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Iowa High Court: Future crime objection too late

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The Iowa Supreme Court today in State of Iowa v. Sean Gordon affirmed the Third Degree Sex Abuse conviction of a defendant who pled guilty to statutory rape. At sentencing, a preinvestigation report included two “risk assessment” quiz scores in a so-called psychosexual evaluation—one of the quiz scores predicted the defendant had a high risk to reoffend. The Gordon defendant, however, did not specifically object to the use of the quiz scores at the time of his sentencing.

Below, the lower appeals court agreed it was impermissible to use these “risk assessments” to determine a sentencing outcome because there was no legislative authority for them.

“The court of appeals found no indication the legislature authorized the use of sex offender risk assessment tools in imposing prison sentences. Thus, the court of appeals reversed the district court’s decision and remanded for resentencing,” the Supreme Court recounted.

The Iowa Supreme Court, however, disagreed. Defendant had not properly “preserved” the question by objecting to it at the time of sentencing, it wrote.

“Gordon and his attorney had access to the PSI report prior to sentencing. After reviewing the report, the defendant did not object to the court’s use of the risk assessment tools . . . Yet, Gordon raises his due process claim for the first time on appeal,” the Court noted.

Relying on the difference between substance and process, the Court noted that Defendant’s claim was not a challenge to the substance—but instead procedural.

“However, [the Defendant] is not claiming his sentence is intrinsically unconstitutional. If this were the case, he would not need to preserve error for us to decide the issue on appeal.”

“There are distinctions between claiming the sentence is intrinsically unconstitutional and claiming errors in the proceedings prior to imposition of sentence.

Quoting a 2009 case, the Iowa Supreme Court held, “Because [the due process] claim does not involve the inherent power of the court to sentence him for his crime, the normal rules of error preservation apply.”

Justice Wiggins, writing for the Court, said it was “unfair” to the State for the Defendant to spring a due process claim late without the State being able to refute the claim at the actual time of sentencing.

The Court took pains to quote district court level counsel, stating that the defense lawyer did not object when given an explicit opportunity to do so.

“We don’t object to its use except for in the recommendation, the request of the Department of Corrections to hold the Defendant pending placement . . . But, otherwise, we don’t object to its use,” defense counsel was quoted as responding.

Justice Appel concurred specially noting that the record was undeveloped and preserved for post-conviction relief.

NOTE: David A. Cmelik Law PLC had no involvement in the Gordon case.

If you or a loved one have been arrested for sex abuse of any kind in Cedar Rapids, Iowa City, Anamosa, Vinton, Benton County, Jones County, or other Iowa county or community, contact David A. Cmelik Law PLC for a free initial consultation today. However, remember that a blog is not legal advice and that sending unsolicited information to a lawyer over the Internet does not establish an attorney-client relationship.

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