IN THE SUPREME COURT OF IOWA No. 99 / 05-0781
Filed December 1, 2006
STATE OF IOWA,
Appellee,
vs.
CHRISTOPHER LAWRENCE VALIN,
Appellant.
________________________________________________________________________ Appeal from the Iowa District Court for Polk County, Cynthia M.
Moisan, Judge.
Appeal from conditions of probation. REVERSED.
Linda Del Gallo, State Appellate Defender, and Shellie Knipfer,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, John P. Sarcone, County Attorney, and Ramonda
Belcher Ford, Assistant County Attorney, for appellee. 2
CADY, Justice.
In this appeal we must decide if special conditions of probation not
directly related to the crime of conviction, but related to a prior
conviction, may be imposed as a part of a sentence. We reverse the
decision of the district court.
I. Background Facts and Proceedings.
Christopher Valin was convicted of operating while intoxicated
(OWI), second offense, following his arrest in September of 2004. In April
2005, the district court sentenced Valin to a term of imprisonment not to
exceed two years and suspended all but seven days of the term. The
court imposed a fine of $1500, and placed Valin on probation for two
years. He was also required to undergo a substance abuse evaluation
and treatment program, and attend a weekend class offered by the
Des Moines Area Community College for OWI offenders. Valin was
placed under the supervision of the department of correctional services
(DCS). The sentencing order specifically required Valin to “submit to the
supervision of DCS during probation and . . . comply with all terms
imposed by the assigned probation officer, including any additional
programs and classes not set forth herein.” Valin filed a notice of appeal
on May 10, 2005.
Valin signed a DCS probation agreement on May 19, 2005. It
contained several standard rules and conditions, but also contained the
following “special conditions”:
401. I shall participate in a sex offender or mental health counseling program as directed by my supervising officer.
403. I shall successfully complete the Fifth Judicial District Department of Correctional Services Sex Offender Treatment Program and comply with any treatment recommended as a result of the program. 3
404. I shall not initiate, establish, or maintain contact with victim(s) unless approved by my supervising officer.
405. I shall not initiate, establish, or maintain contact with any minor child (under the age of 18) unless approved by my supervising officer.
406. I shall not initiate, establish, or maintain contact with my children unless approved by my supervising officer.
408. I shall not reside with my children unless approved by my supervising officer.
409. I shall avoid any verbal or physical contact with any child or groups of children. I shall avoid contact with establishments, groups or organizations whose primary purpose is the care of minor children unless I have the prior written approval of my supervising officer.
411. I shall not be in possession of any sexually explicit materials, videos, books, magazines, pictures, posters, letters, etc., without express written approval from my supervising officer and a sex offender treatment team.
412. I will not subscribe, nor will I attempt to access, to the internet without prior approval from my supervising officer. I also will not engage in or visit computer-generated chat rooms under any circumstances. [Handwritten:] internet banking, check email-ONLY
801. I shall participate in the Fifth Judicial District Department of Correctional Services Sex Offender Treatment Program unless my supervising officer determines otherwise.
Valin objected to the special terms of probation and filed a motion
in the district court for the court to “determine” the terms of his
probation. 1 Valin primarily objected to the requirement that he undergo
1Even though Valin had already filed his original notice of appeal for his conviction, the district court did not lose jurisdiction to determine the terms of his probation. See State v. Mallett, 677 N.W.2d 775, 776–77 (Iowa 2004) (“Generally, an appeal divests a district court of jurisdiction. Restoration of district court jurisdiction may be accomplished by only two means: the litigants’ stipulation for an order of dismissal or an appellate court’s order for limited remand. Neither means applies here. Moreover, a district court maintains jurisdiction over disputes between the parties that are merely collateral to the issues on appeal. An example of a collateral matter as to which a trial court retains jurisdiction is the modification of an order for restitution in a criminal case.” (citing State v. Jose, 636 N.W.2d 38, 46 (Iowa 2001); Shedlock v. Iowa Dist. Ct., 534 N.W.2d 656, 658 (Iowa 1995))). However, a statute “may authorize the 4
sex offender treatment. At a hearing on the motion, the DCS justified the
special conditions based on Valin’s conviction in 1999 for assault with
intent to commit sexual abuse. The offense arose from an incident when
Valin was in college during a night of excessive consumption of alcohol.
Specifically, Valin fondled and groped the breasts and vaginal area of an
adult female student without her consent after the two ended up at an
apartment. Valin was placed on probation following the conviction and
was required to complete sex offender treatment. Valin successfully
completed the treatment, and was discharged from probation in 2001.
Notwithstanding, the DCS recommended Valin complete sex offender
treatment again because the DCS had a policy that required such
treatment and special terms of probation when persons have previously
been convicted of a sex offense. The policy is based on the proposition
that a person who has committed a sex offense always has the potential
to commit a sex offense again in the future. 2 The treatment begins with a relapse assessment, which allows the DCS to “assess how much [the
defendant has] learned in previous treatment.” The relapse assessment
is followed by after-care treatment or more aggressive treatment,
depending upon the results of the relapse assessment.
________________________ trial court to enter further orders notwithstanding the taking of an appeal.” 5 Am. Jur. 2d Appellate Review § 421, at 171 (1995); accord United States v. D’Amario, 412 F.3d 253, 255 (1st Cir. 2005) (“[T]he district court has plenary jurisdiction to supervise a convicted defendant’s release, including the jurisdiction to modify the conditions of supervised release, even though an appeal from a revocation of supervised release may be pending.”); see Iowa Code § 907.8 (2005) (stating jurisdiction over persons on probation “shall remain with the sentencing court”).
2At the hearing, the probation officer stated, “Our philosophy is that once they’ve committed a sex crime, they always have the potential to commit another one.” In addition, the district court noted it was the DCS’s policy to require sex offender treatment “when a person has committed a sex offense in the past and is later convicted of another offense—whether or not the later offense is a sex crime.” 5
After the hearing to determine the terms of Valin’s probation, the
court entered an order requiring Valin to comply with all terms except
one. Because there did not “appear to be any ‘evidence’ that would
require a limitation of [Valin’s] contact with minor children,” the court
permitted Valin “to have contact with minor children unless a
psychological evaluation or other testing” indicated otherwise. However,
the court held Valin must complete his sex offender treatment. It found
the sentencing order clearly stated Valin must submit to the supervision
of the DCS, it was in the best interests of the community for Valin to
undergo treatment, and there was a strong nexus between Valin’s
substance abuse and his criminal activity. Valin then filed a second
notice of appeal on July 19, 2005. Following the hearing, the DCS required Valin to submit to a penile
plethysmograph (PPG) test as part of his relapse assessment. This test
measures deviant sexual arousal. It requires the subject to place a
gauge on his penis while he is shown images and told sexual stories.
The gauge then records computerized results based on the subject’s
responses to the visual and audio stimuli. It takes anywhere between
ninety minutes and two hours to complete, and the defendant must
contribute $250 for the procedure. Typically, the DCS requires a PPG
the first time a defendant receives sex offender treatment in order to
determine if the offender has any other paraphilias, or areas of sexually
deviant arousal. Such a test is then usually relied upon by the DCS
during the probationer’s participation in relapse assessment. Valin,
however, was not given this procedure during his first treatment because
the DCS did not have a sufficient budget at the time to perform the test.
As a result, the DCS wanted to perform it now, during his relapse 6
assessment, to help evaluate other possible areas of sexual deviancy and
to specifically determine whether Valin should be allowed contact with
minor children, including his own newly born child.
Valin refused to submit to the PPG test and requested a hearing
before the district court. The hearing revealed that Valin successfully
completed the prior treatment program. Furthermore, there was no
evidence presented that Valin had engaged in any sexually deviant
behavior following his prior conviction, or had ever engaged in any
inappropriate contact with children, although the use of alcohol was
identified during his prior sex abuse treatment as a potential relapse
factor. Nevertheless, the court required Valin to submit to the PPG test
as a part of his treatment program. Although the court found no
evidence that he was a threat to his child, it required that visitation with
the child be supervised pending the outcome of the sex offender
treatment. All three of his appeals have been consolidated. The issue on
appeal is whether Valin is subject to his special conditions of probation,
including the PPG test.
II. Standard of Review.
We have articulated two different standards of review when a
defendant challenges his or her sentence on appeal. Depending upon the
nature of the challenge, the standard of review is for the correction of
errors at law or for an abuse of discretion. Compare State v. Freeman,
705 N.W.2d 286, 287 (Iowa 2005) (“We review the district court’s
sentence for correction of errors at law.” (citing State v. Kapell, 510
N.W.2d 878, 879 (Iowa 1994); Iowa R. App. P. 6.4)), and State v. Shearon,
660 N.W.2d 52, 57 (Iowa 2003) (noting that the appellant challenged “the 7
legality of his sentencing,” and that “[o]ur review is for the correction of
errors at law”), with State v. Alloway, 707 N.W.2d 582, 584 (Iowa 2006)
(“We normally review sentencing decisions for abuse of discretion.”
(citing State v. Evans, 671 N.W.2d 720, 727 (Iowa 2003))), and State v.
Jose, 636 N.W.2d 38, 41 (Iowa 2001) (stating we review a sentence that
does not fall outside the statutory limits for an abuse of discretion (citing
State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998))), and State v. Neary,
470 N.W.2d 27, 29 (Iowa 1991) (“When a sentence is imposed within
statutory limits, it will be set aside only for an abuse of discretion.”).
Ultimately, however, we review a defendant’s sentence for the correction
of errors at law. See State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996);
Iowa R. App. P. 6.4. Nevertheless, in some circumstances it is necessary
to determine whether legal error occurred because the district court
abused its discretion. Such a circumstance occurs when the sentence
imposed is within the statutory limits or the defendant’s challenge to his
or her sentence does not suggest it is outside the statutory limits. See
Neary, 470 N.W.2d at 29 (noting that when the sentence imposed is
within the statutory limits it is reviewed for an abuse of discretion);
Thomas, 547 N.W.2d at 225 (noting that when “a defendant does not
assert that the imposed sentence is outside the statutory limits, the
sentence will be set aside only for an abuse of discretion”).
In this case, Valin challenges his sentence as illegal. However, he
is not challenging the district court’s authority to sentence him to, inter
alia, two years of formal probation whereby he “shall submit to the
supervision of DCS during probation and shall comply with all terms
imposed by the assigned probation officer, including any additional
programs and classes not set forth herein.” Iowa law clearly allows the 8
district court to do so. See Iowa Code § 907.3(3) (2005) (empowering the
sentencing court in circumstances such as these to “place the defendant
on probation upon such terms as it may require including . . .
commitment of the defendant to the judicial district department of
correctional services for supervision or services under section 901B.1 at
the level of sanctions which the district department determines to be
appropriate”). Instead, Valin is challenging the specific probation
conditions imposed by the DCS, and approved by the district court, as
unreasonable. When a defendant challenges the terms of probation, “[i]t has long
been a well-settled rule that trial courts have a broad discretion in
probation matters which will be interfered with only upon a finding of
abuse of that discretion.” State v. Rogers, 251 N.W.2d 239, 243 (Iowa
1977) (citing United States v. Alarik, 439 F.2d 1349, 1351 (8th Cir. 1971)
(“The granting of probation, and the conditions upon which it is granted
as well as its revocation are matters purely within the discretion of the
trial court and are reviewable only upon abuse of discretion.”)). Thus, we
review Valin’s sentence for an abuse of discretion, and note that any
abuse of discretion necessarily results in a legal error. State v. Ogle, 430
N.W.2d 382, 383 (Iowa 1988) (per curiam) (reviewing the probation
condition that the appellant reside at a certain residential facility for an
abuse of discretion); accord United States v. Jalilian, 896 F.2d 447, 449
(10th Cir. 1990) (“If the sentence is legal, we review probation
determinations for abuse of discretion.”).
Regarding an abuse of discretion standard, we have said:
In applying the abuse of discretion standard to sentencing decisions, it is important to consider the societal goals of sentencing criminal offenders, which focus on rehabilitation of the offender and the protection of the 9
community from further offenses. It is equally important to consider the host of factors that weigh in on the often arduous task of sentencing a criminal offender, including the nature of the offense, the attending circumstances, the age, character and propensity of the offender, and the chances of reform. The application of these goals and factors to an individual case, of course, will not always lead to the same sentence. . . . Yet, this does not mean the choice of one particular sentencing option over another constitutes error. Instead, it explains the discretionary nature of judging and the source of the respect afforded by the appellate process.
Judicial discretion imparts the power to act within legal parameters according to the dictates of a judge’s own conscience, uncontrolled by the judgment of others. It is essential to judging because judicial decisions frequently are not colored in black and white. Instead, they deal in differing shades of gray, and discretion is needed to give the necessary latitude to the decision-making process. This inherent latitude in the process properly limits our review. Thus, our task on appeal is not to second guess the decision made by the district court, but to determine if it was unreasonable or based on untenable grounds.
State v. Formaro, 638 N.W.2d 720, 724–25 (Iowa 2002) (citations
omitted). In short, there is an abuse of discretion when “there is no
support for the decision in the . . . evidence.” Rath v. Sholty, 199 N.W.2d
333, 336 (Iowa 1972).
III. Applicable Law.
We have noted that “[t]he legislature has given the courts broad,
but not unlimited, authority in establishing the conditions of probation.”
State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998) (per curiam)
(citations omitted). Our courts derive this authority from Iowa Code
section 907.6, which states:
Probationers are subject to the conditions established by the judicial district department of correctional services subject to the approval of the court, and any additional reasonable conditions which the court or district department may impose to promote rehabilitation of the defendant or protection of the community. 10
Iowa Code § 907.6. 3 Thus, our district courts are authorized to impose
“any reasonable conditions” that either “promote rehabilitation of the
defendant or the protection of the community.” 4 Jorgensen, 588 N.W.2d
at 687 (citing Iowa Code § 907.6; State v. Akers, 435 N.W.2d 332, 335
(Iowa 1989)); Ogle, 430 N.W.2d at 383 (per curiam) (stating probation
conditions “shall promote the rehabilitation of the defendant and the
protection of the community” and “must not be unreasonable or
arbitrary”); Rogers, 251 N.W.2d at 243 (stating “conditions of probation
cannot be unreasonable or arbitrary” and “should relate to the
rehabilitation of the convicted criminal or the protection of the
community, or both”); see also 5 Wayne R. LaFave et al., Criminal
Procedure § 26.9(a), at 833 (2d ed. 1999) (“In order to be valid, probation
conditions must be reasonably related to the offense involved, the
3We recognize section 907.6 does not qualify what conditions the DCS may originally impose. Instead, it states “[p]robationers are subject to the conditions established,” and qualifies “any additional” conditions imposed by requiring them to be “reasonable” and either “promote the rehabilitation of the defendant or protection of the community.” Iowa Code § 907.6. It would be illogical, however, to read from this provision that the DCS may impose any conditions it wants—reasonable or not—the first time around. After all, those conditions are “subject to the approval of the court.” Id. The proper construction is that any condition of probation must be reasonable and either rehabilitate the defendant or protect the community. We have always required conditions of probation to meet this test. See, e.g., Jorgensen, 588 N.W.2d at 687.
4We also recognize Iowa Code section 907.7 states that the purposes of probation are “to provide maximum opportunity for the rehabilitation of the defendant and to protect the community from further offenses by the defendant and others.” Notably, this provision uses the conjunctive “and,” whereas section 907.6 uses the disjunctive “or.” Compare Iowa Code § 907.7 (stating “for the rehabilitation of the defendant and to protect the community” (emphasis added)), with id. § 907.6 (stating “to promote rehabilitation of the defendant or protection of the community” (emphasis added)). Section 907.7, however, is simply recognizing the purposes of probation, and not the authority of the court to impose conditions of probation. Thus, to be valid, conditions need not (in addition to being reasonable) promote the defendant’s rehabilitation and the protection of the community, but simply one or the other, or both. See Rogers, 251 N.W.2d at 243. 11
rehabilitation of the defendant, the protection of the public, or another
legitimate punitive purpose.”).
A condition of probation promotes the rehabilitation of the
defendant or the protection of the community when it addresses some
problem or need identified with the defendant, see Rogers, 251 N.W.2d at
244 (“The sentencing court’s probation conditions might well be tailored
to deter defendant from further offenses and thus contribute towards his
rehabilitation.”), or some threat posed to the community by the
defendant, see Ogle, 430 N.W.2d at 383 (per curiam) (“As the defendant
posed a threat to the community because of his willingness to drive while
under the influence, the court was well within its discretion to reject the
Antabuse option and to order the defendant to reside in the residential
facility [as a condition of probation].”). A condition is reasonable when it
relates to the defendant’s circumstances in a reasonable manner, see
United States v. Friedberg, 78 F.3d 94, 96 (2d Cir. 1996) (“A condition of
probation is not reasonable if it is found to be ‘unnecessarily harsh or
excessive in achieving these goals [of rehabilitating the defendant and
protecting the public].’ ” (quoting United States v. Tolla, 781 F.2d 29, 34
(2d Cir. 1986))), and is justified by the defendant’s circumstances, see
Jorgensen, 588 N.W.2d at 687 (finding the imposition of a batterer’s
education program condition unreasonable because the defendant was
acquitted of domestic abuse and had no history of such conduct). Thus,
the inquiry into the reasonableness of a condition of probation boils
down to whether the statutory goals of probation are reasonably
addressed. See, e.g., Sobota v. Willard, 427 P.2d 758, 759 (Or. 1967) (“In
testing the reasonableness of conditions imposed as part of a probation
plan, it is necessary to bear in mind the various purposes sought to be 12
served by probation . . . .”); 21A Am. Jur. 2d Criminal Law § 907, at 171–
73 (1998) (“[C]onditions that are found to be vindictive, vague, or
overbroad, or unreasonable, will be stricken from the probation order.
Moreover, conditions of probation which have no relationship to the
crime of which the offender was convicted, relate to conduct which is not
in itself criminal, and require or forbid conduct which is not reasonably
related to future criminality, do not serve the statutory ends of probation
and are invalid.”). As a result, whether a condition meets the statutory
goals of probation and whether it is reasonable are questions that are
best addressed together. IV. Discussion.
Although this case involves three appeals, there is essentially one
issue presented. The question is whether special conditions of probation
relating to the treatment and prevention of sexual abuse can be imposed
as terms of probation for a person convicted of OWI with Valin’s history.
In particular, Valin objects to the requirement that he participate in a sex
abuse treatment program and submit to a PPG test as a part of an
evaluation to determine the level of treatment and his ability to maintain
contact with children.
Normally, the crime of conviction serves as the circumstance to
support the conditions of probation. However, we have previously
recognized that a defendant’s background and history is also relevant
when determining the conditions of probation. See Jorgensen, 588
N.W.2d at 687, 687 n.1 (striking a condition of probation because, inter
alia, “there was no indication she had a prior history” associated with
such conditions, and no evidence in the record suggested such
conditions were appropriate). Other states have also recognized that a 13
defendant’s history, as opposed to the defendant’s present conviction,
may form the basis for conditions of probation. See, e.g., State v.
Solomon, 111 P.3d 12, 26 (Haw. 2005) (holding sex-offender treatment
was a valid probation condition, even though the conviction was not for a
sex offense, because the defendant had a history of sex-offending); State
v. Cyr, 751 A.2d 420, 424 (Conn. Ct. App. 2000) (conviction need not be
for enumerated sex offense in order to warrant sex-offender treatment as
a probation condition); Miyasato v. State, 892 P.2d 200, 201–02 (Alaska
Ct. App. 1995) (“[A] condition of probation need not directly relate to the
offense for which the defendant stands convicted.”). Thus, a prior
conviction can provide the needed history to justify a special condition 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. In this case, there is an insufficient nexus between Valin’s present
conviction and his special conditions of probation to advance the goals of
probation. The State suggests a sufficient nexus exists for two primary
reasons. First, the DCS maintains a policy that requires all probationers
with a prior sex abuse conviction to participate in sex abuse treatment.
The policy is based on the proposition that sex offenders always have the
potential to reoffend. See McKune v. Lile, 536 U.S. 24, 32–33, 122 S. Ct.
2017, 2024, 153 L. Ed. 2d 47, 56–57 (2002) (observing that sex offenders
who have re-entered society are “much more likely than any other type of
offender to be rearrested for a new rape or sexual assault”). Second, the
use of alcohol was recognized as a component of Valin’s relapse cycle
during his prior sex abuse treatment, which means the current 14
conviction gives rise to a current potential for relapse. We address each
reason separately.
The DCS policy and its rationale are too broad to establish the
necessary relationship between the conditions of probation in this case
and either the current needs of rehabilitation of the defendant or the
current protection of the public from the defendant. The policy gives rise
to the need for the DCS to normally consider and inquire into the
potential need for sex abuse treatment for a probationer, but the policy
does not make treatment reasonable in each case. The reasonableness of
sex abuse treatment as a condition of probation for an unrelated crime of
conviction must be supplied by the individual facts or evidence in each
case. The DCS policy paints with a brush that is too broad, and covers
all defendants with a prior record of conviction for sex abuse, without
individually considering the actual or current need for rehabilitation or
public protection. See United States v. Scott, 270 F.3d 632, 636 (8th Cir.
2001) (“The government presented no evidence that [the defendant] has a
propensity to commit any future sexual offenses, or that [the defendant]
has repeated this behavior in any way since his [previous] conviction.”).
The problem with using the policy to establish a relationship
between the conditions of probation and the goals of probation is best
revealed by the other special conditions of probation imposed by the DCS
in this case, such as the no-contact-with-children provision. This
condition of probation restricts Valin’s contact with children, including
his own child, even though he has no history of sexual assault involving
children and there are no facts that give rise to a reasonable fear that
such behavior could occur. Consequently, the effect of the policy is to
treat Valin as a current sex offender solely because of his prior offense. 15
In turn, the policy has the effect of imposing greater restrictions on an
offender than reasonably needed to achieve the goals of probation. This
is a consequence that probation must avoid. See Iowa Code § 907.9(4)
(“[A] person who has been discharged from probation shall no longer be
held to answer for the person’s offense.”). Accordingly, we turn to the
second reason offered by the State.
Alcohol abuse is a common factual connection between the prior
and current convictions that could support the current need for sex
abuse treatment. However, the common factor of alcohol relied on by the
district court in this case to justify the need for sex abuse treatment as a
condition of probation is simply too tenuous. There is no evidence in the
record to show the degree to which the use of alcohol is a factor of
relapse into sexual abuse, or even the degree to which alcohol abuse is a
current part of Valin’s life. The record only establishes a conviction that
shows Valin used alcohol five years after his conviction for sexual
assault, which, without additional evidence, does not reasonably support
the imposition of sex abuse treatment. The imposition of a treatment
program based on this one common circumstance between two unrelated
convictions is premature.
The record in this case shows that the sexual abuse treatment
program was to begin with an evaluation to determine the level of
treatment. Yet, the evaluation was not imposed to determine if treatment
should be required as a condition of probation, but what level of
treatment should be imposed. Thus, the condition of probation imposed
on Valin was a treatment program, not an evaluation. Regardless, any
condition of probation—whether a treatment term or an evaluation
term—must satisfy the critical inquiry that a reasonable relationship 16
exists between the condition of probation and the statutory goals as
related to the current situation of the probationer. The inquiry must
reveal specific evidence that such a reasonable relationship exists.
We conclude there is no reasonable relationship between Valin’s
required participation in the sex offender treatment program, the
imposition of the other special terms of probation, and the goals of
probation for Valin’s current OWI conviction. Thus, the trial court
abused its discretion by imposing unreasonable special conditions of
probation, and this abuse of discretion resulted in legal error. V. Conclusion.
We conclude the district court abused its discretion by ordering
the special conditions of probation, as well as the requirement that Valin
submit to the PPG. Therefore, we reverse the decision of the district
court that imposed the special conditions of probation, including the PPG
test, without prejudice to the State to impose additional terms and
conditions of probation in the future.
REVERSED.
All justices concur except Hecht, J., who takes no part.