id.
Stenzel applied the rules of evidence governing trials in district court.
Stenzel is distinguishable from the present case because it was not a
prison classification proceeding, but a formal trial to determine whether
the defendant would be civilly committed at the conclusion of his prison
sentence. See id. at 692. Stenzel is further distinguishable because here
the IDOC and ALJ relied upon the victim’s statement, not the allegations
as drafted by a prosecutor.
The district court misapplied Stenzel to the IDOC proceedings, in
which use of hearsay is permitted. See Wilson v. Farrier, 372 N.W.2d
499, 502 (Iowa 1985) (affirming prison-discipline decision that relied on
informant’s confidential statement). Here, we must decide whether this
detailed victim’s statement, quoted in the police report, may be used to
support the IDOC classification. We conclude the IDOC did not err in
relying on the victim’s statement, either in its initial referral to SOTP or
_________________________ revocation when the State can show the defendant violated the law by a preponderance of the evidence. Rheuport v. State, 238 N.W.2d 770, 772 (Iowa 1976). 18
in the ALJ’s decision to require participation. We address each phase in
turn.
1. The IDOC’s initial referral to SOTP. First, we conclude the IDOC
may rely on a victim’s account in a police report prepared nearly
contemporaneously with the incident in classifying inmates for SOTP.
The IDOC’s initial classification is just that—initial. No earned time is
withheld for lack of participation by an inmate who was not convicted of
a sex offense unless and until the inmate is provided with the Wolff due
process protections, including an evidentiary hearing before an ALJ.
It is instructive to contrast the requirements for SOTP in Iowa Code
section 903A.4 to the statutory requirements for sex offender
registration. Iowa Code section 692A.103 requires a person to register as
a sex offender if the person has been convicted of a “tier I, tier II, or tier
III offense.” For certain offenses, the legislature has expressly required a
factual determination that the offense was “sexually motivated” in order
to qualify as a tier I, II, or III offense. See, e.g., Iowa Code
§ 692A.102(1)(c)(19). “Sexually motivated” means “one of the purposes
for commission of a crime is the purpose of sexual gratification of the
perpetrator of the crime.” Id. § 229A.2(9); see also id. § 692A.101(29).
For certain convictions occurring after July 1, 2009, the statute
expressly provides that a judge or jury must make a factual
determination “beyond a reasonable doubt” that an offense was sexually
motivated in order to require an individual to register. Id. § 692A.126(1).
No analogous requirements exist for SOTP. Nowhere in chapter
903A does the legislature require a judge or jury to make a factual
finding that an offense was sexually motivated to refer an inmate to
SOTP. “[L]egislative intent is expressed by omission as well as by
inclusion of statutory terms.” Oyens Feed & Supply, Inc. v. Primebank, 19
808 N.W.2d 186, 193 (Iowa 2011) (alteration in original) (quoting
Freedom Fin. Bank v. Estate of Boesen, 805 N.W.2d 802, 812 (Iowa
2011)). When the legislature selectively places language in one section
and avoids it in another, we presume it did so intentionally. Id. That the
legislature expressly required a judge or jury to find sexual motivation
beyond a reasonable doubt in chapter 692A but omitted such a
requirement in chapter 903A tells us the legislature intended to allow the
IDOC discretion to refer an inmate to SOTP without that level of proof.
See Dykstra, 783 N.W.2d at 484–85 (“We note . . . the standard for prison
administrative decisions is ‘some evidence’ as opposed to the ‘beyond a
reasonable doubt’ required in criminal trials.”); see also Wilson, 372
N.W.2d at 501 (“We hold that the requirements of due process are
satisfied if some evidence supports the decisions by the prison
disciplinary board to revoke good time credits.”).
Practical concerns also support allowing IDOC to refer to factual
accounts such as victim statements in police reports when making its
initial classification. Most criminal charges are resolved through plea
bargains. 3 The sex abuse charges may be dismissed to secure a
conviction on lesser assault charges, as happened here. The IDOC and ALJ lacked access to sealed deposition transcripts and Irvin did not
provide them. Inmates who need treatment would avoid SOTP if the
information in the victim’s statement could not be used to trigger an
evidentiary hearing. We conclude that the IDOC may refer an offender
for SOTP based on a victim’s detailed account in a police report.
3“An estimated ninety-five percent of convictions are secured through the plea-bargaining process.” State v. Lopez, 872 N.W.2d 159, 161 n.1 (Iowa 2015) (quoting State v. Fannon, 799 N.W.2d 515, 520 n.2 (Iowa 2011)). 20
2. The ALJ’s determination requiring SOTP. We next address Irvin’s
hearing before the IDOC ALJ. An ALJ in a prison disciplinary proceeding
is an independent, impartial adjudicator. See Edwards, 825 N.W.2d at
16–17 (noting IDOC ALJs report to and are supervised by the IDOC’s
general counsel rather than the warden). An ALJ’s decision in a
disciplinary proceeding affecting earned-time credits will be affirmed so
long as there is “some evidence” in the record to support it. Backstrom v.
Iowa Dist. Ct., 508 N.W.2d 705, 710–11 (Iowa 1993) (“We further believe
the federal constitution requires only that state prison disciplinary
officials apply a ‘some evidence’ standard in their initial determination of
disciplinary proceedings.”).
In Hill, inmates challenged the decision of a prison disciplinary
board finding them guilty of violating a prison rule prohibiting assault
and revoking good-time credits. 472 U.S. at 448, 105 S. Ct. at 2770, 86
L. Ed. 2d at 360. The Massachusetts Supreme Court, “[w]ithout deciding
whether the appropriate standard of review [was] ‘some evidence’ or the
stricter test of ‘substantial evidence,’ ” overturned the disciplinary court’s
decision, finding the record failed to present even “some evidence . . .
[that] would rationally permit the board’s findings.” Id. at 449, 105 S. Ct.
at 2770, 86 L. Ed. 2d at 360 (quoting Hill v. Superintendent, 466 N.E.2d
818, 822 (Mass. 1984)). The United States Supreme Court addressed
whether the “findings of a prison disciplinary board that result in the
loss of good time credits must be supported by a certain amount of
evidence in order to satisfy due process.” Id. at 453, 105 S. Ct. at 2773,
86 L. Ed. 2d at 363. The Court noted its prior cases failed to specify
what “quantum of evidence” was required “to support the factfinder’s
decision” in a prison disciplinary proceeding. Id. at 454, 105 S. Ct. at
2773, 86 L. Ed. 2d at 364. 21
The Hill Court determined that the “requirements of due process
are satisfied if some evidence supports the decision by the disciplinary
board to revoke good time credits.” Id. at 455, 105 S. Ct. at 2774, 86
L. Ed. 2d at 365. The Court “decline[d] to adopt a more stringent
evidentiary standard as a constitutional requirement,” reasoning,
Prison disciplinary proceedings take place in a highly charged atmosphere, and prison administrators must often act swiftly on the basis of evidence that might be insufficient in less exigent circumstances. The fundamental fairness guaranteed by the Due Process Clause does not require courts to set aside decisions of prison administrators that have some basis in fact. Revocation of good time credits is not comparable to a criminal conviction, and neither the amount of evidence necessary to support such a conviction, nor any other standard greater than some evidence applies in this context.
Id. at 456, 105 S. Ct. at 2774, 86 L. Ed. 2d at 365 (citations omitted).
The Court determined the “some evidence” standard would “prevent
arbitrary deprivations without threatening institutional interests or
imposing undue administrative burdens.” Id. at 455, 105 S. Ct. at 2774,
86 L. Ed. 2d at 364. Under this standard, the Court concluded that the
prison board had been presented with sufficient evidence to find the
inmates violated the disciplinary rule and revoke good-time credits. Id.
at 456, 105 S. Ct. at 2774–75, 86 L. Ed. 2d at 365. The Court based its
holding on testimony from the prison guard and evidence that no other
inmates were in the area at the time of the assault. Id.
In Farrier, we adopted the “some evidence” standard as the
appropriate standard of judicial review for prison disciplinary
proceedings. 372 N.W.2d at 501–02. An inmate charged with
committing a murder during an uprising inside the Iowa State
Penitentiary was acquitted in his district court criminal trial. Id. at 500.
The prison disciplinary board, however, found him guilty of the offense 22
and forfeited all of his earned time. Id. We adopted the “some evidence”
standard followed by the Supreme Court and federal circuits and upheld
the committee’s sanction. Id. at 502.
Eight years later, in Backstrom, we concluded the “some evidence”
standard applied to an IDOC ALJ’s factual findings. 508 N.W.2d at 710.
An inmate challenged a disciplinary committee’s determination that he
smuggled alcohol into the prison. Id. at 708. The disciplinary report was
based on testimony from a confidential informant. Id. We concluded
that the Supreme Court’s language in Hill “clearly refer[red] to the level of
evidence used by prison administrators in their factual determinations,”
not merely on judicial review. Id. at 711. “Although the ‘some evidence’
standard may seem harsh,” we noted it was sufficient to protect
prisoners from retaliatory treatment. Id. Under that standard, we
decided the ALJ had properly found Backstrom guilty of the offense. Id.
We reaffirmed application of the “some evidence” standard a year later in
Marshall v. State, 524 N.W.2d 150, 152 (Iowa 1994) (per curiam). Today,
we reaffirm that the “some evidence” standard applies to making and
reviewing factual findings in prison proceedings, including SOTP
classification hearings.
“The threshold for determining whether some evidence exists is
low”; it can be satisfied by relying on hearsay statements, such as
statements from officers or confidential informants. Johnson v. State,
542 N.W.2d 1, 2 (Iowa Ct. App. 1995); see Mahers v. State, 437 N.W.2d
565, 569–70 (Iowa 1989) (relying on a report from a correctional officer);
Farrier, 372 N.W.2d at 502 (relying on statement from confidential
informant). Still, the “some evidence” standard is not without teeth.
When officials use hearsay statements from a confidential informant to
meet the “some evidence” standard, the inmate’s “interest in a fair 23
hearing requires that there be some indication of the confidential
informant’s reliability.” James, 479 N.W.2d at 291. Specifically, “there
must be sufficient information in the record to convince a reviewing
authority that the [decision-maker] undertook such inquiry and correctly
concluded that the confidential information was credible and reliable.”
Id. We have recognized this standard can be satisfied by in camera
review of material documenting credibility or corroboration with other
statements or evidence. See id. at 292 (concluding informants reliable
because they incriminated themselves by providing information, and
other evidence corroborated their account); Farrier, 372 N.W.2d at 502–
03 (concluding informant was credible based on examination of
documents in camera). We have also found the standard satisfied when a
court determined “the confidential information contain[ed] a great many
details . . . [, and t]here appear[ed] to be no bias motivating the source.”
Key v. State, 577 N.W.2d 637, 641 (Iowa 1998). Our precedent allows an
IDOC ALJ to rely on hearsay reports of confidential informants so long as
there is an indicia of reliability such that the ALJ can determine the
information is reliable and credible. The same requirement applies to
victim statements.
We conclude that if the ALJ determines the victim’s statement from
the underlying assault case to be reliable and credible, it may be used to
satisfy the “some evidence” standard to classify the inmate for SOTP.
See Gwinn v. Awmiller, 354 F.3d 1211, 1219, 1221 (10th Cir. 2004)
(rejecting inmate’s challenge to his classification as a sex offender by
hearing panel that “relied on a detailed written account from the victim of
the alleged sexual assault” denied by the inmate); Vondra v. Colo. Dep’t of
Corr., 226 P.3d 1165, 1169–70 (Colo. App. 2009) (affirming prison
hearing panel’s determination requiring sex offender treatment based on 24
police reports and victim’s statements after offender was provided Wolff
due process protections). An ALJ may also use the inmate’s own
testimony in the hearing, alone or as corroboration with the detailed
victim statement, to decide whether SOTP should be required.
We conclude the statement of Irvin’s victim bears a sufficient
indicia of reliability. A police officer took the victim’s statement in Irvin’s
underlying assault case on the morning after the incident; thus, it was a
near-contemporaneous factual account of the events while the victim’s
memory was fresh. It is a crime to file a false report with a police officer.
See Iowa Code § 718.6(1) (“A person who reports or causes to be reported
false information to . . . a law enforcement authority . . . knowing that
the information is false . . . commits a serious misdemeanor . . . .”); id.
§ 903.1 (stating serious misdemeanors are punishable by a fine of at
least $315 and imprisonment of up to a year).
Police reporting documents such as citations have been relied
upon in contested case administrative proceedings. Gaskey v. Iowa Dep’t
of Transp., 537 N.W.2d 695, 696 (Iowa 1995) (relying upon “[t]he implied
consent form, the notice of revocation, the request for hearing, a stay
order, a computer printout of Gaskey’s driving record, and a copy of the
citation issued to Gaskey” in license revocation proceeding before ALJ);
see also Schmitz v. Iowa Dep’t of Human Servs., 461 N.W.2d 603, 607–08
(Iowa Ct. App. 1990) (discussing use of hearsay evidence in
administrative hearings). Iowa Code chapter 17A provides,
A finding shall be based upon the kind of evidence on which reasonably prudent persons are accustomed to rely for the conduct of their serious affairs, and may be based upon such evidence even if it would be inadmissible in a jury trial.
Iowa Code § 17A.14(1); see also Dykstra, 783 N.W.2d at 482 (“Generally,
a person has a constitutional due process right to an evidentiary hearing 25
in accordance with contested case procedures . . . .” (Emphasis added.)
(quoting Brummer v. Iowa Dep’t of Corr., 661 N.W.2d 167, 172 (Iowa
2003))). Irvin does not contend the Iowa Administrative Procedure Act
governs our review. Nevertheless, we conclude this victim’s statement
would be sufficiently credible and reliable to support the IDOC ALJ’s
findings under section 17A.14(1) as well as the “some evidence”
standard.
Moreover, Irvin’s testimony at the hearing corroborated the victim’s
statement. Irvin admitted during the hearing that he pushed the victim
away by the throat after she did not perform oral sex in the way that he
expected. Irvin also testified at the hearing that the victim would not
have to “fabricate a story if she wanted him to leave,” supporting the
victim’s credibility. The ALJ properly relied on the victim’s statement set
forth in the police report together with Irvin’s admissions and guilty plea,
in which he acknowledged “knowingly” impeding his victim’s ability to
breathe. We review that decision under the governing “some evidence”
standard and uphold the ALJ’s factual findings that are supported by
“any” evidence in the record. Key, 577 N.W.2d at 641. Applying that
standard of review here, we uphold the ALJ’s finding of a sexual
component to Irvin’s assault conviction.
For all these reasons, we reject the reasoning in Lindsey. We hold
the ALJ properly relied on the victim’s detailed statement and Irvin’s own
testimony and guilty plea to require Irvin to complete SOTP. The IDOC
properly upheld the ALJ’s decision. The district court erred by reversing
the IDOC’s determination.
C. Irvin’s Due Process Claim. We next address whether the use
of the victim’s statement to classify an offender for SOTP violates due
process. “Procedural due process ‘act[s] as a constraint on government 26
action that infringes upon an individual’s liberty interest, such as the
freedom from physical restraint.’ ” Holm, 767 N.W.2d at 417 (quoting
State v. Seering, 701 N.W.2d 655, 662 (Iowa 2005)). However,
[p]risoners held in lawful confinement have their liberty curtailed by definition, so the procedural protections to which they are entitled are more limited than in cases where the right at stake is the right to be free from confinement at all.
Wilkinson, 545 U.S. at 225, 125 S. Ct. at 2395, 162 L. Ed. 2d at 191; see
also Wolff, 418 U.S. at 556, 94 S. Ct. at 2975, 41 L. Ed. 2d at 951 (“[T]he
fact that prisoners retain rights under the Due Process Clause in no way
implies that these rights are not subject to restrictions imposed by the
nature of the regime to which they have been lawfully committed.”).
“[T]he first step in any procedural due process inquiry is the
determination of ‘whether a protected liberty or property interest is
involved.’ ” Dykstra, 783 N.W.2d at 480 (quoting Seering, 701 N.W.2d at
665). If a liberty interest is involved, we analyze the following three
factors:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement[s] would entail.
Seering, 701 N.W.2d at 665 (quoting Bowers v. Polk Cnty. Bd. of
Supervisors, 638 N.W.2d 682, 691 (Iowa 2002)).
Irvin argues that IDOC failed to provide due process for the initial
SOTP classification because the IDOC relied on the victim’s statement in
its recommendation to the ALJ. In Dykstra, we recognized a liberty
interest in the classification for SOTP based on the stigmatizing 27
consequence of being labeled a sex offender, the mandatory treatment,
and the revocation of earned time. Dykstra, 783 N.W.2d at 481. We also
observed that when a factual inquiry outside “the face of the conviction”
of the crime is necessary, “resort to some tribunal must be available to
resolve disputes.” Id. (quoting Kruse v. Iowa Dist. Ct., 712 N.W.2d 695,
700–01 (Iowa 2006)) (observing that to comply with due process tribunal
must be available to resolve whether assault conviction required offender
to register); Brummer, 661 N.W.2d at 172 (stating, if proceeding involves
“adjudicative facts” particular to the parties, an evidentiary hearing is
necessary). In Dykstra, the initial decision made by the IDOC regarding
SOTP was also the final classification determination. 783 N.W.2d at
482–83. Not so with Irvin. Rather, Irvin’s initial classification began the
process. Irvin was then provided the opportunity to challenge that
classification through an evidentiary hearing.
The IDOC has a significant interest in rehabilitating sex offenders
before their release. See McKune, 536 U.S at 32–33, 122 S. Ct. at 2024,
153 L. Ed. 2d at 56–57. In Wolff, the Supreme Court stressed that for
due process in prison discipline cases, “there must be mutual
accommodation between institutional needs and objectives and the
provisions of the Constitution that are of general application.” 418 U.S.
at 556, 94 S. Ct. at 2975, 41 L. Ed. 2d at 951.
[T]here would be great unwisdom in encasing the disciplinary procedures in an inflexible constitutional straitjacket that would necessarily call for adversary proceedings typical of a criminal trial, very likely to raise the level of confrontation between staff and inmate, and make more difficult the utilization of the disciplinary process as a tool to advance the rehabilitative goals of the institution. 28
Id. at 563, 94 S. Ct. at 2978, 41 L. Ed. 2d at 955. Irvin’s due process
claim fails because the IDOC complied with the Wolff requirements. Id.
at 763–71, 94 S. Ct. at 2978–82, 41 L. Ed. 2d at 955–59.
In Gwinn, a case directly on point, the United States Court of
Appeals for the Tenth Circuit affirmed a summary judgment dismissing
an inmate’s due process claims against Colorado correctional officials.
354 F.3d at 1221. The inmate in state court initially was charged with
sexual assault, but that charge was dropped in a plea bargain resulting
in his conviction for robbery. Id. at 1217. The presentence report
included the victim’s detailed written account of the sexual assault. Id.
at 1217, 1219. The inmate was provided a hearing consistent with Wolff.
Id. at 1218–19. He submitted a written denial of the victim’s allegations.
Id. at 1219. The prison hearing panel upheld his classification requiring
treatment based on the victim’s statement. Id. The federal district court
upheld the classification and dismissed the inmate’s due process claims.
Id. at 1221. The Tenth Circuit affirmed, concluding the inmate “received
the procedural protections required by the Due Process Clause” because
he “was afforded notice of the evidence against him and an opportunity
to present evidence in his own behalf, and he received a written
decision.” Id. We reach the same conclusion as to Irvin.
Irvin received advance notice of his hearing before the ALJ. At the
hearing, he presented a factual statement signed by him, caselaw
supporting his position, and documents from his underlying trial. He
was allowed to testify. The ALJ was impartial. See Edwards, 825
N.W.2d at 16. The ALJ could find and did find Irvin’s version of events
not credible in light of Irvin’s admissions and the victim’s detailed
statement. The ALJ relied on Irvin’s own admissions and testimony
rather than relying solely on unadmitted factual allegations. The ALJ’s 29
factual findings of a sexual component to Irvin’s assault are clearly
supported by “some evidence.” See Key, 577 N.W.2d at 641 (“On
appellate review of a prisoner’s challenge to the evidentiary support of a
disciplinary matter, we ask whether the committee had ‘some evidence’
to support its decision.” (quoting Backstrom, 508 N.W.2d at 709). After
the hearing, Irvin received a written decision from the ALJ detailing the
reasons for the classification and was allowed to appeal that decision to
the warden. We conclude Irvin received the due process to which he was
entitled under Dykstra.
IV. Disposition.
For those reasons, we sustain the writ, vacate the district court’s
ruling, and remand this case with instructions to reinstate the IDOC’s
determination requiring SOTP for Irvin.
WRIT SUSTAINED AND CASE REMANDED.