                   IN THE SUPREME COURT OF IOWA
                                No. 15–0948

                         Filed December 23, 2016

                       Amended February 27, 2017

STATE OF IOWA,

      Plaintiff,

vs.

IOWA DISTRICT COURT FOR JONES COUNTY,

      Defendant.



      Certiorari to the Iowa District Court for Jones County, Lars G.

Anderson, Judge.



      Iowa Department of Corrections appeals district court’s ruling

reversing agency decision requiring inmate convicted of domestic abuse

assault to participate in sex offender treatment program.              WRIT

SUSTAINED AND CASE REMANDED.



      Thomas J. Miller, Attorney General, and John B. McCormally,

Assistant Attorney General, for plaintiff.



      Mark    Smith,   State   Appellate     Defender,   and   John   Bishop,

Cedar Rapids, until withdrawal, and then Anthony Burton Irvin pro se.
                                      2

WATERMAN, Justice.

      In this appeal, we must decide whether the Iowa Department of

Corrections (IDOC) violated an inmate’s rights by requiring him to

participate in the Sex Offender Treatment Program (SOTP). The inmate

pled guilty to domestic abuse assault in a plea bargain that dismissed a

related sex abuse charge. The IDOC initially relied on the dismissed sex

abuse charge and the victim’s detailed, written statement included in a

police report to refer him for mandatory SOTP.      An administrative law

judge (ALJ) upheld that determination following an evidentiary hearing

based on the inmate’s admission that he assaulted his girlfriend during

oral sex and the victim’s statement. The district court reversed based on

an unpublished, nonprecedential decision, Lindsey v. State, No. 13–

2042, 2015 WL 568560 (Iowa Ct. App. Feb. 11, 2015), which held the

IDOC cannot use unproven charges to require SOTP.          We granted the

IDOC’s request for a writ of certiorari.

      For the reasons explained below, we hold the IDOC may rely on the

victim’s written statement in a police report for the initial classification

requiring SOTP, provided the inmate is afforded due process, including

an evidentiary hearing to challenge that classification. The ALJ, in turn,

may uphold the classification based on the inmate’s own testimony

admitting to a sexual component to the assault, along with other

evidence, including hearsay such as the victim’s detailed account.

Accordingly, we sustain the writ, reverse the judgment of the district

court, and remand the case to reinstate the IDOC’s decision requiring

this inmate’s participation in the treatment program.

      I. Background Facts and Proceedings.

      Anthony Irvin is an inmate at Anamosa State Penitentiary under

the custody of the IDOC serving a prison sentence for domestic abuse
                                     3

assault following his guilty plea.   The victim was his live-in girlfriend.

The minutes of testimony, which incorporated by reference the police

report with the victim’s detailed account, alleged that at 8:30 p.m. on

October 28, 2012, Irvin became angry upon finding calls to another man

made from his girlfriend’s phone. Irvin accused her of infidelity. When

she attempted to explain, he grabbed her by the throat and threw her

across the room. Irvin then began smoking crack cocaine and watching

porn.    About 1:30 a.m., he forced his girlfriend to smoke crack and

perform oral sex on him.    According to her statement, at around 3:30

a.m., she told him she did not want to continue. Irvin ordered her to

keep going. She stopped and pulled away. Irvin again grabbed her by

the throat. She struggled, and Irvin put her in a headlock and strangled

her until she passed out. When she awoke, she felt dizzy and found she

had urinated on herself. She began sobbing, and Irvin threatened to kill

her before she could call the police or neighbors. She laid in bed until

morning, when she went to work. The police were contacted and came to

her workplace. Her statement and photos of her injuries were taken that

day. Police arrested Irvin at their home.

        The State charged Irvin with two counts: (1) domestic abuse

assault by knowingly impeding the normal breathing or circulation of the

blood of another person in violation of Iowa Code section 708.2A(2)(d)

(2013); and (2) sexual abuse in the third degree for performing a sex act

by force in violation of section 709.4. At that time, Irvin also had prior

charges of domestic abuse assault and sexual abuse in the third degree

pending for another incident with a different victim.

        On August 20, 2013, the State reached a plea agreement with

Irvin, who pled guilty to two counts of domestic abuse assault in

violation of section 708.2A(2)(d) in exchange for the dismissal of both
                                     4

charges of sexual abuse in the third degree. The court sentenced Irvin to

an indeterminate period of incarceration not to exceed two years on each

offense, to be served consecutively, and imposed a $625 fine. Irvin was

also sentenced on two unrelated theft charges.          Irvin’s cumulative

sentence totaled six years. The sentencing order recommended that Irvin

be enrolled in a batterer’s education treatment course. The district court

made no finding that the crimes to which Irvin pled were sexually

motivated and did not require Irvin to register as a sex offender.

      On October 14, shortly after Irvin arrived at the IDOC’s

Mount Pleasant Correctional Facility (MPCF), his counselor, Kasey Bean,

sent an email to Sean Crawford, the director of the SOTP. Bean’s email

stated that based on Irvin’s original sexual abuse charge, she “believe[d]

he may be eligible for SOTP.”     Crawford responded a few weeks later,

stating, “Offender’s file has been reviewed and it is my opinion there is a

sexual component involved in his current conviction. DOC will require

SOTP.”

      On December 16, the IDOC notified Irvin that he had been

classified as an offender required to complete sex offender treatment.

The notice stated the classification “may affect [his] future accrual of

earned time and tentative discharge date pursuant to Iowa Code

§ 903A.2(1)(a).” The notice set forth the reasons for his classification in

a section entitled, “Classification Committee Justification/Evidence”:

            Offender Irvin is currently incarcerated on charges of
      domestic abuse and 3rd degree theft. Originally charged also
      with sex abuse 3rd, he ple[d] to the current charges. Along
      with beating his victim up, he forced the female to perform
      oral sex on him. Offender Irvin has never completed any
      type of sex offender treatment program and because of the
      sexual component to his crime the DOC/MPCF will require
      he do so.
                                        5

The notice listed the evidence relied upon by the IDOC for Irvin’s

classification, including the (1) program records, (2) email by Sean

Crawford, (3) trial information, (4) police report, and (5) minutes of

testimony. The police report was attached to the minutes and noted that

Irvin “beat his victim up” and “force[d] her to perform oral sex.”         The

police report quoted a detailed statement from the victim taken down the

day after the assault.    The victim’s account was also quoted in the

minutes.    Finally, the notice informed Irvin “that an in-person or

telephonic hearing on your appeal of the sex offender treatment program

requirements will be held on Wednesday, January 8,” before an ALJ. The

notice stated that “[a]ll documents or other exhibits that you want

considered at the hearing” must be submitted two business days before

the hearing, and if Irvin did not appear, a judgment would be entered

against him. At the bottom of the notice was a section an offender could

sign to waive the hearing. On December 17, Irvin signed to waive the

hearing.

      In February of 2014, Irvin was transferred from the MPCF to

Anamosa State Penitentiary. On April 14, Irvin wrote a letter to John

Baldwin, then director of the IDOC, and Jason Carlstrom, then chair of
the Iowa Board of Parole. Irvin asserted that he should not be referred to

SOTP because he “had never been convicted of a sex charge, only

accused of one.”    He alleged the prosecutor dismissed the sex counts

because,   during   the   course   of   trial   preparation,   the   prosecutor

determined those charges to be unfounded.            Irvin noted neither the

sentencing order nor the plea agreement recommended that he

participate in SOTP, only that he participate in batterer’s education.

Sheryl Dahm, then assistant deputy director at the IDOC, responded to
                                          6

Irvin’s letter on April 22, stating that Irvin’s classification was based on

IDOC policy.

      In June, Irvin received another classification notice.                The notice

mentioned that, due to an error, Irvin’s accrual of earned time had not

been halted since the first December classification notice.                 The June

notice gave Irvin another opportunity for an ALJ hearing scheduled for

July 16. Irvin acknowledged this notice, and this time did not waive the

hearing. At the hearing, Irvin submitted his affidavit; a copy of the plea

agreement; and a copy of Dykstra v. Iowa District Court, 783 N.W.2d 473

(Iowa 2010). The hearing was unreported.

      On July 25, the ALJ affirmed the IDOC’s classification decision.

The ALJ specifically found that due process requirements for the

classification had been met: Irvin had been given notice of the hearing

and presented evidence, the ALJ provided an explanation for the reasons

behind the classification, and the ALJ “was not involved in the [initial]

classification   decision   at   issue,       so   he   [could]   be   an    impartial

decisionmaker in this matter.”        The ALJ examined the two domestic

abuse convictions, one arising out of Irvin’s altercation with his girlfriend

and the other arising from the separate incident with a different victim.

The ALJ determined the allegations in the separate incident were “not

sufficient to find that IRVIN needs SOTP” because the violence was

unrelated to a sex act. The ALJ found the other charge involving Irvin’s

girlfriend required SOTP because “[t]he evidence in the record indicates

that IRVIN’s behavior shows that he currently suffers from a problem for

which treatment is needed to rehabilitate him or that such treatment is

needed to protect the community from him.”

      The ALJ determined that requiring SOTP would not violate Irvin’s

plea agreement or sentencing order because both “were silent about
                                     7

SOTP” and the IDOC retains the authority to establish treatment

program policies for offenders. The ALJ rejected Irvin’s claim that the

prosecutor had dropped the sex charge as unsubstantiated.          The ALJ

noted Irvin produced no evidence to support that assertion, such as the

deposition transcripts that he claimed existed.      The ALJ observed the

plea agreement stated that “charges could be brought back if IRVIN

raised challenges to the plea agreement.” In the ALJ’s view, this showed

the prosecutor “still believed the charges could reasonably be brought

again if need be.”      Finally, the ALJ weighed the victim’s detailed

statement together with Irvin’s testimony on his version of events. The

ALJ found the victim’s statement to be “credible” after testimony from

Irvin that the victim “did not have to fabricate a story if she wanted him

to leave because she could have simply told him to leave the house.” In

the ALJ’s view, Irvin “indicate[d] that [the victim] did not have a reason to

fabricate a story about what IRVIN did to her.” The ALJ also concluded

that even under Irvin’s version of events, the conviction for domestic

abuse still had a sexual component, and thus, Irvin should be required

to complete SOTP:

            IRVIN’s version of events was that he pushed the
      victim away by the throat when she bit his penis while
      performing oral sex. As noted above, he pleaded guilty to
      “knowingly” impeding her airway. Thus, his plea indicated
      that he did not merely react, but purposely pushed her hard
      in the neck. According to IRVIN his action was because the
      sexual encounter he was having did not go as he expected.
      Reacting with violence during a sex act also raises the types
      of concerns that can properly be addressed in SOTP. The
      ALJ finds that even under IRVIN’s version of events (as
      modified by his guilty plea), he should still be required to
      take SOTP.

      On July 28, Irvin appealed the ALJ’s determination to the warden

by completing the SOTP appeal form. See Iowa Code § 903A.3(2) (“The
                                         8

orders of the administrative law judge are subject to appeal to the

superintendent or warden of the institution, . . . who may either affirm,

modify, remand for correction of procedural errors, or reverse an order.”).

Irvin claimed the SOTP classification violated his procedural due process

rights. On August 4, the warden affirmed the decision of the ALJ, ruling

due process had been followed and the ALJ “considered [Irvin’s]

statement and the evidence when making this decision.”

      Irvin filed an application for postconviction relief under Iowa Code

section 822.2(1)(f) and (g) in the Iowa district court. Irvin claimed he was

denied due process and equal protection of the law because the ALJ

relied on the unproven factual allegations.            The district court held a

hearing on April 15, 2015. On May 20, the district court found that it

was error for the ALJ to rely on “unadmitted minutes of testimony and

police reports in making its recommendation.” The district court relied

on the unpublished decision of Lindsey, in which a divided Iowa Court of

Appeals concluded the IDOC lacked authority to rely on unproven facts

to require participation in SOTP. 2015 WL 568560, at *5. In addition,

the district court relied on In re Detention of Stenzel, 827 N.W.2d 690,

708–10 (Iowa 2013), which disallowed expert testimony in a district court

civil commitment trial when the expert relied on unproven facts in the

minutes of testimony to support his opinion that the individual was a

sexually violent predator. The district court concluded because the IDOC

had   improperly     relied   on   the       minutes   in   making   the   initial

recommendation, “[n]o hearing should have occurred in the first place.”

      The IDOC sought a writ of certiorari, which we granted.                 We

retained the case.
                                      9

        II. Standard of Review.

        “We normally review certiorari actions for correction of errors at

law.”    State v. Iowa Dist. Ct., 801 N.W.2d 513, 517 (Iowa 2011).

“Generally, postconviction relief proceedings are reviewed for correction

of errors at law.” Dykstra, 783 N.W.2d at 477. “We review questions of

statutory construction, including . . . the proper interpretation of Iowa

Code section 903A.2, for errors at law.”        Id.   We review de novo the

evidence relevant to a constitutional claim. Iowa Dist. Ct., 801 N.W.2d at

517.

        III. Analysis.

        We must decide two related questions: (1) whether the IDOC

properly relied on the victim’s detailed statement to initially refer Irvin for

SOTP; and (2) whether the IDOC properly required Irvin’s participation in

SOTP based on the ALJ’s finding that he admitted at his evidentiary

hearing to assaulting his girlfriend during a sex act and based on the

victim’s statement, police report, and Irvin’s guilty plea. We first address

the IDOC’s broad discretion to refer inmates to SOTP and require their

participation.   We next review the permissible uses by the IDOC of a

victim’s statement in a police report.        We conclude that the IDOC

properly rejected Irvin’s challenges to his initial referral to SOTP and the

decision to mandate his participation following an evidentiary hearing.

        A. The IDOC’s Broad Discretion to Require SOTP. “SOTP was

established for bona fide rehabilitative purposes.” Id. at 519.

        There is a high rate of recidivism among untreated sex
        offenders and a broad range of agreement among therapists
        and correctional officers that clinical rehabilitation programs
        “can enable sex offenders to manage their impulses and in
        this way reduce recidivism.”
                                   10

Id. at 519 (quoting McKune v. Lile, 536 U.S. 24, 33, 122 S. Ct. 2017,

2024, 153 L. Ed. 2d 47, 56–57 (2002)).

      Iowa Code chapter 903A allows an inmate to “earn a reduction of

sentence” based on good conduct and satisfactory participation in

treatment programs identified by the IDOC director:

      An inmate of an institution under the control of the
      department of corrections . . . is eligible for a reduction of
      sentence 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. The programs include but
      are not limited to the following:
            ....
            (4) A treatment program established by the director.

Iowa Code § 903A.2(1)(a)(4).     Sex offender treatment is specifically

addressed as follows: “However, 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. § 903A.2(1)(a). An

inmate who fails to participate in sex offender treatment required by the

IDOC risks losing his or her ability to obtain an earlier release from

prison by accumulating earned time.

      Iowa Code section 903A.4 authorizes the IDOC to develop policies

and procedures to implement these treatment programs with earned-

time incentives:

             The director of the Iowa department of corrections
      shall develop policy and procedural rules to implement
      sections 903A.1 through 903A.3. The rules may specify
      disciplinary offenses which may result in the loss of earned
      time, and the amount of earned time which may be lost as a
      result of each disciplinary offense.      The director shall
      establish rules as to what constitutes “satisfactory
      participation” for purposes of a reduction of sentence under
      section 903A.2, for programs that are available or
      unavailable.
                                       11

(Emphasis added.)

      The IDOC promulgated a policy that requires the department to

review and refer offenders to the SOTP director who “are not incarcerated

for a Sex Crime but have a sexual component to their crime.” Iowa Dep’t

of Corr., Policy & Procedure, Sex Offender Program Referrals, OP–SOP–08

(2014).   The director then reviews the “current conviction and

circumstances     of    [the]   offense”    as   well    as   the   “minutes   of

testimony/court        documents”    and     “prior     arrests/convictions”   to

determine whether he or she will refer an offender to SOTP. Id. From

there, if the inmate has not been convicted of a sex offense, the matter

proceeds to a hearing before an ALJ.                  If the ALJ upholds the

classification requiring SOTP, the “inmate will no longer accrue any

earned time after refusing to attend SOTP, but will not lose any

previously accrued earned time.” Dykstra, 783 N.W.2d at 478.

      The “legislative purpose of earned-time credits . . . is to encourage

prisoners to follow prison rules and participate in rehabilitative

programs.” Kolzow v. State, 813 N.W.2d 731, 738 (Iowa 2012). “[C]ourts

are obliged to grant prison officials a wide berth in the execution of

policies and practices needed to maintain prison discipline and security.”

Office of Citizens’ Aide/Ombudsman v. Edwards, 825 N.W.2d 8, 14 (Iowa

2012) (quoting Citizens’ Aide/Ombudsman v. Grossheim, 498 N.W.2d

405, 407 (Iowa 1993)). We addressed the IDOC’s “broad discretion” to

require SOTP for inmates convicted of nonsex offenses in Dykstra. 783

N.W.2d at 479. John Dykstra pled guilty to a charge of simple assault

after he was initially charged with third-degree sexual abuse. Id. at 476.

The IDOC recommended Dykstra participate in SOTP based on the

circumstances underlying the assault, as gleaned from the minutes of

testimony attached to the charging information.            Id. Because Dykstra
                                    12

refused to attend SOTP, the IDOC determined he was no longer eligible to

receive earned-time credit. Id. at 477. Dykstra argued the IDOC lacked

authority to require SOTP because he was not convicted of a sex offense.

We disagreed, noting that “[t]he statute does not set criteria for which

inmates will be ‘required to participate.’ ”    Id. at 478–79 (quoting Iowa

Code § 903A.2). We elaborated,

             The broad discretion granted to IDOC does not limit
      application of section 903A.2 to inmates serving sentences
      for particular crimes or crimes labeled as “sex offenses.”
      There is no statutory limitation that would prevent IDOC
      from recommending SOTP for an inmate convicted of a crime
      that is not facially considered a sex offense where the factual
      circumstances of the crime are of a sexual nature.

Id. at 479. We held that the IDOC had authority to stop all accrual of

earned time for refusal to participate in SOTP, even on sentences that

were not served for a sex-offense conviction. Id. (“Section 903A.2 does

not require that the ‘sentence’ be one connected to the reason IDOC has

required the inmate to attend SOTP.”).         Thus, so long as SOTP was

related to a “problem currently suffered” by the offender, the IDOC had

statutory authority to require SOTP and halt the accrual of earned time.

Id. at 479–80 (quoting State v. Valin, 724 N.W.2d 440, 447 (Iowa 2006)).
      We   emphasized     in   Dykstra   that   the   IDOC’s   classification

procedures must satisfy the Due Process Clauses of the Iowa and Federal

Constitutions.   See id. at 483.   We acknowledged a liberty interest at

stake in the initial SOTP classification because of “[t]he stigmatizing

consequence of being labeled as a sex offender, the mandatory behavior

modification treatment, and the revocation of the inmate’s ability to earn

any time should he refuse to participate.” Id. We adopted the procedural

protections set forth in Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963,
                                      13

41 L. Ed. 2d 935 (1974), as a prerequisite for mandating SOTP. Id. at

482.

       In Wolff, the Supreme Court evaluated what process was due in a

proceeding to forfeit an inmate’s good-time credits. 418 U.S. at 563–71,

94 S. Ct. at 2978–82, 41 L. Ed. 2d at 955–59.               In Dykstra, we

summarized the Wolff requirements as follows:

       (1) advance written notice of the claimed violation, (2) a
       written statement of the factfinders as to the evidence relied
       upon and the reasons for the disciplinary action taken, (3) a
       hearing, at which the inmate must be allowed to call
       witnesses and present documentary evidence, as long as it
       would not be unduly hazardous, and (4) a sufficiently
       impartial decisionmaker.

783 N.W.2d at 482. We concluded the due process required by Wolff was

satisfied when the inmate had been tried and convicted of a sex offense.

Id. at 484; see also Holm v. Iowa Dist. Ct., 767 N.W.2d 409, 418 (Iowa

2009) (concluding mandatory SOTP did not violate due process when

inmate was convicted of third-degree sexual abuse).            However, for

inmates who were not convicted of a sex crime, the IDOC must satisfy

the Wolff procedural safeguards. Dykstra, 783 N.W.2d at 484. We held

the IDOC violated Dykstra’s due process rights by requiring his
participation in SOTP based on “unadmitted factual allegations that did

not result in a sex-offense conviction” without the required procedural

safeguards.   Id. at 483.    Specifically, Dykstra was not provided with

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

the factfinder, and a neutral factfinder.” Id. 1

       1We  applied Dykstra in the companion cases of Reilly v. Iowa District
Court, 783 N.W.2d 490 (Iowa 2010), and Waters v. Iowa District Court, 783
N.W.2d 487 (Iowa 2010). In Waters, we held that an inmate could be classified
for SOTP even though at the time of classification he was only serving a
sentence for operating while intoxicated (OWI) because he had “entered prison
to serve two sentences: the five-year OWI sentence and a two-year sentence for
                                         14

      In contrast, Irvin was provided with the procedural protections

required by Dykstra. See id. Therefore, we turn to whether the IDOC

may rely on the victim’s detailed statement in the police report to initially

classify Irvin for SOTP and in the subsequent review by the ALJ.

      B. The IDOC’s Use of the Victim’s Statement.                   The district

court, citing Lindsey, ruled the IDOC erroneously relied on unproven

facts in the minutes of testimony when initially referring Irvin to SOTP.

Donzell Lindsey was originally charged with first-degree burglary,

domestic assault, and third-degree sexual abuse.                  Lindsey, 2015

WL 568560, at *1. He pled guilty under a plea agreement to domestic

abuse and burglary, with the sexual abuse charge dismissed. Id. The

IDOC classified Lindsey for SOTP, concluding there was a “sexual

component” to his crimes based on the facts alleged in the minutes of

testimony. Id. The district court vacated that decision and ordered the

IDOC to restore his earned time.          Id. A panel of the court of appeals

affirmed over the dissent of one judge. Id. at *6. The majority held the

IDOC lacked the authority to rely on the minutes of testimony when

classifying    offenders,   stating,    “Dykstra does    not     extend   [IDOC’s]

authority     to   promulgation    of   policies   and   rules    permitting   the

consideration of unproven and unadmitted ‘facts.’ ”              Id. at *3.    The
_________________________
assault with intent to commit sexual abuse.” 783 N.W.2d at 489. In Reilly, we
determined that removing an inmate from SOTP implicated a similar liberty
interest—the right to accrue earned time. 783 N.W.2d at 495. However, we
gave less weight to the inmate’s liberty interest because removal was “a
discretionary decision by prison officials . . . whereas the initial inmate
classification addressed in Dykstra amounts to a specific factual determination
that the inmate has engaged in sexually inappropriate behavior.” Id. at 496.
We decided that when “the inquiry draws more on the experience of prison
administrators,” rather than “the search for specific facts,” “the full panoply of
protections that would accompany a formal hearing” were unnecessary. Id. at
496–97 (first quoting Wilkinson v. Austin, 545 U.S. 209, 228–29, 125 S. Ct.
2384, 2397, 162 L. Ed. 2d 174, 193 (2005)).
                                     15

majority observed that “even district courts may not rely on these types

of ‘facts’ ” and pointed to decisions excluding the minutes from

consideration in sentencing decisions. Id. at *4. The dissenting judge

stated, “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.” Id. at *6 (Vogel, P.J., dissenting). We now hold the IDOC’s use

of the victim’s statement quoted in the police report did not exceed its

statutory authority or violate Irvin’s due process rights.

      The court of appeals majority in Lindsey, and the district court in

this case, erred by concluding the limitations on a district court’s use of

minutes at trial or sentencing precluded an IDOC ALJ from relying on a

detailed victim’s statement that happened to be attached to the minutes.

The formal rules of evidence that govern trials in district court do not

apply to hearings before an IDOC ALJ. See Dykstra, 783 N.W.2d at 485

(“Prison proceedings ‘are sui generis, governed by neither the evidentiary

rules of a civil trial, a criminal trial, nor an administrative hearing. The

only limitations appear to be those imposed by due process, a statute, or

administrative regulations.’ ” (quoting 2 Michael B. Mushlin, Rights of

Prisoners § 9.20, at 208 (3d ed. 2002))); see also Wolff, 418 U.S. at 556,

94 S. Ct. at 2975, 41 L. Ed. 2d at 951 (“Prison disciplinary proceedings

are not part of a criminal prosecution, and the full panoply of rights due

a defendant in such proceedings does not apply.”); Dailey v. Neb. Dep’t of

Corr. Servs., 578 N.W.2d 869, 874 (Neb. Ct. App. 1998) (“[T]he weight of

authority in both federal and state cases is that the [formal] rules of

evidence do not apply” in prison discipline proceedings.).      Indeed, we

have affirmed prison discipline decisions that were based on hearsay in

written reports of confidential informants. See, e.g., James v. State, 541
                                       16

N.W.2d 864, 874 (Iowa 1995). “Under the ‘some evidence’ standard, ‘the

relevant [legal] question is whether there is any evidence in the record’

that could support the committee’s decision.” Id. (alterations in original)

(quoting Superintendent v. Hill, 472 U.S. 445, 455–56, 105 S. Ct. 2768,

2774, 86 L. Ed. 2d 356, 365 (1985)).

        The minutes of testimony set forth the factual circumstances

giving rise to the charges against Irvin.        See Iowa R. Crim. P. 2.5(3)

(providing minutes shall contain “the name and occupation of each

witness upon whose expected testimony the information is based, and a

full and fair statement of the witness’ expected testimony”).           Minutes

must “be approved by a district judge” who finds that the evidence

contained in the minutes, “if unexplained, would warrant a conviction by

the trial jury.” Id. r. 2.5(4). The minutes provide a description, both to

the reviewing judge and to the offender, of the circumstances alleged by

the State to support the charge.

        Use of minutes of testimony is limited in district court.        District

courts are not permitted to consider “additional, unproven, and

unprosecuted charges” during sentencing, unless “the facts before the

court show defendant committed those offenses or they are admitted by

him.”    State v. Messer, 306 N.W.2d 731, 733 (Iowa 1981). 2           Similarly,


       2Nonetheless, facts set forth in the minutes can be relied upon in district

court in certain instances. Courts may refer to the minutes of testimony to find
a factual basis for a guilty plea. State v. Finney, 834 N.W.2d 46, 57 (Iowa 2013)
(assessing whether counsel had been ineffective in allowing defendant to plead
guilty and relying on the “entire record,” including evidence provided in
minutes). District courts may rely on the charging documents of unprosecuted
offenses in determining conditions of release, in which “the nature and
circumstances of the offense charged” is the first factor the statute instructs
courts to consider. See Iowa Code § 811.2(2); State v. Fenton, 170 N.W.2d 678,
679 (Iowa 1969) (setting bail based on defendant’s criminal history and “county
attorney’s information” charging defendant with rape). At probation revocation
hearings, we allow charged, but unconvicted, offenses to serve as the basis for
                                    17

minutes of testimony “are not evidence” at trial. State v. De Bont, 223

Iowa 721, 723, 273 N.W. 873, 874 (1937).

      In Stenzel, when reviewing an appeal from a judgment committing

the defendant as a sexually violent predator (SVP), we found expert

testimony based on unproven facts in the minutes inadmissible as more

prejudicial than probative. 827 N.W.2d at 710. Because the minutes are

“a statement of what the prosecution expected (at one point) to prove,” we

“question[ed] the basic fairness of the State’s using materials that it

generated exclusively to prosecute Stenzel criminally as a factual ground

for committing him as an SVP at the conclusion of his sentence.”         Id.

Stenzel applied the rules of evidence governing trials in district court.

Stenzel is distinguishable from the present case because it was not a

prison classification proceeding, but a formal trial to determine whether

the defendant would be civilly committed at the conclusion of his prison

sentence. See id. at 692. Stenzel is further distinguishable because here

the IDOC and ALJ relied upon the victim’s statement, not the allegations

as drafted by a prosecutor.

      The district court misapplied Stenzel to the IDOC proceedings, in

which use of hearsay is permitted. See Wilson v. Farrier, 372 N.W.2d

499, 502 (Iowa 1985) (affirming prison-discipline decision that relied on

informant’s confidential statement). Here, we must decide whether this

detailed victim’s statement, quoted in the police report, may be used to

support the IDOC classification. We conclude the IDOC did not err in

relying on the victim’s statement, either in its initial referral to SOTP or


_________________________
revocation when the State can show the defendant violated the law by a
preponderance of the evidence. Rheuport v. State, 238 N.W.2d 770, 772 (Iowa
1976).
                                         18

in the ALJ’s decision to require participation. We address each phase in

turn.

        1. The IDOC’s initial referral to SOTP. First, we conclude the IDOC

may rely on a victim’s account in a police report prepared nearly

contemporaneously with the incident in classifying inmates for SOTP.

The IDOC’s initial classification is just that—initial. No earned time is

withheld for lack of participation by an inmate who was not convicted of

a sex offense unless and until the inmate is provided with the Wolff due

process protections, including an evidentiary hearing before an ALJ.

        It is instructive to contrast the requirements for SOTP in Iowa Code

section     903A.4   to    the   statutory    requirements       for   sex       offender

registration. Iowa Code section 692A.103 requires a person to register as

a sex offender if the person has been convicted of a “tier I, tier II, or tier

III offense.” For certain offenses, the legislature has expressly required a

factual determination that the offense was “sexually motivated” in order

to qualify as a tier I, II, or III offense.                See, e.g., Iowa Code

§ 692A.102(1)(c)(19).     “Sexually motivated” means “one of the purposes

for commission of a crime is the purpose of sexual gratification of the

perpetrator of the crime.”       Id. § 229A.2(9); see also id. § 692A.101(29).

For certain convictions occurring after July 1, 2009, the statute

expressly    provides     that   a   judge    or   jury   must    make       a    factual

determination “beyond a reasonable doubt” that an offense was sexually

motivated in order to require an individual to register. Id. § 692A.126(1).

        No analogous requirements exist for SOTP.            Nowhere in chapter

903A does the legislature require a judge or jury to make a factual

finding that an offense was sexually motivated to refer an inmate to

SOTP.     “[L]egislative intent is expressed by omission as well as by

inclusion of statutory terms.” Oyens Feed & Supply, Inc. v. Primebank,
                                      19

808 N.W.2d 186, 193 (Iowa 2011) (alteration in original) (quoting

Freedom Fin. Bank v. Estate of Boesen, 805 N.W.2d 802, 812 (Iowa

2011)). When the legislature selectively places language in one section

and avoids it in another, we presume it did so intentionally. Id. That the

legislature expressly required a judge or jury to find sexual motivation

beyond a reasonable doubt in chapter 692A but omitted such a

requirement in chapter 903A tells us the legislature intended to allow the

IDOC discretion to refer an inmate to SOTP without that level of proof.

See Dykstra, 783 N.W.2d at 484–85 (“We note . . . the standard for prison

administrative decisions is ‘some evidence’ as opposed to the ‘beyond a

reasonable doubt’ required in criminal trials.”); see also Wilson, 372

N.W.2d at 501 (“We hold that the requirements of due process are

satisfied if some evidence supports the decisions by the prison

disciplinary board to revoke good time credits.”).

      Practical concerns also support allowing IDOC to refer to factual

accounts such as victim statements in police reports when making its

initial classification.   Most criminal charges are resolved through plea

bargains. 3   The sex abuse charges may be dismissed to secure a

conviction on lesser assault charges, as happened here. The IDOC and
ALJ lacked access to sealed deposition transcripts and Irvin did not

provide them.     Inmates who need treatment would avoid SOTP if the

information in the victim’s statement could not be used to trigger an

evidentiary hearing. We conclude that the IDOC may refer an offender

for SOTP based on a victim’s detailed account in a police report.



      3“An  estimated ninety-five percent of convictions are secured through the
plea-bargaining process.” State v. Lopez, 872 N.W.2d 159, 161 n.1 (Iowa 2015)
(quoting State v. Fannon, 799 N.W.2d 515, 520 n.2 (Iowa 2011)).
                                      20

      2. The ALJ’s determination requiring SOTP. We next address Irvin’s

hearing before the IDOC ALJ. An ALJ in a prison disciplinary proceeding

is an independent, impartial adjudicator. See Edwards, 825 N.W.2d at

16–17 (noting IDOC ALJs report to and are supervised by the IDOC’s

general counsel rather than the warden).           An ALJ’s decision in a

disciplinary proceeding affecting earned-time credits will be affirmed so

long as there is “some evidence” in the record to support it. Backstrom v.

Iowa Dist. Ct., 508 N.W.2d 705, 710–11 (Iowa 1993) (“We further believe

the federal constitution requires only that state prison disciplinary

officials apply a ‘some evidence’ standard in their initial determination of

disciplinary proceedings.”).

      In Hill, inmates challenged the decision of a prison disciplinary

board finding them guilty of violating a prison rule prohibiting assault

and revoking good-time credits. 472 U.S. at 448, 105 S. Ct. at 2770, 86

L. Ed. 2d at 360. The Massachusetts Supreme Court, “[w]ithout deciding

whether the appropriate standard of review [was] ‘some evidence’ or the

stricter test of ‘substantial evidence,’ ” overturned the disciplinary court’s

decision, finding the record failed to present even “some evidence . . .

[that] would rationally permit the board’s findings.” Id. at 449, 105 S. Ct.

at 2770, 86 L. Ed. 2d at 360 (quoting Hill v. Superintendent, 466 N.E.2d

818, 822 (Mass. 1984)).        The United States Supreme Court addressed

whether the “findings of a prison disciplinary board that result in the

loss of good time credits must be supported by a certain amount of

evidence in order to satisfy due process.” Id. at 453, 105 S. Ct. at 2773,

86 L. Ed. 2d at 363.    The Court noted its prior cases failed to specify

what “quantum of evidence” was required “to support the factfinder’s

decision” in a prison disciplinary proceeding. Id. at 454, 105 S. Ct. at

2773, 86 L. Ed. 2d at 364.
                                     21

      The Hill Court determined that the “requirements of due process

are satisfied if some evidence supports the decision by the disciplinary

board to revoke good time credits.” Id. at 455, 105 S. Ct. at 2774, 86

L. Ed. 2d at 365.    The Court “decline[d] to adopt a more stringent

evidentiary standard as a constitutional requirement,” reasoning,

      Prison disciplinary proceedings take place in a highly
      charged atmosphere, and prison administrators must often
      act swiftly on the basis of evidence that might be insufficient
      in less exigent circumstances. The fundamental fairness
      guaranteed by the Due Process Clause does not require
      courts to set aside decisions of prison administrators that
      have some basis in fact. Revocation of good time credits is
      not comparable to a criminal conviction, and neither the
      amount of evidence necessary to support such a conviction,
      nor any other standard greater than some evidence applies
      in this context.

Id. at 456, 105 S. Ct. at 2774, 86 L. Ed. 2d at 365 (citations omitted).

The Court determined the “some evidence” standard would “prevent

arbitrary deprivations without threatening institutional interests or

imposing undue administrative burdens.” Id. at 455, 105 S. Ct. at 2774,

86 L. Ed. 2d at 364. Under this standard, the Court concluded that the

prison board had been presented with sufficient evidence to find the

inmates violated the disciplinary rule and revoke good-time credits. Id.

at 456, 105 S. Ct. at 2774–75, 86 L. Ed. 2d at 365. The Court based its

holding on testimony from the prison guard and evidence that no other

inmates were in the area at the time of the assault. Id.

      In Farrier, we adopted the “some evidence” standard as the

appropriate    standard   of   judicial   review    for   prison   disciplinary

proceedings.    372 N.W.2d at 501–02.              An inmate charged with

committing a murder during an uprising inside the Iowa State

Penitentiary was acquitted in his district court criminal trial. Id. at 500.

The prison disciplinary board, however, found him guilty of the offense
                                     22

and forfeited all of his earned time. Id. We adopted the “some evidence”

standard followed by the Supreme Court and federal circuits and upheld

the committee’s sanction. Id. at 502.

      Eight years later, in Backstrom, we concluded the “some evidence”

standard applied to an IDOC ALJ’s factual findings. 508 N.W.2d at 710.

An inmate challenged a disciplinary committee’s determination that he

smuggled alcohol into the prison. Id. at 708. The disciplinary report was

based on testimony from a confidential informant.        Id.   We concluded

that the Supreme Court’s language in Hill “clearly refer[red] to the level of

evidence used by prison administrators in their factual determinations,”

not merely on judicial review. Id. at 711. “Although the ‘some evidence’

standard may seem harsh,” we noted it was sufficient to protect

prisoners from retaliatory treatment.      Id.   Under that standard, we

decided the ALJ had properly found Backstrom guilty of the offense. Id.

We reaffirmed application of the “some evidence” standard a year later in

Marshall v. State, 524 N.W.2d 150, 152 (Iowa 1994) (per curiam). Today,

we reaffirm that the “some evidence” standard applies to making and

reviewing factual findings in prison proceedings, including SOTP

classification hearings.

      “The threshold for determining whether some evidence exists is

low”; it can be satisfied by relying on hearsay statements, such as

statements from officers or confidential informants.      Johnson v. State,

542 N.W.2d 1, 2 (Iowa Ct. App. 1995); see Mahers v. State, 437 N.W.2d

565, 569–70 (Iowa 1989) (relying on a report from a correctional officer);

Farrier, 372 N.W.2d at 502 (relying on statement from confidential

informant).   Still, the “some evidence” standard is not without teeth.

When officials use hearsay statements from a confidential informant to

meet the “some evidence” standard, the inmate’s “interest in a fair
                                    23

hearing requires that there be some indication of the confidential

informant’s reliability.” James, 479 N.W.2d at 291. Specifically, “there

must be sufficient information in the record to convince a reviewing

authority that the [decision-maker] undertook such inquiry and correctly

concluded that the confidential information was credible and reliable.”

Id.   We have recognized this standard can be satisfied by in camera

review of material documenting credibility or corroboration with other

statements or evidence. See id. at 292 (concluding informants reliable

because they incriminated themselves by providing information, and

other evidence corroborated their account); Farrier, 372 N.W.2d at 502–

03 (concluding informant was credible based on examination of

documents in camera). We have also found the standard satisfied when a

court determined “the confidential information contain[ed] a great many

details . . . [, and t]here appear[ed] to be no bias motivating the source.”

Key v. State, 577 N.W.2d 637, 641 (Iowa 1998). Our precedent allows an

IDOC ALJ to rely on hearsay reports of confidential informants so long as

there is an indicia of reliability such that the ALJ can determine the

information is reliable and credible.    The same requirement applies to

victim statements.

       We conclude that if the ALJ determines the victim’s statement from

the underlying assault case to be reliable and credible, it may be used to

satisfy the “some evidence” standard to classify the inmate for SOTP.

See Gwinn v. Awmiller, 354 F.3d 1211, 1219, 1221 (10th Cir. 2004)

(rejecting inmate’s challenge to his classification as a sex offender by

hearing panel that “relied on a detailed written account from the victim of

the alleged sexual assault” denied by the inmate); Vondra v. Colo. Dep’t of

Corr., 226 P.3d 1165, 1169–70 (Colo. App. 2009) (affirming prison

hearing panel’s determination requiring sex offender treatment based on
                                      24

police reports and victim’s statements after offender was provided Wolff

due process protections).       An ALJ may also use the inmate’s own

testimony in the hearing, alone or as corroboration with the detailed

victim statement, to decide whether SOTP should be required.

        We conclude the statement of Irvin’s victim bears a sufficient

indicia of reliability. A police officer took the victim’s statement in Irvin’s

underlying assault case on the morning after the incident; thus, it was a

near-contemporaneous factual account of the events while the victim’s

memory was fresh. It is a crime to file a false report with a police officer.

See Iowa Code § 718.6(1) (“A person who reports or causes to be reported

false information to . . . a law enforcement authority . . . knowing that

the information is false . . . commits a serious misdemeanor . . . .”); id.

§ 903.1 (stating serious misdemeanors are punishable by a fine of at

least $315 and imprisonment of up to a year).

        Police reporting documents such as citations have been relied

upon in contested case administrative proceedings. Gaskey v. Iowa Dep’t

of Transp., 537 N.W.2d 695, 696 (Iowa 1995) (relying upon “[t]he implied

consent form, the notice of revocation, the request for hearing, a stay

order, a computer printout of Gaskey’s driving record, and a copy of the

citation issued to Gaskey” in license revocation proceeding before ALJ);

see also Schmitz v. Iowa Dep’t of Human Servs., 461 N.W.2d 603, 607–08

(Iowa    Ct.   App.   1990)   (discussing   use   of   hearsay   evidence   in

administrative hearings). Iowa Code chapter 17A provides,

        A finding shall be based upon the kind of evidence on which
        reasonably prudent persons are accustomed to rely for the
        conduct of their serious affairs, and may be based upon
        such evidence even if it would be inadmissible in a jury trial.

Iowa Code § 17A.14(1); see also Dykstra, 783 N.W.2d at 482 (“Generally,

a person has a constitutional due process right to an evidentiary hearing
                                    25

in accordance with contested case procedures . . . .” (Emphasis added.)

(quoting Brummer v. Iowa Dep’t of Corr., 661 N.W.2d 167, 172 (Iowa

2003))). Irvin does not contend the Iowa Administrative Procedure Act

governs our review.   Nevertheless, we conclude this victim’s statement

would be sufficiently credible and reliable to support the IDOC ALJ’s

findings under section 17A.14(1) as well as the “some evidence”

standard.

      Moreover, Irvin’s testimony at the hearing corroborated the victim’s

statement. Irvin admitted during the hearing that he pushed the victim

away by the throat after she did not perform oral sex in the way that he

expected.   Irvin also testified at the hearing that the victim would not

have to “fabricate a story if she wanted him to leave,” supporting the

victim’s credibility. The ALJ properly relied on the victim’s statement set

forth in the police report together with Irvin’s admissions and guilty plea,

in which he acknowledged “knowingly” impeding his victim’s ability to

breathe. We review that decision under the governing “some evidence”

standard and uphold the ALJ’s factual findings that are supported by

“any” evidence in the record. Key, 577 N.W.2d at 641. Applying that

standard of review here, we uphold the ALJ’s finding of a sexual

component to Irvin’s assault conviction.

      For all these reasons, we reject the reasoning in Lindsey. We hold

the ALJ properly relied on the victim’s detailed statement and Irvin’s own

testimony and guilty plea to require Irvin to complete SOTP. The IDOC

properly upheld the ALJ’s decision. The district court erred by reversing

the IDOC’s determination.

      C. Irvin’s Due Process Claim. We next address whether the use

of the victim’s statement to classify an offender for SOTP violates due

process. “Procedural due process ‘act[s] as a constraint on government
                                       26

action that infringes upon an individual’s liberty interest, such as the

freedom from physical restraint.’ ”      Holm, 767 N.W.2d at 417 (quoting

State v. Seering, 701 N.W.2d 655, 662 (Iowa 2005)). However,

        [p]risoners held in lawful confinement have their liberty
        curtailed by definition, so the procedural protections to
        which they are entitled are more limited than in cases where
        the right at stake is the right to be free from confinement at
        all.

Wilkinson, 545 U.S. at 225, 125 S. Ct. at 2395, 162 L. Ed. 2d at 191; see

also Wolff, 418 U.S. at 556, 94 S. Ct. at 2975, 41 L. Ed. 2d at 951 (“[T]he

fact that prisoners retain rights under the Due Process Clause in no way

implies that these rights are not subject to restrictions imposed by the

nature of the regime to which they have been lawfully committed.”).

        “[T]he first step in any procedural due process inquiry is the

determination of ‘whether a protected liberty or property interest is

involved.’ ” Dykstra, 783 N.W.2d at 480 (quoting Seering, 701 N.W.2d at

665).    If a liberty interest is involved, we analyze the following three

factors:

        First, the private interest that will be affected by the official
        action; second, the risk of an erroneous deprivation of such
        interest through the procedures used, and the probable
        value, if any, of additional or substitute procedural
        safeguards; and finally, the Government’s interest, including
        the function involved and the fiscal and administrative
        burdens that the additional or substitute procedural
        requirement[s] would entail.

Seering, 701 N.W.2d at 665 (quoting Bowers v. Polk Cnty. Bd. of

Supervisors, 638 N.W.2d 682, 691 (Iowa 2002)).

        Irvin argues that IDOC failed to provide due process for the initial

SOTP classification because the IDOC relied on the victim’s statement in

its recommendation to the ALJ.         In Dykstra, we recognized a liberty

interest in the classification for SOTP based on the stigmatizing
                                     27

consequence of being labeled a sex offender, the mandatory treatment,

and the revocation of earned time. Dykstra, 783 N.W.2d at 481. We also

observed that when a factual inquiry outside “the face of the conviction”

of the crime is necessary, “resort to some tribunal must be available to

resolve disputes.” Id. (quoting Kruse v. Iowa Dist. Ct., 712 N.W.2d 695,

700–01 (Iowa 2006)) (observing that to comply with due process tribunal

must be available to resolve whether assault conviction required offender

to register); Brummer, 661 N.W.2d at 172 (stating, if proceeding involves

“adjudicative facts” particular to the parties, an evidentiary hearing is

necessary). In Dykstra, the initial decision made by the IDOC regarding

SOTP was also the final classification determination.        783 N.W.2d at

482–83. Not so with Irvin. Rather, Irvin’s initial classification began the

process.   Irvin was then provided the opportunity to challenge that

classification through an evidentiary hearing.

      The IDOC has a significant interest in rehabilitating sex offenders

before their release. See McKune, 536 U.S at 32–33, 122 S. Ct. at 2024,

153 L. Ed. 2d at 56–57. In Wolff, the Supreme Court stressed that for

due process in prison discipline cases, “there must be mutual

accommodation between institutional needs and objectives and the

provisions of the Constitution that are of general application.” 418 U.S.

at 556, 94 S. Ct. at 2975, 41 L. Ed. 2d at 951.

      [T]here would be great unwisdom in encasing the
      disciplinary procedures in an inflexible constitutional
      straitjacket that would necessarily call for adversary
      proceedings typical of a criminal trial, very likely to raise the
      level of confrontation between staff and inmate, and make
      more difficult the utilization of the disciplinary process as a
      tool to advance the rehabilitative goals of the institution.
                                   28

Id. at 563, 94 S. Ct. at 2978, 41 L. Ed. 2d at 955. Irvin’s due process

claim fails because the IDOC complied with the Wolff requirements. Id.

at 763–71, 94 S. Ct. at 2978–82, 41 L. Ed. 2d at 955–59.

      In Gwinn, a case directly on point, the United States Court of

Appeals for the Tenth Circuit affirmed a summary judgment dismissing

an inmate’s due process claims against Colorado correctional officials.

354 F.3d at 1221. The inmate in state court initially was charged with

sexual assault, but that charge was dropped in a plea bargain resulting

in his conviction for robbery.    Id. at 1217.   The presentence report

included the victim’s detailed written account of the sexual assault. Id.

at 1217, 1219. The inmate was provided a hearing consistent with Wolff.

Id. at 1218–19. He submitted a written denial of the victim’s allegations.

Id. at 1219. The prison hearing panel upheld his classification requiring

treatment based on the victim’s statement. Id. The federal district court

upheld the classification and dismissed the inmate’s due process claims.

Id. at 1221. The Tenth Circuit affirmed, concluding the inmate “received

the procedural protections required by the Due Process Clause” because

he “was afforded notice of the evidence against him and an opportunity

to present evidence in his own behalf, and he received a written

decision.” Id. We reach the same conclusion as to Irvin.

      Irvin received advance notice of his hearing before the ALJ. At the

hearing, he presented a factual statement signed by him, caselaw

supporting his position, and documents from his underlying trial.      He

was allowed to testify.   The ALJ was impartial.      See Edwards, 825

N.W.2d at 16. The ALJ could find and did find Irvin’s version of events

not credible in light of Irvin’s admissions and the victim’s detailed

statement.   The ALJ relied on Irvin’s own admissions and testimony

rather than relying solely on unadmitted factual allegations. The ALJ’s
                                   29

factual findings of a sexual component to Irvin’s assault are clearly

supported by “some evidence.”      See Key, 577 N.W.2d at 641 (“On

appellate review of a prisoner’s challenge to the evidentiary support of a

disciplinary matter, we ask whether the committee had ‘some evidence’

to support its decision.” (quoting Backstrom, 508 N.W.2d at 709). After

the hearing, Irvin received a written decision from the ALJ detailing the

reasons for the classification and was allowed to appeal that decision to

the warden. We conclude Irvin received the due process to which he was

entitled under Dykstra.

      IV. Disposition.

      For those reasons, we sustain the writ, vacate the district court’s

ruling, and remand this case with instructions to reinstate the IDOC’s

determination requiring SOTP for Irvin.

      WRIT SUSTAINED AND CASE REMANDED.
