IN THE COURT OF APPEALS OF IOWA
No. 16-0858 Filed September 13, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
BRETT AARON HAUCK, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Gregory D. Brandt,
District Associate Judge.
A defendant seeks discretionary review of the requirement he participate
in sex offender treatment as part of his probation. SENTENCE VACATED AND
REMANDED FOR RESENTENCING.
Adam D. Zenor of Grefe & Sidney, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., Bower, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017). 2
SCOTT, Senior Judge.
Brett Hauck sought discretionary review of the conditions imposed upon
him as part of his probationary sentence following his guilty plea to assault
causing bodily injury or mental illness. See Iowa Code § 708.2(2) (2015).
Following Hauck’s guilty plea, the district court deferred the imposition of
judgment and placed Hauck on probation for one year, imposing the requirement
that he complete sex offender treatment. On appeal Hauck claims (1) the court
abused its discretion in imposing treatment absent a finding of fact that the
assault offense was sexually motivated, (2) sex offender treatment and the
related conditions violate his constitutional rights, and (3) his guilty plea was not
knowing and voluntary because the court failed to inform him of the possibly of
the imposition of sex offender treatment.1
I. Background Facts and Proceedings.
Hauck was initially charged with assault with the intent to commit sexual
abuse, but he reached a plea agreement with the State to plead guilty to the
lesser offense of assault causing bodily injury or mental illness, and the State
agreed not to resist his request for a deferred judgment. The written guilty plea
form provided:
In order to establish a factual basis I ask the court to accept as true the minutes of testimony, the date of the offense is 9/18/15 and I admit I did the following: made physical contact with [the victim] which was insulting or offensive and resulted in depression and/or anxiety.
In the minutes of testimony, the victim asserted Hauck
1 Because we reverse the district court’s order based on the first allegation of error, we need not reach Hauck’s remaining claims. 3
grabbed [her] groin, fingers touching [her] vagina with thumb on outside and squeezed, then moved [his] hand forward and touch [her] clitoris with his fingers and rubbed in a slightly circular, up and down motion. [She] was in complete shock and couldn’t fathom what was happening to defend [her]self or say anything. He took a few steps forward and turned around and smiled/laughed.
The minutes also contain a police report of Hauck’s interview, where he asserted
he did not touch the victim’s groin but simply poked her in the stomach with his
finger.
At the time the court accepted the guilty plea, it ordered a sex offender
evaluation through the department of correctional services. No objection was
made to this order. Prior to sentencing, Hauck’s counsel filed a memorandum
that argued the court should grant Hauck a deferred judgment and challenged
the court’s consideration of the sex offender evaluation. At sentencing, the court
granted Hauck a deferred judgment, placed him on probation for one year, and
also ordered him to complete sex offender treatment based on the
recommendation of the sex offender evaluation. Hauck applied for discretionary
review. The supreme court granted the application and stayed the district court
proceedings pending the resolution of this appeal.
II. Scope and Standard of Review.
A challenge to the terms of probation is reviewed for an abuse of
discretion. State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006). It is “well-settled
rule that trial courts have a broad discretion in probation matters.” Id. (citation
omitted). But the discretion is not unlimited and is subject to any reasonable
condition that promotes “rehabilitation of the defendant or protection of the 4
community.” State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998) (citation
omitted).
III. Probation Condition.
Hauck claims the court abused its discretion by imposing sex offender
treatment as a condition of his probation because he did not plead guilty to a
sexually motivated offense.2 In addition, he asserts there is no indication that
sex offender treatment is necessary to accomplish a goal of probation because
he has no history of sexual deviance that could need to be addressed.
The only justification for ordering Hauck to complete sex offender
treatment as part of his probation was the sex offender evaluation. The
recommendation in the evaluation was based on the evaluator’s review of the
victim’s statement in the minutes of testimony, which the evaluator believed
indicated Hauck “violated a boundary, in a sexual manner.” In the written guilty
plea, Hauck asked the court to accept as true the minutes of testimony but only
to the extent necessary to establish a factual basis for the guilty plea.
For a factual basis to support the guilty plea, the record needed to support
an act, “which is intended to result in physical contact which will be insulting or
offensive to another, coupled with the apparent ability to execute the act” and for
the act to cause “bodily injury or mental illness.” Iowa Code § 708.1(2)(a), .2(2).
The guilty plea form contains an admission by Hauck that he “made physical 2 He also asserts the district court abused its discretion in ordering the sex offender evaluation. However, no objection was made to the district court’s decision to order the evaluation. The only challenge was to the district court’s consideration of the evaluation at sentencing after the evaluation was completed. We thus consider Hauck’s challenge to the district court’s decision to order the evaluation not preserved. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.” (citation omitted)). 5
contact with [the victim] which was insulting or offensive and resulted in
depression and/or anxiety.” But the form did not contain a factual description of
the “physical contact.”
The minutes of testimony contained two different descriptions of the
physical contact. The victim’s version included allegations of sexual misconduct,
where Hauck’s version did not. While it is clear the victim’s version clearly
amounts to an assault, the act Hauck admitted to committing—poking the victim’s
stomach with his finger—also amounts to an assault. It is clear from the minutes
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IN THE COURT OF APPEALS OF IOWA
No. 16-0858 Filed September 13, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
BRETT AARON HAUCK, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Gregory D. Brandt,
District Associate Judge.
A defendant seeks discretionary review of the requirement he participate
in sex offender treatment as part of his probation. SENTENCE VACATED AND
REMANDED FOR RESENTENCING.
Adam D. Zenor of Grefe & Sidney, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney
General, for appellee.
Considered by Danilson, C.J., Bower, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017). 2
SCOTT, Senior Judge.
Brett Hauck sought discretionary review of the conditions imposed upon
him as part of his probationary sentence following his guilty plea to assault
causing bodily injury or mental illness. See Iowa Code § 708.2(2) (2015).
Following Hauck’s guilty plea, the district court deferred the imposition of
judgment and placed Hauck on probation for one year, imposing the requirement
that he complete sex offender treatment. On appeal Hauck claims (1) the court
abused its discretion in imposing treatment absent a finding of fact that the
assault offense was sexually motivated, (2) sex offender treatment and the
related conditions violate his constitutional rights, and (3) his guilty plea was not
knowing and voluntary because the court failed to inform him of the possibly of
the imposition of sex offender treatment.1
I. Background Facts and Proceedings.
Hauck was initially charged with assault with the intent to commit sexual
abuse, but he reached a plea agreement with the State to plead guilty to the
lesser offense of assault causing bodily injury or mental illness, and the State
agreed not to resist his request for a deferred judgment. The written guilty plea
form provided:
In order to establish a factual basis I ask the court to accept as true the minutes of testimony, the date of the offense is 9/18/15 and I admit I did the following: made physical contact with [the victim] which was insulting or offensive and resulted in depression and/or anxiety.
In the minutes of testimony, the victim asserted Hauck
1 Because we reverse the district court’s order based on the first allegation of error, we need not reach Hauck’s remaining claims. 3
grabbed [her] groin, fingers touching [her] vagina with thumb on outside and squeezed, then moved [his] hand forward and touch [her] clitoris with his fingers and rubbed in a slightly circular, up and down motion. [She] was in complete shock and couldn’t fathom what was happening to defend [her]self or say anything. He took a few steps forward and turned around and smiled/laughed.
The minutes also contain a police report of Hauck’s interview, where he asserted
he did not touch the victim’s groin but simply poked her in the stomach with his
finger.
At the time the court accepted the guilty plea, it ordered a sex offender
evaluation through the department of correctional services. No objection was
made to this order. Prior to sentencing, Hauck’s counsel filed a memorandum
that argued the court should grant Hauck a deferred judgment and challenged
the court’s consideration of the sex offender evaluation. At sentencing, the court
granted Hauck a deferred judgment, placed him on probation for one year, and
also ordered him to complete sex offender treatment based on the
recommendation of the sex offender evaluation. Hauck applied for discretionary
review. The supreme court granted the application and stayed the district court
proceedings pending the resolution of this appeal.
II. Scope and Standard of Review.
A challenge to the terms of probation is reviewed for an abuse of
discretion. State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006). It is “well-settled
rule that trial courts have a broad discretion in probation matters.” Id. (citation
omitted). But the discretion is not unlimited and is subject to any reasonable
condition that promotes “rehabilitation of the defendant or protection of the 4
community.” State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998) (citation
omitted).
III. Probation Condition.
Hauck claims the court abused its discretion by imposing sex offender
treatment as a condition of his probation because he did not plead guilty to a
sexually motivated offense.2 In addition, he asserts there is no indication that
sex offender treatment is necessary to accomplish a goal of probation because
he has no history of sexual deviance that could need to be addressed.
The only justification for ordering Hauck to complete sex offender
treatment as part of his probation was the sex offender evaluation. The
recommendation in the evaluation was based on the evaluator’s review of the
victim’s statement in the minutes of testimony, which the evaluator believed
indicated Hauck “violated a boundary, in a sexual manner.” In the written guilty
plea, Hauck asked the court to accept as true the minutes of testimony but only
to the extent necessary to establish a factual basis for the guilty plea.
For a factual basis to support the guilty plea, the record needed to support
an act, “which is intended to result in physical contact which will be insulting or
offensive to another, coupled with the apparent ability to execute the act” and for
the act to cause “bodily injury or mental illness.” Iowa Code § 708.1(2)(a), .2(2).
The guilty plea form contains an admission by Hauck that he “made physical 2 He also asserts the district court abused its discretion in ordering the sex offender evaluation. However, no objection was made to the district court’s decision to order the evaluation. The only challenge was to the district court’s consideration of the evaluation at sentencing after the evaluation was completed. We thus consider Hauck’s challenge to the district court’s decision to order the evaluation not preserved. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.” (citation omitted)). 5
contact with [the victim] which was insulting or offensive and resulted in
depression and/or anxiety.” But the form did not contain a factual description of
the “physical contact.”
The minutes of testimony contained two different descriptions of the
physical contact. The victim’s version included allegations of sexual misconduct,
where Hauck’s version did not. While it is clear the victim’s version clearly
amounts to an assault, the act Hauck admitted to committing—poking the victim’s
stomach with his finger—also amounts to an assault. It is clear from the minutes
of testimony that Hauck denied performing the act the victim claimed he
performed.
“The sentencing court should only consider those facts contained in the minutes that are admitted to or otherwise established as true.” Where portions of the minutes are not necessary to establish a factual basis for a plea, they are deemed denied by the defendant and are otherwise unproved and a sentencing court cannot consider or rely on them.
State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998) (citation omitted). The
victim’s description of the physical contact between herself and Hauck was not
necessary to establish a factual basis for the assault charge, and therefore, those
facts are denied by Hauck. The court cannot rely on them in crafting the
sentence.
In imposing sex offender treatment as part of Hauck’s sentence, the court
considered the sex offender evaluation, which included facts from the minutes of
testimony that were not necessary to establish the factual basis for Hauck’s guilty
plea. The court therefore considered an impermissible sentencing factor, which
amounts to an abuse of discretion. See State v. Lovell, 857 N.W.2d 241, 243 6
(Iowa 2014) (“Information contained in the minutes of testimony is not a
permissible sentencing consideration if unproven.”).
Even if the sex offender evaluation was properly considered, we still
conclude ordering sex offender treatment as a condition of probation in this case
was unreasonable. Probation is meant to promote the rehabilitation of the
defendant and protect the community from further offenses. State v. Lathrop,
781 N.W.2d 288, 299 (Iowa 2010). Conditions imposed as part of probation must
be reasonable and not arbitrary. Id. “A condition is reasonable when it relates to
the defendant’s circumstances in a reasonable manner, and is justified by the
defendant’s circumstances. Thus, the inquiry into the reasonableness of a
condition of probation boils down to whether the statutory goals of probation are
reasonably addressed.” Valin, 724 N.W.2d at 446 (internal citations omitted).
The condition should address some problem or need identified with the
defendant. Lathrop, 781 N.W.2d at 299. “[A] reasonable nexus must exist
between any special condition of probation and the crime for which it is imposed.”
Id. (citation omitted).
In this case the “reasonable nexus” connecting the sex offender treatment
with Hauck was the unadmitted allegations of the victim. Those unadmitted
allegations were improper for the sentencing court to consider. See Jorgensen,
588 N.W.2d at 687–88 (concluding it was improper to order defendant to
complete a batterer’s education program as part of her probation when she had
been acquitted of domestic abuse). Absent the unadmitted facts in minutes of
testimony, there was no information showing sex offender treatment addressed
some other problem or need of Hauck in relation to the offense at issue. There 7
was also no history of Hauck committing sexual offenses. See Valin, 724
N.W.2d at 447 (“[A] defendant’s background and history is also relevant when
determining the conditions of probation. . . . Yet, it is axiomatic that such history
is insufficient unless it reveals a problem currently suffered by the defendant
relating to the need to rehabilitate the defendant or protect the community from
the defendant.”). Therefore, there is not a sufficient nexus between the assault
offense and the requirement Hauck complete sex offender treatment as a
condition of his probation.
Because we conclude the district court abused its discretion by
considering unadmitted facts when determining Hauck’s sentence and also
conclude there is not a sufficient nexus between the crime and requirement
Hauck complete sex offender treatment as part of his probation, we vacate
Hauck’s sentence and remand for resentencing before a different judge. See
Lovell, 857 N.W.2d at 243; Lathrop, 781 N.W.2d at 301.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.