              IN THE SUPREME COURT OF IOWA
                              No. 17–0395

                        Filed December 14, 2018


STATE OF IOWA,

      Appellee,

vs.

SEAN DAVID GORDON,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Floyd County, DeDra L.

Schroeder, Judge.



      The State seeks further review of a court of appeals decision

reversing the sentence of the defendant.       DECISION OF COURT OF

APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.


      Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant

Attorney General, and Rachel Ginbey, County Attorney, for appellee.
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WIGGINS, Justice.

      On appeal, for the first time, the defendant raised the issue that the

court’s use of risk assessment tools in sentencing the defendant violated

his due process rights. The defendant also claimed the court used an

unproven or unprosecuted offense when it sentenced him. We transferred

the case to the court of appeals.        The court of appeals reversed the

defendant’s sentence, finding no statutory authority for courts to utilize

sex offender risk assessment tools in sentencing.      The State asked for

further review, which we granted. On further review, we find the defendant

failed to preserve error on his due process claim and the record is

insufficient to reach this claim on direct appeal. We also find the district

court did not use an unproven or unprosecuted offense when it sentenced

the defendant. Therefore, we vacate the court of appeals decision finding

no indication the legislature deemed sex offender risk assessment tools

relevant in imposing prison sentences, and we affirm the judgment of the

district court.

      I. Factual and Procedural Background.

      Twenty-four-year-old Sean Gordon met fourteen-year-old A.G. at a

family gathering. Gordon’s brother knew A.G.’s parents, and A.G. thought

of Gordon as a family friend. After meeting, Gordon and A.G. exchanged

Facebook and Snapchat messages, including nude photographs. In mid-

June 2016, Gordon drove A.G. into the countryside and Gordon

perpetrated a vaginal sex act against her. A.G. eventually told a counselor

what Gordon had done to her, and an investigation ensued.

      On October 4, a Floyd County Deputy Sheriff interviewed Gordon at

the Floyd County Courthouse. During the interview, Gordon admitted to

having sex with A.G., who was fourteen years old at the time of the act.

The State charged Gordon with sexual abuse in the third degree, a class
                                     3

“C” felony in violation of Iowa Code sections 709.1, 709.4(1)(b)(3)(d), and

903B.1 (2016). Gordon originally pled not guilty, but on January 4, 2017,

Gordon filed a record of plea change and pled guilty to third-degree sexual

abuse. The district court set sentencing for March 13 and ordered the

department of correctional services to prepare a presentence investigation

report (PSI).

      On January 22, while awaiting sentencing, Chickasaw County

officers   arrested   Gordon   and   charged   him   with    possession   of

methamphetamine. At the time of his arrest, Gordon was with a juvenile

female whose parents had reported her as missing.

      On January 27, as part of the PSI, Gordon underwent a

psychosexual evaluation involving a file review, structured interview, and

testing.   The Psychosexual Assessment Report (PAR) was prepared to

assess Gordon’s potential risk to the community, treatment needs, and

amenability to treatment. Among other things contained in the PAR were

Gordon’s scores from two risk assessment tools—the STATIC-99R and the

Sex Offender Treatment Intervention and Progress Scale (SOTIPS).

Gordon’s STATIC-99R score indicated he was a level III, average risk for

recidivism. His SOTIPS score indicated he was a high-risk individual for

recidivism.

      Gordon’s sentencing hearing took place on March 13.           At the

sentencing hearing, the district court judge stated, “The Court does have

in front of it a presentence investigation report. I have reviewed that as

well as the attached psychosexual assessment report.” The judge then

asked Gordon’s defense counsel, “Miss O’Mara, have you and your client

had an adequate opportunity to review that report?”         Defense counsel

stated,
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      Yes, Your Honor. 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 since
      he’s been released during the time between plea change and
      sentencing, we don’t think that’s a legal part of the sentence.
      But, otherwise, we don’t object to its use.

      Gordon’s counsel asked for a deferred judgment and asked the court

not to consider Gordon’s January 22 arrest, which occurred between his

pleading guilty and his sentencing, as it was “just charges” and the

incident was unrelated to his current conviction. The State recommended

the court sentence Gordon to prison for a term not to exceed ten years.

The State argued that it should be able to consider all information in the

PSI in its recommendation, including the January 22 arrest.

      The district court sentenced Gordon to prison for a term not to

exceed ten years.

      Gordon filed a timely appeal. We transferred the case to the court

of appeals.   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 State sought further review, which

we granted.
      II. Issues Raised on Appeal.

      On appeal, Gordon did not raise the issue addressed by the court of

appeals.   Thus on further review, we will not consider whether the

legislature deemed sex offender risk assessment tools relevant in imposing

prison sentences.

      Gordon did raise three issues on appeal that we will consider on

further review.   First, whether the district court violated Gordon’s due

process rights by consideration of and reliance on the sex offender risk

assessment tools in imposing its sentence. Second, if counsel did not
                                     5

preserve error on this issue, whether counsel provided ineffective

assistance of counsel by failing to object to the sentencing proceeding

because the court’s consideration of and reliance on the sex offender risk

assessment tools violated Gordon’s due process rights. Third, whether in

sentencing Gordon, the district court abused its discretion by relying on

an unproven or unprosecuted offense.

     III. Whether the District Court Violated Gordon’s Due Process
Rights by Consideration of and Reliance on the Sex Offender Risk
Assessment Tools in Imposing Its Sentence.

      Our appellate courts have held that a defendant need not first

challenge a district court’s abuse of discretion at the time of sentencing to

have the matter directly reviewed on appeal. See, e.g., State v. Ayers, 590

N.W.2d 25, 27 (Iowa 1999) (rejecting state’s claim that defendant failed to

preserve error “because [the defendant] did not claim at the sentencing

that the court had failed to exercise its discretion” in sentencing him);

State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998) (rejecting state’s claim

that defendant failed to preserve error, precluding his sentencing error
challenge); State v. Young, 292 N.W.2d 432, 435 (Iowa 1980) (rejecting

state’s error preservation argument regarding defendant’s claim the

district court considered an improper factor in determining the proper

sentence); State v. Thomas, 520 N.W.2d 311, 312–13 (Iowa Ct. App. 1994)

(rejecting state’s argument “that [the] defendant was required to object

during the sentencing” that the district court improperly considered

department of corrections’ parole policies in choosing appropriate

sentence). We stated,

      It strikes us as exceedingly unfair to urge that a defendant, on
      the threshold of being sentenced, must question the court’s
      exercise of discretion or forever waive the right to assign the
      error on appeal. As our court of appeals noted in a similar
                                      6
        situation, it would be “incongruous” to apply ordinary
        preservation-of-error principles in this context.

Cooley, 587 N.W.2d at 754 (quoting Thomas, 520 N.W.2d at 313).

        We have also held a defendant need not challenge the illegality of a

sentence in the district court at the time of sentencing because a defendant

can raise a claim of an illegal sentence at any time. State v. Lathrop, 781

N.W.2d 288, 293 (Iowa 2010).

        These error preservation rules do not apply under the facts of this

case.    On appeal, Gordon is not arguing the district court abused its

discretion by imposing a sentence that is too harsh, illegal, or relies on a

factor whose illegality is clear without the consideration of further

evidence.    If it were that simple, we would examine the record and

determine whether the court abused its discretion in light of that record.

However, the error claimed by Gordon is more complex. He claims the use

of the risk assessment tools violates his due process rights.

        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. See Iowa Code § 901.4 (“The

defendant or the defendant’s attorney may file with the presentence

investigation report, a denial or refutation of the allegations, or both,

contained in the report. The denial or refutation shall be included in the

report.”). Yet, Gordon raises his due process claim for the first time on

appeal.

        Quoting State v. Drake, 259 N.W.2d 862, 867 (Iowa 1977), Gordon

argues the use of the risk assessment tools “manifest[s] inherent

unfairness and injustice, or [is] conduct which offends the public sense of

fair play.” He further claims “[a] defendant has a constitutionally due

process right to be sentenced on accurate information.” See Townsend v.
                                       7

Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 1255 (1948). Applying these

authorities, he claims the use of these risk assessment tools violates his

due process rights because he is unable to challenge the scientific validity

of these tools.

      However, Gordon 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. See State v. Bruegger, 773 N.W.2d

862, 871 (Iowa 2009).     Rather, his claim is that the use of the risk

assessment tools violates his due process rights. There are distinctions

between claiming the sentence is intrinsically unconstitutional and

claiming errors in the proceedings prior to imposition of sentence. Id. at

871–72. Gordon’s claim is that the error occurred in the proceedings prior

to imposition of sentence. Because Gordon’s claim does not involve the

inherent power of the court to sentence him for his crime, the normal rules

of error preservation apply. Id.

      The distinction in Bruegger makes perfect sense under the facts of

this case. How are we to determine the due process implications of the

district court’s use of risk assessment tools, when we do not know

anything about the tools and Gordon failed to object to their use? If, as

Gordon argues, we need further evidence to determine whether the court

violated his due process rights by using these risk assessment tools, the

defendant must bring that matter to the court’s attention at the time of

sentencing. It is unfair to the State for us to reverse the district court’s

sentence for allegedly considering an improper factor when the court

needed more information to determine if the factor it considered was

improper and the defendant failed to bring that issue to the attention of

the court at the time of sentencing.
                                      8

      Another application of this error preservation rule is when a PSI

contains an inaccurate criminal record, the defendant fails to alert the

court as to the PSI’s inaccuracy, and evidence is needed to prove the

inaccuracy of the defendant’s criminal record. A court has a right to rely

on the information in the PSI when the defendant fails to object to the

information contained in the PSI. State v. Grandberry, 619 N.W.2d 399,

402 (Iowa 2000). Here, Gordon failed to object to the risk assessment tools

in the PSI and their use at sentencing. Under, these circumstances the

court had a right to rely on the assessments.

      We find Gordon failed to preserve his due process claim for direct

appeal.

      IV. Whether Counsel Provided Ineffective Assistance of Counsel
by Failing to Object to the Sentencing Proceeding Because the Court’s
Consideration of and Reliance on the Sex Offender Risk Assessment
Tools Violated Gordon’s Due Process Rights.

      When counsel fails to preserve error at trial, we can reach an

ineffective-assistance-of-counsel claim on a direct appeal if the record is

sufficient to reach it. State v. Brubaker, 805 N.W.2d 164, 170 (Iowa 2011).

If the record is insufficient to allow for review on direct appeal, we allow

the defendant to raise the claim in a separate postconviction-relief action.

Id.

      In order to determine if the court’s consideration of and reliance on

the sex offender risk assessment tools violated Gordon’s due process

rights, it is necessary for us to understand the nature of the tools used by

the sentencing judge. This requires evidence. As one leading author in

the field noted, “[I]f risk assessment is a legitimate state exercise, it needs

to be cabined by principles that demand that the methods used to

implement it are legally germane, accurate, and fairly applied.”

Christopher Slobogin, Principles of Risk Assessment: Sentencing and
                                     9

Policing, 15 Ohio St. J. Crim. L. 583, 596 (2018). After all, “[o]ur law

punishes people for what they do, not who they are.” Buck v. Davis, 580

U.S. ___, ___, 137 S. Ct. 759, 778 (2017).

      For these reasons, we cannot reach Gordon’s due process claim on

direct appeal. Of course, Gordon may bring a separate postconviction-

relief action claiming ineffective assistance of counsel based on due

process, if he so wishes.

      V. Whether in Sentencing Gordon, the District Court Abused Its
Discretion by Relying On an Unproven or Unprosecuted Offense.

      We review sentencing decisions for an abuse of discretion when the

sentence is within the statutory limits. State v. Seats, 865 N.W.2d 545,

552 (Iowa 2015). We will find an abuse of discretion when “the district

court exercises its discretion on grounds or for reasons that were clearly

untenable or unreasonable.” State v. Thompson, 856 N.W.2d 915, 918

(Iowa 2014). A ruling is untenable when the court bases it on an erroneous

application of law. Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa

2000). If the evidence supports the sentence, the district court did not

abuse its discretion. State v. Valin, 724 N.W.2d 440, 445 (Iowa 2006).

      “A court may not consider an unproven or unprosecuted offense

when sentencing a defendant unless (1) the facts before the court show

the accused committed the offense, or (2) the defendant admits it.” State

v. Witham, 583 N.W.2d 677, 678 (Iowa 1998).            “In determining a

defendant’s sentence, a district court is free to consider portions of a

presentence investigation report that are not challenged by the defendant.”

Grandberry, 619 N.W.2d at 402.       Finally, if a defendant challenges a

sentence claiming the court used an illegal factor at sentencing, a

defendant need not object at sentencing for us to address the issue on

appeal if the issue can be decided without further evidence.
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      The PSI included information that Gordon “reports his last usage of

methamphetamine     was   on   January   21   and   22,   2017”   and    he

“acknowledges his parents just discovered on January 22, 2017 that he

had a problem with methamphetamine . . . due to his recent arrest.” The

PSI also stated, “[T]he Defendant was arrested in Chickasaw County on

January 22, 2017 and charged with drug possession. Furthermore, the

Defendant was with a juvenile female that was reported as missing by her

parents.”

      When sentencing Gordon, the district court referenced Gordon’s

January 22, 2017 arrest saying,

            I also have concerns about the continued high-risk
      behavior being in—being with a juvenile female who obviously
      has got other issues going on, and a possession of
      methamphetamine floating around there also. I get that it’s
      not a conviction, and I distinguish that, and I understand
      that, but I look at a person’s behavior after they’ve been
      charged with something like this and if that’s a wake-up call
      to them.

Gordon’s counsel objected to the district court’s consideration of the

charges.

      In State v. Gonzalez, we held statements made by the defendant to

a PSI investigator concerning the defendant’s participation in the sale of

cocaine constituted an admission.    582 N.W.2d 515, 517 (Iowa 1998).

Thus, we found the court did not abuse its discretion in considering the

unproven charge when sentencing the defendant, because the defendant

did not make any material corrections to the PSI when he reviewed it. Id.

      Here, Gordon admitted to the PSI investigator that he used

methamphetamine on January 22, and his parents discovered he had a

substance abuse problem on January 22 due to his arrest.                This

constituted an admission to his possession of methamphetamine on
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January 22. See id. Further, Gordon did not challenge the information in

the PSI concerning his arrest and drug possession charge, or the

circumstances surrounding his arrest in the company of a missing juvenile

female. Gordon also told the judge at the sentencing hearing that he had

the female juvenile in his car at the time the police stopped him.

      Because Gordon admitted to possessing methamphetamine on

January 22, admitted to the district court that he was with the juvenile

when he was arrested, and failed to object to any of the information

contained within the PSI regarding his arrest, the district court did not

abuse its discretion in relying on the unprosecuted charge or surrounding

circumstances.    See Grandberry, 619 N.W.2d at 402; see also State v.

Longo, 608 N.W.2d 471, 474 (Iowa 2000) (holding when a challenge is

made to a criminal sentence based on the court improperly considering

unproven criminal activity, “the issue presented is simply one of the

sufficiency of the record to establish the matters relied on”).

      Accordingly, the court did not use an unproven or unprosecuted

offense when it sentenced Gordon.

      VI. Disposition.

      We vacate the court of appeals decision finding no statutory

authority for sentencing courts to utilize sex offender risk assessment tools

in imposing prison sentences.     We do not reach Gordon’s due process

arguments because Gordon failed to raise the issue in the district court

and the record is insufficient to reach the issue on direct appeal. We also

find the district court did not use an unproven or unprosecuted offense

when it sentenced Gordon.       Therefore, we affirm the judgment of the

district court. Gordon may bring a separate postconviction-relief action

claiming ineffective assistance of counsel based on due process, if he so

wishes.
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    DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AFFIRMED.

    All justices concur except Appel, J., who concurs specially.
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                                                #17–0395, State v. Gordon

APPEL, Justice (concurring specially).

      Because of the lack of a contemporaneous objection and the need

for a more developed record, I concur in the result in this case. See State

v. Guise, ___ N.W.2d ___, ___ (2018) (Appel, J. concurring).
