                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-2090
                               Filed September 13, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NICKALAS MICHAEL LAWRENCE SPIKER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, John G. Linn

(Plea), and John M. Wright (Sentencing), Judges.



      Nickalas Spiker appeals his conviction and sentence for lascivious acts

with a child.     CONVICTION AFFIRMED, SENTENCE VACATED, AND

REMANDED FOR RESENTENCING.




      Mark C. Smith, State Appellate Defender, Stephan J. Japuntich, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney

General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

         Nickalas Spiker appeals his conviction and sentence for lascivious acts

with a child. We find the record sufficient to vacate the sentence and remand for

resentencing before a different judge because of the consideration of improper

factors in sentencing.         We affirm Spiker’s conviction, but remand for

resentencing.

   I. Background Facts and Proceedings

         On February 27, 2015, A.D., age thirteen, manually stimulated Spiker, age

sixteen. Spiker pled guilty to lascivious acts with a child, in violation of Iowa

Code section 709.8(1)(b) and (2) (2015) on September 14, 2016. Pursuant to a

plea agreement, the State recommend the minimum fine, a suspended sentence,

and placement in the youthful-sex-offender program.

         In announcing the sentence, the district court referred multiple times to the

forcible nature of the offense and stated the act was oral sex. The district court

further referred to portions of the minutes of testimony regarding threats of

violence if the act was not performed or “she screamed or yelled.” The district

court imposed a ten-year sentence, stating the act was not the result of “youthful

naiveté” and was a “horrible crime” for which the victim would require extensive

therapy. Spiker was sentenced to a term of incarceration not to exceed ten

years.

         After both the State and defense counsel alerted the district court the

forcible oral sex was not the act with which Spiker had been charged, the district

court held a second hearing on November 14.            The district court admitted it

“made a mistake during [Spiker’s] sentencing hearing.” The district court further
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stated, “sometimes we don’t have a lot of time to read through the files before we

come into court and hold hearings” it had “I scanned the minutes of testimony to

find information contained therein” and, in doing so, gave justifications for the

sentence based on “something that was irrelevant to [Spiker’s] sentencing

hearing.” The district court then corrected the record to refer to the sex act

Spiker pled guilty to, but the sentence it imposed remained the same. Spiker

now appeals.

   II. Standard of Review

       “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, such as the trial court’s consideration of impermissible factors.” State

v. Cheatheam, 569 N.W.2d 820, 821 (Iowa 1997). “A trial court’s sentencing

decision is cloaked with a strong presumption in its favor, and an abuse of

discretion will not be found unless a defendant shows such discretion was

exercised on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.” Id. However, when constitutional claims are raised, our review is

de novo. State v. Ragland, 836 N.W.2d 107, 113 (Iowa 2013).

   III. Consideration of Unproven and Uncharged Conduct

       Spiker claims the district court relied on uncharged and unproven facts

contained in the minutes of testimony and that this reliance resulted in a violation

of his due-process rights. The district court relied heavily on sections of the

minutes of testimony, alleging another child, E.R., was forced to perform oral sex

on Spiker. “A sentencing court may consider unprosecuted offenses in imposing

sentences only if admitted by the defendant or adequate facts are presented at
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the sentencing hearing to show the defendant committed the crimes.” See State

v. Delaney, 526 N.W.2d 170, 179 (Iowa Ct. App. 1994) (citing State v. Black, 324

N.W.2d 313, 316 (Iowa 1982)).

       The district court properly admitted it considered improper factors and had

the foresight to make a full and accurate record of its decision. The district court

stated, “After the sentencing hearing, counsel for the State and your attorney

advised the Court that the Court had made a mistake in stating that the act which

was mentioned in the minutes was not the act you participated in.”

       However, the district court failed to resentence Spiker. Even when “the

district court attempt[s] to disclaim the reference to the impermissible sentencing

factor, ‘we cannot speculate about the weight the sentencing court gave to these

unknown circumstances.       Since we cannot evaluate their influence, we must

strike down the sentence.’” State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014)

(citing Black, 324 N.W.2d at 316).        We applaud the district court’s candid

admission but are required to “vacate the defendant’s sentence and remand the

case to the district court for resentencing before a different judge.” Id.

       CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED

FOR RESENTENCING.
