                   IN THE COURT OF APPEALS OF IOWA

                                    No. 13-2042
                              Filed February 11, 2015


DONZELL LINDSEY,
    Applicant-Appellee/Cross-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellant/Cross-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Marsha A.

Bergan, Judge.



      The State appeals from the district court’s grant of Donzell Lindsey’s

application for postconviction relief, and Lindsey cross-appeals. AFFIRMED ON

APPEAL, REVERSED ON CROSS-APPEAL.

      Thomas J. Miller, Attorney General, and Forrest Guddal, Assistant

Attorney General, for appellant/cross-appeellee.

      Mark Smith, State Appellate Defender, Patricia Reynolds, Assistant

Appellate   Defender,   and     Angela   O’Kane,   Student   Legal   Intern,   for

appellee/cross-appellant.



      Heard by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
                                        2


VAITHESWARAN, J.

      We must decide whether the Iowa Department of Corrections has

authority to refer an inmate to its sex offender treatment program where the

district court did not make a finding that the crimes to which he pled guilty were

sexually motivated.

              I. Procedural Background

      The State and Lindsey stipulated to the pertinent procedural history. The

State charged Lindsey with first-degree burglary, domestic assault (second

offense) and third-degree sexual abuse. Lindsey pled guilty to second-degree

burglary, in violation of Iowa Code sections 713.1 and 713.5 (2009), and

domestic abuse assault, second offense, in violation of section 708.2A(1) and

(3)(a). The State dismissed the sexual abuse charge. The district court did not

make a finding that the crimes to which Lindsey pled guilty were “sexually

motivated” for purposes of the sex offender registration requirements and did not

require Lindsey to register as a sex offender for this case.     See Iowa Code

§ 692A.126.

      On Lindsey’s confinement, the director of the Iowa Department of

Corrections sex offender treatment program, Gail Huckins, notified Lindsey she

had reviewed his crime and determined there was a “sexual component” which

required referral to an administrative law judge for a determination as to whether

Lindsey needed to participate in the Sex Offender Treatment Program. Following

an unreported hearing, the administrative law judge ordered participation in the

program.
                                        3


       Lindsey filed an application for postconviction relief challenging the

decision. At a hearing on the application, Huckins identified several groups of

inmates as suitable candidates for the sex offender treatment program:

(1) inmates convicted of sex offenses, (2) inmates with completely nonsexual

crimes who acted out sexually in prison, and (3) inmates having “sexual

components” to their offenses. She placed Lindsey in the third category. Her

testimony was consistent with the parties’ stipulation concerning the reason for

the referral.

       The district court preliminarily concluded the department had “the

authority—subject to a due process hearing—to direct an offender in Lindsey’s

shoes to complete [the sex offender treatment program], despite the fact that the

offender is not convicted of a sex offense.”     The court nonetheless granted

Lindsey’s postconviction relief application after concluding the administrative law

judge inappropriately applied a “harmless error analysis” and “went outside the

record provided to him for the hearing without notice to Lindsey before the

hearing,” thereby violating Lindsey’s due process rights. The court vacated the

decision and ordered the State to “restore the earned time credits (if any there

be) of [Lindsey] retroactive to the date on which earned time credit accrual was

suspended.”

       The department appealed and Lindsey cross-appealed. In our view, the

cross-appeal issue is dispositive: whether the department has the authority to

determine if Lindsey’s offenses were sexually motivated for purposes of referral

to the sex offender treatment program. Accordingly, we find it unnecessary to

address the department’s appeal issues.
                                             4


               II. Authority for Referral

       Lindsey bases his cross-appeal on the interplay between two statutes:

Iowa Code chapter 903A, governing reduction of sentences, and Iowa Code

chapter 692A, governing the sex offender registry.

       Chapter 903A allows inmates to earn reductions of their sentences based

on their conduct in prison. Iowa Code § 903A.2(1)(a) (2013). For sentences like

Lindsey’s second-degree burglary sentence, the reduction is “equal to one and

two-tenths days for each day the inmate demonstrates good conduct and

satisfactorily participates in any program or placement status identified by the

director to earn the reduction.” Id. Pertinent to this appeal, “an inmate required

to participate in a sex offender treatment program shall not be eligible for a

reduction of sentence unless the inmate participates in and completes a sex

offender treatment program established by the director.” Id. at § 903A.2(1)(a)(5).

       Iowa Code section 692A.103(1) requires a person to register as a sex

offender if the person has “been convicted of any sex offense classified as a tier

I, tier II, or tier III offense.” The statute lists as a tier III offense “[b]urglary in the

second degree in violation of section 713.5, if a determination is made that the

offense was sexually motivated pursuant to section 692A.126.”                  Iowa Code

§ 692A.102(1)(c)(19). Section 692A.126, in turn, authorizes registration only if “a

judge or jury makes a determination, beyond a reasonable doubt, that any of the

following offenses for which a conviction has been entered on or after July 1,

2009, are sexually motivated” including “[b]urglary in the second degree in

violation of section 713.5.” Sexually motivated” means “one of the purposes for

commission of a crime is the purpose of sexual gratification of the perpetrator of
                                          5


the crime.” Iowa Code § 692A.101(29) (defining term as it is defined in Iowa

Code section 229A.2). Before July 1, 2009, this determination was vested with

the department of public safety. See Iowa Code §§ 692A.1, .2 (2007) (repealed

by 2009 Iowa Acts Ch. 119, section 31).

      Lindsey essentially asserts he was not an inmate “required to participate

in a sex offender treatment program” because the district court declined to make

the finding necessary to classify him as a sex offender subject to the registry

requirements of chapter 692A and the Iowa Department of Corrections lacked

authority to make the finding in the district court’s stead.   The department

counters that “the requirements of either chapter are not necessarily contingent

on the other, and the district court correctly determined that the absence of a

duty to register on the [sex offender registry] does not preclude [the

department’s] requirement of [sex offender treatment program] participation by

Lindsey.”

      We have no quarrel with the department’s argument, in principle. We can

envision circumstances in which the department may have authority to refer an

inmate to the sex offender treatment program whether or not the inmate was

required to register as a sex offender under chapter 692A. Huckins cited one

such circumstance—sexual misconduct within the prison.      But that is not the

circumstance on which Huckins or the department relied in referring Lindsey for

treatment. The department stipulated the referral was made on the basis of the

“sexual component” to his crime. The key question, then, is whether there was a

sexual component to the crimes for which Lindsey was convicted.
                                             6


       Because the crimes were not facially sexual, there had to be some finding

they were sexual. The district court made no such finding under chapter 692A or

otherwise. The department attempted to make the finding after the fact, relying

on references to sexual misconduct contained in the minutes of testimony.

These references, however, were not a predicate to a finding of guilt on either the

burglary or domestic abuse assault charges.                The references may have

supported the sex-abuse charge but, as noted, that charge was dismissed. The

allegations of sexual misconduct contained in the minutes were “facts” in name

only-unadmitted and unproven.1 If the department intended to base the referral

on the “sexual component to the crime,” there had to be an admitted or otherwise

established sexual component to the crime.              There was none here.           See

Oldenkamp v. Iowa Dep’t of Pub. Safety, No. 10-2076, 2011 WL 5395062, at *7–

8 (Iowa Ct. App. Nov. 9, 2011) (finding minutes inadequate to establish predicate

to placement on registry based on victim’s age because “[a]lthough the minutes

of testimony identify the victim as a minor, they do not constitute a sentencing or

adjudicatory order” and “minutes of testimony are ‘simply ex parte statements of

certain witnesses, and hearsay.’”); cf. State v. De Bont, 273 N.W. 873, 874 (Iowa

1937) (noting minutes of witnesses who appeared before grand jury “are not

evidence for any purpose except when introduced to impeach the testimony of

some witness who testified before the grand jury and later in a trial gives contrary

evidence,” and it was “highly prejudicial” to allow consideration of minutes by jury


1
  The department cites Iowa Code section 904.602(2)(n) for the proposition that the
department is authorized to consider minutes of testimony. This provision simply holds
pretrial information not otherwise available to the public “is confidential and shall not be
disseminated by the department.” (Emphasis added.).
                                        7


because “[i]t was as though there were twelve witnesses appearing before the

jury without being sworn and without the appellant having a right to cross-

examine said witnesses”).

      The department nonetheless asserts it possessed authority to make the

necessary finding where the district court did not.    The department relies on

Dykstra v. Iowa District Ct., 783 N.W.2d 473 (Iowa 2010). Like Lindsey, Dykstra

argued the department “could not require him to participate in the [sex offender

treatment program] because he was not convicted of a ‘sex offense’ and was not

serving a sentence for a sex-related crime when his ability to accrue earned time

was revoked.” Dykstra, 783 N.W.2d at 478. The court concluded the department

had “statutory authority to rely on a current conviction for a non-sex offense when

the underlying facts are of a sexual nature.” Id. at 479–80. The court allowed

the department to find the facts pursuant to its “broad discretion” to “develop

policy and procedural rules to implement” criteria for which inmates will be

“required to participate” under section 903A.2(1)(a). Id. at 478–79.

      We agree Dykstra empowers the department to adopt policies and rules

and to sanction prisoners’ non-compliance with those policies and rules by

withholding good time credit. See Iowa Code § 903A.4. But Dykstra does not

extend this authority to promulgation of policies and rules permitting the

consideration of unproven and unadmitted “facts.” Indeed, the Dykstra court

expressed specific concern about the department’s reliance on “unadmitted

factual allegations surrounding the simple assault.” Id. at 484–85.

      Significantly, even district courts may not rely on these types of “facts.”

See De Bont, 273 N.W. at 874. See also State v. Sailer, 587 N.W.2d 756, 762
                                         8


(Iowa 1998) (prohibiting court from relying “upon ‘additional, unproven, and

unprosecuted charges’ when no facts before the court show the charges are

valid and the defendant does not admit the additional charges”); State v.

Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998) (“Where portions of [the minutes of

testimony] are not necessary to establish a factual basis for a plea, they are

deemed denied by the defendant and are otherwise unproved and a sentencing

court cannot consider or rely on them.”); State v. Black, 324 N.W.2d 313, 315–16

(Iowa 1982) (same as Sailer). The department should not be allowed to utilize

information a district court would plainly be forbidden from considering.

       Our conclusion that the department may not adopt rules or policies

permitting the consideration of unadmitted and unproven facts in referring an

offender to a sex offender treatment program is bolstered by State v. Valin, 724

N.W.2d 440 (Iowa 2006). There, a defendant convicted of operating a motor

vehicle while intoxicated objected to special terms of probation, including a

requirement he undergo sex offender treatment. Valin, 724 N.W.2d at 442. The

department justified the requirement on the basis of a prior conviction for assault

with intent to commit sexual abuse.      Id.   The district court ordered Valin to

undergo sex offender treatment. Id. at 443. On appeal, the Iowa Supreme Court

concluded there was “an insufficient nexus between Valin’s present conviction

and his special conditions of probation to advance the goals of probation.” Id. at

447. The court stated,

       [t]he reasonableness of sex abuse treatment as a condition of
       probation for an unrelated crime of conviction must be supplied by
       the individual facts or evidence in each case. The DCS policy
       [requiring all probationers with a prior sex abuse conviction to
       participate in sex abuse treatment] paints with a brush that is too
                                         9


      broad, and covers all defendants with a prior record of conviction
      for sex abuse, without individually considering the actual or current
      need for rehabilitation or public protection.

Id. at 448. See also Waters v. Iowa Dist. Ct., 783 N.W.2d 487, 489 (Iowa 2010)

(leaving open whether the discretion of the department would be limited if there

were no “problem currently suffered,” but finding Waters “entered prison to serve

two sentences: the five-year OWI sentence and a two-year sentence for assault

with intent to commit sexual abuse.”); State v. Stringer, No. 13-0579, 2014 WL

250252, at *2 (Iowa Ct. App. Jan. 23, 2014) (reversing district court order

requiring sex offender treatment as term of probation for prostitution conviction

where defendant “had been accused of rape on two occasions but “one of those

charges was dismissed completely and the other one was dropped down to false

imprisonment” and it could not be said the thirty-year-old false imprisonment

conviction stemmed from a sexual encounter.).

      The department painted with an even broader brush in Lindsey’s case.

The department made the referral for sex offender treatment without the benefit

of any rules or policies to circumscribe its discretion. See Iowa Code § 903A.4

(requiring department to develop policy and procedural rules to implement

statute); Dykstra, 783 N.W.2d at 479 (same). At the time of the referral, the

department’s rule titled “Sex Offender Risk Assessment” had been rescinded.

Iowa Admin. Code r. 201-38.3 (2013).           The former version required the

department to conduct a sex offender risk assessment upon

      every offender under each agency’s authority who is required to
      register under Iowa Code chapter 692A on or after July 1, 2005,
      who has committed a criminal offense against a minor, or an
      aggravated offense, sexually violent offense, or other relevant
      offense that involved a minor in this state or in another state, or in a
                                            10


       federal, military, tribal, or foreign court, or on a person required to
       register in another state under the state's sex offender registry. The
       risk assessment should be completed within 45 days prior to the
       offender's release from custody or upon the offender's placement
       on probation, parole, or work release.

Iowa Admin. Code r. 201-38.3 (2009). Under the former rule, Lindsey could not

have been required to undergo a sex offender risk assessment because he was

not required to register under Iowa Code chapter 692A. The department failed to

implement other rules which would have required a referral to sex offender

treatment under his circumstances.          See Iowa Admin. Code r. 201-38.2, .4

(2013) (applicable only to electronic monitoring of sex offenders and hormonal

intervention therapy). Additionally, the department has pointed us to no policies

in effect at the time Lindsey was referred to the program which authorized a

referral based on a “sexual component” to the crime.2

       In short, the department referred Lindsey to the sex offender treatment

program notwithstanding the absence of any statute, rule, or policy supporting

such a referral and notwithstanding the absence of a finding by the criminal court

of a sexual component to any of the crimes for which he was convicted. Lindsey

could not be required to participate in a sex offender treatment program for a

crime lacking a sexual component. If that were the case, any inmate convicted of

any crime could be required to undergo sex offender treatment.



2
  Policy number OP-SOP-08, which came into effect later, requires the department to
review and refer offenders who “are not incarcerated for a Sex Crime but have a sexual
component to their crime” to the sex offender treatment program director. Iowa Dep’t of
Corr., OP-SOP-08, Sex Offender Program Referrals (2014), available at
http://www.doc.state.ia.us/Policies. The director will then review the “current conviction
and circumstances of [the] offense” as well as the “minutes of testimony/court
documents” and “prior arrests/convictions” to determine if the offender will be placed into
a sex offender treatment program. Id.
                                         11


      Because the department lacked statutory, rule, or policy authority to make

a finding that Lindsey’s current convictions contained a sexual component, it

could not refer Lindsey to the sex offender treatment program based on a “sexual

component” to his crime, even if the referral was subject to a due process

hearing before an administrative law judge.

      We recognize the administrative law judge “ha[d] the full authority to . . .

receive in evidence the testimony of witnesses and any documents which are

relevant and material.”   Iowa Admin. Code r. 481-10.20(7)(e).     However, the

judge could not consider the minutes for the same reason Huckins could not and

the district court could not—the sexual component allegation related to a

dismissed charge. See De Bont, 273 N.W. at 874. See also Goodwin v. State,

585 N.W.2d 749, 753 (Iowa Ct. App. 1998) (holding administrative law judge’s

reliance on dismissed charge was abuse of discretion).

      We affirm the district court’s reversal of the department of corrections

decision but on the alternate ground raised by Lindsey—the department lacked

authority to refer Lindsey to the sex offender treatment program in the first

instance.

      AFFIRMED ON APPEAL, REVERSED ON CROSS-APPEAL.

      Potterfield, J., concurs; Vogel, P.J., dissents.
                                         12


VOGEL, P.J. (dissenting)

      I respectfully dissent from the majority’s conclusion the Iowa Department

of Corrections (IDOC) did not have the authority to refer Lindsey to the sex

offender treatment program (SOTP). I agree that IDOC cannot rely on unproven

factual allegations when requiring an inmate to participate in SOTP. However, I

disagree with the conclusion that, even following a hearing before an

independent factfinder—unless the inmate admitted or the district court found

that the underlying facts of the crime were sexually motivated—IDOC cannot

ultimately require participation in SOTP. Rather, I would conclude IDOC can rely

on unadmitted-to facts when initially referring an inmate to SOTP, but, then, due

process requires a hearing before an independent factfinder before participation

in SOTP is required. This holding, I believe, is consistent with Dykstra v. Iowa

Dist. Ct., 783 N.W.2d 473 (Iowa 2010).

      Our supreme court has held that, even when an inmate is not convicted of

a crime involving a sexual element, pursuant to chapter 903A, the IDOC may

nonetheless refer an inmate to SOTP. Dykstra, 783 N.W.2d at 479. Specifically:

“IDOC has statutory authority to rely on a current conviction for a non-sex offense

when the underlying facts are of a sexual nature.” Id. at 479–80. Though the

Dykstra court did not examine the intersection between chapter 903A and section

692A.126, its holding clearly states IDOC has the authority to examine the

underlying factual basis of the crime, regardless of the actual statutory

conviction. Id. This holding, therefore, implies IDOC is permitted to examine the

minutes of testimony when initially deciding whether or not to refer an inmate to
                                        13


SOTP, regardless of whether the inmate admitted that the sexual-component

allegations were true.

       Nonetheless, the majority is correct that Dykstra held participation in

SOTP cannot be required on the basis of unadmitted or unproven facts.

Specifically, the Dykstra court held that, because there is a protected liberty

interest in good time credits, procedural protections are required before an

inmate can be required to participate in SOTP. Id. at 483. Thus, due process

requires “advance written notice, a written statement of reasons and findings by

the factfinder, and a neutral factfinder.”   Id.   That is the procedure that was

followed here. Huckins reviewed the minutes of testimony and then referred

Lindsey to the administrative law judge (ALJ).       A hearing was held in which

Lindsey presented his own evidence, and in a written opinion, the ALJ

determined Lindsey’s convictions had underlying facts of a sexual nature;

consequently, Lindsey was required to participate in SOTP. Under Dykstra, the

proper procedures were followed, and Lindsey’s due process rights were

satisfied. See id.; see also Office of Citizens’ Aide/Ombudsman v. Edwards, 825

N.W.2d 8, 16 (Iowa 2012) (“Our review of the governing statutes confirms IDOC

ALJs are to be independent and impartial adjudicators performing a quasi-judicial

role in prison disciplinary cases.”).

       With these procedural safeguards in place, I would conclude that, despite

the fact Lindsey was not convicted of a crime with a sexual element, and the trial

court made no finding his crime was sexually motivated, IDOC nonetheless had

the authority to order him to participate in SOTP, particularly given the fact that

his due process rights were satisfied. See Dykstra, 783 at 485 (stating “Iowa
                                            14


Code section 903A.2 vests discretion in IDOC to require SOTP.”).                  I would

therefore affirm on the cross-appeal.3




3
  Although the State’s appeal was not addressed in the majority, I would conclude the
district court was correct in its holding that, pursuant to Dykstra, the ALJ is required to
perform an independent determination regarding whether the inmate’s classification is
appropriate under a “standard of proof” analysis, and the “harmless error analysis” is
only applicable to a procedural due process challenge.
