                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0858
                            Filed September 13, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

BRETT AARON HAUCK,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Gregory D. Brandt,

District Associate Judge.



      A defendant seeks discretionary review of the requirement he participate

in sex offender treatment as part of his probation. SENTENCE VACATED AND

REMANDED FOR RESENTENCING.



      Adam D. Zenor of Grefe & Sidney, P.L.C., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., Bower, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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SCOTT, Senior Judge.

       Brett Hauck sought discretionary review of the conditions imposed upon

him as part of his probationary sentence following his guilty plea to assault

causing bodily injury or mental illness.        See Iowa Code § 708.2(2) (2015).

Following Hauck’s guilty plea, the district court deferred the imposition of

judgment and placed Hauck on probation for one year, imposing the requirement

that he complete sex offender treatment. On appeal Hauck claims (1) the court

abused its discretion in imposing treatment absent a finding of fact that the

assault offense was sexually motivated, (2) sex offender treatment and the

related conditions violate his constitutional rights, and (3) his guilty plea was not

knowing and voluntary because the court failed to inform him of the possibly of

the imposition of sex offender treatment.1

I. Background Facts and Proceedings.

       Hauck was initially charged with assault with the intent to commit sexual

abuse, but he reached a plea agreement with the State to plead guilty to the

lesser offense of assault causing bodily injury or mental illness, and the State

agreed not to resist his request for a deferred judgment. The written guilty plea

form provided:

       In order to establish a factual basis I ask the court to accept as true
       the minutes of testimony, the date of the offense is 9/18/15 and I
       admit I did the following: made physical contact with [the victim]
       which was insulting or offensive and resulted in depression and/or
       anxiety.

In the minutes of testimony, the victim asserted Hauck


1
 Because we reverse the district court’s order based on the first allegation of error, we
need not reach Hauck’s remaining claims.
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          grabbed [her] groin, fingers touching [her] vagina with thumb on
          outside and squeezed, then moved [his] hand forward and touch
          [her] clitoris with his fingers and rubbed in a slightly circular, up and
          down motion. [She] was in complete shock and couldn’t fathom
          what was happening to defend [her]self or say anything. He took a
          few steps forward and turned around and smiled/laughed.

The minutes also contain a police report of Hauck’s interview, where he asserted

he did not touch the victim’s groin but simply poked her in the stomach with his

finger.

          At the time the court accepted the guilty plea, it ordered a sex offender

evaluation through the department of correctional services. No objection was

made to this order. Prior to sentencing, Hauck’s counsel filed a memorandum

that argued the court should grant Hauck a deferred judgment and challenged

the court’s consideration of the sex offender evaluation. At sentencing, the court

granted Hauck a deferred judgment, placed him on probation for one year, and

also ordered him to complete sex offender treatment based on the

recommendation of the sex offender evaluation. Hauck applied for discretionary

review. The supreme court granted the application and stayed the district court

proceedings pending the resolution of this appeal.

II. Scope and Standard of Review.

          A challenge to the terms of probation is reviewed for an abuse of

discretion. State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006). It is “well-settled

rule that trial courts have a broad discretion in probation matters.” Id. (citation

omitted). But the discretion is not unlimited and is subject to any reasonable

condition that promotes “rehabilitation of the defendant or protection of the
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community.” State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998) (citation

omitted).

III. Probation Condition.

       Hauck claims the court abused its discretion by imposing sex offender

treatment as a condition of his probation because he did not plead guilty to a

sexually motivated offense.2 In addition, he asserts there is no indication that

sex offender treatment is necessary to accomplish a goal of probation because

he has no history of sexual deviance that could need to be addressed.

       The only justification for ordering Hauck to complete sex offender

treatment as part of his probation was the sex offender evaluation.                   The

recommendation in the evaluation was based on the evaluator’s review of the

victim’s statement in the minutes of testimony, which the evaluator believed

indicated Hauck “violated a boundary, in a sexual manner.” In the written guilty

plea, Hauck asked the court to accept as true the minutes of testimony but only

to the extent necessary to establish a factual basis for the guilty plea.

       For a factual basis to support the guilty plea, the record needed to support

an act, “which is intended to result in physical contact which will be insulting or

offensive to another, coupled with the apparent ability to execute the act” and for

the act to cause “bodily injury or mental illness.” Iowa Code § 708.1(2)(a), .2(2).

The guilty plea form contains an admission by Hauck that he “made physical
2
  He also asserts the district court abused its discretion in ordering the sex offender
evaluation. However, no objection was made to the district court’s decision to order the
evaluation. The only challenge was to the district court’s consideration of the evaluation
at sentencing after the evaluation was completed. We thus consider Hauck’s challenge
to the district court’s decision to order the evaluation not preserved. Lamasters v. State,
821 N.W.2d 856, 862 (Iowa 2012) (“It is a fundamental doctrine of appellate review that
issues must ordinarily be both raised and decided by the district court before we will
decide them on appeal.” (citation omitted)).
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contact with [the victim] which was insulting or offensive and resulted in

depression and/or anxiety.” But the form did not contain a factual description of

the “physical contact.”

       The minutes of testimony contained two different descriptions of the

physical contact. The victim’s version included allegations of sexual misconduct,

where Hauck’s version did not.      While it is clear the victim’s version clearly

amounts to an assault, the act Hauck admitted to committing—poking the victim’s

stomach with his finger—also amounts to an assault. It is clear from the minutes

of testimony that Hauck denied performing the act the victim claimed he

performed.

       “The sentencing court should only consider those facts contained in
       the minutes that are admitted to or otherwise established as true.”
       Where portions of the minutes are not necessary to establish a
       factual basis for a plea, they are deemed denied by the defendant
       and are otherwise unproved and a sentencing court cannot
       consider or rely on them.

State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998) (citation omitted). The

victim’s description of the physical contact between herself and Hauck was not

necessary to establish a factual basis for the assault charge, and therefore, those

facts are denied by Hauck.      The court cannot rely on them in crafting the

sentence.

       In imposing sex offender treatment as part of Hauck’s sentence, the court

considered the sex offender evaluation, which included facts from the minutes of

testimony that were not necessary to establish the factual basis for Hauck’s guilty

plea. The court therefore considered an impermissible sentencing factor, which

amounts to an abuse of discretion. See State v. Lovell, 857 N.W.2d 241, 243
                                          6


(Iowa 2014) (“Information contained in the minutes of testimony is not a

permissible sentencing consideration if unproven.”).

       Even if the sex offender evaluation was properly considered, we still

conclude ordering sex offender treatment as a condition of probation in this case

was unreasonable.         Probation is meant to promote the rehabilitation of the

defendant and protect the community from further offenses. State v. Lathrop,

781 N.W.2d 288, 299 (Iowa 2010). Conditions imposed as part of probation must

be reasonable and not arbitrary. Id. “A condition is reasonable when it relates to

the defendant’s circumstances in a reasonable manner, and is justified by the

defendant’s circumstances.       Thus, the inquiry into the reasonableness of a

condition of probation boils down to whether the statutory goals of probation are

reasonably addressed.” Valin, 724 N.W.2d at 446 (internal citations omitted).

The condition should address some problem or need identified with the

defendant.    Lathrop, 781 N.W.2d at 299.       “[A] reasonable nexus must exist

between any special condition of probation and the crime for which it is imposed.”

Id. (citation omitted).

       In this case the “reasonable nexus” connecting the sex offender treatment

with Hauck was the unadmitted allegations of the victim.       Those unadmitted

allegations were improper for the sentencing court to consider. See Jorgensen,

588 N.W.2d at 687–88 (concluding it was improper to order defendant to

complete a batterer’s education program as part of her probation when she had

been acquitted of domestic abuse). Absent the unadmitted facts in minutes of

testimony, there was no information showing sex offender treatment addressed

some other problem or need of Hauck in relation to the offense at issue. There
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was also no history of Hauck committing sexual offenses.            See Valin, 724

N.W.2d at 447 (“[A] defendant’s background and history is also relevant when

determining the conditions of probation. . . . Yet, it is axiomatic that such history

is insufficient unless it reveals a problem currently suffered by the defendant

relating to the need to rehabilitate the defendant or protect the community from

the defendant.”). Therefore, there is not a sufficient nexus between the assault

offense and the requirement Hauck complete sex offender treatment as a

condition of his probation.

       Because we conclude the district court abused its discretion by

considering unadmitted facts when determining Hauck’s sentence and also

conclude there is not a sufficient nexus between the crime and requirement

Hauck complete sex offender treatment as part of his probation, we vacate

Hauck’s sentence and remand for resentencing before a different judge. See

Lovell, 857 N.W.2d at 243; Lathrop, 781 N.W.2d at 301.

       SENTENCE VACATED AND REMANDED FOR RESENTENCING.
