                    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.
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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).
