               IN THE SUPREME COURT OF IOWA
                               No. 18–1504

                           Filed June 19, 2020


STATE OF IOWA,

      Appellee,

vs.

CHAD RICHARD CHAPMAN,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Polk County, Scott D.

Rosenberg, Judge.



      After entering an Alford plea to child endangerment, a defendant

appeals a district court order requiring him to register as a sex offender.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT

JUDGMENT REVERSED AND REMANDED WITH INSTRUCTIONS.



      Mark C. Smith, State Appellate Defender (until withdrawal), and

Martha J. Lucey, State Appellate Defender, for appellant.



      Thomas J. Miller, Attorney General, Zachary Miller, Assistant

Attorney General, John P. Sarcone, County Attorney, and Nan Horvat,

Assistant County Attorney, for appellee.
                                     2

OXLEY, Justice.

      In this appeal, we must determine whether the minutes of testimony

for a charge to which the defendant makes an Alford plea can be used to

establish beyond a reasonable doubt that the defendant’s underlying

conduct was “sexually motivated” for purposes of requiring him to register

as a sex offender under Iowa Code section 692A.126 (2017). If not, we

must also determine whether the State’s failure to introduce sufficient

additional evidence at sentencing to meet the statutory reasonable doubt

standard requires dismissal of the order requiring sex offender registration

or whether the State should get a chance to introduce additional evidence

on remand.

      The defendant entered an Alford plea to child endangerment, a crime

that, on its face, does not involve sexual conduct. The district court relied

only on the Alford plea and a victim impact statement from the child’s

mother to find the defendant’s criminal conduct was sexually motivated

and ordered the defendant to register as a sex offender.          The court of

appeals determined that the evidence was insufficient to prove sexual

motivation   beyond    a   reasonable    doubt,   as   required    by   section

692A.126(1)(v), and remanded to give the State a chance to prove sexual

motivation. We granted the defendant’s application for further review. On

our review, we agree with the court of appeals that the evidence was

insufficient to prove sexual motivation beyond a reasonable doubt. We

also agree that the proper remedy is to remand and give the State an

opportunity to prove sexual motivation. Therefore, we affirm the judgment

of the court of appeals, reverse the judgment of the district court, and

remand to the district court for further proceedings.
                                       3

      I. Factual Background and Proceedings.

      Chad Richard Chapman was charged with two counts of sexual

abuse in the second degree in violation of Iowa Code section 709.3, a class

“B” felony. Chapman agreed to plead guilty to child endangerment in

violation of Iowa Code section 726.6(1)(a), an aggravated misdemeanor, in

exchange for dismissal of the sex abuse charges. Child endangerment

under section 726.6(1)(a) does not include sexual conduct as an element

of the offense.

      According to the minutes of testimony, the charges originated after

the six-year-old victim, C.B., reported to her mother, K.Z., that Chapman

engaged in inappropriate sexual conduct with her. Chapman babysat C.B.

and her eight-year-old brother at his home on Saturdays while their

mother was at work. C.B. told K.Z. that Chapman “did S-E-X” to her,

including putting his “wiener” on her and licking her “pee-pee.”       She

explained that the conduct occurred at Chapman’s home on three

occasions, twice recently and once when she was five. She later described

the same incidents to investigators.

      To establish the factual basis for his plea at the plea hearing,

Chapman testified to facts different from those contained in the minutes

of testimony. Chapman testified he created a substantial risk to C.B. by

allowing her to be unsupervised with her brother after having previously

found them “acting out sexually on each other” in his home.            The

prosecutor asked for a recess following this colloquy, after which

Chapman’s attorney asked “to withdraw the guilty plea and statement

made in support of the factual basis and proceed with” an Alford plea

pursuant to North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 167

(1970). Chapman ultimately retracted his factual statement, and the court

accepted his Alford plea. Chapman did not admit guilt but admitted the
                                     4

evidence identified in the minutes of testimony would support the child

endangerment charges against him.

      At sentencing, only K.Z. provided a victim impact statement. The

state did not have C.B. testify. When the state asked K.Z. what C.B. told

her about Chapman’s actions, the court sustained a hearsay objection.

K.Z. then testified that C.B. had changed significantly as a result of

Chapman’s actions, including a general avoidance of men, night terrors,

falling behind in school, increased protectiveness of her younger sisters,

and that she now needs therapy. K.Z. additionally testified:

      Honestly, that’s my baby. That’s my daughter. It’s my child.
      She’s going to be traumatized for the rest of her life. I have to
      continue to jump through hurdles and help her through this
      process.

            Whether the justice system sees it one way or another,
      my daughter has issues now. She’s very angry. I have to help
      her with that also. I honest[l]y believe that he should be put
      behind bars. I mean, at the least he touched my child.

            I mean, I could tell you vivid things that he had done to
      her that I have to deal with as a mother to try to help her
      understand why those things had happened to her when they
      shouldn’t have happened to her.

      The court sentenced Chapman to a two-year suspended sentence

and placed him on probation.      The State asked the court to find that

Chapman’s conduct was sexually motivated and order him to be placed on

the sex offender registry. Noting that “this was an Alford plea, so the court

had to go through the minutes of testimony and any other matters that

were put in the Court’s hands on the date of the plea,” the court found

sexual motivation was established and placed the defendant on the sex

offender registry. The court asked whether a special 10-year sentence

placing him in the custody of the department of corrections pursuant to
                                            5

Iowa Code section 903B.2 would apply, and the State answered in the

affirmative, so the court added the special sentence.

       At that point, Chapman’s counsel and the court had the following

exchange:

             MR. KEMP: Your Honor, just for a clear record, the
       Alford plea agreement was that the Court would utilize the
       minutes of testimony for purposes of only establishing guilt or
       innocence and the parties would present evidence today
       regarding sex offender registry.

              It’s our position that the Court should not consider the
       minutes of testimony for that portion of it, but the Court is
       free to do, obviously, as it sees fit.

              THE COURT: Even without the minutes of testimony,
       what was offered here today by the victim’s mother is
       sufficient for me.

              MR. KEMP: Okay.

Finally, the court determined Chapman did not have the reasonable ability

to pay his court-appointed attorney fees.

       Chapman appealed, alleging the following grounds of error: (1) the

court erred in finding that Chapman committed a sexually motivated

offense, (2) the special sentence was not authorized by law, and (3) the

court erred by failing to determine Chapman’s reasonable ability to pay

before it ordered him to pay costs.1

       On appeal, the State conceded the special sentence was not

authorized under Iowa Code section 903B.2, and the court of appeals

vacated that part of Chapman’s sentence.                The court of appeals also

remanded for a determination of Chapman’s reasonable ability to pay as a




       1Chapman      also challenged the district court’s written judgment as erroneously
stating he had the ability to pay court-appointed attorney fees. Chapman withdrew this
claim of error after the district court amended its order to remove the requirement to pay
attorney’s fees.
                                      6

prerequisite to ordering him to pay costs, as required by State v. Albright,

925 N.W.2d 144, 160–62 (Iowa 2019).

      On Chapman’s first issue, the court of appeals identified the

question presented as whether substantial evidence existed to prove the

offense of conviction was sexually motivated beyond a reasonable doubt.

It found the victim statements by K.Z. did not provide sufficient evidence.

However, because the minutes of testimony identified evidence to establish

the offense could have been sexually motivated, it remanded to give the

State another chance to prove sexual motivation.

      Chapman applied for further review to challenge the remedy, and we

granted his application to resolve that issue.

      II. Standard of Review.

      Chapman agrees his appeal involves a challenge to that part of his

sentence requiring him to register as a sex offender. Ordinarily, “[r]eview

of sentencing decisions is for correction of errors at law.” State v. Letscher,

888 N.W.2d 880, 883 (Iowa 2016). “We will not reverse the decision of the

district court absent an abuse of discretion or some defect in the

sentencing procedure.” Id. (quoting State v. Formaro, 638 N.W.2d 720,

724 (Iowa 2002)).

      However, as the court of appeals noted, Chapman is really raising a

sufficiency claim—whether the record contains sufficient evidence to

support the district court’s determination the offense was sexually

motivated.     To that extent, our review is for substantial evidence. “In

evaluating sufficiency-of-evidence claims, we will uphold a verdict if

substantial evidence supports it.” State v. Trane, 934 N.W.2d 447, 455

(Iowa 2019).
                                        7

      To the extent resolution of this case turns on constitutional

principles, our review is de novo. In re T.H., 913 N.W.2d 578, 582 (Iowa

2018).

      III. Analysis.

      Chapman pleaded to violating subsection (1)(a) of Iowa Code section

726.6, which defines “child endangerment” as:

            1. A person who is the parent, guardian, or person
      having custody or control over a child . . . commits child
      endangerment when the person does any of the following:

            a. Knowingly acts in a manner that creates a
      substantial risk to a child or minor’s physical, mental or
      emotional health or safety.

Iowa Code § 726.6(1)(a). Violation of subsection (1)(a) is an aggravated

misdemeanor, i.e., an indictable offense. Id. § 726.6(7).

      Iowa Code section 692A.126 in turn provides:

      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, the person shall be required to register as [a sex
      offender]:

             ....

            v. Any indictable offense in violation of chapter 726 if
      the offense was committed against a minor or otherwise
      involves a minor.

Id. § 692A.126(1)(v). Thus, a person who commits child endangerment is

required to register as a sex offender if a judge or jury finds beyond a

reasonable doubt that the child endangerment was sexually motivated.

“Sexually motivated” “means that one of the purposes for commission of a

crime is the purpose of sexual gratification of the perpetrator of the crime.”

Id. § 229A.2(10); id. § 692A.101(29).

      Chapman argues the State presented insufficient evidence to prove

beyond a reasonable doubt that his underlying crime was sexually
                                      8

motivated. If the State failed to meet its burden, Chapman argues the

requirement to register as a sex offender should be vacated and dismissed,

similar to an adjudication of guilt found to be unsupported by sufficient

evidence on appeal.     Thus, he seeks reversal of the court of appeals’

remand order, which gives the state a second chance to meet its burden.

      A. Sufficiency of the Evidence.             “Evidence is considered

substantial if, when viewed in the light most favorable to the State, it can

convince a rational jury that the defendant is guilty beyond a reasonable

doubt.” Trane, 934 N.W.2d at 455 (quoting State v. Ramirez, 895 N.W.2d

884, 890 (Iowa 2017)). “[T]he evidence must raise a fair inference of guilt

and do more than create speculation, suspicion, or conjecture.” State v.

Kern, 831 N.W.2d 149, 158 (Iowa 2013) (quoting State v. Webb, 648

N.W.2d 72, 76 (Iowa 2002)).

      1. Minutes of testimony. We must first identify the record available

for the district court’s consideration before addressing whether sufficient

evidence existed to establish beyond a reasonable doubt that Chapman’s

criminal offense was sexually motivated. Chapman argues the minutes of

testimony should not be considered because he entered an Alford plea.

Chapman also argues the district court improperly considered K.Z.’s

victim impact statement because such statements are not generally

subject to evidentiary challenges, made under oath, or subject to cross-

examination.    See Iowa Code § 915.21(1) (allowing a victim to make a

statement in writing, by audio or video recording, or through a designated

representative); id. § 915.21(3) (“A victim shall not be placed under oath

and subjected to cross-examination at the sentencing hearing.”).

      The State counters by arguing the Alford plea still required the

district court to establish a factual basis, which it could find in the minutes
                                     9

of testimony, and the only facts in the minutes to support a factual basis

for the child endangerment charge were necessarily sexual in nature.

      The State is correct that “[t]he district court may not accept a guilty

plea without first determining that the plea has a factual basis.” State v.

Schminkey, 597 N.W.2d 785, 788 (Iowa 1999) (en banc). “This requirement

exists even where the plea is an Alford plea.”       Id.   While minutes of

testimony attached to a trial information
      can be used to establish a factual basis for a charge to which
      a defendant pleads guilty[,] “[t]he 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)

(quoting State v. Black, 324 N.W.2d 313, 316 (Iowa 1982)).           “Where

portions of the minutes 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.” Id.

      “An Alford plea is different from a guilty plea in that when a

defendant enters an Alford plea, he . . . does not admit participation in the

acts constituting the crime.” State v. Burgess, 639 N.W.2d 564, 567 n.1

(Iowa 2001).    Nor does he admit that “another, higher crime was
committed.” State v. Young, 292 N.W.2d 432, 436 (Iowa 1980). Rather,

the defendant declares that he is choosing to plead guilty to a lesser charge

instead of facing trial on a greater charge because the available evidence

makes conviction likely, not because he admits he committed the charged

crime. See Alford, 400 U.S. at 37, 91 S. Ct. at 167.

      Thus, unlike a typical guilty plea, when a defendant enters an Alford

plea, there are no in-court admissions for the court to rely on to establish

a factual basis. See State v. Rodriguez, 804 N.W.2d 844, 850 (Iowa 2011).

“Instead, we look to the rest of the record including the minutes of
                                           10

testimony to see whether sufficient facts were available to justify counsel

in allowing a plea and the court in accepting it.” Id.; see also Schminkey,

597 N.W.2d at 790. The district court properly considered the minutes to

establish a factual basis for the child endangerment charge.

       However, that does not mean the district court can rely on the

minutes to determine whether the underlying crime was sexually

motivated for purposes of the sex offender registry. Importantly, when

accepting a guilty plea, “[o]ur cases do not require that the district court

have before it evidence that the crime was committed beyond a reasonable

doubt, but only that there be a factual basis to support the charge.” State

v. Finney, 834 N.W.2d 46, 62 (Iowa 2013). While this is true for both a

guilty plea and an Alford plea, the defendant entering a straight guilty plea

generally admits to the underlying facts for his plea as part of the in-court

colloquy, whereas a defendant who enters an Alford plea maintains his

lack of involvement, admitting only that there is sufficient evidence, which,

if believed, would allow a jury to find him guilty.

       Our legislature established the level of proof needed before a court

can order a defendant to register as a sex offender, requiring a judge or

jury to find beyond a reasonable doubt that the defendant’s criminal

conduct was sexually motivated. See Iowa Code § 692A.126(1). It is this

statutory reasonable doubt requirement, coupled with the lack of any

admissions to the underlying facts that accompany an Alford plea,2 that

distinguishes the findings needed for sex offender registration from the

factual basis needed to support acceptance of the Alford plea. While the


       2We    do not mean to imply that minutes, alone, could be used to support sex
offender registration in a straight guilty plea. The difference in burdens of proof exists
whether the plea is under Alford or not. However, to the extent a defendant making a
straight plea admits any of the facts contained in the minutes in establishing the factual
basis for the plea, those admissions could be considered for purposes of sex offender
registration.
                                    11

State makes a persuasive argument that the only facts contained in the

record to support a factual basis for Chapman’s conviction for child

endangerment are necessarily sexual in nature, it fails to account for the

different standards of proof.     We must give effect to the statutory

requirement providing that a district court can order a defendant to

register as a sex offender only upon finding beyond a reasonable doubt

that the defendant’s conduct was sexually motivated.

      The Kansas Supreme Court faced an analogous situation when a

sentencing court used a factual basis from an Alford plea to increase the

defendant’s postrelease supervision from 12 months to 60 months based

on a Kansas statute authorizing the increase if the judge found the crime

was sexually motivated. See State v. Case, 213 P.3d 429, 435–36 (Kan.

2009). The defendant entered the plea to aggravated child endangerment,

the elements of which did not automatically establish the crime was

sexually motivated. Id. at 432. Absent the defendant’s admission to the

underlying facts of lewdly fondling a child under the age of 14 and exposing

himself to the child, the enhanced supervision would implicate Apprendi

concerns if based only on the sentencing court’s findings without proof

beyond a reasonable doubt. Id. at 431–32 (discussing Apprendi v. New

Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000)). On appeal, the Kansas

Supreme Court held the district court improperly relied on the defendant’s

stipulation for purposes of the Alford plea to support the increased

sentence.   Id. at 436–37.   “[A]n Alford plea . . . does not equate to an

admission of facts and does not empower the trial court to make findings

based upon those purported admissions to increase the sentence beyond

the prescribed statutory maximum.” Id. at 435–36. While we do not face
                                            12

Apprendi concerns here,3 the same reasoning applies to the statutory

standard requiring proof beyond a reasonable doubt. The concessions

made by a defendant entering an Alford plea are insufficient alone to allow

a finding of the underlying facts beyond a reasonable doubt.

       We agree with the court of appeals that because Chapman entered

an Alford plea, maintaining his position that he did not commit the

underlying offense, the district court could not consider facts identified

only in the minutes of testimony in determining whether his criminal

conduct was sexually motivated. We therefore reject the State’s argument

that we can consider facts from the minutes the district court necessarily

would have relied upon to accept Chapman’s Alford plea.

       2. Victim impact statement. We next address whether the victim

impact statement supports the sexual motivation finding.                            When

questioned by Chapman’s counsel during sentencing, the district court

stated the evidence provided through the victim impact testimony was

sufficient for it to find Chapman’s conduct was sexually motivated. As

part of the plea deal, the parties agreed the State would present evidence

to prove sexual motivation at the sentencing hearing. There, K.Z. gave a

victim impact statement under oath, describing the effects of Chapman’s

actions on her daughter. We have held that ordinarily the court cannot

use victim impact statements to enhance a sentence based on crimes not

charged or reduced.         See State v. Phillips, 561 N.W.2d 355, 359 (Iowa

1997).




       3As  discussed below, the sex offender registration requirement is not punitive, so
Apprendi is not implicated. See Apprendi, 530 U.S. at 488–90, 120 S. Ct. at 2362–63
(constitutional challenge applies to “any fact that increases the penalty for a crime beyond
the prescribed statutory maximum”); State v. Aschbrenner, 926 N.W.2d 240, 244 (Iowa
2019) (Iowa’s sex offender registry statute is nonpunitive toward adult offenders).
                                          13

       Regardless of whether it was proper for the district court to consider

it, we conclude K.Z.’s victim impact statement did not present sufficient

evidence of sexual motivation.4 Two specific statements are most relevant

to that determination: “I mean, at the least he touched my child,” and “I

mean, I could tell you vivid things that he had done to her.” Without the

information contained in the minutes of testimony to supplement those

statements, and even considering her testimony about the impact of

Chapman’s conduct on C.B., K.Z.’s statements contain only implications

of sexual activity. Those statements alone do not raise a fair inference that

Chapman’s conduct was sexually motivated.                  Phrased another way,

speculation or conjecture would be required to tie K.Z.’s statements to any

particular conduct. Therefore, the State did not present sufficient evidence

to establish sexual motivation beyond a reasonable doubt.

       B. The Appropriate Remedy. In his appeal brief, Chapman argued

that “because the determination is a finding of fact equivalent to a verdict,

the matter should be treated similarly to lack of sufficient evidence in a

trial.” The court of appeals disagreed and remanded this case to give the

State a chance to prove Chapman’s conduct was sexually motivated, citing

State v. Royer, 632 N.W.2d 905, 909 (Iowa 2001), a case involving remand

to establish a factual basis to support a guilty plea. In his application for

further review, Chapman argues this was error.

       Chapman argues we should treat the determination of sexual

motivation under Iowa Code section 692A.126 the same as a contested

criminal charge the State fails to prove because they both require proof

beyond a reasonable doubt. Chapman relies on Iowa Rule of Criminal


       4Likethe court of appeals, because we conclude K.Z.’s testimony was insufficient
to prove sexual motivation, we find it unnecessary to decide whether a victim impact
statement may be considered for purposes of ordering sex offender registration.
                                     14

Procedure 2.19(8), which requires the district court to “order the entry of

judgment of acquittal of one or more offenses charged in the indictment

after the evidence on either side is closed if the evidence is insufficient to

sustain a conviction of such offense.” When a defendant challenges the

sufficiency of the evidence to support a conviction on appeal, “[i]f the trial

record would not support a conviction on a given count, [the defendant] is

entitled to an acquittal on that count, and further proceedings on that

count must come to an end.” Trane, 934 N.W.2d at 455. Chapman urges

us to similarly remand with instructions to dismiss the order requiring

him to register as a sex offender.

      Chapman’s argument against remand fails because being required

to register as a sex offender under section 692A.126 is materially different

from a criminal charge, at which rule 2.19(8) is directed. Criminal charges

found to lack sufficient evidentiary support on appeal are dismissed rather

than remanded for a retrial because of the Double Jeopardy Clause. See

State v. Dullard, 668 N.W.2d 585, 597 (Iowa 2003). The Double Jeopardy

Clause of the Fifth Amendment provides “[n]o person shall . . . be subject

for the same offense to be twice put in jeopardy of life or limb.” U.S. Const.

amend. V. “Normally, when error occurs at trial resulting in a reversal of

a criminal conviction on appeal, double-jeopardy principles do not prohibit

a retrial.” Dullard, 668 N.W.2d at 597. “An exception exists, however,

when the defendant’s conviction is reversed on grounds that the evidence

was insufficient to sustain the conviction.” Id. In that situation, double

jeopardy principles require that the case be dismissed rather than

remanded. Id. If the State fails to present sufficient evidence to convict a

defendant at trial, the Double Jeopardy Clause prevents the State from

trying to prove its case in a second trial. See Burks v. United States, 437

U.S. 1, 11, 18, 98 S. Ct. 2141, 2147, 2150–51 (1978) (holding for the first
                                    15

time “that the Double Jeopardy Clause precludes a second trial once the

reviewing court has found the evidence legally insufficient [and] the only

‘just’ remedy available for that court is the direction of a judgment of

acquittal”).

      Burks’ reasoning would apply to the case at hand only if section

692A.126 is subject to the Double Jeopardy Clause. “The Double Jeopardy

Clause prohibits more than one ‘punishment’ for the same offense.” State

v. Hill, 555 N.W.2d 697, 699 (Iowa 1996) (quoting United States v. Dixon,

509 U.S. 688, 696, 113 S. Ct. 2849, 2855 (1993)).        Specifically, “[t]he

Clause protects only against the imposition of multiple criminal

punishments for the same offense.” Hudson v. United States, 522 U.S. 93,

99, 118 S. Ct. 488, 493 (1997). Thus, the Double Jeopardy Clause would

apply here only if requiring registration as a sex offender is a criminal

punishment.

      “We have previously determined the legislative intent behind

enacting chapter 692A was ‘to protect the health and safety of individuals,

especially children, not to impose punishment.’ ” In re T.H., 913 N.W.2d at

587 (quoting State v. Seering, 701 N.W.2d 655, 667 (Iowa 2005)),

superseded by statute on other grounds, 2009 Iowa Acts ch. 119, § 3

(codified at Iowa Code § 692A.103 (Supp. 2009)). We confirmed that “we

believe the legislative intent behind our current sex offender statute

remains protective and nonpunitive.” Id. at 588. We nevertheless created

an exception as applied to juvenile offenders, concluding “that mandatory

sex offender registration for juvenile offenders is sufficiently punitive to

amount to imposing criminal punishment.” Id. at 596.

      In State v. Aschbrenner, we reaffirmed our prior cases holding that

sex offender registration requirements are not punitive when imposed on

adults. 926 N.W.2d 240, 244 (Iowa 2019). We distinguished adults from
                                     16

juveniles “based on the unique concerns of juvenile offenders that are

inapplicable to adult offenders.” Id. at 248 (discussing community re-

integration, peer group interaction, that adult criminal records are public

while juvenile records are not, and differing recidivism rates). Based on

our holding in Aschbrenner, we conclude that ordering Chapman to

register as a sex offender is not “punishment” to which double jeopardy

could attach. Where the double jeopardy basis for dismissing convictions

for insufficient evidence has no application to the nonpunitive sex offender

registration requirement, we reject Chapman’s argument that we should

treat this case as a failure to support a criminal charge with sufficient

evidence.

      Having determined double jeopardy does not require dismissal of the

order to register as a sex offender despite insufficient evidence, we turn to

the question of what remedy is appropriate. To support its remand order,

the court of appeals relied on our cases involving ineffective assistance of

counsel in allowing the defendant to plead guilty when the State has failed

to establish a factual basis to support the plea.      The remedy in that

situation is a remand where the State is allowed to supplement the record

to establish the missing evidence to support the original plea. See, e.g.,

State v. Philo, 697 N.W.2d 481, 488 (Iowa 2005). Here, however, Chapman

has consistently maintained that his actions were not sexually motivated,

and he put the State to its burden to prove sexual motivation before he

could be required to register as a sex offender.       There is a material

difference between Chapman putting the State to its burden and a

defendant pleading guilty to a charge despite the lack of a factual basis in

the record. The court of appeals’ reasoning under the Royer line of cases

does not necessarily allow the State a second chance to prove its case in

this context.
                                    17

      However, our sentencing cases do support allowing the State to

present additional evidence on remand. Chapman agrees the requirement

to register as a sex offender was part of his sentence. The fighting issue

in this appeal is whether the minutes could be used to support the

registration requirement. When the district court considers impermissible

factors in making a sentencing decision, we remand for a new hearing.

See State v. Lovell, 857 N.W.2d 241, 242–43 (Iowa 2014) (per curiam). In

State v. Black, we considered the appropriate remedy when the district

court improperly relied on evidence in the minutes to lengthen a sentence

in a guilty plea. 324 N.W.2d at 316. There, the defendant was originally

charged with both burglary and indecent exposure. Id. at 314. Despite

dismissal of the burglary charge as part of a plea deal, the district court

based its sentence partially on the dismissed charge, which we held was

error. Id. at 314, 316. We remanded for resentencing, directing the district

court not to consider the facts arising from the dismissed burglary charge

“unless these are admitted to by the defendant or independently proved.”

Id. at 316 (emphasis added); see also Gonzalez, 582 N.W.2d at 516–17

(remanding for resentencing after sentencing court improperly considered

five dismissed charges, allowing State to put on evidence of defendant’s

admission to underlying facts of one of dismissed charges).

      We recognize there are other contexts in which we have not allowed

the State to present additional evidence on remand. In State v. Gordon,

the State relied on two convictions for burglary to support a habitual-

offender sentencing enhancement under Iowa Code section 902.8. 732

N.W.2d 41, 43–44 (Iowa 2007). However, the two burglary convictions the

state identified to support habitual-offender status were committed on the

same date, which, under our caselaw, could not support the habitual-

offender enhancement. See id. at 43 (discussing State v. Freeman, 705
                                     18

N.W.2d 286, 291 (Iowa 2005)). Thus, as a matter of law, the defendant

was not a habitual offender, and we reversed the sentencing enhancement.

Id. at 43–44. In addressing the scope of the remand, we rejected the State’s

request for leave to amend the trial information to identify other prior

convictions to meet the habitual offender requirements, noting the State

had “pointed to no error in the district court proceeding that would entitle

the State to a new hearing.” Id. at 44.

      Here, the district court initially relied on the minutes of testimony

and, when challenged, stated that even without the minutes, the victim

impact testimony from the child’s mother “is sufficient.” The district court

did not explicitly disavow reliance on the minutes, the facts of which the

mother alluded to in her victim impact testimony relied upon by the

district court.   The victim impact statement itself was insufficient to

support the sex offender registration requirement. Nonetheless, evidence

exists in the record that, if properly presented to the district court, could

establish that Chapman’s conduct was sexually motivated.

      Chapman does not argue that the requirement for him to register as

a sex offender is illegal; he argues only that if the minutes of testimony are

properly excluded, there is insufficient evidence to prove the sexual

motivation prerequisite to being required to register as a sex offender. Now

that we have confirmed that the minutes of testimony may not be

considered in determining whether a defendant’s offense was sexually

motivated where the defendant has entered an Alford plea, the State

should be afforded a new hearing to properly present evidence that

otherwise exists in the record. Chapman’s situation is more akin to cases

where the district court made a sentencing decision based on improper

considerations, like Black, than one where the State seeks to amend its
                                    19

trial information to introduce entirely new evidence into the proceedings

on remand, like Gordon.

      Under these circumstances, we hold that the State is allowed, if it is

able, to introduce the facts from the minutes through competent evidence

in an effort to support its request that Chapman be required to register as

a sex offender.

      Our resolution is consistent with the few other jurisdictions we

found to have addressed this specific issue. The Kansas Court of Appeals

confronted a similar situation under a comparable Kansas sex offender

registry statute. See In re K.B., 285 P.3d 389, 393 (Kan. Ct. App. 2012).

Addressing inconsistent dispositions in prior cases, the Court reasoned

that where there were no double jeopardy concerns, the appropriate

disposition was to “remand for an evidentiary hearing for the district court

to determine whether the batteries were sexually motivated, if the State

seeks such a finding.” Id.; cf. State v. Jackson, 819 N.W.2d 288, 296–97

(Wis. Ct. App. 2012) (remanding for dismissal of sex offender registration

requirement premised on unrelated dismissed counts but only after first

reviewing the complete record—including the factual allegations contained

in the inadmissible criminal complaint—to determine whether any

evidence would support a finding that the charged offenses could have

been sexually motivated).

      We vacate the order requiring Chapman to register as a sex offender

and remand for further proceedings, including, if the State chooses to

proceed, an evidentiary hearing in which the State may have the

opportunity to establish that Chapman’s conduct was sexually motivated

beyond a reasonable doubt.
                                    20

      IV. Conclusion.

      For the foregoing reasons, we affirm the decision of the court of

appeals and remand this case to the district court for further proceedings.

      DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT

COURT      JUDGMENT        REVERSED        AND      REMANDED        WITH

INSTRUCTIONS.

      All justices concur except Appel, J., who concurs specially, and

McDonald, J., who takes no part.
                                       21

                                                #18–1504, State v. Chapman

APPEL, Justice (concurring specially).

         I concur with most of the reasoning in the majority opinion. I do not

agree, however, with the parts of the court’s opinion that reinforce the

court’s previous erroneous conclusion that Iowa’s sex offender registration

statute is not punitive in nature. See State v. Chapman, ___ N.W.2d ___,

___ n.2, ___ n.4 (Iowa 2020).

         The question of whether Iowa’s sex offender registration statute is

punitive was not raised in this case, or at least not in any meaningful way.

As the majority opinion correctly notes, the only sentence in the appellate

brief of Chapman that relates to the issue states, “[B]ecause the

determination is a finding of fact equivalent to a verdict, the matter should

be treated similarly to lack of sufficient evidence in a trial. Therefore, this

court should find that the evidence was insufficient . . . .”

         This statement expresses a conclusion, not an argument. There is

certainly no constitutional argument presented, no constitutional

provision cited, and none of the myriad constitutional authorities are cited.

Further, the State did not present a constitutional argument in its

responsive brief either.      It simply cited state law precedent for the

proposition that in a guilty plea setting where there is no factual basis for

the plea, the State may get an opportunity for a redo. The majority is

sailing off into constitutional waters when neither party has mentioned a

constitutional provision, cited a constitutional authority, or made a

constitutional argument under either the United States or Iowa

Constitutions.      I do not see the rationale for cementing doubtful

constitutional precedent again in a case where the parties did not join the

issue.
                                     22

      In any event, the majority’s volunteer discussion of the issue of

double jeopardy and whether Iowa’s sex offender registration laws are

punitive is unbalanced and does not reflect the dynamic trends in the law.

That is not surprising considering the lack of adversarial presentation on

the issue. The majority is not thoroughly examining and choosing between

arguments presented by the parties but is expressing a view on the law

unaided by the adversarial process.

      If I were to revisit the constitutional issue, I would note that the key

issue in both double jeopardy and ex post facto contexts is whether the

statute imposes “punishment.” Whether sex registration and notification

laws are “punitive” was considered by the United States Supreme Court in

two cases twenty years ago. In McKune v. Lile, 536 U.S. 24, 122 S. Ct.

2017 (2002), a narrow majority of the Supreme Court declared that sex

offenders have a “frightening and high risk of recidivism” in finding that

mandatory disclosures of prior unlawful sexual activity required in a

prison program for sexual offenders did not violate the Fifth Amendment.

Id. at 34, 122 S. Ct. at 2025.

      The “frightening and high” risk of recidivism was also offered as a

prime justification in Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140 (2003),

for a holding that Alaska’s sex offender registration statute was not

punitive in nature and thus did not violate ex post facto principles under

the United States Constitution. Id. at 103, 123 S. Ct. at 1153.

      Courts in Iowa, mesmerized by federal precedent, come high water

or not, uncritically cited the “frightening and high” risk of recidivism as

revealed truth no fewer than eleven times in Iowa caselaw. These courts

engaged in no independent analysis, simply concluding that because the

United States Supreme Court said it, it must be true.
                                    23

      Embarrassingly, the “frightening and high” risk of recidivism has

been totally eviscerated subsequent to McKune and Smith. The source of

the statement was run into the ground by scholars Tara and Ira Mark

Ellman. Through examining the briefing in McKune, they determined that

the source of the statement was an article published in Psychology Today

and was “just the unsupported assertion of someone without research

expertise who made his living selling . . . counseling programs to prisons.”

Ira Mark Ellman & Tara Ellman, “Frightening and High”: The Supreme

Court’s Crucial Mistake About Sex Crime Statistics, 30 Const. Comment.

495, 499 (2015).

      If the statement cited in McKune and repeated in Smith was

anecdotal only, what do real empirical studies show with respect to

recidivism of sex offenders? In an important meta-analysis, Karl Hanson

combined data from twenty-one studies of sex offenders. Id. at 501 (citing

R. Karl Hanson et al., High-Risk Sex Offenders May Not Be High Risk

Forever, 29 J. Interpersonal Violence 2792, 2792–813 (2014)).            He

identified high-risk offenders using the Static 99-R, a frequently used

actuarial tool used in many jurisdictions, including Iowa.      Id. at 502.

Among other things, Hanson found that there was no occasion of a high-

risk offender who had not committed an offense within fifteen years of their

release who committed an offense later. Id. In other words, if a high-risk

offender makes it for fifteen years without an offense, the odds of

recidivism are very low, indeed, flat zero according to his meta-analysis.

Yet, registration as a sex offender invariably lasts for life. For low-risk

offenders, Hanson found that 97.5% remain offense free after five years,

and 95% remain offense free after fifteen years. Id. at 504.

      Other scholars have scrutinized statistics assembled by the United

States Department of Justice. According to one study, the statistics show
                                     24

that “[n]ot only do few sex offenders get rearrested for committing a new

sex crime, but sex offenders are less likely than non-sex offenders to be

rearrested for any crime at all.” Tamara Rice Lave, Throwing Away the

Key: Has the Adam Walsh Act Lowered the Threshold for Sexually Violent

Predator Commitments Too Far?, 14 U. Pa. J. Const. L. 391, 396–97 (2011).

      State court dominoes are not reliably falling under the pressure of

McKune and Smith.      In 2008, the Alaska Supreme Court reversed its

precedent and found the Alaska Sex Offender Registration Act violated the

ex post facto clause of the Alaska Constitution. See Doe v. State, 189 P.3d

999, 1019 (Alaska 2008). In 2009, the Maine Supreme Court followed suit.

See State v. Letalien, 985 A.2d 4, 26 (Me. 2009). That same year, Kentucky

joined the parade. See Commonwealth v. Baker, 295 S.W.3d 437, 447 (Ky.

2009). In 2009 and 2010, the Indiana Supreme Court found application

of its state sex offender registration statute unconstitutional as applied in

two cases under the Indiana Constitution. See Hevner v. State, 919 N.E.2d

109, 113 (Ind. 2010); Wallace v. State, 905 N.E.2d 371, 378 (Ind. 2009).

In 2013, the Maryland Court of Appeals similarly held that the sex offender

registry statute violated the state constitutional provision prohibiting

ex post facto laws. See Doe v. Dep’t of Pub. Safety & Corr. Servs., 62 A.3d

123, 143 (Md. Ct. App. 2013). Also in 2013, the Oklahoma Supreme Court

followed suit under the Oklahoma ex post facto provision. See Starkey v.

Okla. Dep’t of Corr., 305 P.3d 1004, 1031 (Okla. 2013). Finally, in 2015,

New Hampshire abandoned the McKune/Smith approach.               See Doe v.

State, 111 A.3d 1077, 1101 (N.H. 2015).

      Of course, it is one thing for those pesky independent-minded state

courts to go their own way. Many, but not all, state court judges have

opinions independent of federal precedent.      But remarkably, even the
                                     25

allegiance of federal courts to McKune/Smith seems to be fading, at least

in some quarters.

      For example, in Does #1–5 v. Snyder, 834 F.3d 696 (6th Cir. 2016),

the United States Court of Appeals for the Sixth Circuit considered the

constitutionality of Michigan’s sex offender registration statute.       The

Snyder court noted that although the Michigan statute and the Alaska

statute considered in Smith had similar core provisions, the Michigan

statute was more onerous in a number of ways.               Id. at 700–03.

Specifically, the Michigan statute published information other than that

generally available to the public regarding estimated dangerousness of

individuals. Id. at 702. Further, the Michigan statute had restrictions on

where offenders may live and work and, much like parolees, they were

required to periodically report in person rather than register by mail or

phone. Id. at 703.

      But the analysis has a strikingly different tone than Smith.        In

particular, the Sixth Circuit emphasized that there was scant support in

the record to support the proposition that the Michigan statute advanced

its purported goals. The Sixth Circuit noted: “The record below gives a

thorough accounting of the significant doubt cast by recent empirical

studies on the pronouncement in Smith that ‘[t]he risk of recidivism posed

by sex offenders is “frightening and high.” ’ ”    Id. at 704 (alteration in

original) (quoting Smith, 538 U.S. at 103, 123 S. Ct. at 1140). The Sixth

Circuit cited studies that showed that sex offenders were in fact less likely

to recidivate than other criminals and that measures such as the Michigan

statute actually increase the risk of recidivism. Id. at 704–05.

      In the end, the Sixth Circuit determined that the Michigan statute

was punitive in character and was an ex post facto law. Id. at 705–06.

The reasoning in the case, according to one observer, has “transformative
                                     26

potential.” See generally Melissa Hamilton, Constitutional Law and the

Role of Scientific Evidence: The Transformative Potential of Doe v. Snyder,

58 B.C. L. Rev. E-Supplement 34 (2017).

      Perhaps the Sixth Circuit decision in Does #1–5 is an aberration,

but I doubt it. The United States Supreme Court denied certiorari in the

case. See Snyder v. Doe #1–5, 138 S. Ct. 55 (2017). The denial of certiorari

is not a ruling on the merits, of course, but it is interesting, and it is

consistent with the flurry of recent state court decisions cited above.

      And then there is the recent thoughtful and penetrating decision of

United States District Court Judge Richard Matsch in Millard v. Rankin,

265 F. Supp. 3d 1211 (D. Colo. 2017), in which Judge Matsch considered

whether Colorado’s Sex Offender Registration Act (SORA) violated the

Eighth and Fourteenth Amendments of the United States Constitution. Id.

at 1214. In a lengthy and typically careful opinion, Judge Matsch weighed

the factors considered in Smith and concluded that the statute was

punitive in nature and disproportionate as applied to one of the

defendants. Id. at 1232. An appeal was taken up to the Tenth Circuit,

which is still pending.

      The bottom line is the law is not settled with respect to the

nonpunitive nature of sex offender registration statutes. The legal ground

beneath McKune and Smith, never very solid, rumbles and shakes.

Sophisticated advocates, including those with an originalist bent, believe

the Supreme Court got it wrong in Smith and are urging the Supreme

Court to revisit the issue. See David T. Goldberg & Emily R. Zhang, Our

Fellow American, the Registered Sex Offender, 2016–2017 Cato Sup. Ct.

Rev. 59, 76–77 (2017) (noting that the Supreme Court in McKune “offered

a litany of deeply problematic factual assertions about ‘sex offenders’ ” and

that its estimates of recidivism were “essentially rubbish”); see also Wayne
                                     27

A. Logan, Challenging the Punitiveness of “New-Generation” SORN Laws,

21 New Crim. L. Rev. 426, 453, 456 (2018) (noting Smith “stands on [an]

increasingly shaky precedential foundation” and that state and federal

courts are increasingly casting a critical eye on the constitutionality of new

generation sex registration and notification laws). The Smith case thus

represents an approach whose time has passed.

      It is true, of course, that our caselaw goes against the grain of the

above-cited authorities. See, e.g., State v. Aschbrenner, 926 N.W.2d 240

(Iowa 2019). I, of course, joined the dissent in Aschbrenner, and my views

have not changed. See id. at 254 (Wiggins, J., dissenting). But the views

of other courts are definitely changing. Further, there may be future cases

with new wrinkles that we simply cannot anticipate.          Before pouring

concrete on a grave where the corpse may need to be exhumed, I would

wait for an actual case where the issue is joined by the parties.

      I concur in the result in this case; however, as I construe the

appellant as simply claiming that if factual support is not provided at a

sentencing proceeding and is reversed on appeal, the State is not entitled

to introduce additional evidence on remand under our rules related to

guilty pleas. That is not our law, as the majority correctly recognizes, and

I would therefore leave that issue undisturbed.
