                     IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0589
                                Filed May 2, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MONTEZ GUISE,
     Defendant-Appellant.
________________________________________________________________


        Appeal from the Iowa District Court for Cerro Gordo County, Colleen D.

Weiland, Judge.



        Montez Guise challenges the district court’s use of a risk assessment tool

in    sentencing   him.    SENTENCE      VACATED      AND     REMANDED       FOR

RESENTENCING.



        Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

        Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



        Heard En Banc.
                                         2


VAITHESWARAN, Judge.

       We must decide whether the district court abused its discretion in

considering the “Iowa Risk Revised” in sentencing a defendant to prison.

I.     Background Proceedings
       Montez Guise kicked down the door of his ex-girlfriend’s apartment, in

violation of a no-contact order. He pled guilty to second-degree burglary.

       The department of correctional services prepared a presentence

investigation report (PSI), which included the following sentence: “As part of the

PSI interview process an Iowa Risk Revised was completed indicating the

Defendant should be supervised at an intensive level.” The officer who prepared

the report recommended imprisonment.

       At the sentencing hearing, the prosecutor recommended a suspended

sentence and probation, as set forth in the written plea agreement. The district

court rejected the recommendation, relying in part on the PSI evaluator’s reference

to the need for intensive supervision. The court’s complete reasoning was as

follows:

       Mr. Guise, [defense counsel] has probably talked to you about the
       three goals that I am supposed to aim for when I am deciding a
       sentence for you. They are your rehabilitation, protection of society,
       and deterrence, meaning trying to convince you and other people not
       to perform criminal acts, so those three goals I keep in mind when I
       apply what I’ve learned about you from the case file, from the
       presentence investigation, and from what you folks have told me
       today.
              The whole of that information convinces me that you cannot
       be rehabilitated in the community and that you are a danger to
       society if we keep you in the community. You may well have a good
       heart, I have no reason to think otherwise, but both things can be
       true. You can be dangerous to us, you can be difficult to rehabilitate
       in the community when you still have a good heart because
       sometimes intentions are not enough. Your criminal history is
                                            3


         significant in itself but includes a number of probation and parole
         revocations. When you were on partial release for this matter, you
         had a new charge and resisted arrest—or interfered with official acts,
         I should say, when the police tried to execute a warrant for you when
         you had been released when you’d been convicted for this. That
         doesn’t bode well for us being able to help you with treatment and
         other things that you need in society and in the community. The
         presentence investigator also noted that you need intensive—I don’t
         want to say supervision. I have to get the right word that they used.
         It is supervision. That your risk level is such that you should be
         supervised at an intensive level. So for that reason, I’m not accepting
         the plea agreement.

(Emphasis added.) The court sentenced Guise to a prison term not exceeding ten

years.

         On appeal, Guise (1) challenges the district court’s reliance on the “Iowa

Risk Revised” (IRR) and (2) contends the district court considered an “unproven

allegation” of assault in sentencing him.

II.      Iowa Risk Revised

         Guise maintains “the consideration of the IRR assessment violated [his] due

process rights.” In the alternative, he argues, the sentencing court’s consideration

of and reliance on the IRR “was an abuse of discretion.” Finally, he raises an

ineffective assistance of counsel claim, arguing “[i]f error was not preserved, . . .

he was prejudiced by counsel’s failure.”

         The State responds by questioning whether Guise preserved error on his

“constitutional challenge to certain unobjected to evidence used in sentencing

him.” The State does not raise an error preservation concern with respect to the

alternative abuse of discretion argument.1


1
  We acknowledge that defense counsel’s failure to object to the contents of the PSI
ordinarily constitutes a failure to preserve error. The fact that the Iowa Department of
Corrections and the parole board rely upon risk assessments scores to make some of
                                           4


       We find it unnecessary to address the constitutional argument, either

directly or under an ineffective-assistance-of-counsel rubric. Cf. Crowell v. State

Pub. Def., 845 N.W.2d 676, 689 (Iowa 2014) (“Ordinarily, we look to statutory

issues first in order to avoid unnecessary constitutional questions.”). We will focus

on the alternative argument—whether the district court abused its discretion in

using the IRR in the sentencing decision. See State v. Boltz, 542 N.W.2d 9, 10

(Iowa 1995) (reviewing court’s application of sentencing factors for an abuse of

discretion). We proceed to the merits.

       Much has been written about risk assessment tools and their use in various

criminal contexts, including sentencing. See, e.g., Paula M. Casey et al., National

Center for State Courts (NCSC), Using Offender Risk and Needs Assessment

Information at Sentencing: Guidance for Courts from a National Working Group

(2011),                       http://www.ncsc.org/~/media/microsites/files/csi/rna%

20guide%20final.ashx; Jessica Corey, Risky Business: Critiquing Pennsylvania’s

Actuarial Risk Assessment in Sentencing, 7 Colum. J. Race & L. 150 (2016);

Jessica M. Eaglin, Constructing Recidivism Risk, 67 Emory L.J. 59 (2017); Melissa

Hamilton, Back to the Future: The Influence of Criminal History on Risk

Assessments, 20 Berkeley J. Crim. L. 75 (2015); Cecilia Klingele, The Promises



their decisions does not make it a permissible sentencing factor. Moreover, we are not
convinced Guise or his attorney would have envisoned that what was proper for the PSI
writer to consider in making a recommendation for probation considerations would be
improperly used by the district court as a basis to imprison the defendant. Much like the
defendant’s race may be identified in a PSI, defense counsel would not envision that a
court would rely upon race as a basis to imprison the defendant and feel a need to object
to the PSI on that basis. And certainly no one would question that race would be an
improper sentencing factor. Thus, we conclude Guise’s failure to object to the PSI does
not raise an error preservation issue. See State v. Grandberry, 619 N.W.2d 399, 401-02
(Iowa 2000).
                                              5

and Perils of Evidence-Based Corrections, 91 Notre Dame L. Rev. 537 (2015);

Dawinder S. Sidhu, Moneyball Sentencing, 56 B.C. L. Rev. 671 (2015).

        Virtually nothing has been written about the IRR assessment tool. See Iowa

Dep’t   of   Corr.,   Iowa    Board     of   Corrections     Agenda      (April   7,   2017),

https://doc.iowa.gov/sites/default/files/documents/2017/04/april_7_2017_board_

of_corrections_handouts_-_mpcf_1.pdf2; Legislative Servies Agency, Budget Unit

Brief FY 2017: Iowa Corrections Offender Network (Rev. 09/06/2016),

https://www.legis.iowa.gov/docs/publications/FT/15690.pdf.

        The State does not cite a statute, rule, or manual authorizing use of the IRR

in sentencing. Cf. Ky. Rev. Stat. Ann. § 532.007(3)(a) (2017) (“Sentencing judges

shall consider . . . the results of a defendant’s risk and needs assessment included

in the presentence investigation.”); La. Stat. Ann. § 15:326(A) (providing certain

Louisiana courts “may use a single presentence investigation validated risk and

needs assessment tool prior to sentencing an adult offender”); Ohio Rev. Code

Ann. § 5120.114(A)(1)-(3) (stating Ohio’s department of rehabilitation and

correction “shall select a single validated risk assessment tool for adult offenders”



2
   Guise and the State cite the department of corrections’ April 7, 2017 handout, which
defines the IRR as follows:
         IRR‐Iowa Risk Revised Assessment—screening tool for assessing risk. It
         takes into consideration several factors; for example ‐ age, criminal history,
         gang affiliation, prior revocations in the community. The assessment helps
         determine risk of violence and victimization as well as predicting general
         recidivism. It includes several dynamic factors not included in the [Iowa
         Violence and Victimization Assessment]—employment, housing instability,
         substance abuse, prior revocations.
Guise’s sentencing hearing took place on March 20, 2017, before the date of the handout.
If the IRR definition as set forth above was in existence at the time of sentencing, the State
did not offer or admit a document or other evidence of this definition, nor did the PSI
evaluator refer to the definition.
                                         6


that shall be used for various purposes including sentencing); 42 Pa. Stat. and

Cons. State. Ann. § 2154.7(a) (“The commission shall adopt a sentence risk

assessment instrument for the sentencing court to use to help determine the

appropriate sentence within the limits established by law. . . .”). Nor can we find

such authority.

       Iowa Code section 901.2(1) authorizes the district court to receive “any

information which may be offered which is relevant to the question of sentencing.”

Relevance is the key. On this record, we only know that the IRR authorized

intensive supervision. We do not know what the IRR is, what factors led to the

recommendation of intensive supervision, or whether the factors were appropriate

for consideration in the sentencing context. It is impossible to determine whether

the IRR was relevant to the question of sentencing within the meaning of section

901.2(1).

       We turn to sections 901.5 and 901.3(1)(a). Section 901.5 authorizes the

court to “receiv[e] and examin[e] all pertinent information, including the

presentence investigation report.” Section 901.3(1)(a) authorizes a presentence

investigator to inquire into “[t]he defendant’s characteristics, family and financial

circumstances, needs, and potentialities.” Again, we do not know whether the IRR

bears on these factors.     If the IRR is “pertinent” information for purposes of

sentencing and relates to the defendant’s “needs” or “potentialities,” the district

court and the reviewing court should know how and why. As it stands, the PSI

report’s single reference to the “Iowa Risk Revised” is devoid of context. The IRR

could encompass impermissible factors such as unproven charges or it could
                                         7


include unreliable factors. We simply do not know. And, on this record, neither

did the district court.

       We conclude the broad general language of the cited provisions cannot be

read to authorize the use of an unspecified algorithm in sentencing (if that is what

the IRR is). See State v. Lopez, 872 N.W.2d 159, 176 n.4 (Iowa 2015) (concluding

a more specific statute controlled over the general language of these provisions).

Even courts that have approved the use of algorithms at sentencing have set

paramaters for their use. See Malenchik v. State, 928 N.E.2d 564, 574 (Ind. 2010)

(concluding results of certain offender assessment instruments “are appropriate

supplemental tools for judicial consideration at sentencing”); State v. Loomis, 881

N.W.2d 749, 753 (Wis. 2016) (concluding “if used properly, . . . a circuit court’s

consideration of a . . . risk assessment at sentencing does not violate a

defendant’s right to due process”). Our record contains no parameters.

       This brings us to subsections 901.11(1), (2), and (3), which are more

specific. Section 901.11 is titled “Parole or work release eligibility determination—

certain drug, child endangerment, and robbery offenses.” Subsection 901.11(1)

authorizes consideration of a “validated risk assessment” to determine when a

person “shall first become eligible for parole or work release.”        Subsections

901.11(2) and (3) authorize consideration of a “validated risk assessment” for the

same purpose where the convictions are for child endangerment or robbery. Like

the more general statutes, these provisions say nothing about the use of risk

assessment tools in the sentencing decision. They do not expressly or impliedly

authorize the use of the IRR in sentencing for second-degree burglary. But, even

if they did, nothing in our record indicates the IRR was a validated risk assessment
                                              8

tool. See Eaglin, 67 Emory L.J. at 119 (“Those using the tools must be able to

interpret the results. . . .”).

        In sum, we find no legislative authority supporting the use of the IRR at

sentencing. We also are unaware of any properly promulgated agency rules

addressing the subject. In the absence of legislative or administrative authority

with the force of law, we need not reach the question of how the IRR should be

used at sentencing and, specifically, whether the instrument should be used only

as a mitigating rather than an aggravating factor.3

        We return to our record. As noted, the PSI evaluator referred to the IRR in

recommending intensive supervision and the district court relied on the

recommendation in sentencing Guise.               To reiterate, our record contains no

information on what the IRR was intended to measure, how it was scored, what

factors were considered in arriving at a score, or how the PSI evaluator applied the

test to Guise. See Klingele, 91 Notre Dame L. Rev. at 576 (“As an initial matter,

risk is a squishy concept and its variations (low, medium, and high) are subject to

all manner of manipulation.”). The IRR as described in Guise’s PSI report was a

black box, devoid of transparency.

        Without information allowing the court to gauge the IRR’s reliability, the

court’s use of the test in the sentencing decision amounted to an abuse of

discretion. See State v. White, 903 N.W.2d 331, 333-34 (Iowa 2017) (finding the

sentencing court abused its discretion when it drew “critical conclusions” that were




3
  We do not suggest the IRR can never be used in sentencing. But, at a minimum, its use
must be predicated on legislative or administrative authorization, scientific validation of the
instrument, and an explanation of the underlying factors and scoring methodology.
                                           9


“not grounded in science but rather based on generalized attitudes of criminal

behavior”); cf. Loomis, 881 N.W.2d at 763-64 (“[A]ny PSI containing a [Correctional

Offender Management Profiling for Alternative Sanctions (COMPAS)] risk

assessment must inform the sentencing court about the following cautions

regarding a COMPAS risk assessment’s accuracy: (1) the proprietary nature of

COMPAS has been invoked to prevent disclosure of information relating to how

factors are weighed or how risk scores are to be determined; (2) risk assessment

compares defendants to a national sample, but no cross-validation study for a

Wisconsin population has yet been completed; (3) some studies of COMPAS risk

assessment scores have raised questions about whether they disproportionately

classify minority offenders as having a higher risk of recidivism; and (4) risk

assessment tools must be constantly monitored and re-normed for accuracy due

to changing populations and subpopulations.”); Klingele, 91 Notre Dame L. Rev.

at 576 (“[R]isk assessment tools provide a good example of evidence-based

practices that have been promulgated with insufficient attention to their

limitations.”); see also Eaglin, 67 Emory L.J. at 64, 88 (“Actuarial risk assessment

tools obscure difficult normative choices about the administration of criminal

justice. . . . With actuarial risk tools, normative judgments are more difficult or even

impossible to discern.”). We vacate the sentence and remand for resentencing

without consideration of the IRR on this state of the record.

III.   Assault

       At sentencing, the district court referred to a domestic abuse surcharge.

Defense counsel responded by informing the court, “There would be no domestic

abuse surcharge on this.”      The court quickly corrected itself, stating, “[I]t’s a
                                        10


burglary, so you’re right.” In that context, the court also stated, “I was thinking

about the underlying assault.”

      Guise contends the district court considered an unproven offense of assault.

See State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000) (“If a court in

determining a sentence uses any improper consideration, resentencing of the

defendant is required.”). We disagree. The court did not find Guise committed an

assault. And, as Guise concedes, intent to commit an assault was an element of

second-degree burglary. See Iowa Code § 713.1 (2016) (“Any person, having the

intent to commit a felony, assault or theft. . . .”). Finally, Guise admitted he

possessed assaultive intent. We conclude the court did not consider an unproven

offense.

      SENTENCE VACATED AND REMANDED FOR RESENTENCING.

      Danilson, C.J., and Potterfield, Tabor, and Bower, JJ., concur; Vogel,

Doyle, Mullins,and McDonald, JJ, dissent.
                                          11


MCDONALD, Judge (dissenting)

       At issue in this case is a single, unchallenged sentence contained in a

nineteen-page presentence investigation report: “As part of the PSI interview

process an Iowa Risk Revised was completed indicating the Defendant should be

supervised at an intensive level.” Guise contends the district court’s consideration

of this single, unchallenged sentence violated his right to due process and

constituted an abuse of discretion. The majority does not address the defendant’s

constitutional claim, but the majority holds the district court’s consideration of this

single, unchallenged sentence constituted an abuse of discretion. In so holding,

the majority does not address the claim Guise presents on appeal. Instead, the

majority undertakes the role of advocate and raises claims not raised or briefed by

the parties. Even then, the majority wrongly decides the issues it raises. I dissent.

                                           I

       Guise presents a narrow due process challenge to his sentence.              He

contends the district court’s consideration of the statement regarding the risk

assessment deprived him of due process when the statement was considered

without “sufficient cautions for and limitations of the risk assessment tools.”

Specifically, he contends the presentence investigation report should have

contained the following cautionary instructions or advisories:           “1) the risk

assessment scores are based on group data and not specific to this individual

defendant; (2) the existence of validation studies, including any cross-validation

for an Iowa population; (3) the extent of the disclosure of the information used to

determine the score such as question and answers with the formulas used; and
                                         12


(4) the purpose of the tool and that the risk assessment tools were not developed

for use at sentencing.” Guise’s due process claim, as presented, fails.

                                         A.

        To determine whether due process requires a sentencing court be given

cautionary instructions regarding the use of risk assessment information, it is first

necessary to establish what limits, if any, due process imposes on sentencing

proceedings.

        The Fourteenth Amendment to the Federal Constitution provides no state

shall “deprive any person of life, liberty, or property, without due process.” Article

I section 9 of the Iowa Constitution provides the same textual guarantee, stating

“[N]o person shall be deprived of life, liberty, or property, without due process of

law.”   The federal and state guarantees of due process apply to sentencing

proceedings. See Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (noting the

imposition of sentence is part of the criminal prosecution for due process

purposes); State v. Delano, 161 N.W.2d 66, 72 (Iowa 1968) (stating that

sentencing proceedings need not “conform with all of the requirements of a

criminal trial or even of the usual administrative hearing . . . but the hearing must

measure up to the essentials of due process and fair treatment”).

        Federal due process places very few limitations on the categories or

sources of information a sentencing court may consider in crafting and imposing

sentence. The sentencing court may not consider the defendant’s race, religion,

or political affiliation (and presumably, other irrelevant classifications). See Zant

v. Stephens, 462 U.S. 862, 885 (1983). In addition, the Supreme Court has stated

due process protects a defendant from being sentenced based on materially false
                                         13

information the defendant did not have an opportunity to correct. See Townsend

v. Burke, 334 U.S. 736, 741 (1948); West v. United States, 994 F.2d 510, 512 (8th

Cir. 1993) (stating a defendant is not deprived of constitutional process when

sentenced on incomplete or inaccurate information “as long as the defendant was

afforded an adequate opportunity to challenge the information”). With these limited

exceptions, the Supreme Court has repeatedly “reaffirmed the fundamental

sentencing principle that a judge may appropriately conduct an inquiry broad in

scope, largely unlimited either as to the kind of information he may consider, or the

source from which it may come.” Roberts v. United States, 445 U.S. 552, 556

(1980); see Dean v. United States, 137 S. Ct. 1170, 1175 (2017) (stating

sentencing courts have wide discretion in the type and sources of information

considered at sentencing); Pepper v. United States, 562 U.S. 476, 488 (2011)

(stating the sentencing court is allowed “to consider the widest possible breadth of

information” in imposing sentence).

       Like the federal due process clause, the state due process clause does not

impose any significant limitation on the categories or sources of information that

can be considered at sentencing so long as the defendant had the opportunity to

object to the information. The controlling case is Delano. 161 N.W.2d 66. In that

case, the defendant challenged his sentence on the ground the district court

received “information concerning the social and economic background and other

offenses of the accused.”      Id. at 69.     The Iowa Supreme Court stated the

sentencing court may rely on any information to which the defendant did not object.

See id. at 70. The court explained no violation could be found when neither

defense counsel “nor defendant objected to the [presentence] report or made any
                                           14

effort to refute any part of it.” Id. at 71. The court further stated the “defendant

was well aware of the trial court’s use of the presentence report . . . [and] [h]e did

not see fit to make an objection . . . . We must assume that, in the absence of

evidence to the contrary, the court made proper use of the report.” Id.

       Similarly, in Rinehart v. State, 234 N.W.2d 649, 651 (Iowa 1975), the Iowa

Supreme Court rejected a due process challenge that the defendant’s “sentence .

. . was predicated upon an improper basis.” In that case, the sentencing judge

took a “trip to Iowa City” and engaged in an “ex parte conversation” with a doctor

who had examined the defendant. See id. at 660. In rejecting the defendant’s due

process claim, the supreme court explained “[d]ue process at sentencing does not

require a full panoply of trial procedures.” Id. at 661. The court reasoned due

process was satisfied because the sentencing judge had disclosed the substance

of the trip to counsel in a letter written by the doctor and “[a]t no time in the

proceedings did counsel request they be afforded a fair opportunity to controvert

the contents of the letter.” Id. at 660.

       The general rule that a sentencing court may consider any category of

information from any source is deeply-rooted in our historical traditions. “[B]oth

before and since the American colonies became a nation, courts in this country

and in England practiced a policy under which a sentencing judge could exercise

a wide discretion in the sources and types of evidence used to assist him in

determining the kind and extent of punishment to be imposed within limits fixed by

law.” Williams v. New York, 337 U.S. 241, 246 (1949). For example, “[o]ut-of-

court affidavits have been used frequently, and of course in the smaller

communities sentencing judges naturally have in mind their knowledge of the
                                          15

personalities and backgrounds of convicted offenders.”          Id.   In addition, due

process allows judges to consider “reports made by probation officers containing

information about a convicted defendant, including such information as may be

helpful in imposing sentence or in granting probation or in the correctional

treatment of the defendant.” Id.

       The historical rule is supported by “sound practical reasons.”         Id. For

criminal trials, courts have fashioned rules of evidence that “narrowly confine the

trial contest to evidence that is strictly relevant to the particular offense charged.”

Id. at 247. The rules of evidence are designed, in part, to prevent the finder of fact

“from being influenced to convict for that offense by evidence that the defendant

had habitually engaged in other misconduct.” Id. “A sentencing judge, however,

is not confined to the narrow issue of guilt. His task within fixed statutory or

constitutional limits is to determine the type and extent of punishment after the

issue of guilt has been determined.” Id. The concerns relating to the determination

of guilt are not present at sentencing. Thus, “a sentencing judge [should] not be

denied an opportunity to obtain pertinent information by a requirement of rigid

adherence to restrictive rules of evidence properly applicable to the trial.” Id.

       With these constitutional principles in mind, it is clear the minimal dictates

of due process have been satisfied in this case. Due process does not restrict the

district court from considering risk assessment information. The risk assessment

information was presented in a permissible presentence investigation report. See

Williams, 337 U.S. at 249–50 (observing such “reports have been given a high

value by conscientious judges who want to sentence persons on the best available

information rather than on guesswork and inadequate information. To deprive
                                         16


sentencing judges of this kind of information would undermine modern penological

procedural policies that have been cautiously adopted throughout the nation after

careful consideration and experimentation”).      Counsel was provided with the

presentence investigation report at least one week prior to sentencing in

compliance with the Code. See Iowa Code § 901.4 (2017) (providing defense

counsel shall have access to the presentence investigation report at least three

days prior to sentencing); cf. State v. Ashley, 462 N.W.2d 279, 282 (Iowa 1990)

(stating the “basic requirements of due process and fair notice have been codified

in Iowa Code sections 901.3 and 901.4, and we believe that failure to provide the

statutory notice renders such evidence inadmissible on the issue of sentencing”).

At the sentencing hearing, the district court afforded the defendant the opportunity

to make additions, corrections, or objections to the presentence investigation

report. Defense counsel did raise one issue not material to this appeal. Other

than this immaterial issue, defense counsel stated, “[W]e have no additions or

other corrections, no objection to the Court considering it for sentencing purposes.”

       To the extent the defendant now contends cautionary instructions should

have been contained in the presentence investigation report, it was the defendant’s

obligation to bring the issue to the district court’s attention. See Delano, 161

N.W.2d at 71. The defendant’s failure to request cautionary instructions at the time

of sentencing forecloses his due process claim. See, e.g, State v. Dursunov, No.

35927, 2010 WL 9585664, at *2 (Idaho Ct. App. Mar. 17, 2010) (“There having

been no objection to the psychosexual and polygraph examinations at the

sentencing hearing, Dursunov cannot now claim a violation of due process through

the court’s reliance on those evaluations.”); State v. Walker, 167 P.3d 879, 883
                                         17


(Mont. 2007) (denying due process challenge where the defendant “never

challenged the accuracy of the PSI during his own testimony before the sentencing

court” and the defendant “had ample opportunity to explain, argue, or rebut the

information in the PSI.”). Constitutional due process does not require more than

what was provided here.

                                         B.

       Because the due process clause does not prohibit the district court from

considering   risk   assessment    information    contained   in   the   presentence

investigation report, it follows a fortiori the due process clause does not prohibit

the district court from considering risk assessment information contained in the

presentence investigation report in the absence of the requested cautionary

instructions. Although the conclusion is beyond debate, further discussion is

warranted.

       In support of his argument, Guise relies heavily on State v. Loomis, 881

N.W.2d 749 (Wis. 2016), but his reliance is misplaced. In Loomis, the sentencing

court considered the results of an actuarial risk assessment instrument (COMPAS)

to support its decision to sentence the defendant to a term of incarceration. See

881 N.W.2d at 753.          The defendant contended the sentencing court’s

consideration of the risk assessment violated his right to due process. See id. The

court urged the use of cautionary instructions as a prophylactic measure to “avoid

potential due process violations.” Id. at 760 (emphasis added). However, the court

affirmed the defendant’s prison sentence and held that even though “the circuit

court was unaware of the cautions . . . the circuit court’s consideration of [the risk

assessment tool] . . . did not violate Loomis’s due process rights.” Id. at 771
                                         18


(emphasis added). The court denied the defendant’s due process claim because

the record established the sentencing court’s consideration of the risk assessment

was but one of many factors considered by the sentencing court and not the

“determinative factor” in deciding the defendant would be incarcerated. See id.

       As made apparent in the preceding paragraph, the primary case on which

Guise relies for the proposition that a sentencing court’s consideration of risk

assessment information without cautionary instructions is a per se violation of due

process actually holds to the contrary.       This understanding of Loomis was

confirmed in a subsequent decision of the Wisconsin Court of Appeals. In State v.

Jones, No. 2015AP2211–CRNM, 2016 WL 8650489, at *1 (Wis. Ct. App. Nov. 29,

2016), the sentencing court considered the COMPAS risk assessment tool without

cautionary instructions and sentenced the defendant to a term of incarceration.

The Jones court rejected a due process challenge to the defendant’s sentence.

See id. at *5 (“Our review of the trial court’s comments on the COMPAS report

leads us to conclude there would be no arguable merit to assert that the trial court’s

use of the COMPAS report was improper or denied Jones due process. The trial

court commented on the report only briefly, and its comments implied that the

report was one of many factors it was considering.”).

       There are additional reasons why Loomis does not advance Guise’s

position.   Loomis addressed the sentencing court’s use of a proprietary risk

assessment instrument—COMPAS. In that case, the defendant complained he

was unable to obtain information to challenge the risk assessment instrument due

to the proprietary nature of the instrument. It seems to me the use of a proprietary

risk assessment for sentencing purposes, at least where the defendant objects and
                                         19


is unable to obtain information sufficient to challenge the risk assessment, is

inconsistent with, at minimum, Iowa concepts of due process requiring the

defendant be provided with notice of the information to be used at sentencing and

the opportunity to contest the same.       Rather than reaching this conclusion,

however, the Loomis court urged the use of cautionary instructions. This seems

an unsatisfactory resolution of the problem. The use of proprietary information at

sentencing deprives the defendant of any meaningful opportunity to challenge the

assessment. Regardless, that case is not this case. Here, the risk assessment

tool is the Iowa Risk Assessment Revised. This risk assessment tool is based on

the Iowa Violence and Victimization Instrument with four additional community

stability factors added to the assessment (employment, housing, substance abuse,

and past revocations). The risk assessment is non-proprietary in nature, and the

defendant would have had the ability to challenge the instrument and its result at

sentencing if he chose to do so. He chose not to do so.

       In addition, outside the context of proprietary risk assessments, Loomis

provides no compelling rationale why cautionary instructions regarding the use of

risk assessment information are necessary to satisfy the dictates of due process

when the general rule is the sentencing court can access any category or source

of information without any significant limitation. There is no historical practice of

requiring a provider of information in a sentencing proceeding to also instruct the

sentencing court on the appropriate and inappropriate inferences to be drawn from

the information. Indeed, the practice is to the contrary. Medical information and

mental-health information is routinely provided to the district court at sentencing

without guidance. Is due process violated when the sentencing court considers a
                                         20


presentence investigation report that contains a substance-abuse evaluation when

the evaluation is not accompanied by adequate foundation establishing the

credentials of the evaluator and the method of evaluation, cautionary instructions

regarding the limitation of the substance-abuse evaluation, and instructions

regarding the appropriate and inappropriate inferences to be drawn from the

substance-abuse evaluation?        Mental-health evaluations?        Medical-history

information? The answer is clearly not. The defendant’s argument to the contrary

is simply ipsie dixit.

       Finally, Guise’s proposed extension of Loomis to the facts and

circumstances of this case presumes risk assessment information is sui generis

and wholly beyond the comprehension of sentencing judges. This presumption is

without merit. Risk assessment is not a new concept. It is used in a variety of

contexts, including insurance and medicine, among others.          With respect to

criminal justice, “since shortly after the Civil War, American states have relied on

some inchoate notion of risk assessment in applying the criminal sanction.” Steven

L. Chanesenson & Jordan M. Hyatt, The Use of Risk Assessment at Sentencing,

Implications for Research and Policy 3 (Villanovia Public Law and Legal Theory

Working Paper Series 2016). “The generally unexplained exercise of discretionary

judicial sentencing authority is a prime example of a first-generation, clinical risk

assessment.      Judges rely on their own subjective experience—and a largely

unknown mix of factors specific to that defendant and the nature of the crime—to

set a sentence within the parameters allowed by law.” Id.

       An actuarial risk assessment can provide statistical information to the

sentencing judge that mirrors first-generation clinical assessments of risk while
                                        21


also providing a higher degree of transparency and consistency to the sentencing

decision. See id. A recent brief of the National Center for State Courts provided

a more complete explanation:

      Risk assessment instruments are used in many fields to predict the
      probability of various outcomes such as automobile accidents or
      medical conditions. In the criminal justice system, actuarial risk tools
      provide information on the probability of outcomes such as failing to
      appear in court after arrest, committing any new offense, or
      committing a specific type of re-offense (e.g., violent, sexual).
      Criminal justice research scientists develop risk assessment tools
      using sophisticated statistical methodologies to identify information
      that is most strongly correlated (or associated) with the specific
      outcome of interest such as criminal reoffending. Across numerous
      fields, assessments of risk informed by a formal risk assessment
      instrument have been found to be more accurate and reliable than
      those based on unstructured clinical judgment alone.

Pamela Casey, Jennifer Elek, & Roger Warren, National Center for State Courts,

Use of Risk and Needs Assessment in State Sentencing Proceedings 1, 2 (Sept.

2017),http://www.ncsc.org/~/media/Microsites/Files/CSI/EBS%20RNA%20brief%

20Sep%202017.ashx.

      The use of actuarial risk assessment information is well established in Iowa.

At the pretrial stage of criminal proceedings, Chief Justice Cady has advocated the

use of actuarial risk assessment information “for judges to use in deciding whether

to release or detain criminal defendants before trial.” Chief Justice Mark S. Cady,

Iowa Supreme Court, 2018 Iowa State of the Judiciary (Jan 10, 2018)

https://www.iowacourts.gov/static/media/cms/

Final_2018_speech_with_cover_B650B18F74A4B.pdf.             There are now pilot

projects in the State using risk assessments as a relevant factor in the pretrial

release decision. As noted by Chief Justice Cady, juvenile court officers and

juvenile courts have used risk assessment analysis to provide targeted services to
                                         22

juvenile offenders for over eight years. See Chief Justice Mark S. Cady, Iowa

Supreme Court, 2017 Iowa State of the Judiciary (Jan 11, 2017). The legislature

now requires the use of a risk assessment “[a]t the time of sentencing” to set the

minimum sentence for certain drug, child endangerment, and robbery offenses.

See Iowa Code § 901.11. The Board of Parole uses risk assessments in making

parole and work-release decisions.        Finally, actuarial risk assessments are

routinely used in civil commitment proceedings relating to sexually violent

predators. See, e.g., In re Det. of Holtz, 653 N.W.2d 613 (Iowa 2002).

       The majority ignores the historical and common use of actuarial risk

assessment information in all fields, including criminal justice, and instead treats

actuarial risk assessment information like the punch-card prophecies of the

precogs in Philip K. Dick’s Minority Report. See ante at 7 (“We conclude the broad

general language of the cited provisions cannot be read to authorize the use of an

unspecified algorithm in sentencing (if that is what the IRR is).”). Actuarial risk

assessment information is not science fiction; it is actuarial science. Actuarial risk

assessment information is not sui generis; it is evidence just like any other

evidence. The sentencing court acts within its core competency in receiving the

evidence, determining the appropriate inferences, if any, to be drawn from the

evidence, and determining the weight of the evidence, all without cautionary

instructions. See State v. Farnum, 397 N.W.2d 744, 750 (Iowa 1986) (stating the

sentencing court was free to weigh and apply expert testimony); see also

Malenchik v. State, 928 N.E.2d 564, 573 (Ind. 2010) (“We defer to the sound

discernment and discretion of trial judges to give the [assessment] tools proper

consideration and appropriate weight.”); Butler v. State, 358 P.3d 1259, 1264
                                         23


(Wyo. 2015) (“A district court is free . . . to consider PSIs and risk assessments,

meaning it is also within its discretion to give these reports the weight the district

court deems appropriate when imposing a sentence within the statutory range.”).

       The constitutional command of due process does not require an information

provider to instruct a sentencing court on the appropriate uses of the information

provided. Guise has failed to establish a due process violation.

                                         C.

       The rejection of Guise’s specific due process claim should not be

interpreted as a rejection of any concern regarding the use of actuarial risk

assessment tools in criminal proceedings. As the National Center for State Courts

has noted,

       Although incorporating offender assessment information into
       sentencing decisions can have great benefits, using it incorrectly
       (e.g., deciding a course of action without a proper understanding of
       what assessment results mean or placing an offender in an available
       rather than needed program) will be ineffective and could have the
       consequence of increasing recidivism. Jurisdictions need to carefully
       plan the incorporation of offender assessment information into the
       sentencing process to optimize its benefits.

Pamela M. Casey et al., National Center for State Courts, Using Offender Risk and

Needs Assessment Information at Sentencing: Guidance for Courts from a

National Working Group, 8 (2011), http://www.ncsc.org/~/media/microsites/files/

csi/rna%20guide%20final.ashx; see generally Jessica Corey, Risky Business:

Critiquing Pennsylvania’s Actuarial Risk Assessment in Sentencing, 7 Colum. J.

Race & L. 150 (2016); Jessica M. Eaglin, Constructing Recidivism Risk, 67 Emory

L.J. 59 (2017); Melissa Hamilton, Back to the Future: The Influence of Criminal

History on Risk Assessments, 20 Berkeley J. Crim. L. 75 (2015); Cecilia Klingele,
                                           24

The Promises and Perils of Evidence-Based Corrections, 91 Notre Dame L. Rev.

537 (2015); Dawinder S. Sidhu, Moneyball Sentencing, 56 B.C. L. Rev. 671 (2015).

       Instead, the rejection of Guise’s constitutional argument should be

interpreted to be a rejection of the constitutionalization of sentencing practice and

procedure. “Robing garden variety claims . . . in the majestic garb of constitutional

claims does not make such claims constitutional in nature.” State v. Greene, 727

A.2d 765, 774 (Conn. App. Ct. 1999). Not every error or claimed error in a criminal

proceeding is of constitutional dimension. See State v. Foy, 574 N.W.2d 337, 339

(Iowa 1998); see, e.g., Hill v. United States, 368 U.S. 424, 428 (1962) (recognizing

denial of allocution does not raise a constitutional claim); State v. Hines, 709 A.2d

522, 533 (Conn. 1998) (stating “it would trivialize the constitution to transmute a

nonconstitutional claim into a constitutional claim simply because of the label

placed on it by a party or because of a strained connection between it and a

fundamental constitutional right”); State v. Patterson, 580 A.2d 548, 549 (Conn.

App. Ct. 1990) (concluding unpreserved claim that trial court considered improper

testimony at sentencing was not constitutional in nature); People v. Toepler, No.

329017, 2016 WL 7130969, at *3 (Mich. Ct. App. Dec. 6, 2016) (“We first note that

evidentiary errors, such as an erroneous decision to admit expert testimony, are

not constitutional in nature.”); People v. Blackmon, 761 N.W.2d 172, 177 (Mich.

Ct. App. 2008) (“Although any error can potentially be argued to have deprived a

defendant of his due-process fair-trial right, not every trial error is constitutional in

nature. Merely framing an issue as constitutional does not make it so.”); Williams

v. State, 273 S.W.3d 200, 225 (Tex. Crim. App. 2008) (holding erroneous

admission of victim-impact evidence was nonconstitutional error).
                                          25


       In Iowa, there are sufficient non-constitutional rules governing sentencing

practice and procedure to provide guidance to district courts in the use of risk

assessments and to allow appellate courts to police the use of risk assessments.

For example, it is impermissible for the district court to use any single consideration

as a determinative factor in sentencing. See State v. Cooley, 587 N.W.2d 752,

755 (Iowa 1998) (discussing the rule that “[e]ach sentencing decision must be

made on an individual basis, and no single factor alone is determinative”). It is

also impermissible for the district court to fail to exercise its sentencing discretion.

See State v. Wright, 340 N.W.2d 590, 593 (Iowa 1983) (discussing cases in which

judges impermissibly failed to exercise discretion); State v. Gahagan, No. 16-0209,

2017 WL 2461463, at *5 (Iowa Ct. App. June 7, 2017) (same). I am sure other

issues will arise over the course of time, but they can be addressed on a case-by-

case basis.

                                          D.

       In sum, the district court did not violate Guise’s right to due process at

sentencing when it considered an unchallenged statement regarding risk

assessment information contained within the presentence investigation report

even when the presentence investigation report did not contain Guise’s requested

cautionary instructions. See Malenchik, 928 N.E.2d at 574 (noting due process is

not violated by consideration of risk assessment evidence); Loomis, 881 N.W.2d

at 771 (holding the defendant failed to prove a due process violation when the

district court considered risk assessment information without cautionary

instructions); Jones, 2016 WL 8650489, at *5 (holding due process was not
                                         26


violated when the district court considered risk assessment information and

sentenced the defendant to incarceration).

                                          II.

         Guise’s second claim is a limited claim that the district court abused its

discretion in considering the risk assessment information without the guidance of

his requested cautionary instructions. This is a carbon copy of his constitutional

claim.    Indeed, the entirety of Guise’s argument regarding the district court’s

exercise of discretion is as follows:

         Without sufficient cautions and limitations provided, the
         consideration of the [Iowa Risk Revised] assessment violated
         Guise’s due process rights. In the alternative it was an abuse of
         discretion on the part of the sentencing court.

At oral argument, Guise’s counsel confirmed his claim related solely to the district

court’s consideration of the information without cautionary instructions.

         To prove the district court abused its considerable sentencing discretion,

Guise must overcome the strong presumption of regularity afforded the district

court’s sentencing decision. See State v. Stanley, 344 N.W.2d 564, 568 (Iowa Ct.

App. 1983). Guise can overcome the presumption of regularity by making an

affirmative showing that the trial court abused its discretion. As with Guise’s due

process claim, the threshold question is what limits, if any, Iowa sentencing law

imposes on the categories or sources of information the district court could

consider at sentencing.

         Our state sentencing law provides virtually no limitation on the categories

or sources of information to be used in sentencing. To the contrary, to assist the

sentencing court in performing “the often arduous task of sentencing a criminal
                                          27

offender,” State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002), our State has made

it a priority to provide the sentencing court with as much information as possible.

The Code provides the district court “shall receive from the state, from the judicial

district department of correctional services, and from the defendant any

information which may be offered which is relevant to the question of sentencing.”

Iowa Code § 901.2(1).        Among the information relevant to the question of

sentencing is “the presentence investigation report.” Id. § 901.5. “The primary

function of the presentence investigation report is to provide pertinent information

to aid the district court in sentencing.” State v. Uthe, 541 N.W.2d 532, 533 (Iowa

1995). In preparing the presentence investigation report, the investigator shall

collect information related to the crime, the defendant, and the victim, including

information related to the defendant’s “needs” and “potentialities.” Iowa Code §

901.3(1)(a).    Our case law provides for a similarly robust presentation of

information to the sentencing court:

       The sentencing judge should be in possession of the fullest
       information possible concerning the defendant’s life and
       characteristics and should not be denied an opportunity to obtain
       pertinent information by rigid adherence to restrictive rules of
       evidence properly applicable to trial. The judge may resort to such
       sources of information as he thinks might be helpful to his judgment
       as to sentencing. Defendant may not successfully challenge the
       soundness of the trial court’s discretion even though it involved
       conclusions or matters not ordinarily admissible.

Stanley, 344 N.W.2d at 570.

       It is clear from the Code and the case law that the district court may consider

any information “relevant” or “pertinent” to sentencing. Actuarial risk assessment

information is generally relevant to the sentencing function. A risk assessment

“estimate[s] the probability that an individual will engage in violent or other criminal
                                        28


conduct in the future.” Model Penal Code: Sentencing § 6B.09, cmt. A (Am. Law

Inst., Proposed Final Draft 2017). One of the central historical functions of any

sentencing court is to conduct a first-generation clinical risk assessment of the

offender. See Steven L. Chanesenson and Jordan M. Hyatt, supra, at 3. That is,

in crafting and imposing sentence, the sentencing court considers the risk the

defendant will reoffend and whether the defendant is amenable to supervision in

the community.    See id.   Actuarial risk assessment information provides the

sentencing court with evidence-based information relevant to both of these

considerations. Risk assessment information speaks directly to the defendant’s

risk of recidivating, his amenability to supervision in the community, and thus his

“propensities and chances of his reform.” State v. Stakenburg, 215 N.W.2d 265,

267 (Iowa 1974); see Malenchik, 928 N.E.2d at 566 (holding “legitimate offender

assessment instruments do not replace but may inform a trial court’s sentencing

determinations”); Pamela M. Casey et al., supra, at 7 (“Given the research . . . ,

the National Working Group recommends that judges have offender assessment

information available to inform their decisions regarding risk management and

reduction.”).

       The conclusion that actuarial risk assessment information is relevant to

sentencing is not controversial and is nationally supported. In 2011, the National

Conference of Chief Justices and Conference of State Court Administrators

recommended that “offender risk and needs assessment information be available

to inform judicial decisions regarding effective management and reduction of the

risk of offender recidivism.” Conference of Chief Justices and Conference of State

Court Adm’rs, National Center for State Courts, Resolution 7: In Support of the
                                          29

Guiding Principles on Using Risk and Needs Assessment Information in the

Sentencing              Process,               (Aug.             3,             2011),

http://www.ncsc.org/~/media/Microsites/FILES/CSI/Resolution-7.ashx.

       Similarly, the American Law Institute has expressed its support for the use

of risk assessment instruments in sentencing. The American Law Institute

       encourages the use of actuarial risk-assessment instruments as a
       regular part of the felony sentencing process. Actuarial—or
       statistical—predictions of risk, derived from objective criteria, have
       been found superior to clinical predictions built on the professional
       training, experience, and judgment of the persons making
       predictions. The superiority of actuarial over clinical tools in this
       arena is supported by more than 50 years of social-science research.

Model Penal Code: Sentencing § 6B.09, cmt. a.

       In Iowa, risk assessment information has independent relevance beyond

providing an evidence-based determination of the risk to reoffend.                The

presentence investigation writer’s statement the defendant “should be supervised

at an intensive level” based on the risk assessment independently signals to the

district court information regarding the levels of sanctions, programs, and services

available to supervise the defendant safely in the community and to facilitate the

defendant’s rehabilitation.

       By way of background, Iowa’s corrections scheme provides for five levels

of sanctions, services, and programming for offenders pursuant to the corrections

continuum. The corrections continuum ranges from level one for non-violent, low-

risk offenders to level five for incarceration. See Iowa Code § 901B.1. Each

judicial district and judicial district department of correctional services is required

to implement an intermediate criminal sanctions program “structured around the

corrections continuum” with different levels of sanctions, programs, and services
                                         30


for defendants placed on probation and committed to the department of

correctional services.   See id. § 901B.1(2), (3).       The intermediate criminal

sanctions program encompasses level two, level three, and certain parts of level

four upon the corrections continuum. The intermediate criminal sanctions program

must identify the appropriate levels of sanctions, programs, and services for

offenders “based upon a current risk assessment evaluation.”            Iowa Code

§ 901B.1(4)    For example, depending on the risk assessment information,

appropriate sanctions, programs, and services might include “electronic

monitoring, day reporting, day programming, and institutional work release.” Iowa

Code § 901B.1(b)(3).     The intermediate criminal sanctions program must be

approved and adopted by the chief judge of the judicial district and the director of

the judicial district department of correctional services. See id. § 901B.1(3)(a).

       Against this backdrop, the duty of a sentencing judge in every case is to

consider all of the available sentencing options, to give due consideration to all

circumstances in the particular case, and to exercise that option which will best

accomplish justice both for society and for the individual defendant. See State v.

McKeever, 276 N.W.2d 385, 388 (Iowa 1979). The sentencing court’s function is

both backward-looking and forward-looking: backward looking in that the

sentencing court must impose a sentence that provides justice in the individual

case; forward looking in that the sentencing court must select a sentence that

advances the “societal goals of sentencing criminal offenders, which focus on

rehabilitation of the offender and the protection of the community from further

offenses.” Formaro, 638 N.W.2d at 724.
                                         31


       With respect to felony sentencing in Iowa, the sentencing court has a limited

range of available dispositions.     The district court can impose the required

judgment and sentence, which is incarceration for an indeterminate term not to

exceed a maximum number of years as set forth in Iowa Code chapter 902. In

certain circumstances, rather than imposing judgment, the district court may

exercise its discretion, defer judgment, and place the defendant on probation.

Iowa Code § 907.3(1)(a). In certain circumstances, rather than imposing sentence,

the district court may exercise its discretion, defer sentencing, and “assign the

defendant to supervision or services under section 901B.1 at the level of sanctions

which the district department” of correctional services determined to be

appropriate. Iowa Code § 907.3(2). Finally, in some circumstances, the district

court may impose judgment and sentence but exercise its discretion, suspend the

execution of the sentence, and place “the defendant on probation upon such terms

and conditions as it may require,” including commitment of the defendant “to the

judicial district department of correctional services for supervision or services

under section 901B.1 at the level of sanctions which the department determines to

be appropriate.” Id. § 907.3(3). All of these considerations are based upon a

“current risk assessment.” Iowa Code § 901B.1(4)(a).

       If it is not apparent from the preceding discussion, the presentence

investigation writer’s communication to the district court of the level of supervision

within the continuum to be applied to the defendant if granted probation is

independently relevant and important to the exercise of sentencing discretion. To

further flesh out the issue, consider the facts and circumstances of this case.
                                          32


       Here, the second judicial district department of correctional services

prepared the presentence investigation report for the district court. Based on the

result of a risk assessment, the presentence investigation writer stated the

defendant would be subject to intensive supervision. Because of this, the district

court was made aware of the specific sanctions, programs, and services available

to supervise the defendant and to facilitate rehabilitation of the defendant. For

example, the Second Judicial District’s Corrections Continuum Order provides that

offenders subject to “intense supervision” may be subject to “the Community

Transition Program, Drug Court, electronic monitoring, and Day Program Center

participation.” The presentence investigator’s assessment that Guise was subject

to “intense supervision” thus provided the district court with information pertinent,

perhaps critical, to the informed exercise of the district court’s discretion of above

and beyond a simple statistical assessment of the probability of reoffending. See

Pamela M. Casey et al., supra, at 14 (“Whether an offender is a good candidate

for community supervision is a decision each court makes, based in part, on the

availability of effective local supervision and treatment resources available to

address the offender’s specific risk factors.”).

       In sum, the Iowa Code and our case law expressly provide the district court

may consider “any information” “relevant” or “pertinent” or “helpful” to sentencing.

In Iowa, risk assessment information is relevant or pertinent or helpful to

sentencing for two independent reasons.            First, actuarial risk assessment

information is relevant, generally, to the sentencing function because it provides

evidence-based information regarding the offender’s risk of reoffending and

amenability to supervision in the community. This conclusion is not controversial;
                                          33


it is supported by a fair reading of the Code and the relevant precedents; it is

supported by the leading national authorities.            Second, risk assessment

information determines the level of supervision upon the continuum to which an

offender will be placed, and the level of supervision provides the sentencing court

with independently relevant information regarding the sanctions, programs, and

services within the specific judicial district available to supervise the offender and

to rehabilitate the offender. Because the substantive law of sentencing in Iowa

does not prohibit the district court from considering risk assessment information

contained in an unchallenged presentence investigation report, it follows a fortiori

nothing prohibits the district court from considering risk assessment information

contained in an unchallenged presentence investigation report in the absence of

Guise’s requested cautionary instructions.




                                          III.

       The majority does not resolve Guise’s constitutional claim or Guise’s abuse-

of-discretion claim. Instead, the majority raises and decides its own claims sua

sponte and without notice to the parties. I respectfully disagree with the majority’s

resolution of the claims it asserts on Guise’s behalf.

                                          A.

       I disagree with the majority’s decision to assume the role of advocate and

advance claims on Guise’s behalf. That is not this court’s role. The court of

appeals is a court of error correction. See Iowa Code § 602.5103 (providing the

court of appeals “constitutes a court for correction of errors at law”). “Our obligation
                                        34


on appeal is to decide the case within the framework of the issues raised by the

parties.” Feld v. Borkowski, 790 N.W.2d 72, 78 (Iowa 2010). “This court is not a

roving commission that offers instinctual legal reactions to interesting issues that

have not been raised or briefed by the parties and for which the record is often

entirely inadequate if not completely barren. We decide only the concrete issues

that were presented, litigated, and preserved in this case.” City of Davenport v.

Seymour, 755 N.W.2d 533, 545 (Iowa 2008).

       By straying outside the record and outside the questions presented and

briefed by the parties, the court “risk[s] making unsound decisions based on [its]

own inadequately informed understanding of the . . . questions involved.” State v.

Childs, 898 N.W.2d 177, 194–95 (Iowa 2017). As Justice Gorsuch has noted,

“[T]he crucible of adversarial testing is crucial to sound judicial decisionmaking.

We rely on it to yield insights (or reveal pitfalls) we cannot muster guided only by

our own lights.” Sessions v. Dimaya, ___ S. Ct. ___, ___, 2018 WL 1800371, at

*25 (2018) (Gorsuch, J., concurring).

                                        B.

       The risk of making unsound decisions based on inadequate understanding

is demonstrated here. The rationale underlying the majority opinion is strained,

contrary to long-established precedent regarding appellate review of sentencing,

and internally inconsistent.

       The majority opinion strains to reach the conclusion actuarial risk

assessment information cannot be considered at sentencing. The Code provides

the district court may consider “any information,” “pertinent information,” and any

information related to the defendant’s “needs” and “potentialities.” Our case law
                                         35


authorizes the district court to consider “such sources of information as he thinks

might be helpful to his judgment as to sentencing.” Stanley, 344 N.W.2d at 570.

Any fair and objective reading of the Code and our case law would authorize the

use of risk assessment information at sentencing.        The majority nonetheless

concludes the Iowa Risk Revised cannot be used because there is no “legislative

or administrative authority with the force of law” specifically authorizing

consideration of the Iowa Risk Assessment Revised. The majority’s conclusion

that “any information” does not include the Iowa Risk Assessment Revised

because no provision of the Code specifically identifies the instrument defies

common sense. See Mall Real Estate, L.L.C. v. City of Hamburg, 818 N.W.2d

190, 201 (Iowa 2012) (Cady, C.J., dissenting) (noting statutes should not be

interpreted in a way that “defies common sense”). The majority never explains

why the legislature must authorize the use of this specific risk assessment when it

already authorized the district court to consider any information. The majority’s

opinion is akin to concluding that “any information” does not include mental-health

information referencing the DSM-V because the manual is not specifically

identified in the Code. By way of another example of strained reasoning, the

majority cites Iowa Code section 901.11 and represents that it says “nothing about

the use of risk assessment tools in the sentencing decision.” Ante at 7. Except it

does. The cited provision explicitly states three times the sentencing court shall

consider a risk assessment “[a]t the time of sentencing.” Iowa Code § 901.11(1),

(2), (3).

        The majority opinion is also contrary to long established case law governing

the appellate review of sentencing proceedings. First, “[sentencing] decisions of
                                         36

the trial court are cloaked with a strong presumption in their favor.” Stanley, 344

N.W.2d at 568. It is the defendant’s burden to overcome the presumption of

regularity by making an affirmative showing that the trial court abused its

discretion. See id. As a court of error, we can “neither assume nor infer a judge

failed to do so without clear evidence in the record to the contrary.” State v.

Swenka, No. 13-1821, 2014 WL 4631364, at *1 (Iowa Ct. App. Sept. 17, 2014);

see Formaro, 638 N.W.2d at 725. But the majority does just that. For example,

the majority states, “We do not know what the IRR is, what factors led to the

recommendation of intensive supervision, or whether the factors were appropriate

for consideration in the sentencing context.” (Emphasis added). None of these

questions are relevant to the issue.       The fact the majority would like more

information regarding this risk assessment tool does not mean the district court

abused its discretion in considering the information. Perhaps the information is not

in the sentencing record because the prosecutor, defense counsel, and the district

court judge—people actually involved in sentencing hearings on a regular basis—

already knew the information and saw no need to make additional record on the

issue.    But perhaps not.    But the possibility they were familiar with the risk

assessment instrument demonstrates why we presume regularity unless the

defendant can prove irregularity on the record made. The majority’s analysis turns

the standard of review on its head.

         Second, it is well established “[i]n 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.” State v. Grandberry, 619 N.W.2d 399, 402

(Iowa 2000).      This rule applies to uncontested “data in the presentence
                                          37

investigation report obtained from other sources.” Id. Here, the defendant was

timely provided with the presentence investigation report and made no objection

regarding the reference to the Iowa Risk Assessment Revised. In the absence of

any objection to the presentence investigation report or any request the court

consider cautionary instructions regarding the risk assessment report, the district

court was free to rely on the information contained therein. See State v. Witham,

583 N.W.2d 677, 678 (Iowa 1998) (explaining the district court was free to consider

mental-health evaluation contained in unchallenged presentence investigation

report); State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998) (finding the district

court properly relied on defendant’s statements in the presentence investigation

report that amounted to an admission of other criminal activity because the

statements were not challenged by defendant when he was given an opportunity

to do so); State v. Townsend, 238 N.W.2d 351, 358 (Iowa 1976) (finding that district

court acted properly in considering the presentence investigation report that

contained psychiatric evaluation and recommendation defendant be placed in a

semi-structured environment where the defendant did not challenge the pertinent

parts of the report); Delano, 161 N.W.2d at 71 (finding consideration of

presentence report proper absent objection); State v. Thonethevaboth, No. 05-

1821, 2006 WL 1751295, at *1 (Iowa Ct. App. June 28, 2006) (holding error was

not preserved where counsel did not object to the list of prior convictions set forth

in presentence investigation report); see also United States v. Dokes, 872 F.3d

886, 889 (8th Cir. 2017) (“Unless a party objects ‘with specificity and clarity’ to fact

statements in the PSR, the district court may accept those facts as true at

sentencing.”); United States v. Clark, 139 F.3d 485, 490 (5th Cir. 1998) (concluding
                                          38


if defendant fails to submit affidavits or other evidence to rebut information

contained in PSI, the sentencing court may adopt PSI without “further inquiry or

explanation”); United States v. Coleman, 148 F.3d 897, 902 (8th Cir. 1998)

(defendant waived right to object to court’s reliance on PSI by failing to object either

to the PSI itself or at the sentencing hearing); United States v. Morillo, 8 F.3d 864,

872–73 (1st Cir. 1993) (defendant cannot fault sentencing determination based on

facts in PSI to which she did not object).

       The majority’s response to the Grandberry problem reveals the internal

inconsistency within the majority opinion. On the one hand, the majority concludes

the defendant did not need to object to the risk assessment in the PSI because the

risk assessment is an impermissible sentencing factor akin to the race of the

defendant. See Ante at 3 n.1. This seems in accord with the majority’s view that

risk assessment information is per se impermissible as not relevant and not

authorized by the Code. On the other hand, the majority opinion concludes risk

assessment information, generally, and the Iowa Risk Revised, specifically, could

be considered if there were sufficient foundation laid to establish its reliability. See

Ante at 8.    Indeed, the majority remands the case for resentencing without

consideration of the risk assessment “on this state of the record.” Ante at 9. The

majority never addresses or even attempts to resolve this inconsistency in this

opinion.   What foundation could the prosecutor make to allow the district to

consider the risk assessment if the risk assessment is akin to the defendant’s

race? What foundation ameliorates the majority’s concern that Iowa Risk Revised

is not specifically identified in the Code?
                                         39


       In my view, risk assessment information is a relevant sentencing

consideration. To the extent the majority contends the district court abused its

discretion in considering the risk assessment without adequate foundation

establishing the validity of the instrument, the argument misses the mark in several

respects. First, the rules of evidence are inapplicable at sentencing proceedings.

See Iowa R. Evid. 5.1101(c)(4). “Sentencing procedures are governed by different

evidentiary rules than the trial itself. The sentencing judge should be in possession

of the fullest information possible concerning the defendant’s life and

characteristics and should not be denied an opportunity to obtain pertinent

information by rigid adherence to restrictive rules of evidence properly applicable

to trial.” Stanley, 344 N .W.2d at 570. Second, if there were concerns regarding

the validity and use of the risk assessment tool, it was the defendant’s obligation

to raise an objection and make a record on the issue. See Grandberry, 619 N.W.2d

at 402. This is the position taken by the American Law Institute:

       Instead, the revised Code “domesticates” the use of risk
       assessments by repositioning them in the open forum of the
       courtroom, where the tools devised by the sentencing commission
       are available for inspection, and where the constitution guarantees
       the offender legal representation to contest any adverse findings.
       This represents a significant constraint on the use of recidivism risk
       as a sentencing factor when compared with the current realities of
       American criminal justice.

Model Penal Code: Sentencing § 6B.09, cmt. a. Guise’s failure to raise the issue

with the sentencing court is fatal to his claim on appeal. See State v. Buck, No. 14-

0723, 2015 WL 1046181, at *3 (Iowa Ct. App. Mar. 11, 2015) (concluding the

defendant did not preserve his challenge to the district court’s consideration of the

sexual adjustment inventory at sentencing).
                                          40


       In sum, the majority’s advocacy on Guise’s behalf is uncompelling. A fair

reading of the Code and our case law allows the district court to consider risk

assessment information at the time of sentencing. To the extent the reliability of

this particular instrument is at issue, it was the defendant’s obligation to raise the

issue with the sentencing court. In the absence of any challenge to the information,

the district court was free to rely on the information.

                                          IV.

       I address one final issue. Guise argues his plea counsel was ineffective in

failing to raise a challenge to the district court’s consideration of the statement

relating to the risk assessment and/or ineffective in failing to provide his requested

instructions and cautions. To establish a claim of ineffective assistance of counsel,

Guise must show “(1) his trial counsel failed to perform an essential duty, and (2)

this failure resulted in prejudice.” State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006)

(citing Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). The defendant

must prove both elements by a preponderance of the evidence. State v. Madsen,

813 N.W.2d 714, 723 (Iowa 2012). Failure to prove either element is fatal to the

claim. See Strickland, 466 U.S. at 700 (“Failure to make the required showing of

either deficient performance or sufficient prejudice defeats the ineffectiveness

claim.”); State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003) (“A defendant’s

inability to prove either element is fatal.”). If the defendant fails to meet his burden

on either element, the court need not address the other. See Dempsey v. State,

860 N.W.2d 860, 868 (Iowa 2015).

       Guise has failed to establish prejudice. To establish prejudice, Guise had

to show a “reasonable probability that, but for counsel’s unprofessional errors, the
                                          41

result of the proceeding would have been different.” See Strickland, 466 U.S. at

694. In the context of sentencing, the question presented is whether a challenge

to the PSI would have “resulted in a more lenient sentence.” State v. Hopkins, No.

13-1103, 2014 WL 3511820, at *4 (Iowa Ct. App. July 16, 2014). There is no

reasonable likelihood of such a result. The district court cited numerous factors

for its reason to impose sentence. It is clear from the sentencing transcript; Guise’s

criminal history was dispositive. He has been in and out of detention facilities, jails,

and prisons since he was a juvenile. His criminal history is extensive, including

adjudications and convictions for simple robbery, criminal damage to property,

burglary on multiple occasions, terroristic threats, receiving stolen property,

assault, interference with official acts, trespass, possession of a controlled

substance, and domestic abuse assault. The presentence investigation report also

showed Guise was not a good candidate for probation. He was revoked multiple

times while on parole and probation. While he was on pretrial release, he obtained

new charges of criminal mischief, possession of drug paraphernalia, and

interference with official acts. An actuarial assessment was not necessary to

conclude Guise was not a good candidate for probation.

                                          V.

       For the foregoing reasons, I dissent.

       Vogel, Doyle, and Mullins, JJ., join this dissent.
                                        42


VOGEL, Judge (dissenting).

         I join Judge McDonald’s and Judge Mullins’s dissents but write separately

to emphasize two points.

         Firstly, as Judge McDonald noted in his State v. Gordon4 dissent, filed

today, “Evidence-based risk assessment information can assist the sentencing

judge in overcoming the limits of personal experience by providing access to

empirical evidence.” Even more than that, I believe the use of risk assessment

tools provides more uniformity in sentencing from one defendant to the next and

from one judicial district to the next, across the state of Iowa. In addition, the

assessments, as neutral measures of standard characteristics, can serve to

ameliorate implicit biases in sentencing and thus achieve our supreme court’s

stated goal “to improve justice.” Chief Justice Mark S. Cady, Iowa Supreme Court,

2018         State      of      the      Judiciary     (Jan.      10,       2018),

https://www.iowacourts.gov/static/media/cms/Final_2018_speech_with_cover_B6

50B18F74A4B.pdf (announcing “a new public safety assessment for judges to use

in deciding whether to release or detain criminal defendants before trial. . . .

Criminal offenders should be punished pursuant to a sentence prescribed by law,

not by unnecessary and unfair consequences of the process of justice itself.”)

         Secondly, even if a risk assessment tool is not mentioned at sentencing,

such a tool may have been used during the presentence investigation (PSI)

process with its assessment imbedded within the PSI report. What obligation then

does a sentencing judge have when reviewing the PSI? Must the sentencing judge



4   State v. Gordon, No. 17-0395, ___ WL ___ (Iowa Ct. App. May 2, 2018).
                                        43


disavow any consideration of an assessment tool within the PSI? How can a

sentencing judge surgically extract such information from a PSI recommendation

to satisfy the majority and assure the defendant that the tool in no way bore on the

judge’s sentencing decision?

       Because the statewide use of risk assessment tools provides uniformity,

and because the majority’s opinion raises serious practical considerations for our

sentencing judges, I respectfully dissent.

       Doyle, Mullins and McDonald, JJ., join this dissent.
                                         44


DOYLE, Judge (dissenting).

       I join in the dissents, but write separately to address an issue that has

troubled me for some time—the use of the term “abuse of discretion.”

       Guise had no objection to the district court considering for sentencing

purposes the presentence investigation (PSI) report, which included the Iowa Risk

Revised (IRR). Neither the legislature nor Iowa Supreme Court has yet to address

the proper use of risk assessment tools in sentencing. Nevertheless, the majority

finds the sentencing court abused its discretion in considering and relying on the

IRR in sentencing Guise. “A district court abuses its discretion when it exercises

its discretion on grounds clearly untenable or to an extent clearly unreasonable. A

district court’s ‘ground or reason is untenable when it is not supported by

substantial evidence or when it is based on an erroneous application of the law.’”

State v Hill, 878 N.W.2d 269, 272 (Iowa 2016) (emphasis added) (citations

omitted).

       “Abuse of discretion.” Such a harsh term. It smacks of a deliberative

wrongful act—like animal abuse, child abuse, domestic abuse, elder abuse, or sex

abuse. Do we really want to imply the district court deliberately got it wrong? I

think not. And saying “the district court abused its discretion” instead of “the judge

abused his or her discretion” surely does nothing to reduce the sting to a judge on

the receiving end of an appellate opinion.

       So, I put out a call to abandon use of the term in circumstances like those

presented here and suggest we replace it with something more fitting. There is

precedent for employing a new term when the old one does not suit the

circumstances. Claims relating to a prosecutor’s behavior at trial have historically
                                        45


been referred to as “prosecutorial misconduct.” However, our supreme court

recently adopted a distinction “between incidences of prosecutorial error and

prosecutorial misconduct” and noted “[a] prosecutor who has committed error

should not be described as committing misconduct.” State v. Schlitter, 881 N.W.2d

380, 393–94 (Iowa 2016).       “While the analysis for prosecutorial error and

prosecutorial misconduct are the same, the phrase prosecutorial error should be

used to describe instances of mistake, human error, or poor judgment.” State v.

Royer, No. 16-1206, 2017 WL 4570431, at *2 n.1 (Iowa Ct. App. Oct. 11, 2017).

Similarly, instances of mistake, human error, or judgment just not to our liking by

a district court should not be described as committing discretion abuse.

      “Abuse of discretion.” Can’t we think of a kinder and gentler term to use?

Words matter.
                                            46


MULLINS, Judge (dissenting).

       I respectfully dissent, join in the dissents by Judges Vogel and McDonald,

and write separately.

       First, I acknowledge the concern of the majority opinion that the legislature

has not explicitly directed judges to consider the results of risk assessment

evaluations in making all sentencing decisions. I disagree, however, that the lack

of explicit direction requires exclusion of a sentencing court’s consideration of risk

assessment evaluations disclosed and intertwined in presentence investigation

(PSI) reports prepared by each judicial district department of correctional services

(DCS).

       The purpose of the [PSI] report by the judicial district department of
       correctional services is to provide the court pertinent information for
       purposes of sentencing and to include suggestions for correctional
       planning for use by correctional authorities subsequent to
       sentencing.

Iowa Code § 901.2(4) (2017).

       The sentencing court is not to consider its sentencing options until “[a]fter

receiving and examining all pertinent information, including the [PSI] report .” Id.

§ 901.5.    Included in the court’s sentencing options is authorization to defer

judgment and sentence, to impose sentence and suspend execution of the

sentence or part of it, or defer sentence, all as provided in Iowa Code chapter 907.

See id. §§ 901.5(1), 907.3(1)(a), (2)(a), (3). Section 907.3 allows for probationary

supervision by DCS in the event one of those options is chosen. 5 “Probationers


5
  Technically, a deferred sentence does not use the term “probation,” but allows the court
to “assign the defendant to the judicial district [DCS]. The court may assign the defendant
to supervision or services under section 901B.1 at the level of sanctions which the district
department determines to be appropriate.” Iowa Code § 907.3(2)(a).
                                          47


are subject to the conditions established by the judicial district [DCS] subject to the

approval of the court, and any additional reasonable conditions which the court or

district department may impose to promote rehabilitation of the defendant or

protection of the community.” Id. § 907.6.

       In 1996, twenty-two years ago, the Iowa legislature enacted Iowa Code

section 901A.1(4)(a), which provided: “The district department of correctional

services shall place an individual committed to it under section 907.3 to the

sanction and level of supervision which is appropriate to the individual based upon

a current risk assessment evaluation.”         1996 Iowa Acts ch. 1193, § 15(4)(a)

(emphasis added). That provision was later renumbered as section 901B.1,6

which now provides in relevant part:

       901B.1. Corrections continuum—intermediate criminal sanctions
       program

               1. The corrections continuum consists of the following:
               ....
               b. LEVEL TWO. Probation and parole options consisting of
       the following:
               ....
               c. LEVEL THREE. Quasi-incarceration sanctions. Quasi-
       incarceration sanctions are those supported by residential facility
       placement or twenty-four hour electronic monitoring including, but
       not limited to, the following:
               ....
               2. “Intermediate criminal sanctions program” means a
       program structured around the corrections continuum in
       subsection 1, describing sanctions and services available in each
       level of the continuum in the district . . . .
               3.a. Each judicial district and judicial district [DCS] shall
       implement an intermediate criminal sanctions program. . . .
               ....


6
 When this provision was added to the code after its enactment, it was numbered as
section 901B.1 rather than 901A.1. Compare 1996 Iowa Acts ch. 1193, § 15, with Iowa
Code § 901B.1 (1997).
                                          48


              4.a. The district [DCS] shall place an individual committed to
       it under section 907.3 to the sanction and level of supervision which
       is appropriate to the individual based upon a current risk assessment
       evaluation. Placements may be to levels two and three of the
       corrections continuum. . . .
              b. The district department may transfer an individual along
       the intermediate criminal sanctions program operated pursuant to
       subsection 3 as necessary and appropriate during the period the
       individual is assigned to the district department. . . .

(Emphasis added.)

       Section 901B.1 is a legislative direction to each district DCS to use risk

assessment evaluations for probation placement decisions. The DCS prepares

the PSI reports for the court, and the DCS is required to include suggestions for

correctional planning subsequent to sentencing. See Iowa Code § 901.2(4) (“The

purpose of the report by the judicial district [DCS] is to provide the court pertinent

information for purposes of sentencing and to include suggestions for correctional

planning for use by correctional authorities subsequent to sentencing.”). It is not

surprising that the PSI reports prepared by the DCS would disclose to the court

and to correctional authorities the factors and considerations, including risk

assessment evaluation information that would guide the DCS in the provision of

services, programs, and supervision in the event of probation. Iowa Code section

901.2(1) provides that “the court shall receive from . . . the judicial district [DCS] .

. . any information which may be relevant to the question of sentencing.”

       In the exercise of a sentencing judge’s sound discretion, the judge must

consider multiple, permissible factors. Included in the information a judge must

consider are the contents and recommendations from the statutorily prescribed

PSI report, see id. § 901.5, subject to a duty to disregard information that is

improper for sentencing consideration, such as pending or dismissed criminal
                                        49


charges. Judges reasonably expect the PSI report to include recommendations

for the court to consider in sentencing. Because probation is a sentencing option

in most cases, the PSI report often includes identification of services, programs,

and levels of supervision that the DCS recommends to the court or that the DCS

would intend to implement in the event the court grants probation. If a judge is

trying to decide whether to incarcerate a defendant or keep the defendant in the

community on probation, then I submit knowledge of what services, programs, and

supervision DCS intends to provide pursuant to levels two and three of the

continuum is relevant to the court. The DCS preparer of a PSI report often, and

understandably,   recites   the   reasons    or   considerations   underlying   the

recommendation. That information is important to a sentencing judge in deciding

whether probation would likely accomplish the required objectives of sentencing,

and thus which of the required sentencing options it should order as required under

Iowa Code section 901.5.

      This integrated approach to PSI preparation is, I believe, what happens in

reality. Further, by virtue of the 901B.1 legislative mandate and the interplay

between sections 901.2, 901.5, and 907.3, I believe such integration is expected,

if not implicitly required. The disclosure—the transparency—by DCS of the factors

it considers in making its recommendations lends credibility as well as bases for

challenge by either party in a sentencing proceeding. Such disclosure should not

be discouraged, and the use of risk assessments for purposes of making

correctional supervision decisions is legislatively mandated.

      The sentencing judge in this case recited and considered multiple facts and

factors in sentencing Guise, as is required under Iowa law. My reading of the
                                          50


sentencing record is that the PSI report’s recommendation for intensive

supervision was the proverbial “straw that broke the camel’s back,” it was the last

straw, the tipping point. Every day in Iowa, sentencing judges review PSI reports

and other pertinent information and in the process reach a point at which they have

made an ultimate decision.      The decision may be based on a composite of

information, specific pieces each of which are no more important than any other

piece of information. Sometimes the decision is based on multiple pieces of

information, one or more pieces of which carry lesser or greater weight. Or the

decision may be based on multiple bits of information, which reach a critical mass

of volume, an addition to which tips the scales of justice in a particular direction.

That is what judging is about, weighing the importance of relevant information and

determining what is most important in guiding or justifying a particular decision.

When a judge to discloses the tipping point or the last straw, it should not be

considered as placing undue weight or emphasis on that particular fact. So long

as the judge has considered multiple facts or factors, the fact or factor that tips the

scale should not be viewed as an abuse of discretion, so long as the judge has not

considered improper or prohibited factors.

       I have long held a view that the sentencing process can be effectively

understood as having three components: requirements, prohibitions, and

discretion.7 By statute, court rules, and case law, there are specific requirements

that a judge must consider and must do as a part of pronouncing and ordering

judgment and sentence. By case law, there are facts and factors the consideration


7
  I have had the opportunity to share and explain that view many times through oral
presentations and written materials at continuing legal education programs.
                                         51


of which are prohibited and use of which will cause a near automatic reversal.

Discretion, the exercise of which is mandated by statute and the abuse of which is

prohibited, is generally satisfied when a judge considers required factors, plus

other relevant and pertinent information, and bases the decision on multiple

factors.

       As stated above, I agree that use of risk assessment evaluations is not

expressly required at sentencing in most cases. Exceptions can be found in Iowa

Code section 901.11 for certain drug, child-endangerment, and robbery offenses,

which require a judge to determine eligibility for parole or work release within

certain parameters “based upon all pertinent information including the person’s

criminal record, a validated risk assessment, and the negative impact the offense

has had on the victim or other persons.” The majority argues that because the

legislature included risk assessment as required in those situations and has not

required it for other offenses, the use of risk assessment in other cases is

impermissible.   The logic does not follow.     In section 901.11, the legislature

specifically requires consideration of validated risk assessments. Its decision to

not require their use in all cases does not support an argument they are prohibited

in all other cases for which they are not required. That might be so if the list of

required considerations were a finite list, but it is not. Nearly every Iowa Code

section referencing factors or information to consider includes all “relevant” or all

“pertinent” information. In my view, that leads directly to the discretion component

of sentencing to which I referred above. It is in this “discretion” component that I

consider the propriety of a judge considering the risk assessment information
                                            52


referenced in the PSI in this case and the recommendations considered by the

sentencing judge.

       By requiring the use of validated risk assessments in section 901.11, the

legislature has expressly approved their use and reliability in sentencing. By

requiring DCS to use risk assessment evaluations for the last twenty-two years,

the legislature has approved of their value and use. Based on the foregoing, I

disagree that risk assessment evaluations are not relevant and not pertinent. If

they are relevant and pertinent, their use is permissible—not required, not

prohibited—in the court’s exercise of its discretion. As an aside, I call attention to

the fact that unlike many states that use strict criminal sentencing guidelines8 with

enumerated required factors, Iowa still recognizes the importance of courts

exercising discretion based on statutory factors and other relevant and pertinent

information.

       One final matter. The majority relies on multiple sources of information,

many opinion pieces, in support of its decision to reverse the sentence in this case.

I question our court’s independent use of that information in light of the lack of

record made by the defendant at sentencing. The majority points to the lack of

record of reliability of the Iowa Risk Revised. However, I point to the lack of any

record in support of reversal. Guise did not make an adequate record on the issues

upon which the court relies to reverse the sentence in this case. Unlike the




8
  Identification and implementation of sentencing options in Iowa requires integration of a
myriad of statutory provisions. See generally Michael R. Mullins & Drake Univ. L. Sch.,
Iowa Criminal Statutes Summary Chart 2016, https://www.iowacourts.gov/static/media/c
ms/2016_chart1_097E79C501E5A.pdf (including selected criminal offenses, not
procedural code sections or rules of criminal procedure).
                                           53


majority, my trouble is with the lack of record that I believe should be necessary to

reverse Guise’s sentence. The majority argues there is a lack of record to support

the use of risk assessment evaluations, but it is Guise’s duty to have made the

record to challenge the reliability. And, as I tried to illustrate above, the legislature

has placed its stamp of approval on their use.

       Thus, I respectfully dissent.

       Vogel, Doyle, and McDonald, JJ., join this dissent.
