IN THE COURT OF APPEALS OF IOWA
No. 18-1418
Filed March 6, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GREGORY HINTZE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling,
Judge.
A defendant appeals following his conviction for extortion. SENTENCE
VACATED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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BOWER, Judge.
Gregory Hintze appeals following his conviction for extortion. Hintze claims
the court abused its discretion in sentencing by allowing the victim’s mother to
provide a victim impact statement and by considering unproven and unprosecuted
offenses. We vacate the defendant’s sentence and remand for resentencing
before a different judge.
I. Background Facts & Proceedings
In June and July 2017, Hintze posted nude photos of M.G. on the door of
the apartment she lived in with her husband and threatened further distribution of
the photos around the apartment complex if M.G. and her husband did not pay him
money. The State charged Hintze with one count of extortion, in violation of Iowa
Code section 711.4 (2017); two counts of first-degree harassment, in violation of
section 708.7(2); and being a habitual offender, in violation of section 902.8.
On May 18, 2018, pursuant to a plea agreement with the State, Hintze
pleaded guilty to extortion, a class “D” felony. As part of the agreement, the State
dropped the two counts of harassment and the habitual offender enhancement.
The parties were free to argue over the appropriate sentence. For a factual basis,
Hintze admitted to threatening to post photos of M.G., communicating the threat to
M.G., having the intention of receiving something back, and that he did not have
the right to do so. The court accepted Hintze’s plea.
The court held a sentencing hearing on July 24. Hintze requested
probation, and the State requested imprisonment. According to the pre-sentence
investigation report, Hintze’s criminal history includes three convictions for second-
degree sexual abuse of young children in 1990.
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M.G., the extortion victim, had died under unrelated circumstances in
February 2018, and her mother asked to give a victim impact statement at the
sentencing hearing. Hintze objected to the mother providing a statement, but the
court overruled the objection. The mother’s victim impact statement included
implications Hintze requested M.G. procure a child for him. The court stated it was
not taking the mother’s statement into consideration in its sentencing decision.
The court then cited the minutes of testimony as supporting the mother’s
allegations. Defense counsel objected as Hintze had not admitted that portion of
the minutes, and the mother interjected, “It’s true.” In response, the court stated it
“does not take into consideration the statements in the minutes of evidence that
were not admitted to by the Defendant.” The court then referred to Hintze’s
criminal history as “in and of itself sufficient for the Defendant to deserve the jail
time that the Court will impose in this matter.” The court also found jail time
necessary for the protection of the public.
The court entered judgment and imposed the statutory sentence of an
indeterminate term of imprisonment not to exceed five years and the minimum
required fine and surcharge. Hintze appeals, claiming the sentencing court abused
its discretion by considering improper factors in sentencing him including an
improper victim statement and unproven, unprosecuted offenses.
II. Standard of Review
“Our review of a sentence imposed in a criminal case is for correction of
errors at law.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will only
reverse the district court if the court abuses its discretion or there is a defect in the
sentencing procedure. State v. Letscher, 888 N.W.2d 880, 883 (Iowa 2016). If a
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court uses any improper consideration in sentencing a defendant, resentencing is
required. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).
III. Analysis
“Generally, a sentence will not be upset on appellate review unless a
defendant can demonstrate an abuse of discretion or a defect in the sentencing
procedure.” State v. Cheatheam, 569 N.W.2d 820, 821 (Iowa 1997) (citation
omitted). “We give sentencing decisions by a trial court a strong presumption in
their favor.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015). “An abuse of
discretion will only be found when a court acts on grounds clearly untenable or to
an extent clearly unreasonable.” State v. Leckington, 713 N.W.2d 208, 216 (Iowa
2006).
Hintze claims the court improperly considered a victim impact statement
offered by the mother of M.G. The State agrees M.G.’s mother does not fall within
the statutory definition of victim for purposes of a victim impact statement.
Because M.G. died under circumstances unrelated to Hintze’s case, the State
urges it was reasonable to allow the mother to speak on M.G.’s behalf and her
comment during the sentencing hearing about an unproven bad act cannot be
shown to have affected the sentencing decision.
The authority to submit victim impact statements is wholly statutory and
limited to specific persons. State v. Matheson, 684 N.W.2d 243, 244 (Iowa 2004).
That group of persons only extends to immediate family members of the person
suffering physical, emotional, or financial harm if the victim “died or was rendered
incompetent as a result of the offense or who was under eighteen years of age at
the time of the offense.” Iowa Code § 915.10(3). Even if a party has no standing
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under section 915.10 to provide a victim impact statement, it does not require
vacation of the sentence unless prejudice results. See State v. Sumpter, 438
N.W.2d 6, 9 (Iowa 1989).
A district court may not consider unproven or unprosecuted offenses in
sentencing a defendant unless (1) the facts before the court reveal that the
defendant committed the offense, or (2) the defendant admits it. State v. Jose,
636 N.W.2d 38, 41 (Iowa 2001). “The sentencing court should only consider those
facts contained in the minutes that are admitted to or otherwise established as
true.” State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998) (citation omitted). The
portions of the minutes not necessary to establish the plea’s factual basis are
deemed denied by the defendant and a sentencing court cannot rely on them. Id.
“If a district court improperly considers unprosecuted and unproven additional
charges, we will remand the case for resentencing.” Formaro, 638 N.W.2d at 725.
The mother’s statement was hostile, bitter, and exhibited a desire for
retribution against Hintze. The mother’s statement introduced facts not otherwise
in the record and included serious allegations against Hintze that mirrored Hintze’s
prior offenses. The court stated it was not taking the mother’s statement into
consideration for sentencing purposes, then cited the minutes of testimony where
a police report noted M.G. making the same allegations. Defense counsel properly
objected as Hintze had not admitted facts supporting those allegations. As the
court and defense counsel discussed whether the allegation could be considered,
the victim’s mother interjected, “It’s true.” The court then stated it would not
consider the minutes not admitted to by Hintze.
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The mother’s victim impact statement resulted in the introduction of
prejudicial information into the sentencing court’s consideration. She introduced
facts and unproven crimes outside the record of the plea. The court found the
statement not prejudicial because the allegations were contained in the minutes of
testimony, but the allegations were in the unadmitted and unproven portion of the
minutes of testimony. The mother’s statement and the court’s initial disclaimer
based on unadmitted portions of the minutes of testimony engenders some
question as to their effect on the court’s consideration. “We cannot speculate
about the weight a sentencing court assigned to an improper consideration . . . .”
Gonzalez, 582 N.W.2d at 517. Therefore we vacate the defendant’s sentence and
remand for resentencing before a different judge.
SENTENCE VACATED AND REMANDED.