IN THE COURT OF APPEALS OF IOWA
No. 13-1268
Filed June 11, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JAKE CHRISTIAN SMITH,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marion County, Randy V. Hefner,
Judge.
A defendant appeals challenging his sentence. CONVICTION
AFFIRMED; SENTENCE VACATED IN PART AND REMANDED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney
General, and Ed Bull, County Attorney, for appellee.
Considered by Vogel, P.J., Mullins, J., and Sackett, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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MULLINS, J.
Jake Smith appeals his sentence for charges of sexual exploitation of a
minor and sexual abuse in the third degree. He contends that the court abused
its discretion by “fail[ing] to consider the minimum sentencing factors,” exceeded
its authority when it imposed a five-year no-contact order, and did not give proper
consideration to his ability to reimburse the State when it ordered him to pay
restitution for attorney fees. We affirm the prison sentence, vacate the no-
contact order, remand for entry of a corrected no-contact order, and decline to
consider the restitution order.
I. BACKGROUND FACTS AND PROCEEDINGS
In May 2013 Smith pled guilty to sexual exploitation of a minor and sexual
abuse in the third degree. Both of these charges arose from an incident where
Smith and his friends secretly videotaped the victim performing oral sex on
Smith. The video was subsequently spread to various persons including Smith’s
ex-girlfriend, who assaulted the victim in response to the video. Smith was
nineteen years of age, and the victim was fifteen. At sentencing Smith argued for
a deferred judgment, citing his lack of a serious criminal record, his youth, the
relationship difficulties he was having with his mother, and his remorsefulness as
reasons why his sentence should be mitigated. In sentencing Smith, the court
relied upon the presentence investigation (PSI) report without objection from
either of the parties. The court noted that at the time of the incident Smith was
unemployed, had quit high school, and was “adrift” with “no focus in [his] life
whatsoever.” The court also acknowledged Smith’s drug use, his mental health,
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the PSI author’s determination that he was a “moderate to high risk to re-offend,”
as well as the author’s recommendation that he receive sex offender treatment
during his incarceration.
The court then sentenced Smith to two concurrent ten-year terms of
imprisonment. The court also entered a no-contact order prohibiting Smith from
having any contact with the victim and juveniles under the age of eighteen for a
period of five years. Finally, Smith was ordered to pay restitution costs for his
court-appointed attorney, either in the amount certified by the Iowa public
defender’s office or $500, whichever was less. Smith filed a timely notice of
appeal, challenging his sentence.
II. SCOPE AND STANDARDS OF REVIEW
We review sentencing appeals for correction of errors at law. State v.
Valin, 724 N.W.2d 440, 443-44 (Iowa 2006). If a sentence falls within the
statutory limits, it will be set aside only for an abuse of discretion. Id. at 444. “An
abuse of discretion is found only when the sentencing court exercises its
discretion on grounds or for reasons clearly untenable or to an extent clearly
unreasonable.” State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). To the
extent Smith raises constitutional issues in contesting the no-contact order, our
review there is de novo. State v. Kreps, 650 N.W.2d 636, 640 (Iowa 2002).
III. ANALYSIS
Smith contends the court abused its discretion when it sentenced him to
two concurrent ten-year prison terms. He argues the court inappropriately relied
on his “lack of focus in life” while ignoring “many other factors . . . which show
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[he] could be successful with some guidance and assistance.” Among the
factors the court ignored, Smith argues, is the lack of treatment he received
following his discharge from a psychiatric medical institute, as well as domestic
difficulties he faced at home. Smith also asserts that the nature of the offense
does not warrant his sentence. He argues at the time of the offense the victim
was only seventy-four days from being of legal age to engage in consensual
sexual activity with him, he did not personally spread the videotape of his sexual
encounter with the victim, and the victim was not “especially traumatized by
[him], but by other’s reaction to the video.” Smith contends these are all factors
that “[weigh] against imprisonment.” Finally, Smith questions the accuracy of the
conclusions made in his PSI report.
The district court is required to choose the sentencing options which, in its
discretion, provide the best opportunity for rehabilitation of the defendant and the
protection of the community. Iowa Code § 901.5 (2013). To this end, the court is
to consider “all pertinent matters . . . including the nature of the offense, the
attending circumstances, the defendant’s age, character, and propensities or
chances for reform.” State v. Johnson, 513 N.W.2d 717, 719 (Iowa 1994). In
exercising its discretion, a court must state its reasons for imposing a particular
sentence, but is “generally not required to give its reasons for rejecting particular
sentencing options.” Thomas, 547 N.W.2d at 225. As such, “[s]entencing
decisions of the district court are cloaked with a strong presumption in their
favor.” Id.
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Here, we find the court did not abuse its discretion and sufficiently stated
its reasons for choosing the sentence:
In considering an appropriate sentence I will consider your
age, your prior record, your employment circumstances, your family
circumstances, the nature of the offense.
The goals of sentencing are to protect the community from
further offenses by you and to provide you with maximum
opportunity for rehabilitation.
In reviewing the PSI report a number of facts seem to me to
be the most relevant to sentencing. When this occurred you were
adrift. There was no focus in your life whatsoever. The PSI author
indicated that you quit high school because you didn’t like it. The
activities which you were engaging in on a daily basis were
absolutely, totally recreational. You were unemployed.
The PSI reporter indicated that you told that individual that
you were using marijuana on a daily basis. You were not at that
time pursuing a GED, at least as near as I can tell. You have been
for quite some time diagnosed with serious mental health issues.
There apparently was no ongoing attempt to address those mental
health issues.
I am concerned by the assessment that you are at a
moderate to high risk to re-offend. The author of the PSI report
indicates that you should be referred for sex offender treatment, but
while incarcerated.
I believe for all of those reasons suspending a sentence or
giving you a deferred judgment on these charges is not appropriate.
I further, however, believe that running these prison sentences
consecutive is not necessary under these circumstances primarily
due to your age.
The reasoning as stated by the court demonstrates concern for the twin
goals of rehabilitation of the defendant and protection of the community. In his
argument, Smith assumes that because the court did not discuss the details of
the offense or mention his time in psychiatric care, it did not give these factors
consideration in support of a mitigated sentence. However, the court is under no
general obligation to state all of its reasons for rejecting a particular sentence. Id.
Smith also argues the conclusions made by the author of the PSI report are not
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supported by the factual findings. To the extent Smith seems to be challenging
the admissibility of the PSI report, he waived that challenge when he declined to
object to the court relying upon the report at the sentencing hearing. To the
extent Smith is arguing the court abused its discretion by giving too much weight
to the report’s conclusions, we look at the factors considered by the court.
The record clearly shows the court considered Smith’s age, criminal
record, employment circumstances, family circumstances, educational status,
substance abuse history, mental health issues, and risk to re-offend. The court
also considered the nature of the offense and the goals of sentencing to protect
the community and to maximize Smith’s opportunity for rehabilitation.
Accordingly, we find the court properly exercised its discretion.
Smith also contests the portion of the five-year no-contact order
prohibiting all contact or communication with juveniles under the age of eighteen.
Smith contends that such an order has no statutory basis in this state and
violates his constitutional rights as protected by the First Amendment. He
argues, and the State agrees, that it is invalid because Iowa Code section
664A.1 only authorizes a no-contact order to protect “the alleged victim, persons
residing with the alleged victim, or members of the alleged victim’s immediate
family.” Smith claims a five-year order prohibiting him from contact with all
juveniles would be “excessively broad and unreasonably restrictive.”
In State v. Lathrop, our Supreme Court held that a condition of probation
prohibiting contact with all minors was “unreasonably excessive,” noting that
such a condition “literally prohibits any and all contact with any person under the
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age of eighteen regardless of how unintended, incidental, or innocuous such
contact might be.” 781 N.W.2d 288, 299 (Iowa 2010). Although the court in
Lathrop addressed conditions of probation, we find the same concerns to be
applicable in the instant case. Smith would not only be subjected to the same
conditions as the defendant in Lathrop, he would also be prohibited from
contacting his own younger siblings. Given the unreasonable excessiveness of
the order and its lack of statutory authorization, we agree with both parties and
vacate the portion of the no-contact order prohibiting contact with all juveniles
under the age of eighteen. See also State v. Hall, 740 N.W.2d 200, 202-03 (Iowa
Ct. App. 2007).
Finally, Smith argues the court failed to give adequate consideration to his
ability to pay when it ordered him to reimburse the State for his attorney fees.
However, because it does not appear a plan of restitution was completed
pursuant to Iowa Code section 910.3 by the time the notice of appeal was filed,
and because Smith has not yet pursued the remedy provided by Iowa Code
section 910.7, we decline to address the issue at this time. See State v.
Jackson, 601 N.W.2d 354, 357 (Iowa 1999); State v. Swartz, 601 N.W.2d 348,
354 (Iowa 1999). The Jackson court held that until a plan of restitution under
section 910.3 is completed, “the court is not required to consider the defendant’s
ability to pay.” 601 N.W.2d at 357. The court also held that because section
910.7 allows a defendant to petition the district court for modification of a
restitution plan if dissatisfied with the payments required by the plan, “unless that
remedy has been exhausted, we have no basis for reviewing the issue in this
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court.” Id. On this record, we too have no basis for reviewing Smith’s ability to
pay.
IV. CONCLUSION
The sentencing court considered statutory and other relevant factors and
did not abuse its discretion in selecting the sentence of imprisonment, so we
affirm that decision. The breadth of the no-contact order was unreasonable and
exceeded statutory authority by covering persons not defined as victims.
Accordingly, we vacate the no-contact order entered as part of the sentence and
remand for entry of a no-contact order that complies with statutory authority. As
there is no restitution plan and Smith has made no effort to exhaust his remedies
at the district court, his restitution claim is not subject to our review.
CONVICTION AFFIRMED; SENTENCE VACATED IN PART, AND
REMANDED.