IN THE COURT OF APPEALS OF IOWA
No. 15-1381
Filed February 8, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEFF ALLEN DEVRIES,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, DeDra L. Schroeder
(plea/sentencing) and James M. Drew (motion to withdraw plea), Judges.
A defendant appeals his conviction and sentence. AFFIRMED.
Roger L. Sutton of Sutton Law Office, Charles City, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vogel, P.J., and Tabor and Mullins, JJ.
2
VOGEL, Presiding Judge.
Jeff DeVries appeals his conviction and sentence following his guilty plea
to indecent contact with a child, in violation of Iowa Code section 709.12(1)(a)
(2013). DeVries claims the district court erred by denying his request to withdraw
his guilty plea and by considering uncharged conduct in sentencing him.
Because we conclude the district court did not abuse its discretion in either
respect, we affirm.
I. Background Facts and Proceedings
On August 21, 2014, the State charged DeVries with ten counts, including
three counts of sexual abuse in the second degree and seven counts of indecent
contact with a child. On April 3, 2015, the State filed an amended trial
information, which charged DeVries with one count of sexual abuse in the
second degree and one count of indecent contact with a child. On April 20,
DeVries pled guilty to one count of indecent contact with a child as part of a plea
agreement in which the State agreed to dismiss the sexual-abuse count and
make a sentencing recommendation.
At the plea hearing, DeVries answered “Yes” when asked whether he
touched the victim’s buttocks “with the purpose of arousing or satisfying your
sexual desire or hers.” The court accepted DeVries’s guilty plea and ordered a
presentence investigation (PSI). As part of the PSI, a psychosexual assessment
was performed by a psychologist, and DeVries admitted that he became aroused
after “accidentally” touching the victim’s buttocks and that on a subsequent
occasion he fondled the victim over her clothing. DeVries also said the victim
“was a good little story teller” and the situation had been “blown out of
3
proportion.” When discussing the incident with the preparer of the PSI report,
DeVries denied that he touched the victim for the purpose of sexual arousal,
claimed the information in the minutes of testimony was untrue, said he told the
psychologist that he was aroused by the touching because he did not think the
psychologist wanted to hear the truth, and accused the victim of lying. The PSI
report noted that DeVries may be a good candidate for probation because he had
no prior criminal record and could maintain employment and a stable residence.
However, based on the nature of the crime, DeVries’s “complete lack of remorse
for the victim, and his denial of responsibility for his behavior in this case,” the
reporter opined DeVries “would not be successful in sex offender treatment in the
community and/or following the conditions of sex offender probation supervision.”
Therefore, he recommended that DeVries be sentenced to two years of
incarceration.
On the date initially set for sentencing, a dispute arose between DeVries
and the State over whether the State had agreed to recommend a suspended
sentence or follow the recommendation from the PSI report. DeVries also took
issue with some of the information in the PSI report; the court continued
sentencing until a hearing could be reported. DeVries filed a motion to withdraw
his plea claiming, “Defendant’s attorney did not hear the Judge state that the
State was going to follow the recommendations of the presentence investigation
report.” DeVries also asserted the plea now lacked a factual basis and the PSI
report contained uncharged conduct. The district court reviewed the record from
the plea hearing, determined DeVries had a full understanding of the agreement
before entering his plea, and denied DeVries’s motion to withdraw his guilty plea.
4
A sentencing hearing was held on August 10. DeVries raised concerns
about information contained in the PSI that described conduct that he did not
admit to as part of his guilty plea. After a discussion on the record, all parties
agreed the court “should only be considering admissions [DeVries] made during
guilty plea proceedings or admissions he made to the Presentence Investigation
Report preparer or the Psychosexual Report Preparer” related to the charged
conduct. Both the State and DeVries agreed to proceed with sentencing with the
court stating on the record that it was not considering the uncharged conduct
discussed in the PSI report. In pronouncing sentence, the court stated that it
went through the PSI report and “basically blocked out the areas that did not
conform to the factual basis that were given initially.” The court then noted
DeVries’s age, criminal history, employment history, the nature of the offense,
and DeVries’s prospects for rehabilitation. The court discussed its concern about
DeVries’s options for treatment and rehabilitation outside of prison based on the
inconsistencies in the PSI report relating to the charged conduct and the best
way to protect society. The court then sentenced DeVries to a term of
imprisonment not to exceed two years. DeVries appeals.
II. Standard of Review
“We review a trial court’s decision to grant or deny a request to withdraw a
guilty plea for abuse of discretion.” State v. Speed, 573 N.W.2d 594, 596 (Iowa
1998). A court abuses its discretion when the court exercises it “on grounds or
for reasons clearly untenable or to an extent clearly unreasonable.” Id. (citations
omitted).
5
When a sentence falls within statutory limits, the sentence is reviewed for
abuse of discretion. State v. Seats, 865 N.W.2d 545, 552 (Iowa 2015). “A
district court may not consider an unproven or unprosecuted offense when
sentencing a defendant unless (1) the facts before the court show the defendant
committed the offense, or (2) the defendant admits it.” State v. Jose, 636 N.W.2d
38, 41 (Iowa 2001).
III. Motion to Withdraw Guilty Plea
DeVries asserts the court erred in denying his motion to withdraw his
guilty plea because the PSI report contained discussion of conduct he had not
admitted to as part of his plea. The State counters DeVries was fully aware of
the consequences of his plea at the time he entered it.
A motion to withdraw a guilty plea will not be granted “where ‘a defendant,
with full knowledge of the charge against him and of his rights and the
consequences of a plea of guilty, enters such a plea understandably and without
fear or persuasion.’” State v. Ramirez, 400 N.W.2d 586, 588 (Iowa 1987)
(quoting State v. Weckman, 180 N.W.2d 434, 436 (Iowa 1970)). Iowa Rule of
Criminal Procedure 2.8(2)(b) provides:
Before accepting a plea of guilty, the court must address the
defendant personally in open court and inform the defendant of,
and determine that the defendant understands, the following:
(1) The nature of the charge to which the plea is offered.
(2) The mandatory minimum punishment, if any, and the
maximum possible punishment provided by the statute defining the
offense to which the plea is offered.
(3) That a criminal conviction, deferred judgment, or deferred
sentence may affect a defendant’s status under federal immigration
laws.
(4) That the defendant has the right to be tried by a jury, and
at trial has the right to assistance of counsel, the right to confront
and cross-examine witnesses against the defendant, the right not to
6
be compelled to incriminate oneself, and the right to present
witnesses in the defendant’s own behalf and to have compulsory
process in securing their attendance.
(5) That if the defendant pleads guilty there will not be a
further trial of any kind, so that by pleading guilty the defendant
waives the right to a trial.
Our review of the record indicates the trial court complied with the
requirements of rule 2.8(2)(b) in accepting DeVries’s plea and DeVries plainly
and unequivocally stated that he understood the rights and consequences of his
guilty plea. In addressing DeVries’s motion to withdraw his guilty plea, the court
reviewed the plea hearing colloquy and determined DeVries entered his plea
knowingly and voluntarily and the hearing complied with rule 2.8. As our review
reached the same conclusion, we cannot say the court abused its discretion in
denying DeVries’s motion. We also agree with the district court that DeVries’s
unhappiness with the information offered in his PSI report does not affect his
understanding of his guilty plea when he entered it and is not an adequate
reason for withdrawing his guilty plea. See id. We affirm the denial of DeVries’s
motion to withdraw his guilty plea.
IV. Sentencing Considerations
DeVries claims the district court abused its discretion by considering
information contained in the PSI report that was uncharged and distinct from the
factual basis of his guilty plea.
When exercising its discretion in determining a proper sentence, the court
should consider several factors, “including the nature of the offense, the
attending circumstances, defendant’s age, character and propensities and
chances of his reform.” State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979).
7
In evaluating these factors, the court should strive to order a sentence that “will
provide maximum opportunity for the rehabilitation of the defendant, and for the
protection of the community from further offenses by the defendant and others.”
Iowa Code § 901.5.
The record reflects the district court did not consider the conduct
contained in the PSI that was separate from the conduct DeVries admitted to as
part of his guilty plea. The parties and the court discussed the issue at length at
the sentencing hearing and agreed that the court should not and would not
consider the uncharged conduct in determining an appropriate sentence. When
pronouncing sentence, the district court stated it did not consider the charges
and had “basically blocked out the areas that did not conform to the factual basis
that were given initially.” The court discussed at length DeVries’s age, criminal
record, employment history, the nature of the offense, possibility of rehabilitation,
and community-safety concerns in fashioning sentence. Although the court was
concerned about the inconsistencies between DeVries’s plea colloquy, his
statements to the psychologist, and his statements to the author of the PSI, that
concern was directed towards the court’s assessment of DeVries’s chances of
successful rehabilitation. Thus, the concern was correlated to the actual
sentencing factors appropriately utilized. On our review of the record, we
conclude the district court did not abuse its discretion in sentencing DeVries.
8
V. Conclusion
Because we conclude the district court did not abuse its discretion in
denying DeVries’s motion to withdraw his guilty plea nor in sentencing DeVries,
we affirm his conviction and sentence.
AFFIRMED.