                 IN THE SUPREME COURT OF IOWA
                               No. 12–0305

                             Filed June 7, 2013


STATE OF IOWA,

      Appellee,

vs.

KENNETH RAY WASHINGTON III,

      Appellant.



      Appeal from the Iowa District Court for Polk County, William A.

Price, Judge.



      Defendant appeals sentence alleging district court improperly

penalized him for invoking his constitutional right against self-

incrimination.     SENTENCE VACATED AND CASE REMANDED FOR

RESENTENCING.



      Robert G. Rehkemper III of Gourley, Rehkemper & Lindholm, PLC,

Des Moines, for appellant.



      Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant

Attorney General, John P. Sarcone, County Attorney, and Kevin D.

Hathaway, Assistant County Attorney, for appellee.



      Matthew J. Clair-Femrite, Student Legal Intern, and Robert R.

Rigg, Supervising Attorney, Des Moines, for amicus curiae Drake

University Legal Clinic, Criminal Defense Program.
                                  2

     Gary D. Dickey Jr. of Dickey & Campbell Law Firm, P.L.C.,

Des Moines, for amicus curiae ACLU of Iowa.
                                      3

WATERMAN, Justice.

        In this appeal, we must decide whether the sentencing court

improperly penalized the defendant for invoking his Fifth Amendment

right against self-incrimination.     We conclude that when the district

court asks the defendant a question at sentencing and then imposes an

adverse sentencing consequence unrelated to any legitimate penological

purpose of the inquiry because the defendant invoked his Fifth

Amendment rights, the defendant has been improperly penalized.

        Kenneth R. Washington III pled guilty to possession of marijuana.
The State agreed to jointly recommend a deferred judgment with fifty

hours of community service, one year of probation, and a $500 civil

penalty. At the hearing on his plea and sentencing, the court (initially off

the record) first indicated it would defer judgment, but then threatened

to convict Washington immediately after he declined, on advice of

counsel, to answer the court’s question of whether he would test positive

if given a drug test.     The court repeated the drug-test inquiry on the

record.    Defense counsel again invoked Washington’s right to remain

silent.    The court deferred judgment, but imposed 250 hours of

community service and a $350 civil penalty.

        We granted Washington’s application for discretionary review and

retained the appeal. On our de novo review, we find that by imposing

250 hours of community service unconnected to a penological goal

related to the court’s inquiry, such as drug treatment, the sentencing

court     improperly    penalized   Washington   for   invoking   his   Fifth

Amendment right against self-incrimination. We vacate the sentence and

remand the case for resentencing.
                                      4

      I. Background Facts and Proceedings.

      On October 6, 2011, Officer Jeremy Siepker was on patrol in

Windsor Heights and, just after midnight, pulled over a Dodge Neon with

a burned-out brake light. While speaking with the twenty-one-year-old

driver, Washington, Siepker smelled “a strong odor of marijuana coming

from inside the vehicle.” Siepker told Washington to step out of the car

and asked if he could search him. Washington consented to the search.

Siepker found two plastic bags of what Washington admitted was

marijuana in his pockets along with a metal marijuana pipe and a digital
scale. Siepker next found small plastic bags with marijuana residue and

a loaded revolver in the trunk of Washington’s car. Washington admitted

the handgun belonged to him.       Washington was arrested and later

charged by trial information with carrying a weapon in violation of Iowa

Code section 724.4 (2011), an aggravated misdemeanor, and possession

of a controlled substance (marijuana) in violation of Iowa Code section

124.401(5), a serious misdemeanor.           He also was charged with

possession of drug paraphernalia in violation of section 124.414, a

simple misdemeanor.

      Washington      completed   a       court-ordered   substance-abuse

evaluation and reached a plea agreement with the prosecution.         He

agreed to plead guilty to possession of marijuana in exchange for

dismissal of the weapons and drug paraphernalia charges.        The State

agreed to jointly recommend deferred judgment with fifty hours of

community service, one year of probation, and a $500 civil penalty. The

plea agreement was not conditioned on the court’s acceptance of those

sentencing requests. On February 3, 2012, Washington appeared with

counsel, Robert Rehkemper, to enter his guilty plea and for sentencing.
                                      5

        The proceedings began off the record. According to Rehkemper’s

on-the-record recapitulation of the off-the-record discussion minutes

later, the court had accepted the guilty plea and said, “I’m going to defer

judgment.”     The court then explored Washington’s employment status

and ability to pay the $500 penalty.      Matters suddenly became tense

when the sentencing court, still off the record, asked Washington if he

would be “clean or dirty” if required to drop a urinalysis. Rehkemper’s

account of what happened next is as follows:

        I stepped in and informed the Court I did not believe it was
        appropriate for the Court to inquire that of Mr. Washington.
        And in any event, Mr. Washington would exercise his Fifth
        Amendment right to remain silent, which he still retains
        through sentencing.
              At that point, the Court told Mr. Washington and
        counsel that that’s fine, he didn’t have to defer judgment, he
        can take the conviction.

        Rehkemper asked for a court reporter to make a record.           The

proceedings continued on the record.         After stating what had just

transpired off the record, Rehkemper elaborated on his legal argument

that Washington had a right to remain silent at sentencing under the

Fifth   Amendment      and   “the   corresponding   section   of   the   Iowa

Constitution.” Rehkemper, referring to Mitchell v. United States, 526 U.S.

314, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999), argued that a “court may

not make an adverse inference of an individual’s exercise of his Fifth

Amendment rights at sentencing.” Rehkemper asserted that the district

court

        had all but accepted [the plea agreement], and it appears the
        only reason why the Court would not defer judgment, as to
        Mr. Washington, would be his election of not to answer the
        question of whether or not he would drop dirty or clean
        today.
                                   6

The court, without otherwise disputing Rehkemper’s description of what

had transpired off the record, stated no plea had been accepted yet. At

the court’s direction, they started over with the plea process on the

record.

      During the ensuing colloquy, the parties reiterated the plea

agreement. The court admonished Washington that the plea agreement

was not binding on the court, and he could be sentenced to up to 180

days in jail and a $1000 fine. Washington elected to proceed with his

guilty plea, which the court accepted.      Washington also elected to
proceed with sentencing at that time. Counsel and Washington declined

to make any further statement before the court imposed sentence. The

court elicited from Washington that he had been unemployed since

August and had never received a deferred judgment.         Then matters

became tense again:

            THE COURT: Mr. Washington, if you were to drop a
      urine sample today, would it be clean or dirty for marijuana?
             MR. REHKEMPER: Your Honor, at this time I’m going
      to instruct my client not to answer that question and invoke
      his constitutional right against self-incrimination under the
      Fifth Amendment [and] the corresponding section of the Iowa
      Constitution.
            THE COURT: Okay. What’s the State’s position?
             MR. HATHAWAY: Your Honor, I would simply ask that
      if the Court—it’s certainly within the Court’s discretion,
      whether or not to impose—or to grant a deferred judgment in
      this case. I would simply ask that the Court enunciate
      specifically its reasons for granting or denying a deferred
      judgment, in any event.
            MR. REHKEMPER: And, Your Honor, I can provide the
      Court with a copy of Mitchell versus United States, if the
      Court would like to review it.
           THE COURT: All right.        Mr. Washington, are you
      requesting a deferred judgment?
            THE DEFENDANT: Yes, Your Honor.
           THE COURT: And do you concur with your client’s
      request, Mr. Rehkemper?
                             7
      MR. REHKEMPER: Yes, Your Honor. And we would
formally request a deferred judgment in this case.
      THE COURT: In this matter, judgment is deferred. The
Court is basing this on the fact that Mr. Washington has no
prior criminal history. However, I'm not accepting that part
of the plea agreement making the fine $500—or the civil
penalty $500. I’m making it $315, because Mr. Washington
has not worked since the summer. However, in light of the
nature of the offense, the Court is going to order that
Mr. Washington complete 250 hours of community service,
to be completed within 150 days. And he is to complete 30-
hour—excuse me—50 hours in the next 30 days. A failure to
complete 50 hours in a 30-day period will be considered to
be a violation of probation.
      ....
      Anything else you want to place on the record?
      MR. REHKEMPER: Yes, please.
      THE COURT: Go ahead.
      MR. REHKEMPER: Your Honor, I’d ask the Court
reconsider the imposition of the 250 hours of community
service, all but [quintupling] Mr. Washington’s community
service obligation.
      Your Honor, this young man, who obviously as a
condition of probation will need to obtain full-time
employment—well, search for full-time employment, and
two, obtain it and maintain it while attempting to do that
amount of community service is unnecessarily burdensome
on Mr. Washington.
      I would ask the Court to reconsider that. And also to
articulate the specific basis of why the Court believes 250
hours of community service is necessary and appropriate
under the facts and circumstances of this case as pertained
to Mr. Washington, when the Court routinely doesn’t impose
any community service on deferred judgments, or it is
anywhere from 50 to 100 hours.
      There is nothing special about Mr. Washington’s case
that would warrant the 250 hours, other than the fact that
he invoked his constitutional right not to answer the Court’s
question.
      THE COURT: To the contrary, Mr. Rehkemper. You
can look at the orders that were entered, yesterday, there
were several in that range that involved deferred judgments.
      MR. REHKEMPER: Could the Court articulate why the
Court feels 250 hours is necessary for Mr. Washington’s
case?
                                     8
                THE COURT: It just believes that Mr. Washington
         would benefit by the community service, as would the
         community, in light of the deferred judgment being granted
         in this matter. Thank you.

         Washington filed an application for discretionary review with our

court.     We granted the application and stayed his community service

obligations pending resolution of his appeal.     Meanwhile, Rehkemper

followed up on the court’s invitation to “look at the orders entered

yesterday.”     On that day and the preceding Thursday combined,

sentencing orders had been entered in twenty-nine Polk County cases on

pleas to possession of a controlled substance, first offense. Judgment

was deferred in eleven of those cases.      Community service was only

ordered in two. In one of those, the defendant was referred to drug

treatment and required to complete 150 hours of community service

within ninety days and pay a $315 civil penalty. Eight of the defendants

were ordered to provide urine samples before sentence was imposed. Six

defendants tested “negative” and received deferred judgments with no

community service requirement.       Two defendants tested positive; one

received a ten-day jail sentence and the other received a deferred

judgment with 200 hours of community service to be completed in 100
days.      There was no order for more than 200 hours of community

service.     Washington filed a motion to take judicial notice of the

sentencing orders and court files in these twenty-nine cases and data

summarizing the dispositions.       That motion is submitted with this

appeal.

         II. Scope of Review.

         We review de novo Washington’s claim that the sentencing court

improperly penalized him for invoking his constitutional right against

self-incrimination.    See State v. Iowa Dist. Ct., 801 N.W.2d 513, 517
                                        9

(Iowa 2011) (reviewing evidence de novo on claimed violation of Fifth

Amendment); see also State v. Harrington, 805 N.W.2d 391, 393 (Iowa

2011)    (reviewing   de novo   claim   sentence   was   result of   “judicial

vindictiveness”).

        Because we resolve this appeal under the Fifth Amendment, we

need not and do not reach the claim under the Iowa Constitution. See

Mitchell County v. Zimmerman, 810 N.W.2d 1, 3 n.1 (Iowa 2012)

(declining to reach claim under Iowa Constitution when court held

defendant prevailed under the United States Constitution).
        III. Analysis.

        We must decide whether the sentencing court crossed the

constitutional line by requiring 250 hours of community service after

Washington invoked his right against self-incrimination to decline to

answer the following question: “[I]f you were to drop a urine sample

today, would it be clean or dirty for marijuana?” Washington contends

the sentencing court imposed 200 additional hours of community service

in retaliation for his refusal to answer an “improper” question about

“uncharged and unproven conduct.”           The State contends that the

question was proper during sentencing on a drug charge and that the

community service imposed was within the court’s discretion and not

retaliatory.   Before we frame the Fifth Amendment analysis, we must

determine the scope of the record by ruling on the motion to take judicial

notice of other court files.

        A. Judicial Notice.     When defense counsel challenged the 250

hours of community service as retaliatory, the sentencing judge

responded, “To the contrary . . . look at the orders that were entered

yesterday, there were several in that range that involved deferred

judgments.” Washington obtained the records of twenty-nine other Polk
                                    10

County District Court files with contemporaneous sentencing orders for

possession of a controlled substance, first offense, and filed a motion to

take judicial notice of these records. The State resisted. We deny the

motion.

      Judicial notice may be taken on appeal. See Iowa R. Evid. 5.201(f)

(“Judicial notice may be taken at any stage of the proceeding.”); State v.

Sorensen, 436 N.W.2d 358, 363 (Iowa 1989) (taking judicial notice on

appeal). The rule permits a court to take judicial notice of adjudicative

facts “capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.”           Iowa R. Evid.

5.201(a)–(b). However, “[t]he general rule is that it is not proper for the

court to consider or take judicial notice of the records of the same court

in a different proceeding without an agreement of the parties.”

Leuchtenmacher v. Farm Bureau Mut. Ins. Co., 460 N.W.2d 858, 861 (Iowa

1990). Washington argues we should allow an exception here “because

the sentencing court specifically referenced the other cases as a point of

comparison for [his] sentence.” The State argues the filings in the other

misdemeanor cases “do not tell the full story” behind each sentence

imposed. We agree with the State.

      The validity of any comparison between sentences depends on too

many individual variables, not all of which would be reflected in the

record. For example, unreported colloquies may have influenced certain

sentences.

      “[No] appellate court should ever take judicial notice of any
      facts that might control constitutional adjudication without
      informing all counsel and sending the case back to the trial
      court to give counsel an opportunity to show the erroneous
      or irrelevant nature of the facts judicially noticed.”
                                    11

City of Council Bluffs v. Cain, 342 N.W.2d 810, 813–14 (Iowa 1983)

(quoting Chester J. Antieau, Modern Constitutional Law § 15:38 (1969)).

But, even minitrials on the similarities and differences between these

cases are unlikely to fully explain each sentence. Washington cites no

case, and we found none, allowing appellate judicial notice of other court

files to help show a judge abused his discretion in sentencing. Under the

circumstances, we conclude judicial notice of the other court files is

inappropriate. Accordingly, we will confine our review to the record in

Washington’s proceeding.
      B. Fifth Amendment Claim.

      1. Fifth Amendment caselaw. The Fifth Amendment to the United

States Constitution provides, “No person . . . shall be compelled in any

criminal case to be a witness against himself . . . .” A guilty plea does

not waive the right against self-incrimination at sentencing.     Mitchell,

526 U.S. at 325, 119 S. Ct. at 1313, 143 L. Ed. 2d at 435. Indeed, the

protections of the Fifth Amendment continue through conviction and

imprisonment.     Iowa Dist. Ct., 801 N.W.2d at 518 (“The Fifth

Amendment’s guarantees extend to [a defendant] despite his conviction

and imprisonment.”).

      Nevertheless, the context in which the right is invoked—whether at

trial, sentencing, or postconviction proceedings—affects our analysis.

See McKune v. Lile, 536 U.S. 24, 36, 122 S. Ct. 2017, 2026, 153

L. Ed. 2d 47, 59 (2002) (“[T]he fact of a valid conviction and the ensuing

restrictions on liberty are essential to the Fifth Amendment analysis.”).

As the McKune Court noted, “A broad range of choices that might infringe

constitutional rights in a free society fall within the expected conditions

of confinement of those who have suffered a lawful conviction.”         Id.

Washington was not incarcerated when he invoked his right against self-
                                    12

incrimination, but he was standing before a sentencing judge whose

options ranged from one-year of incarceration to a deferred judgment

with no conviction. We must analyze his Fifth Amendment claim in the

specific context of his sentencing on his guilty plea to possession of

marijuana. We begin with the leading Supreme Court decision on Fifth

Amendment claims raised at sentencing proceedings—Mitchell.

      In Mitchell, the defendant pled guilty to drug offenses without

admitting the quantity of cocaine necessary to determine the length of

her mandatory minimum sentence. 526 U.S. at 317, 119 S. Ct. at 1310,
143 L. Ed. 2d at 430. The sentencing court relied on other witnesses to

establish the amount and expressly held defendant’s silence against her.

Mitchell, 526 U.S. at 318–19, 119 S. Ct. at 1310, 143 L. Ed. 2d at 431.

The Supreme Court reversed, holding that a sentencing court may not

draw an adverse inference from defendant’s silence in determining the

facts of the offense. Id. at 330, 119 S. Ct. at 1316, 143 L. Ed. 2d at 438.

The Supreme Court admonished that “[t]he Government retains the

burden of proving facts relevant to the crime at the sentencing phase and

cannot enlist the defendant in this process at the expense of the self-

incrimination privilege.”    Id.   Washington argues that Mitchell is

dispositive of this case. We disagree.

      Mitchell is fundamentally distinguishable.    It was decided under

the federal sentencing system then in effect in which the quantity of

cocaine directly determined the severity of the offense and, thus,

Mitchell’s sentence. The sentencing court used Mitchell’s invocation of

her Fifth Amendment rights to help resolve a fact question relating to the

seriousness of Mitchell’s crime.    Here, by contrast, Washington had

already pled guilty to his crime, and there was no disagreement as to

what it was. Rather, the court’s question related to Washington’s drug
                                    13

use nearly four months after the crime to which he pled guilty, a

potentially relevant consideration in exercising sentencing discretion.

The Mitchell Court expressly left open the question whether a court may

consider the defendant’s silence to determine other factors relevant to

sentencing, such as lack of remorse or acceptance of responsibility:

      Whether silence bears upon the determination of a lack of
      remorse, or upon acceptance of responsibility for purposes of
      the downward adjustment provided in § 3E1.1 of the United
      States Sentencing Guidelines (1998), is a separate question.
      It is not before us, and we express no view on it.

Id. at 330, 119 S. Ct. at 1316, 143 L. Ed. 2d at 438–39.

      Mitchell, thus, does not address whether a defendant’s Fifth

Amendment right to remain silent is infringed whenever the court

considers his refusal to answer relevant questions in determining the

proper sentence. Furthermore, in this case, Washington was seeking a

deferred judgment, a benefit.   See State v. Nail, 743 N.W.2d 535, 545

(Iowa 2007) (describing deferred judgment as a benefit that allows the

defendant to avoid a conviction).     A sentencing judge could have a

legitimate reason for wanting to know whether Washington was

continuing to use marijuana months after his arrest before deciding

whether to defer judgment. As the State argues:

            The Court’s question related to sentencing, whether
      Washington had seen the error of his ways and stopped
      involving himself with controlled substances or with other
      people around him consuming them. If he had, the Court
      could be more lenient, secure in the belief his chances for
      reform were good. If Washington had not separated himself
      from a drug culture, the Court might not believe leniency
      was appropriate. His chances of re-offense would be higher.

      We, thus, recognize that whether a defendant is continuing to use

marijuana may be a relevant consideration at sentencing on a drug

conviction. On the other hand, in a strict sense, a judge who asks about
                                   14

drug use at sentencing is asking for information that might incriminate

the defendant.

      Some sentencing courts avoid Fifth Amendment issues altogether

by ordering the defendant to submit to a urinalysis to help determine

eligibility for probation on drug convictions.   See generally Anne M.

Payne, Propriety of Conditioning Probation on Defendant’s Submission to

Drug Testing, 87 A.L.R.4th 929 (1991 & Supp. 2012).             The Fifth

Amendment is not implicated because a urine test is not testimonial

evidence. See Hess v. Ables, 714 F.3d 1048, 1053 (8th Cir. 2013) (“[A]
urine drug test would not violate her Fifth Amendment right against self-

incrimination because urine samples, which are not             testimonial

evidence, do not trigger Fifth Amendment protections.”). A court-ordered

blood test, however, is a search for Fourth Amendment purposes. See

Missouri v. McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1558, ___

L. Ed. 2d ___, ___ (2013).   In State v. Guzman, a divided Wisconsin

Supreme Court rejected a Fourth Amendment challenge to a urinalysis

ordered for sentencing purposes to determine whether a defendant

convicted of a drug crime should be given probation. 480 N.W.2d 446,

456 (Wis. 1992). The majority noted, “Whether the convicted defendant

continues to use drugs is of paramount importance in his or her

rehabilitation.   A judge must necessarily have such information to

ascertain the rehabilitative needs of one convicted of a drug-related

offense.” Guzman, 480 N.W.2d at 454. Two justices dissented, fearing

the majority opened the door to a broad array of unconstitutional

searches.   See id. at 459 (Heffernan, C.J., dissenting).    Washington’s

appeal does not challenge a court-ordered urinalysis.       Rather, we are

confronted with the sentencing judge’s direct question to Washington

regarding his drug use.
                                    15

      After Mitchell, a number of state appellate decisions have held the

sentencing court may consider the defendant’s silence or refusal to

answer questions in determining the appropriate sentence.        See, e.g.,

State v. Hernandez, 295 P.3d 451, 454 (Ariz. Ct. App. 2013) (noting its

agreement “with those jurisdictions that have concluded the Fifth

Amendment does not preclude a sentencing court from considering a

defendant’s refusal to answer questions about the offense in determining

whether he or she is a suitable candidate for probation” and collecting

cases from other jurisdictions); State v. Blunt, 71 P.3d 657, 662 & n.13
(Wash. Ct. App. 2003) (recognizing that “most courts have generally

declined to extend Mitchell to prohibit inferences from silence in the

context of sentence enhancements that do not involve factual details of

the underlying crime” and collecting cases).

      One situation federal and state courts have repeatedly addressed

since Mitchell is whether the court may properly consider a defendant’s

refusal to participate in a      presentence investigation (PSI) when

sentencing the defendant. For example, in United States v. Kennedy, the

Sixth Circuit held Mitchell permits the district court applying federal

sentencing guidelines to consider the defendant’s refusal to participate in

a court-ordered psychosexual evaluation and interview that was part of

the PSI. 499 F.3d 547, 551–52 (6th Cir. 2007). The defendant objected

to the interview on Fifth Amendment grounds and argued the sentencing

court “improperly took account of his unwillingness” to answer

questions. Kennedy, 499 F.3d at 551. In rejecting his Fifth Amendment

challenge, the Sixth Circuit noted the sentencing court “plainly

considered Kennedy’s refusal to complete testing in determining his

propensity for future dangerousness, rather than in determining facts of

the offense.” Id. at 552. The Sixth Circuit read Mitchell narrowly:
                                    16
      Given the narrowness of its holding, Mitchell simply does not
      limit the district court’s ability to consider a wide variety of
      “information concerning the background, character, and
      conduct” of the defendant in determining an appropriate
      sentence, 18 U.S.C. § 3661; to “order a study of the
      defendant,” id. § 3552(b); and, therefore, to consider the
      defendant’s refusal to cooperate in assessing what sentence
      is necessary “to protect the public from further crimes of the
      defendant,” id. § 3553(a)(2)(C).

Id.

      State supreme courts likewise have read Mitchell as allowing the

sentencing court to consider the defendant’s noncooperation with a PSI.

See, e.g., Lee v. State, 36 P.3d 1133, 1141 (Wyo. 2001) (“It was
[defendant’s] right to refuse the [PSI] assessment and the district court’s

right to consider such refusal in determining the appropriate sentence.”).

In State v. Muscari, the defendant remained silent on advice of counsel

during the PSI interview. 807 A.2d 407, 415 (Vt. 2002). The sentencing

court accepted the PSI and sentenced him to a term in prison. Muscari,

807 A.2d at 415.     The Vermont Supreme Court affirmed the prison

sentence. Id. at 416–17. The Muscari court noted that, consistent with

Mitchell, the sentencing court permissibly “considered defendant’s silence

at the PSI as one factor in determining whether defendant had accepted

responsibility and expressed remorse for his violent criminal behavior.”

Id. at 416. Similarly, in Dzul v. State, a divided Nevada Supreme Court

affirmed the denial of probation to a defendant who refused to admit guilt

for the charged offense during the PSI’s psychosexual evaluation.        56

P.3d 875, 885–86 (Nev. 2002). The Dzul court, however, noted a split in

authority on whether a sentencing court could withhold leniency based

on the defendant’s refusal to admit guilt.      Dzul, 56 P.3d at 881–84

(surveying state and federal cases). The Dzul court relied on McKune to

hold the state may deny benefits to defendants who refuse to admit guilt

as to the crime of conviction during a sex-offender treatment program.
                                    17

Id. at 884–85. A majority of the Nevada Supreme Court concluded that

“presenting Dzul with the choice [to] admit[] responsibility for the offense

to which he pleaded guilty” to get a lighter sentence “does not violate his

Fifth Amendment right against self-incrimination.” Id. at 885. The Dzul

court distinguished cases holding the denial of sentencing reductions

could not be based on the defendant’s refusal to admit to uncharged

conduct. Id. at 883–84.

      We, too, followed McKune in rejecting a Fifth Amendment challenge

in Iowa District Court. See Iowa Dist. Ct., 801 N.W.2d at 527–28. But,
both McKune and Iowa District Court involved the defendant’s refusal to

admit his guilt in the crime for which he was sentenced in connection

with a sex-offender treatment program.      Id. at 527 (“Harkins does not

claim that he will be forced to disclose other, as-yet-unknown sex

offenses.”).   By contrast, Washington argues the Fifth Amendment

violation here arises from his refusal to answer questions about

uncharged conduct, that is, his use of marijuana at the time of

sentencing rather than his possession of that drug at the time of his

arrest nearly four months earlier. Washington also relies on our caselaw

holding the sentencing court is not permitted to consider unproven and

uncharged conduct. “It is a well-established rule that a sentencing court

may not rely upon additional, unproven, and unprosecuted charges

unless the defendant admits to the charges or there are facts presented

to show the defendant committed the offenses.” State v. Formaro, 638

N.W.2d 720, 725 (Iowa 2002). “If a district court improperly considers

unprosecuted and unproven additional charges, we will remand the case

for resentencing.” Id.; accord State v. Jose, 636 N.W.2d 38, 42–43 (Iowa

2001) (discussing showing required to vacate sentence).        Washington

argues the Fifth Amendment allowed him to refuse to answer whether his
                                        18

urinalysis at the time of sentencing would be “clean or dirty” and that the

sentencing court improperly penalized him with a harsher sentence for

invoking that right.

        McKune and Iowa District Court did not decide whether the Fifth

Amendment       precludes    a     sentencing   court    from      considering    the

defendant’s refusal to answer a question about uncharged conduct in

deciding whether to defer judgment or impose other conditions.                   But,

those decisions nevertheless provide guidance here regarding the choices

that may be imposed after the defendant’s guilt is established. In Iowa
District Court, we observed that, as in McKune, the inmate may be

confronted with hard choices. See Iowa Dist. Ct., 801 N.W.2d at 527–28.

The key question is “whether the choice arose as a result of the

defendant’s conviction within the criminal justice system and whether

imposing the choice serves a proper goal of that system.” Id. at 528. We

noted both the plurality and special concurrence in McKune “recognize[d]

that a fair criminal process may impose difficult choices on defendants to

serve    a   valid   penological    goal,   without     crossing    the   line   into

unconstitutional compulsion.” Id. at 523. We quoted Justice Kennedy’s

observation that, “ ‘[R]ehabilitation is a legitimate penological interest

that must be weighed against . . . an inmate’s liberty.’ ”                Id. at 520

(quoting McKune, 536 U.S. at 36, 122 S. Ct. at 2026, 153 L. Ed. 2d at 59

(plurality opinion)).   We concluded the sex-offender treatment program

“was established for bona fide rehabilitative purposes,” and “requiring

the offender to acknowledge responsibility for his offense serves one of

those purposes.” Id. at 519.

        The Fifth Amendment, thus, allows room for hard choices after a

conviction when legitimate penological goals are served.               A defendant

facing sentencing may confront such choices when he or she is asked to
                                        19

provide his or her version of the offense for purposes of a PSI. Likewise,

the defendant may face the same dilemma when offered the right of

allocution at the sentencing hearing. If the defendant does not admit to

having engaged in         criminal conduct, will the defendant appear

unremorseful or unlikely to benefit from rehabilitation?

      We    now   apply    these   principles   to   determine       whether   the

sentencing court violated Washington’s Fifth Amendment right against

self-incrimination.

      2. Application.     On our de novo review, we find the sentencing
court improperly penalized Washington for invoking his right against

self-incrimination.

      Washington concedes the sentence imposed was within statutory

limits. Accordingly, his sentence “is cloaked with a strong presumption

in its favor, and will only be overturned for an abuse of discretion or the

consideration of inappropriate matters.” Formaro, 638 N.W.2d at 724.

To overcome the presumption, we have required an affirmative showing

the sentencing court relied on improper evidence. Jose, 636 N.W.2d at

41; cf. State v. Mitchell, 670 N.W.2d 416, 424–25 (Iowa 2003) (requiring

showing of “actual vindictiveness” to prevail on due process challenge to

harsher    resentence   imposed    by    different   judge   after    defendant’s

successful appeal).

      It can be difficult to draw the line between protecting the right

against self-incrimination and preserving sentencing discretion. In Burr

v. Pollard, the Seventh Circuit described the line-drawing challenge as

follows:

      The Fifth Amendment protects an accused’s right to remain
      silent at trial and sentencing. That right, of course, would
      mean little if a judge could punish a defendant for invoking
      it. Nevertheless, silence can be consistent not only with
                                    20
      exercising one’s constitutional right, but also with a lack of
      remorse. The latter is properly considered at sentencing
      because it speaks to traditional penological interests such as
      rehabilitation (an indifferent criminal isn’t ready to reform)
      and deterrence (a remorseful criminal is less likely to return
      to his old ways). The line between the legitimate and the
      illegitimate, however, is a fine one. As we have recognized,
      “sometimes it is difficult to distinguish between punishing a
      defendant for remaining silent and properly considering a
      defendant’s failure to show remorse in setting a sentence.”

546 F.3d 828, 832 (7th Cir. 2008) (citations omitted).

      Our line-drawing in this case is simplified by the fact Washington’s

Fifth Amendment challenge is to the sentence of 250 hours of community

service. Unlike in Iowa District Court, this is not a situation in which the

consequence (a determination that the defendant failed to complete sex-

offender treatment and was not eligible for earned-time credits) bore a

relationship to a legitimate penological purpose of the inquiry that the

defendant refused to answer. We do not see how additional community

service is related to a positive drug test or to an adverse inference drawn

from a refusal to answer whether the test would be “clean or dirty.” If

Washington is still using drugs, it might be logical to refuse to defer

judgment on the ground that Washington needs a more structured

approach, but additional community service seems purely punitive.
Neither the State nor the sentencing court contends Washington’s 250

hours of community service serves a legitimate penological purpose

connected to his refusal to answer whether he currently is using

marijuana. We need not decide today whether a sentencing court could

order drug treatment or rehabilitation or deny a deferred judgment based

on defendant’s refusal to answer whether a drug test would be positive.

The court did defer judgment for Washington. Rather, we must decide

on this record whether, as Washington argues, the court imposed
                                     21

additional community service hours to penalize him for invoking his right

to remain silent. If so, resentencing is required.

      We accept as accurate defense counsel’s account of the off-the-

record colloquy and the plea and sentencing hearing, an account the

judge did not dispute when it was restated on the record. The State had

reached a plea agreement with Washington to recommend a deferred

judgment on the possession of marijuana, first offense, with one year of

probation, fifty hours of community service, a $500 civil penalty, and

dismissal of the companion weapon and drug paraphernalia charges.
According to defense counsel’s statement on the record, “the court

routinely doesn’t impose any community service on deferred judgments,

or it is anywhere from 50 to 100 hours.”        The State does not argue

otherwise. The district court initially accepted the guilty plea and stated,

“I’m going to defer judgment.” The court next asked about Washington’s

employment and ability to pay the $500 civil penalty. So far, there is

nothing out of the ordinary.

      The trouble began when the sentencing judge asked Washington if

he would be “clean or dirty” if he took a drug test. When defense counsel

objected and asserted Washington’s Fifth Amendment right to remain

silent, the court reacted by immediately stating that he “didn’t have to

defer judgment” and Washington “can take the conviction.” This raises a

red flag. The proceedings continued on the record with defense counsel

restating what had transpired moments earlier.       The parties reiterated

the terms of the plea agreement, and the court conducted an appropriate

plea colloquy before accepting [again] Washington’s guilty plea on the

charge of the possession of a controlled substance, first offense.      The

court reexamined Washington’s employment status and ability to pay the

civil penalty.
                                        22

      The court then repeated the inquiry, “Mr. Washington, if you were

to drop a urine sample today, would it be clean or dirty for marijuana?”

Defense counsel instructed Washington not to answer and again invoked

his right against self-incrimination, citing Mitchell.     The court at that

point granted Washington’s request for a deferred judgment, noting his

lack of prior criminal history.       The court lowered the civil penalty by

$185 to $315 “because Mr. Washington ha[d] not worked since the

summer.” But, then, the court imposed 250 hours of community service

“in light of the nature of the offense.” This was a five-fold increase over
the fifty hours in the plea agreement. The sentencing court denied the

250 hours was imposed because Washington “invoked his constitutional

right not to answer the Court’s question.”          Yet, when challenged to

“articulate    why    the   Court    feels   250   hours   is   necessary   for

Mr. Washington’s case,” the court answered, “it just believes that

Mr. Washington would benefit by the community service, as would the

community, in light of the deferred judgment being granted in this

matter.”      The court offered no other explanation, despite the earlier

request by the State that the “Court enunciate specifically its reasons for

granting or denying a deferred judgment.”           The court articulated no

rehabilitative or penological purpose for the 200 additional hours that

was connected to Washington’s possible drug use.

      We find the sentencing court’s cryptic explanation unsatisfactory

in light of what had just transpired. The court did not have a positive

drug test from Washington or any admission that he was using

marijuana at that time.      The court had previously indicated it would

grant a deferred judgment.          The court abruptly reversed course and

stated it would instead enter a conviction when Washington first asserted

his Fifth Amendment right to decline to answer the court’s “clean or
                                    23

dirty” question.   We find that exchange reveals the court’s intent to

punish Washington for exercising his constitutional right.           When

challenged, on the record, the court then allowed the deferred judgment,

but quintupled the community service over the fifty hours recommended

by the State in the plea agreement. It would take Washington more than

six, forty-hour weeks to discharge that community service.      The $185

reduction in the civil penalty from $500 to $315 equates to ninety-two

cents per hour for the extra 200 hours. There is no evidentiary support

in the record for the district court’s assertion that 250 hours of
community service was in the “range” of other orders entered the

previous day.      In the absence of any other plausible explanation

proffered, we find that the additional 200 hours was imposed in

retaliation for Washington’s invocation of his constitutional right against

self-incrimination. Resentencing is required.

      IV. Conclusion.

      For the foregoing reasons, we deny Washington’s motion to take

judicial notice of other court files.   We hold that the sentencing court

improperly penalized Washington for invoking his Fifth Amendment right

against self-incrimination.    We, therefore, vacate the sentence and

remand the case for resentencing.

      SENTENCE        VACATED       AND      CASE    REMANDED         FOR

RESENTENCING.

      All justices concur except Cady, C.J., and Mansfield, J., who

dissent.
                                      24
                                             #12–0305, State v. Washington

CADY, Chief Justice (dissenting).

         I respectfully dissent. I would affirm the judgment of the district

court.

         The law properly cloaks judges with a presumption that they acted

properly in the imposition of a sentence in a criminal case when faced

with a claim that they used an improper sentencing consideration. State

v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). This strong and venerable

presumption is overcome only by proof that an improper consideration

was used by the court. See id. (indicating an abuse of discretion will not

be found unless the reviewing court is able to discern the decision was

exercised on grounds that were clearly untenable).

         When, as in this case, the judgment or sentence imposed by the

district court was within the scope of discretion, the presumption of

legality should shield the sentencing judge from an inference that an

improper sentencing consideration could have been used. The invocation

of a right under the Fifth Amendment by a defendant at the time of

sentencing in response to an inquiry by the sentencing court about any

criminal conduct committed by the defendant during the pendency of the

case can become the basis of an inference of retaliatory sentencing, but it

can also be a proper penological sentencing consideration. Cf. State v.

Iowa Dist. Ct., 801 N.W.2d 513, 527–28 (Iowa 2011). Yet, the imposition

of a sentence by the court, following the invocation of the right, that

merely falls within the high range of discretion does not establish proof of

retaliation. The invocation, instead, remains an uncertain factor in the

sentence.

         In this case, the district court said it imposed a higher number of

community service hours as a part of the deferred judgment granted to
                                     25

the defendant because it felt the higher amount of community service

hours was proper, not because it wanted to retaliate against the

defendant for refusing to admit or deny any drug use. The defendant

was unemployed at the time of sentencing, in possession of a firearm at

the time of arrest, and rebuked all inquiries by the judge about his

current use of drugs. There was simply no direct evidence of retaliation.

Instead, it would appear the court wanted to make a very lenient form of

punishment, which provides offenders with an opportunity to avoid the

heavy burden of a record of a criminal conviction, more meaningful to
the offender to better promote successful rehabilitation.

      Without direct evidence of a retaliatory motive by the sentencing

judge, the presumption of legality must prevail.       The district judge

deserves such a result, as does the time-honored presumption given by

the law to judges in the performance of their work.

      Mansfield, J., joins this dissent.
