                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1418
                               Filed March 6, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

GREGORY HINTZE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.



      A defendant appeals following his conviction for extortion. SENTENCE

VACATED AND REMANDED.




      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant

Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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BOWER, Judge.

       Gregory Hintze appeals following his conviction for extortion. Hintze claims

the court abused its discretion in sentencing by allowing the victim’s mother to

provide a victim impact statement and by considering unproven and unprosecuted

offenses. We vacate the defendant’s sentence and remand for resentencing

before a different judge.

       I.     Background Facts & Proceedings

       In June and July 2017, Hintze posted nude photos of M.G. on the door of

the apartment she lived in with her husband and threatened further distribution of

the photos around the apartment complex if M.G. and her husband did not pay him

money. The State charged Hintze with one count of extortion, in violation of Iowa

Code section 711.4 (2017); two counts of first-degree harassment, in violation of

section 708.7(2); and being a habitual offender, in violation of section 902.8.

       On May 18, 2018, pursuant to a plea agreement with the State, Hintze

pleaded guilty to extortion, a class “D” felony. As part of the agreement, the State

dropped the two counts of harassment and the habitual offender enhancement.

The parties were free to argue over the appropriate sentence. For a factual basis,

Hintze admitted to threatening to post photos of M.G., communicating the threat to

M.G., having the intention of receiving something back, and that he did not have

the right to do so. The court accepted Hintze’s plea.

       The court held a sentencing hearing on July 24.             Hintze requested

probation, and the State requested imprisonment. According to the pre-sentence

investigation report, Hintze’s criminal history includes three convictions for second-

degree sexual abuse of young children in 1990.
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       M.G., the extortion victim, had died under unrelated circumstances in

February 2018, and her mother asked to give a victim impact statement at the

sentencing hearing. Hintze objected to the mother providing a statement, but the

court overruled the objection. The mother’s victim impact statement included

implications Hintze requested M.G. procure a child for him. The court stated it was

not taking the mother’s statement into consideration in its sentencing decision.

The court then cited the minutes of testimony as supporting the mother’s

allegations. Defense counsel objected as Hintze had not admitted that portion of

the minutes, and the mother interjected, “It’s true.” In response, the court stated it

“does not take into consideration the statements in the minutes of evidence that

were not admitted to by the Defendant.” The court then referred to Hintze’s

criminal history as “in and of itself sufficient for the Defendant to deserve the jail

time that the Court will impose in this matter.” The court also found jail time

necessary for the protection of the public.

       The court entered judgment and imposed the statutory sentence of an

indeterminate term of imprisonment not to exceed five years and the minimum

required fine and surcharge. Hintze appeals, claiming the sentencing court abused

its discretion by considering improper factors in sentencing him including an

improper victim statement and unproven, unprosecuted offenses.

       II.    Standard of Review

       “Our review of a sentence imposed in a criminal case is for correction of

errors at law.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will only

reverse the district court if the court abuses its discretion or there is a defect in the

sentencing procedure. State v. Letscher, 888 N.W.2d 880, 883 (Iowa 2016). If a
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court uses any improper consideration in sentencing a defendant, resentencing is

required. State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).

         III.   Analysis

         “Generally, a sentence will not be upset on appellate review unless a

defendant can demonstrate an abuse of discretion or a defect in the sentencing

procedure.” State v. Cheatheam, 569 N.W.2d 820, 821 (Iowa 1997) (citation

omitted). “We give sentencing decisions by a trial court a strong presumption in

their favor.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015). “An abuse of

discretion will only be found when a court acts on grounds clearly untenable or to

an extent clearly unreasonable.” State v. Leckington, 713 N.W.2d 208, 216 (Iowa

2006).

         Hintze claims the court improperly considered a victim impact statement

offered by the mother of M.G. The State agrees M.G.’s mother does not fall within

the statutory definition of victim for purposes of a victim impact statement.

Because M.G. died under circumstances unrelated to Hintze’s case, the State

urges it was reasonable to allow the mother to speak on M.G.’s behalf and her

comment during the sentencing hearing about an unproven bad act cannot be

shown to have affected the sentencing decision.

         The authority to submit victim impact statements is wholly statutory and

limited to specific persons. State v. Matheson, 684 N.W.2d 243, 244 (Iowa 2004).

That group of persons only extends to immediate family members of the person

suffering physical, emotional, or financial harm if the victim “died or was rendered

incompetent as a result of the offense or who was under eighteen years of age at

the time of the offense.” Iowa Code § 915.10(3). Even if a party has no standing
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under section 915.10 to provide a victim impact statement, it does not require

vacation of the sentence unless prejudice results. See State v. Sumpter, 438

N.W.2d 6, 9 (Iowa 1989).

      A district court may not consider unproven or unprosecuted offenses in

sentencing a defendant unless (1) the facts before the court reveal that the

defendant committed the offense, or (2) the defendant admits it. State v. Jose,

636 N.W.2d 38, 41 (Iowa 2001). “The sentencing court should only consider those

facts contained in the minutes that are admitted to or otherwise established as

true.” State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998) (citation omitted). The

portions of the minutes not necessary to establish the plea’s factual basis are

deemed denied by the defendant and a sentencing court cannot rely on them. Id.

“If a district court improperly considers unprosecuted and unproven additional

charges, we will remand the case for resentencing.” Formaro, 638 N.W.2d at 725.

      The mother’s statement was hostile, bitter, and exhibited a desire for

retribution against Hintze. The mother’s statement introduced facts not otherwise

in the record and included serious allegations against Hintze that mirrored Hintze’s

prior offenses. The court stated it was not taking the mother’s statement into

consideration for sentencing purposes, then cited the minutes of testimony where

a police report noted M.G. making the same allegations. Defense counsel properly

objected as Hintze had not admitted facts supporting those allegations. As the

court and defense counsel discussed whether the allegation could be considered,

the victim’s mother interjected, “It’s true.” The court then stated it would not

consider the minutes not admitted to by Hintze.
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      The mother’s victim impact statement resulted in the introduction of

prejudicial information into the sentencing court’s consideration. She introduced

facts and unproven crimes outside the record of the plea. The court found the

statement not prejudicial because the allegations were contained in the minutes of

testimony, but the allegations were in the unadmitted and unproven portion of the

minutes of testimony. The mother’s statement and the court’s initial disclaimer

based on unadmitted portions of the minutes of testimony engenders some

question as to their effect on the court’s consideration. “We cannot speculate

about the weight a sentencing court assigned to an improper consideration . . . .”

Gonzalez, 582 N.W.2d at 517. Therefore we vacate the defendant’s sentence and

remand for resentencing before a different judge.

      SENTENCE VACATED AND REMANDED.
