IN THE COURT OF APPEALS OF IOWA
No. 16-2090
Filed September 13, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
NICKALAS MICHAEL LAWRENCE SPIKER,
Defendant-Appellant.
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Appeal from the Iowa District Court for Des Moines County, John G. Linn
(Plea), and John M. Wright (Sentencing), Judges.
Nickalas Spiker appeals his conviction and sentence for lascivious acts
with a child. CONVICTION AFFIRMED, SENTENCE VACATED, AND
REMANDED FOR RESENTENCING.
Mark C. Smith, State Appellate Defender, Stephan J. Japuntich, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.
Nickalas Spiker appeals his conviction and sentence for lascivious acts
with a child. We find the record sufficient to vacate the sentence and remand for
resentencing before a different judge because of the consideration of improper
factors in sentencing. We affirm Spiker’s conviction, but remand for
resentencing.
I. Background Facts and Proceedings
On February 27, 2015, A.D., age thirteen, manually stimulated Spiker, age
sixteen. Spiker pled guilty to lascivious acts with a child, in violation of Iowa
Code section 709.8(1)(b) and (2) (2015) on September 14, 2016. Pursuant to a
plea agreement, the State recommend the minimum fine, a suspended sentence,
and placement in the youthful-sex-offender program.
In announcing the sentence, the district court referred multiple times to the
forcible nature of the offense and stated the act was oral sex. The district court
further referred to portions of the minutes of testimony regarding threats of
violence if the act was not performed or “she screamed or yelled.” The district
court imposed a ten-year sentence, stating the act was not the result of “youthful
naiveté” and was a “horrible crime” for which the victim would require extensive
therapy. Spiker was sentenced to a term of incarceration not to exceed ten
years.
After both the State and defense counsel alerted the district court the
forcible oral sex was not the act with which Spiker had been charged, the district
court held a second hearing on November 14. The district court admitted it
“made a mistake during [Spiker’s] sentencing hearing.” The district court further
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stated, “sometimes we don’t have a lot of time to read through the files before we
come into court and hold hearings” it had “I scanned the minutes of testimony to
find information contained therein” and, in doing so, gave justifications for the
sentence based on “something that was irrelevant to [Spiker’s] sentencing
hearing.” The district court then corrected the record to refer to the sex act
Spiker pled guilty to, but the sentence it imposed remained the same. Spiker
now appeals.
II. Standard of Review
“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, such as the trial court’s consideration of impermissible factors.” State
v. Cheatheam, 569 N.W.2d 820, 821 (Iowa 1997). “A trial court’s sentencing
decision is cloaked with a strong presumption in its favor, and an abuse of
discretion will not be found unless a defendant shows such discretion was
exercised on grounds or for reasons clearly untenable or to an extent clearly
unreasonable.” Id. However, when constitutional claims are raised, our review is
de novo. State v. Ragland, 836 N.W.2d 107, 113 (Iowa 2013).
III. Consideration of Unproven and Uncharged Conduct
Spiker claims the district court relied on uncharged and unproven facts
contained in the minutes of testimony and that this reliance resulted in a violation
of his due-process rights. The district court relied heavily on sections of the
minutes of testimony, alleging another child, E.R., was forced to perform oral sex
on Spiker. “A sentencing court may consider unprosecuted offenses in imposing
sentences only if admitted by the defendant or adequate facts are presented at
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the sentencing hearing to show the defendant committed the crimes.” See State
v. Delaney, 526 N.W.2d 170, 179 (Iowa Ct. App. 1994) (citing State v. Black, 324
N.W.2d 313, 316 (Iowa 1982)).
The district court properly admitted it considered improper factors and had
the foresight to make a full and accurate record of its decision. The district court
stated, “After the sentencing hearing, counsel for the State and your attorney
advised the Court that the Court had made a mistake in stating that the act which
was mentioned in the minutes was not the act you participated in.”
However, the district court failed to resentence Spiker. Even when “the
district court attempt[s] to disclaim the reference to the impermissible sentencing
factor, ‘we cannot speculate about the weight the sentencing court gave to these
unknown circumstances. Since we cannot evaluate their influence, we must
strike down the sentence.’” State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014)
(citing Black, 324 N.W.2d at 316). We applaud the district court’s candid
admission but are required to “vacate the defendant’s sentence and remand the
case to the district court for resentencing before a different judge.” Id.
CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED
FOR RESENTENCING.
State of Iowa v. Nickalas Michael Lawrence Spiker
Combined Opinion