IN THE COURT OF APPEALS OF IOWA
No. 21-1263
Filed December 21, 2022
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL DOUGLAS AHRENHOLZ,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, DeDra Schroeder,
Judge.
Michael Ahrenholz appeals the sentence imposed upon his guilty plea to
lascivious acts with a child. SENTENCE VACATED AND REMANDED FOR
RESENTENCING.
R.A. Bartolomei of Bartolomei & Lange, P.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., Greer, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
2
BLANE, Senior Judge.
Michael Ahrenholz appeals his prison sentence arguing the county attorney
breached the plea agreement by not advocating for a suspended sentence and
undermined the agreement by introducing victim impact statements that requested
a sentence different than the plea agreement, and the sentencing judge
considered unproven and unadmitted facts. He further complains he was not given
copies of the victim impact statements in advance of sentencing. Based upon our
review, we find the prosecutor did not undermine the plea agreement with the
victim impact statements but did violate the agreement by failing to advocate
adequately for its adoption by the court. We find no other error in the proceeding.
We therefore vacate the sentence and remand to the district court for resentencing
before a different judge.
I. Background facts and proceedings.
The State filed a trial information charging Ahrenholz with Count I, sexual
abuse upon a child under the age of twelve, a class “B” felony in violation of Iowa
Code sections 709.1, 709.3(2), and 903B.1 (2020); Count II, lascivious acts with a
child, a class “C” felony in violation of Iowa Code sections 709.8(1)(a)1 and 903B.2;
and Count III, indecent exposure, a serious misdemeanor in violation of Iowa Code
1 That section provides the following:
1. It is unlawful for any person sixteen years of age or older to
perform any of the following acts with a child with or without the
child’s consent unless married to each other, for the purpose of
arousing or satisfying the sexual desires of either of them:
a. Fondle or touch the pubes or genitals of a child.
....
2. a. Any person who violates a provision of this section
involving an act included in subsection 1, paragraph “a” through “c”,
shall, upon conviction, be guilty of a class “C” felony.
3
sections 709.9 and 903B.2. Ahrenholz entered a written guilty plea to Count II.2
The plea agreement stated:
Count II: Lascivious Acts with a Child, Class “C” Felony
Each party can make their own recommendations
The State would recommend as follows:
o A term not to exceed 10 years in prison; fully suspended
3–5 years probation to the Department of Corrections
$300 probation enrollment fee
o $1375 fine + 15% surcharge, fully suspended
o Lifetime Sex Offender Registration
o $250 civil penalty under the Sex Offender Registration
o Special Sentence under 903B.1
o $100 sexual assault surcharge
o Restitution, if any.
o No contact order for 5 years
Count I, Sexual Abuse in the Second Degree, Class “B” Felony
Dismiss with costs assessed to Defendant.
Count III Indecent Exposure, Felony
Dismiss with costs assessed to Defendant.
The plea form also provided:
The undersigned has further been advised by his counsel that any
recommendation of the prosecuting attorney and his attorney are not
binding upon the court; that sentencing is solely within the discretion
of the judge entering the sentence; and he may be sentenced up to
the maximum provided by law.
The written guilty plea contained the following factual basis: “I, MICHAEL
DOUGLAS AHRENHOLZ, hereby admit and state that I did in Floyd County, on or
about calendar year 2019 did fondle or touch the pubic area of a minor child in her
groin area on top of her clothing.”
2The court permitted the guilty plea to the felony to be in writing and without an in-
court plea colloquy on the record pursuant to an Iowa Supreme Court supervisory
order establishing protocols during the COVID-19 pandemic.
4
The district court accepted the written guilty plea and ordered a presentence
investigation report (PSI).3 The PSI, consistent with the plea agreement, also
recommended a suspended ten-year sentence, imposition of all fines, surcharges,
and fees but no recommendation for suspension and five years’ probation. Before
the sentencing hearing, Ahrenholz timely filed his corrections to the PSI that he
had been diagnosed and was being treated with medications for mental health
conditions, and that he had worn an alcohol scram bracelet establishing no alcohol
consumption during the pendency of the case.
The court held the sentencing hearing in person. The judge indicated on
the record having reviewed the PSI. Counsel for the State stated likewise.
Defense counsel also stated on the record that he had reviewed the PSI with
Ahrenholz, he had no corrections, and that the court could rely on it in imposing
judgment. The court then inquired if there would be victim impact statements. The
prosecutor indicated there were, and Ahrenholz’s wife and mother of the victim
orally presented the first statement.4 A second, short victim impact statement from
Ahrenholz’s stepson, J.R., was read by the victim advocate.5 The victim, B.R.,
then orally presented her statement. Each of the victim statements requested that
the court sentence Ahrenholz to incarceration.
Following the victim impact statements, the court asked for the State’s
sentencing recommendation. The assistant county attorney responded:
3 The guilty plea was not conditioned on the court accepting the plea agreement.
See Iowa R. Crim. P. 2.10(3).
4 Under Iowa Code section 915.10(3), a victim is defined to include “immediate
family members of a victim” who was under age eighteen at the time of the offense.
5 J.R. is B.R.’s brother.
5
Your Honor, this is pursuant to a plea agreement with the
defendant. And pursuant to that plea agreement, Counts 1 and
Count 3 of the Trial Information would be dismissed with court costs
assessed to the defendant. The defendant has entered a plea of
guilty to the charge in Count 2, that being lascivious acts with a child,
a class “C” felony.
The agreement between the parties is that each party may
make its own recommendation for sentencing. The State’s
recommendation is for a term not to exceed 10 years in prison, with
that prison term being suspended; that the defendant be placed upon
probation for a period of three to five years to the Department of
Correctional Services; that he be required to pay the $300 probation
enrollment fee; that a fine in the amount of $1375 plus the 15 percent
surcharge be fully suspended.
The State believes that this conviction would require the
defendant to be placed on the lifetime sex offender registration.
There would be a $250 penalty related to the sex offender
registration. There would also be the special sentence come into
play under section 903B.1 of the Iowa Code.
The defendant would also be ordered to pay a $100 sexual
assault surcharge. The defendant would also be required under
probation to pay restitution.
I believe there is a statement of pecuniary damages filed in
this matter. I believe there may also be—I know I’m seeing a specific
provision in regard to counseling statements with respect to the two
children. I believe the amount was $425 each.
And also, the State would be requesting a no contact order
being entered here at the time of sentencing for an additional five
years. And I believe that no contact order would be related to [B. R.].
I believe that may have been the initial no contact order as well.
The court then asked for the defense’s sentencing recommendation. Defense
counsel in a lengthy statement emphasized the plea agreement was for a
suspended sentence that was also the recommendation in the PSI. The victim
impact statements were not challenged. Counsel concluded:
I’d ask the Court to join with the government and myself and
adopt the PSI, which makes the same independent
recommendation, and sentence him as provided in the PSI and as
set forth by the County Attorney’s Office, and that he be given a
suspended sentence, that he be granted probation under the terms
and conditions of the probation that would be set by the Court and
required by the local probation office, subject to, of course, the
additional ten-year sentence that the Court has to impose . . . .
6
The court then provided Ahrenholz with his opportunity for allocution. After
apologizing to B.R., and indicating his conduct was the result of alcohol, Ahrenholz
also requested a suspended sentence. The court then inquired: “We seem to be
laying a lot of this case at the feet of alcohol. Are you telling me that alcohol is the
reason this offense occurred?” Ahrenholz responded: “Correct.”
The court then pronounced sentence as follows:
The laws of Iowa require that the Court impose a sentence
that best provides for rehabilitation of the defendant, protects society,
and deters others from committing these type of offenses. The Court
considers a lot of different factors in determining what an appropriate
sentence is. I don’t consider what happens as far as personal
property, cars, dogs, child support. I understand all of those things
are issues that may be floating, you know, with these family and this
dynamics—these dynamics, but that’s not part of the sentencing
recommendation or part of a sentencing consideration for the Court.
So while I take victim impact statements, what I have to look at, and
what I do look at, is the impact of the crime that was pled guilty to on
that person and those particular facts.
I look at rehabilitation. Rehabilitation, I look at what’s
available as far as on probation and what’s available through
incarceration to address rehabilitation for the defendant, not only for
alcohol issues, but for the lascivious acts C felony that’s in front of
me. I understand you want to lay this case at the feet of alcohol, and
maybe that’s a contributing factor, but alcohol in and of itself, I don’t
think we can draw the conclusion that that leads to touching the
genitals of a child. I mean, there’s obviously other—other things at
play.
I look at that you’ve been successful as far as the SCRAM and
abstaining from the use of alcoholic beverages. I look at your
employment, and it appears that you’ve been employed and
regularly employed. I look at your age. You’re a fairly young person.
I look at your criminal history, which spans back to 1996—
actually, prior to, if you look at the juvenile history in the Presentence
Investigation Report—but spans back to 1996 for multiple offenses
involving alcohol, drugs, interference, continuing to drive even when
you didn’t have a license, things of that nature. I do recognize that
your criminal history ends twenty years prior to this offense that’s
before the Court.
I look at your attitude, the statements you have to make, and
everything I learn about you through these proceedings and through
7
the Presentence Investigation Report. I look at the nature of the
offense that’s in front of me. And I look at my obligation to deter
others from committing these type of offenses.
All of those factors lead me to the following sentence. On
lascivious acts with a child, a class “C” felony, in violation of 709.1,
709.8(1)(a), and 903B.1, I sentence you to an indeterminate term not
to exceed 10 years. The Iowa Medical and Classification Center is
your designated reception site. That sentence is not suspended.
You’ll have a $1375 fine. That will be imposed, but suspended. You
have a lifetime sex offender registry requirement and a special
sentence under 903B.1. You’ll have a $250 civil penalty, a $100
sexual assault surcharge, and you'll pay restitution, which currently
is at $516.50, which may be amended by the State within the next
30 days. A no contact order will be extended for a period of five
years.
(Emphasis added). The court then sentenced Ahrenholz to a ten-year
indeterminate term and did not suspend the sentence, along with a number of other
criminal and civil penalties. Ahrenholz appeals his sentence.6
II. Discussion.
The supreme court as well as our court has in recent years addressed a
number of cases concerning breach of plea agreements. State v. Davis, 971
N.W.2d 546, 553 (Iowa 2022). The supreme court handed down two such cases
while this appeal has been pending. See generally id.; State v. Patten, 981 N.W.2d
126 (Iowa 2022). Their application directs our opinion here.
Ahrenholz particularly points us to Davis, 971 N.W.2d at 554–58, which
involved the same issues, the same trial judge and the same prosecutor office. He
argues the supreme court found the prosecutor breached the plea agreement in
that case. He contends the same result is required here. He argues that the State
6 Defendants who plead guilty have good cause to “directly appeal the State’s
alleged breach of the plea agreement.” State v. Davis, 971 N.W.2d 546, 554–55
(Iowa 2022); see also State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020).
8
breached the plea agreement in two ways. First, that the prosecutor at sentencing
failed to advocate for the agreed upon suspended sentence. Second, that the
prosecutor undermined the plea agreement when three victim impact statements
were orally made by the victim, her brother, and her mother, all requesting
Ahrenholz be incarcerated. The State responds that Davis is distinguishable on
its facts and its holding does not support Ahrenholz’s position. In addressing these
questions, we apply prior, now familiar case law standards.
“The context of the prosecutor’s performance is the paramount
consideration for assessing compliance with plea agreements.” Patten, 981
N.W.2d at 128. “The relevant inquiry in determining whether the prosecutor
breached the plea agreement is whether the prosecutor acted contrary to the
common purpose of the plea agreement and the justified expectations of the
defendant and thereby effectively deprived the defendant of the benefit of the
bargain.” Id. at 131 (quoting State v. Boldon, 954 N.W.2d 62, 71 (Iowa 2021)). On
appeal the court is to specifically address the breach issue and not what effect the
prosecutor’s statement had on the sentencing court’s decision. Id. at 129. Our
review of a sentence imposed in a criminal case is for correction of errors at law.
Davis, 971 N.W.2d at 553 (quoting Damme, 944 N.W.2d at 103). “We will not
reverse a sentence unless there is ‘an abuse of discretion or some defect in the
sentencing procedure.’” Id. (citation omitted).
A. Whether the State breached the plea agreement.
As to Ahrenholz’s claim that the presentation of victim impact statements at
the sentencing hearing undermines a plea agreement, we find this answered by
Davis. There, four victim impact statements were filed with the prosecutor and
9
attached to the PSI. The prosecution spent fifteen minutes reading the four victim
impact statements into the record—two from the child victims and two from their
parents. One of the child statements requested Davis be sent to prison, and the
two parents’ statements requested “maximum prison time.” Even so, the supreme
court held:
Nothing in this opinion should be construed as undermining
victims’ rights. We are not holding the prosecutor breached the plea
agreement by reading the victim-impact statements at sentencing.
Rather, we hold the prosecutor breached the parties’ plea agreement
by failing to recommend suspended sentences as the plea
agreement and our precedent required. The State does not contend
otherwise.
Id. at 557.
In the present case, other than advising the court that victim impact
statements would be made, the prosecutor did not actively participate in the
presentation. The child victim, her mother and brother were present in court with
a victim advocate. The victim and her mother orally presented their statements.
The brother was unable to read his statement, so it was read by the victim
advocate. The record also does not indicate whether the prosecutor met ahead of
time with the victims, was provided or made aware of the victim impact statements
beforehand, or even knew what the three would say about sentencing. Under
Davis, we cannot find that the prosecutor intentionally undermined the plea
agreement here. There is nothing to indicate an “end run” by the prosecutor in this
case, as discussed in State v. Lopez, 872 N.W.2d 159, 178 (Iowa 2015).
We turn next to whether the prosecution failed to advocate for the plea
agreement. Our supreme court has held, “We require ‘strict, not substantial,
compliance with the terms of plea agreements.’” Patten, 981 N.W.2d at 131
10
(quoting State v. Fannon, 799 N.W.2d 515, 522 (Iowa 2011)). “Violations of either
the terms or the spirit of the agreement, even if seemingly minor, are intolerable
and adversely impact the integrity of the prosecutorial office and the entire judicial
system.” Id. (cleaned up for readability). Later, the supreme court re-emphasized
the point: “[W]e require ‘strict compliance’ with both the letter and spirit of plea
agreements, which requires us to engage in a context-specific inquiry into the
State’s compliance with promises made in a plea agreement.” Id. at 132. And
“[w]here the prosecutor has agreed to make a particular sentencing
recommendation, the prosecutor must do more than simply inform the court of the
promise the State has made to the defendant with respect to sentencing.” Boldon,
954 N.W.2d at 71 (cleaned up for readability). “The State must actually fulfill the
promise.” Id. (quoting State v. Frencher, 873 N.W.2d 281, 284 (Iowa Ct. App.
2015)).
In order to fulfill the promise, the supreme court has stated the prosecutor
“cannot simply inform the court of the agreement, they must present the
recommended sentences with their approval, commend the sentences to the court,
and otherwise indicate to the court that the recommended sentences are
supported by the State and worthy of the court’s acceptance.” Patten, 981 N.W.2d
at 131 (cleaned up for readability).
Upon our review of the sentencing hearing, although the prosecutor’s
statement of the State’s sentencing recommendation to the court is lengthy—it
contains nothing more than the agreed terms—it simply informs the court of that
agreement and does not recommend, commend to the court, or otherwise indicate
to the court the proposed sentence is supported by the State and worthy of the
11
court’s acceptance. We note that in Davis, the supreme court stated, “We do not
mandate florid advocacy when the State agrees to recommend a particular
sentence. But we have made clear the prosecutor must do more than simply recite
the agreed recommended sentence.” Davis, 971 N.W.2d at 557 (cleaned up for
readability). Here, the prosecutor simply recited the plea agreement. Thus, we
find that the State did not comply with this requirement and breached the plea
agreement. Although the plea will stand, the sentence must be vacated and the
case remanded to the district court for “resentencing by a different judge, with the
prosecutor obligated to honor the plea agreement and sentencing
recommendation.” Patten, 981 N.W.2d at 134 (quoting Davis, 971 N.W.2d at 558).
B. Whether the sentencing judge considered unproven and unadmitted
facts.
Ahrenholz argues that the court considered an unproven and unadmitted
fact in imposing sentence, when the court stated: “I understand you want to lay this
case at the feet of alcohol, and maybe that’s a contributing factor, but alcohol in
and of itself, I don’t think we can draw the conclusion that that leads to touching
the genitals of a child.” (Emphasis added). See State v. Grandberry, 619 N.W.2d
399, 401 (Iowa 2000) (stating the court may not consider unproven criminal activity
in sentencing). Ahrenholz contends that the written guilty plea contains a very
specific factual admission, that he “did fondle or touch the pubic area of a minor
child in her groin area on top of her clothing,” and the court impermissibly
considered unproven skin-to-skin contact. We find Ahrenholz’s argument has no
legal basis.
12
Our review is for an abuse of trial court discretion or a defect in the
sentencing procedure such as the trial court’s consideration of impermissible
factors.” State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998); see also State v.
West Vangen, 975 N.W.2d 344, 355 (Iowa 2022) (“A court abuses its discretion
when it relies on impermissible factors to sentence a defendant.”).
An element of the charge to which Ahrenholz pled guilty requires that he did
“[f]ondle or touch the pubes or genitals of a child.” See Iowa Code § 709.8(1)(a).
Lascivious acts with a child does not require skin-to-skin contact. See State v.
Alvarado, 875 N.W.2d 713, 716–17 (Iowa 2016); see also State v. Pearson, 514
N.W.2d 452, 455 (Iowa 1994) (considering and rejecting argument that a “sex act”
requires skin-to-skin contact). By stating alcohol does not alone “lead[] to touching
the genitals of a child,” the court did not state or imply that Ahrenholz had skin-to-
skin contact with the victim. We find the judge did not consider an unproven or
unadmitted fact.
Finally, Ahrenholz faults the district court for considering “salacious and
unproven allegations” in the victim impact statements. He further faults the State
for not producing those statements prior to them being read at sentencing. The
court must allow a crime victim to make a victim impact statement. See Iowa Code
§ 915.21(1). “[T]his may at times result in the airing of allegations which are
unproven.” State v. Sailer, 587 N.W.2d 756, 764 (Iowa 1998). Here, the victim’s
mother pointed to Ahrenholtz’s “strong history of defying authority, antigovernment
agenda, and [that he] took an arsenal of guns” from the family home as evidence
of her and her children’s fear of harm should he be released. Generally, we trust
our district courts to “filter out improper or irrelevant evidence” when hearing victim
13
impact statements. Id. Nonetheless, “it is essential . . . that the victim be given an
opportunity to fully convey the impact a crime has had.” Id. Noting this family’s
particular “dynamics,” the court reassured “that’s not part of the . . . sentencing
consideration for the court. So while I take victim impact statements, what I have
to look at, and what I do look at, is the impact of the crime that was pled guilty to
on that person.” The court’s reasoning for the sentence does not include any
unproven offenses from the victim impact statements.
On the alleged lack of notice, victim impact statements can be presented
live in open court (either in person or with a video or audio recording) or in writing.
Iowa Code § 915.21(1)(a)–(e). If in person, the victim can present the statement
or the victim’s attorney or “designated representative.” Id. If the statement is in
writing, it must be filed with either the county attorney for inclusion in the
presentence investigation report (PSI) or, if a PSI is not ordered, filed with the court
prior to sentencing. Id. § 915.21(1)(a). The statements here were presented in
open court, so there were no written filings to present to the defendant in advance.
And nothing in the statute requires the defendant be given advance notice or
copies of the written statement. The victim impact statement is not an adversarial
proceeding. See, e.g., id. § 915.21(3). So we reject Ahrenholz’s complaint about
the lack of notice.
SENTENCE VACATED AND REMANDED FOR RESENTENCING.