                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1268
                               Filed June 11, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAKE CHRISTIAN SMITH,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Marion County, Randy V. Hefner,

Judge.



      A   defendant    appeals   challenging    his    sentence.     CONVICTION

AFFIRMED; SENTENCE VACATED IN PART AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney

General, and Ed Bull, County Attorney, for appellee.



      Considered by Vogel, P.J., Mullins, J., and Sackett, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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MULLINS, J.

       Jake Smith appeals his sentence for charges of sexual exploitation of a

minor and sexual abuse in the third degree. He contends that the court abused

its discretion by “fail[ing] to consider the minimum sentencing factors,” exceeded

its authority when it imposed a five-year no-contact order, and did not give proper

consideration to his ability to reimburse the State when it ordered him to pay

restitution for attorney fees.    We affirm the prison sentence, vacate the no-

contact order, remand for entry of a corrected no-contact order, and decline to

consider the restitution order.

I. BACKGROUND FACTS AND PROCEEDINGS

       In May 2013 Smith pled guilty to sexual exploitation of a minor and sexual

abuse in the third degree. Both of these charges arose from an incident where

Smith and his friends secretly videotaped the victim performing oral sex on

Smith. The video was subsequently spread to various persons including Smith’s

ex-girlfriend, who assaulted the victim in response to the video.      Smith was

nineteen years of age, and the victim was fifteen. At sentencing Smith argued for

a deferred judgment, citing his lack of a serious criminal record, his youth, the

relationship difficulties he was having with his mother, and his remorsefulness as

reasons why his sentence should be mitigated. In sentencing Smith, the court

relied upon the presentence investigation (PSI) report without objection from

either of the parties. The court noted that at the time of the incident Smith was

unemployed, had quit high school, and was “adrift” with “no focus in [his] life

whatsoever.” The court also acknowledged Smith’s drug use, his mental health,
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the PSI author’s determination that he was a “moderate to high risk to re-offend,”

as well as the author’s recommendation that he receive sex offender treatment

during his incarceration.

       The court then sentenced Smith to two concurrent ten-year terms of

imprisonment. The court also entered a no-contact order prohibiting Smith from

having any contact with the victim and juveniles under the age of eighteen for a

period of five years. Finally, Smith was ordered to pay restitution costs for his

court-appointed attorney, either in the amount certified by the Iowa public

defender’s office or $500, whichever was less. Smith filed a timely notice of

appeal, challenging his sentence.

II. SCOPE AND STANDARDS OF REVIEW

       We review sentencing appeals for correction of errors at law. State v.

Valin, 724 N.W.2d 440, 443-44 (Iowa 2006).           If a sentence falls within the

statutory limits, it will be set aside only for an abuse of discretion. Id. at 444. “An

abuse of discretion is found only when the sentencing court exercises its

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

unreasonable.” State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996). To the

extent Smith raises constitutional issues in contesting the no-contact order, our

review there is de novo. State v. Kreps, 650 N.W.2d 636, 640 (Iowa 2002).

III. ANALYSIS

       Smith contends the court abused its discretion when it sentenced him to

two concurrent ten-year prison terms. He argues the court inappropriately relied

on his “lack of focus in life” while ignoring “many other factors . . . which show
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[he] could be successful with some guidance and assistance.”            Among the

factors the court ignored, Smith argues, is the lack of treatment he received

following his discharge from a psychiatric medical institute, as well as domestic

difficulties he faced at home. Smith also asserts that the nature of the offense

does not warrant his sentence. He argues at the time of the offense the victim

was only seventy-four days from being of legal age to engage in consensual

sexual activity with him, he did not personally spread the videotape of his sexual

encounter with the victim, and the victim was not “especially traumatized by

[him], but by other’s reaction to the video.” Smith contends these are all factors

that “[weigh] against imprisonment.” Finally, Smith questions the accuracy of the

conclusions made in his PSI report.

       The district court is required to choose the sentencing options which, in its

discretion, provide the best opportunity for rehabilitation of the defendant and the

protection of the community. Iowa Code § 901.5 (2013). To this end, the court is

to consider “all pertinent matters . . . including the nature of the offense, the

attending circumstances, the defendant’s age, character, and propensities or

chances for reform.” State v. Johnson, 513 N.W.2d 717, 719 (Iowa 1994). In

exercising its discretion, a court must state its reasons for imposing a particular

sentence, but is “generally not required to give its reasons for rejecting particular

sentencing options.”    Thomas, 547 N.W.2d at 225.          As such, “[s]entencing

decisions of the district court are cloaked with a strong presumption in their

favor.” Id.
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       Here, we find the court did not abuse its discretion and sufficiently stated

its reasons for choosing the sentence:

               In considering an appropriate sentence I will consider your
       age, your prior record, your employment circumstances, your family
       circumstances, the nature of the offense.
               The goals of sentencing are to protect the community from
       further offenses by you and to provide you with maximum
       opportunity for rehabilitation.
               In reviewing the PSI report a number of facts seem to me to
       be the most relevant to sentencing. When this occurred you were
       adrift. There was no focus in your life whatsoever. The PSI author
       indicated that you quit high school because you didn’t like it. The
       activities which you were engaging in on a daily basis were
       absolutely, totally recreational. You were unemployed.
               The PSI reporter indicated that you told that individual that
       you were using marijuana on a daily basis. You were not at that
       time pursuing a GED, at least as near as I can tell. You have been
       for quite some time diagnosed with serious mental health issues.
       There apparently was no ongoing attempt to address those mental
       health issues.
               I am concerned by the assessment that you are at a
       moderate to high risk to re-offend. The author of the PSI report
       indicates that you should be referred for sex offender treatment, but
       while incarcerated.
               I believe for all of those reasons suspending a sentence or
       giving you a deferred judgment on these charges is not appropriate.
       I further, however, believe that running these prison sentences
       consecutive is not necessary under these circumstances primarily
       due to your age.

       The reasoning as stated by the court demonstrates concern for the twin

goals of rehabilitation of the defendant and protection of the community. In his

argument, Smith assumes that because the court did not discuss the details of

the offense or mention his time in psychiatric care, it did not give these factors

consideration in support of a mitigated sentence. However, the court is under no

general obligation to state all of its reasons for rejecting a particular sentence. Id.

Smith also argues the conclusions made by the author of the PSI report are not
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supported by the factual findings. To the extent Smith seems to be challenging

the admissibility of the PSI report, he waived that challenge when he declined to

object to the court relying upon the report at the sentencing hearing. To the

extent Smith is arguing the court abused its discretion by giving too much weight

to the report’s conclusions, we look at the factors considered by the court.

       The record clearly shows the court considered Smith’s age, criminal

record, employment circumstances, family circumstances, educational status,

substance abuse history, mental health issues, and risk to re-offend. The court

also considered the nature of the offense and the goals of sentencing to protect

the community and to maximize Smith’s opportunity for rehabilitation.

Accordingly, we find the court properly exercised its discretion.

       Smith also contests the portion of the five-year no-contact order

prohibiting all contact or communication with juveniles under the age of eighteen.

Smith contends that such an order has no statutory basis in this state and

violates his constitutional rights as protected by the First Amendment.         He

argues, and the State agrees, that it is invalid because Iowa Code section

664A.1 only authorizes a no-contact order to protect “the alleged victim, persons

residing with the alleged victim, or members of the alleged victim’s immediate

family.”   Smith claims a five-year order prohibiting him from contact with all

juveniles would be “excessively broad and unreasonably restrictive.”

       In State v. Lathrop, our Supreme Court held that a condition of probation

prohibiting contact with all minors was “unreasonably excessive,” noting that

such a condition “literally prohibits any and all contact with any person under the
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age of eighteen regardless of how unintended, incidental, or innocuous such

contact might be.” 781 N.W.2d 288, 299 (Iowa 2010). Although the court in

Lathrop addressed conditions of probation, we find the same concerns to be

applicable in the instant case. Smith would not only be subjected to the same

conditions as the defendant in Lathrop, he would also be prohibited from

contacting his own younger siblings. Given the unreasonable excessiveness of

the order and its lack of statutory authorization, we agree with both parties and

vacate the portion of the no-contact order prohibiting contact with all juveniles

under the age of eighteen. See also State v. Hall, 740 N.W.2d 200, 202-03 (Iowa

Ct. App. 2007).

       Finally, Smith argues the court failed to give adequate consideration to his

ability to pay when it ordered him to reimburse the State for his attorney fees.

However, because it does not appear a plan of restitution was completed

pursuant to Iowa Code section 910.3 by the time the notice of appeal was filed,

and because Smith has not yet pursued the remedy provided by Iowa Code

section 910.7, we decline to address the issue at this time.          See State v.

Jackson, 601 N.W.2d 354, 357 (Iowa 1999); State v. Swartz, 601 N.W.2d 348,

354 (Iowa 1999). The Jackson court held that until a plan of restitution under

section 910.3 is completed, “the court is not required to consider the defendant’s

ability to pay.” 601 N.W.2d at 357. The court also held that because section

910.7 allows a defendant to petition the district court for modification of a

restitution plan if dissatisfied with the payments required by the plan, “unless that

remedy has been exhausted, we have no basis for reviewing the issue in this
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court.” Id. On this record, we too have no basis for reviewing Smith’s ability to

pay.

IV. CONCLUSION

       The sentencing court considered statutory and other relevant factors and

did not abuse its discretion in selecting the sentence of imprisonment, so we

affirm that decision. The breadth of the no-contact order was unreasonable and

exceeded statutory authority by covering persons not defined as victims.

Accordingly, we vacate the no-contact order entered as part of the sentence and

remand for entry of a no-contact order that complies with statutory authority. As

there is no restitution plan and Smith has made no effort to exhaust his remedies

at the district court, his restitution claim is not subject to our review.

       CONVICTION AFFIRMED; SENTENCE VACATED IN PART, AND

REMANDED.
