IN THE COURT OF APPEALS OF IOWA
No. 16-1646
Filed July 6, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
ALEXANDER CUTSHALL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Butler County, DeDra L.
Schroeder, Judge.
Alexander Cutshall appeals the sentences entered upon his guilty pleas to
the charges of lascivious acts with a child and assault with intent to commit
sexual abuse. SENTENCE VACATED IN PART AND REMANDED FOR
RESENTENCING.
Mark C. Smith, State Appellate Defender, and Mary K. Conroy, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
VAITHESWARAN, Presiding Judge.
Alexander Cutshall pled guilty to lascivious acts with a child and assault
with intent to commit sexual abuse. See Iowa Code §§ 709.8(1)(d), (2)(b),
709.11 (2015); see also id. § 708.1. The district court sentenced Cutshall to
prison and jail but suspended the prison sentence and most of the jail sentence
and placed him on probation. As a condition of probation, the court stated
Cutshall could “[n]ot have a phone or any device with internet capability.”
On appeal, Cutshall (1) challenges the condition of probation prohibiting
access to the internet, (2) contends the district court improperly considered
unproven facts and offenses in pronouncing sentence, and (3) argues the district
court should have considered his status as a juvenile offender in imposing
sentence.
I. Condition of Probation
A condition of probation is only “reasonable when it relates to the
defendant’s circumstances in a reasonable manner . . . and is justified by the
defendant’s circumstances.” State v. Valin, 724 N.W.2d 440, 446 (Iowa 2006).
Cutshall argues the prohibition of access to the internet is unreasonable because
the minutes of testimony “do not indicate that [he] used the internet to find his
victims.” The State agrees “[t]he sentencing order prohibiting Cutshall from
accessing the internet or possessing any device with internet capability is
unreasonably restrictive given his offense.” We vacate this portion of the
sentence and remand to have the district court strike this condition of probation.1
1
Of note is a recent United States Supreme Court decision which struck down a state
law that made it a felony for a registered sex offender to gain access to certain internet
3
II. Unproven Facts and Offenses
The State originally charged Cutshall with one count of second-degree
sexual abuse occurring January 1, 2008 through December 31, 2012 and one
count of third-degree sexual abuse occurring January 1, 2012 through December
31, 2013. Cutshall pled guilty to lesser charges, which incorporated the same
time frames. At sentencing, the district court stated:
[M]y thought is that based on the nature of the offenses, based on
the time frame we’re talking about, and there being two separate
and distinct victims, which happened over a period of time, that this
isn’t a case for a suspended sentence, but I’m going to give you
that opportunity to prove me wrong.
Cutshall argues “the district court believed [his] crimes occurred over a
period of time and during a separate period of time” notwithstanding the absence
of an admission by him “that he assaulted the victims multiple times over a period
of time or that the offenses occurred in different periods of time.” “We will set
aside a sentence and remand a case to the district court for resentencing if the
sentencing court relied upon charges of an unprosecuted offense that was
neither admitted to by the defendant nor otherwise proved.” State v. Black, 324
N.W.2d 313, 315 (Iowa 1982).
As noted, the charges to which Cutshall pled guilty incorporated the
identical time frames as the original charges. Additionally, a presentence
investigation report and psychosexual report considered by the court without
objection made reference to these time periods. See State v. Grandberry, 619
N.W.2d 399, 402 (Iowa 2000) (“In determining a defendant’s sentence, a district
materials as unconstitutional under the First Amendment. See Packingham v. North
Carolina, ___ S. Ct. ___, ___, 2017 WL 2621313, at *3, *6-8 (U.S. June 19, 2017).
4
court is free to consider portions of a presentence investigation report that are
not challenged by the defendant.”); State v. Witham, 583 N.W.2d 677, 678 (Iowa
1998) (“The defendant did not object to that portion of the PSI report which
addressed his psychiatric evaluation, and the sentencing court was free to
consider it.”). We conclude the district court did not impermissibly consider
unadmitted or unproven time frames in imposing sentence.
III. Consideration of Juvenile Offender Status
Cutshall contends “the district court abused its sentencing discretion or,
alternatively, . . . violated constitutional prohibitions on cruel and unusual
punishment when it failed to consider [his] status as a juvenile offender and failed
to make the findings required by the Miller, Null, and Lyle line of cases.”2 He
acknowledges his “sentence . . . did not involve any mandatory minimum term of
incarceration.” The Iowa Supreme Court recently “decline[d] to extend the
requirement of a Miller individualized sentencing hearing to juvenile defendants
who are not subject to a mandatory minimum period of incarceration.” State v.
Propps, ___ N.W.2d ___, ___, 2017 WL 2291380, at *9 (Iowa 2017). Propps is
dispositive.
We affirm all portions of Cutshall’s sentence except the portion prohibiting
access to the internet as a condition of probation. We vacate that portion of the
sentence and remand for the district court to strike this condition of probation.
SENTENCE VACATED IN PART AND REMANDED FOR
RESENTENCING.
2
See generally Miller v. Alabama, 132 S. Ct. 2455 (2012); State v. Lyle, 854 N.W.2d 378
(Iowa 2014); State v. Null, 836 N.W.2d 41 (Iowa 2013).
State of Iowa v. Alexander Cutshall
Combined Opinion