                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0189
                             Filed October 26, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GERALD ANTHONY DAVIS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Emmet County, David A. Lester

(plea) and Nancy L. Whittenburg (sentencing), Judges.



      Following his plea of guilty to lascivious acts with a child, Gerald Davis

appeals the sentence imposed. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney

General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                            2


TABOR, Judge.

       Gerald Davis seeks resentencing, claiming the district court abused its

discretion by considering “the unproven original charge of third-degree sexual

abuse when sentencing [him] on the amended charge of lascivious acts with a

child.” Finding no abuse of discretion, we affirm.

       I. Facts and Prior Proceedings

       According to the minutes of testimony, during Davis’s January 2015

interview with police officers, he admitted having sexual contact with S.A. on two

occasions.    In February, the State charged Davis with two counts of sexual

abuse in the third degree, in violation of Iowa Code section 709.4(2)(b) (2013).

The trial information alleged the crimes occurred in July or August 2014, when

Davis was nineteen and S.A. was thirteen years old.

       On October 14, 2015, Davis entered a written plea to one count of the

amended charge of lascivious acts with a child in violation of Iowa Code section

709.8(1)(c) (2015).1 In the plea Davis stated: “I touched S.A.’s a thirteen-year-

old-child’s body with my genitals.” Davis also stated “this is a bargained plea”

and the prosecutor will recommend an indeterminate ten-year term, suspended,

and three years of formal probation, plus a special condition of probation

requiring him to “undergo a psychosexual evaluation and follow all the

recommendations of the evaluator.” Finally, the plea agreement noted Davis
1
  The written plea references the 2015 code, though the crime occurred in 2014. The
proper reference would be the version of lascivious acts approved by the legislature in
April 2013. See 2013 Iowa Acts ch. 43 § 2 (making it “unlawful” for “any person sixteen
years of age or older” to “[c]ause the touching of the person’s genitals to any part of the
body of a child with or without the child’s consent unless married to each other, for the
purpose of arousing or satisfying the sexual desires of either of them”).
                                          3


could “request a deferred judgment, however, this deferral is not agreed to by the

State.”

          At the November 9, 2015 plea hearing, the State moved to orally amend

count I of the trial information to lascivious acts with a child and noted the plea

agreement contemplated the dismissal of count II.        The court sustained the

motion to amend and conducted the plea colloquy.              Davis acknowledged

receiving a copy of the trial information and the minutes of testimony and having

those documents available to him during his discussions with defense counsel.

Davis acknowledged the terms of the written plea and understood the agreement

allowed him to plead guilty to a nonforcible felony with the possibility of a

suspended sentence while the original charge was a forcible felony with a

mandatory prison term. Davis pleaded guilty, telling the court he engaged in

“sexual contact” with S.A. The following colloquy followed:

                  THE COURT: And was S. A. a thirteen-year-old child at the
          time?
                 DAVIS: I believe so, yes.
                 THE COURT: Do you know that to be the case, that she was
          thirteen?
                 THE DEFENDANT: I know that now.
                 THE COURT: Yes . . . . Do you believe the State could
          prove those facts beyond a reasonable doubt if your case went to
          trial?
                 THE DEFENDANT: Yes.

          The court decided: “[B]ased upon the defendant’s statements here today,

as supplemented by the minutes of testimony, that a factual basis does exist for

the court to accept the defendant’s plea. Accordingly, the court will accept the
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defendant’s plea to the amended charge.” Davis did not object to the court’s

incorporation of the minutes of testimony.2

       The court ordered the preparation of a presentence investigation [PSI]

report. According to that report, when asked if he had ever sexually abused

anyone, Davis replied: “I did what the trial information said I did.” The PSI report

recommended a suspended sentence and three years of probation “only if” Davis

agreed to a psychosexual assessment and to following all treatment

recommendations.

       At the January 19, 2016 sentencing hearing, the State informed the court

of the plea agreement. The court acknowledged the PSI report and the victim

impact statements were in the court file and could “obviously” be considered by

the court in reaching its sentencing decision. The State urged the court to enter

judgment and impose a suspended sentence with probation, contending the

amendment to lascivious acts with a child was a “large concession” based on

Davis’s lack of criminal history and academic success.

       Defense counsel urged the court to grant a deferred judgment and offered

numerous letters and testimony in support of Davis. Davis told the court he was

earning good grades at a state university, was a member of the bowling club, and

expected to graduate in December 2017 with a triple major. As to his future,

Davis planned to open his own business, continue working with his current

employer, or become a systems analyst. Davis was concerned about the impact



2
 Davis made no statements during the hearing acknowledging his acts were “for the
purpose of arousing or satisfying the sexual desires of either of them,” but the minutes
established that element. See Iowa Code § 709.8(1)(c).
                                       5


of a felony conviction on his future plans. Defense counsel had the following

exchange with Davis at the sentencing hearing:

             Q. [Y]ou understand that at the time you engaged in these
      relations with [S.A.], she was thirteen years old, correct? A. I know
      that now, yes.
             Q. At the time that you engaged in these relations, did you
      know how old she was? A. No, I did not.
             Q. Did you ever ask? A. No, I did not.
             ....
             Q. Did you ever tell Dr. Rogers that she lied to you about
      her age? A. Yes.
             Q. And was that true? A. That was true.
             ....
             Q. So did she tell you how old she was? A. Not physically,
      no.
             Q. Okay, So she never told you how old she was? A. No I
      found out from a friend.
             Q. But you told Dr. Rogers she lied about her age, correct?
      A. Yes.
             Q. . . . If she never told you how old she was, how could she
      lie about her age? A. I found out from a friend so . . . I was
      implying she didn’t give the age of which she said.
             Q. Okay. And that’s what you had told Dr. Rogers? A.
      Right.

Davis said the physical acts “were isolated to a few incidents.”       On cross-

examination, Davis testified S.A. had told him “she was sixteen, turning

seventeen in October.” Davis apologized to S.A.’s family.

      Defense counsel pointed to Davis’s youth and his positive attributes,

arguing, “[T]o have a life after this incident . . . justice requires a deferred

judgment.” Counsel argued his client’s submission to a psychosexual evaluation

would “ensure public safety.”

      After taking a recess to read the defense exhibits, the sentencing court

addressed Davis. We highlight the statements challenged by Davis on appeal:
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        Well, Mr. Davis, I have given thought to both your argument
and to the State’s argument. I have read the [PSI] report in this
matter, and I have read the minutes of evidence.
        You should [understand] you have entered a plea of guilty to
the crime of lascivious acts with a child, which is an amendment of
the count I charge. This is a class “C” felony. The code section
that is applicable is 709.8(1)(c). And as such, the statements
contained in the court file and the minutes of evidence, as far as the
court is concerned, are uncontested in view of your plea of guilty.
        And I think that this boils down to, for this court, what is the
appropriate punishment given the level or seriousness of the crime
that has occurred? It is not uncommon for the Court to give a
deferred judgment to a person who has a record similar to yours,
no prior convictions, a good scholastic record, a good work record,
and a young age, with a full life ahead of him or her.
        But in almost all of those circumstances where this court has
given a deferred judgment, it is for a substantially less offensive act.
It is for something like maybe an assault, maybe driving while
intoxicated. In our system, the legislature assigns levels of
penalties for crimes based on their seriousness . . . . So [your]
class “C” felony is something that is far more serious than . . . a
misdemeanor or a “D” felony . . . . And there are relatively few “B”
felonies, a few more “C” felonies and many, many, many “D”
felonies.
        This is a very serious, serious offense. And I look here at
the circumstances, particularly the one that you have pointed to
today as to whether or not in some way you were misled under the
circumstances into the conduct that you have pled guilty to. And
when I read the minutes of evidence—and I had to reread them
again after hearing your testimony . . . . And then when I heard
your arguments about the misrepresentation of the age and maybe
there was some sort of culpability on the victim’s behalf, I had to
reread those minutes . . . and refresh my memory about those
statements, that she said you asked and you asked and you asked
again to enter into sexual intercourse with her and she denied you
and she denied you and she denied you. And then, finally, she just
gave in.
        And the statements—and I see you’re shaking your head
and your counsel is shaking his head. But those are the
statements in the minutes of evidence. And you have pled guilty in
this case. And in there, she says that, ultimately, she felt it was just
easier because you represented to her that this wasn’t a bad thing
to do.
        But for her, it turned out to become a very devastating event.
It’s changed her life entirely. She no longer attends public school.
She no longer has the trust relationships with her parents or her
siblings. She’s lost many, many, many privileges because of this
                                         7


       incident. She has lost her own personal self-respect. She feels
       that she is marked in a way that she didn’t intend to be marked, at
       the very tender age of thirteen years.
              When a woman or a man, either one, says, No, to another
       human being about an act that is proposed to be performed upon
       them or with them, you heard it said before—it’s a campaign that
       was conducted nationally, “No” means “No.” In the minutes of
       evidence, the act is described as coerced.
              I’m going to acknowledge the fact that you did apologize
       today, Mr. Davis, but I don’t think that you showed genuine
       remorse. You said all the words that you needed to say, but I’m not
       so sure that you have the kind of remorse and the depth of
       understanding for the damage that you have caused, the hurt that
       you have caused, some of which may not ever be reparable.
              I do not find that a deferred judgment is appropriate in this
       case. I will concur with the State that you have received already
       substantial concessions in the amending of the charge, and that is
       where the concessions with this sentencing court will end.

       The court entered judgment, suspended the indeterminate ten-year

sentence, and ordered three years of supervised probation. Davis now appeals

and seeks resentencing.

       II. Analysis

       We review sentencing decisions for an abuse of discretion. See State v.

Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “An abuse of discretion will not be

found unless we are able to discern that the decision was exercised on grounds

or for reasons that were clearly untenable or unreasonable.”        Id. When the

district court imposes a sentence within the statutory limits, it is “cloaked with a

strong presumption in its favor.” Id. Davis’s sentence is within the statutory

limits. “To overcome the presumption,” Davis “must affirmatively show that the

district court relied on improper evidence such as unproven offenses.” State v.

Jose, 636 N.W.2d 38, 41 (Iowa 2001).
                                         8


       Davis focuses on the sentencing court’s description of the sex act as

“coerced.” Citing State v. Black, Davis alleges the sentencing court improperly

considered the original, unproven charge of third-degree sexual abuse when

sentencing Davis for lascivious acts with a child. See 324 N.W.2d 313, 315

(Iowa 1982) (remanding for resentencing where “the sentencing court relied upon

charges of an unprosecuted offense that was neither admitted to by the

defendant nor otherwise proved”). Davis argues he never admitted the sexual

contact was “by force or against the will” of S.A. and further argues the crime of

lascivious acts with a child does not require proof the act was done “by force or

against the will” of the other person.

       Davis’s arguments might be persuasive if he had originally been charged

with committing sexual abuse in the third degree in violation of Iowa Code

section 709.4(1) (“the person performs a sex act . . . by force or against the will

of the other person”). He wasn’t. The trial information charged Davis with sexual

abuse in the third degree in violation of section 709.4(2)(b) (“the person performs

a sex act . . . [when] the other person is twelve or thirteen years of age”).

Neither the dismissed charge nor the amended charge required proof the act was

“by force or against the will” of S.A. Thus, the court’s reference to a coerced act

did not indicate reliance on an unprosecuted offense.

       Black is distinguishable. Black was charged with second-degree burglary

and indecent exposure; he pleaded guilty to indecent exposure, and the State

dismissed the burglary charge. 324 N.W.2d at 314. At sentencing, Black denied

the burglary, but the court declined to “ignore the factual basis” giving rise to the

dismissed burglary charge. Id. at 315. Our supreme court remanded, holding a
                                        9


sentencing court “shall not consider the dismissed charge nor the facts arising

from it unless these facts are admitted to by the defendant or independently

proved.” Id. The sentencing court here made no similar pronouncement linking

Davis’s sentence to the dismissed charge of third-degree sexual abuse.

      A sentencing court must examine “all pertinent information” and then

determine an authorized sentence providing the “maximum opportunity for the

rehabilitation of the defendant, and for the protection of the community from

further offenses by the defendant and others.” Iowa Code § 901.5. The court

must weigh “the nature of the offense, the attending circumstances,” the

defendant’s age, character, propensity, and chances of reform. Formaro, 638

N.W.2d at 725 (emphasis added).        In sentencing Davis, the court took into

account all of those circumstances. The court reviewed the PSI report, as well

as materials compiled by defense counsel.

      Davis objects to the court’s references to S.A.’s statements in the minutes

of testimony, but the plea court specifically incorporated the minutes into Davis’s

plea, without objection. Thus, facts in the minutes concerning the circumstances

in which Davis lasciviously touched his genitals to the child were appropriately

considered by the sentencing court in its analysis of the “attending

circumstances” of the amended offense. See State v. Bunce, No. 14-0645, 2015

WL 799873, at *3 (Iowa Ct. App. Feb. 25, 2015) (rejecting challenge to

sentencing court’s recognition defendant was a new mom because the

defendant’s “lack of concern for her child, even as a first-time mother, is part of

the attending circumstances of the crime, and therefore a factor the court could

consider during sentencing”).
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      Our review of the record shows the sentence was carefully crafted to

address Davis’s lack of remorse and to protect the public by ordering Davis to

follow the recommendations of a psychosexual evaluation. We find Davis has

not met his burden to establish the sentencing court relied on impermissible

information and conclude the sentence is a sound exercise of the court’s

discretion. See Formano, at 725 (stating a court's “task on appeal is not to

second guess the decision made by the district court”). Accordingly, we affirm.

      AFFIRMED.
