State Of Iowa Vs. Ritchie Lee Lathrop ( 2010 )

IN THE SUPREME COURT OF IOWA
No. 07–0793
Filed April 23, 2010
STATE OF IOWA,
Appellee,
vs.
RITCHIE LEE LATHROP,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Poweshiek County, Dan F.
Morrison, Judge.
Defendant appeals sentence, claiming imposition of lifetime parole
violated ex post facto clause and condition of probation was an abuse of
discretion. DECISION OF COURT OF APPEALS VACATED IN PART;
SENTENCE VACATED IN PART AND CASE REMANDED FOR
RESENTENCING.
Mark C. Smith, State Appellate Defender, and Theresa R. Wilson,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney
General, Michael W. Mahaffey, County Attorney, and Rebecca L. Petig,
Assistant County Attorney, for appellee.
2
TERNUS, Chief Justice.
The defendant, Ritchie Lathrop, appeals from his conviction and
sentence for third-degree sexual abuse. His appeal was transferred to the
court of appeals, where his conviction was affirmed and several claims for
postconviction relief were preserved. We granted the defendant’s application
for further review to consider two issues: (1) whether his sentence to lifetime
parole under Iowa Code section 903B.1 (2007) violated the constitutional
prohibition against ex post facto laws, and (2) whether the sentencing court
abused its discretion by ordering him to have no contact with anyone under
the age of eighteen without the permission of his probation officer. Upon
consideration of the record and controlling authorities, we vacate that part of
the defendant’s sentence placing him on lifetime parole, as well as the
condition of probation prohibiting all contact with anyone under the age of
eighteen. We remand to the trial court for the opportunity to impose a less
restrictive condition on the defendant’s probation.
I. Background Facts and Proceedings.
The evidence at trial would support a finding that the defendant had
sexual relations with Jane Doe at various times during 2005. The defendant
was twenty-seven when the relationship began; the victim was fifteen until
her birthday in October 2005.
In December 2006, the State charged Lathrop with third-degree sexual
abuse. See Iowa Code § 709.4(2)(c)(4) (prohibiting sex act between persons
not husband and wife if one person is fourteen or fifteen and other person is
four or more years older). A jury convicted Lathrop of this charge, and the
court sentenced him to an indeterminate sentence not to exceed ten years.
The court suspended the sentence and placed the defendant on probation for
three years. In addition to other conditions of his probation, he was ordered
to “have no contact with anyone under the age of 18 without the permission
3
of his supervising officer.” Finally, the court determined the lifetime-parole
sentence under section 903B.1 1 was applicable and therefore “committed
[the defendant] to the custody of the director of the Iowa Department of
Corrections for the rest of [his life] . . . with eligibility for parole as provided
in chapter 906.”
The defendant appealed, and we transferred the case to the court of
appeals. That court affirmed his conviction and sentence, and preserved
several claims for postconviction relief. We granted further review to address
the defendant’s challenge to his sentencing under section 903B.1 and to the
no-contact condition of his probation. 2 The State claims error was not
preserved on either claim because the defendant did not object in the district
court to the portions of his sentence that he now challenges on appeal. We
address the error-preservation issue first.
II. Error Preservation.
A. General Principles. Iowa Rule of Criminal Procedure 2.24(1)
states: “Permissible motions after trial include motions for new trial,
motions in arrest of judgment, and motions to correct a sentence.” Iowa R.
1Iowa Code section 903B.1 provides in pertinent part:
A person convicted of a class “C” felony or greater offense under
chapter 709 . . . shall also be sentenced, in addition to any other punishment
provided by law, to a special sentence committing the person into the custody
of the director of the Iowa department of corrections for the rest of the
person’s life, with eligibility for parole as provided in chapter 906 [parole and
work release]. The special sentence imposed under this section shall
commence upon completion of the sentence imposed under any applicable
criminal sentencing provisions for the underlying criminal offense and the
person shall begin the sentence under supervision as if on parole.
Iowa Code § 903B.1.
2The court of appeals’ disposition of the issues raised by the defendant and not
addressed in this opinion stands as the final decision in this appeal.
4
Crim. P. 2.24(1). 3 Only subpart (5) of rule 2.24 addresses motions to correct
a sentence, and it simply provides that “[t]he court may correct an illegal
sentence at any time.” Iowa R. Crim. P. 2.24(5)(a). We have narrowly
interpreted this rule, as a brief historical review illustrates.
In State v. Wilson, 294 N.W.2d 824 (Iowa 1980), this court had an
opportunity to interpret rule 23(5)(a) (later renumbered rule 2.24(5)(a)) when
the State contended the defendant had not preserved his claim that the trial
court had failed to state reasons for its sentence as the defendant had not
raised this error in the district court. 294 N.W.2d at 825. In considering
whether the defendant should have filed a motion under rule 23(5)(a), we
decided that because this rule provided no time limit for filing a motion to
correct a sentence, the rule was meant to apply only to illegal sentences. Id.
(noting that expansion of the rule to apply to procedural defects in
sentencing “would open up a virtual Pandora’s box of complaints with no
statutorily prescribed procedures for their disposition nor any time limits for
their implementation”). Nonetheless, relying on basic fairness, we held the
defendant was not required to raise his objection to the sentencing defect
prior to appeal:
In the case at hand, there is no procedure under our existing
rules for a defendant to raise the issue at the trial court level.
He may not be held to have waived his objection by failing to
raise it at the sentencing because he had no way to know then
that the judge would leave it out of the subsequent judgment.
He has no way to raise the defect after judgment because, as we
have discussed, a motion to “correct” an illegal sentence under
rule 23(5)(a) is the only rule which could be a basis for relief in
the trial court, and it is inapplicable here. A defendant without
a procedure for raising an issue in the trial court obviously
cannot be held to have waived his right to appeal.
3Rule 2.24 was originally found in Iowa Code section 813.2 (1979). With respect to
motions to correct a sentence, the rule is substantially the same now as it was in 1979.
Compare Iowa Code § 813.2 (1979), with Iowa R. Crim. P. 2.24(1).
5
Id. at 826 (citation omitted); accord State v. Marti, 290 N.W.2d 570, 589
(Iowa 1980).
Since our decision in Wilson, Iowa appellate courts have held in a
variety of circumstances that errors in sentencing need not be first
challenged in the district court. See, e.g., State v. Ayers, 590 N.W.2d 25, 27
(Iowa 1999) (claim that district court failed to exercise its discretion in
sentencing defendant); State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998)
(claim that district court improperly exercised its sentencing discretion by
requiring defendant to choose between two proffered sentences); State v.
Young, 292 N.W.2d 432, 435 (Iowa 1980) (claim that the district court
considered an improper factor in determining proper sentence); State v.
Thomas, 520 N.W.2d 311, 312–13 (Iowa Ct. App. 1994) (claim that district
court improperly considered department of corrections’ parole policies in
choosing appropriate sentence). In Cooley, this court observed that it would
be “exceedingly unfair to urge that a defendant, on the threshold of being
sentenced, must question the court’s exercise of discretion or forever waive
the right to assign the error on appeal.” 587 N.W.2d at 754.
Error-preservation principles applicable to illegal sentences are even
broader. As rule 2.24(5)(a) provides, illegal sentences may be corrected at
any time. Iowa R. Crim. P. 2.24(5)(a) (“The court may correct an illegal
sentence at any time.”); see also Young, 292 N.W.2d at 435 (holding even
with respect to illegal sentences encompassed in rule 23(5)(a), now rule
2.24(5)(a), a motion to correct a sentence is not a prerequisite to a
postjudgment challenge to the sentence). “An illegal sentence is void” and,
for this reason, is “ ‘not subject to the usual concepts of waiver, whether
from a failure to seek review or other omissions of error preservation.’ ”
State v. Woody, 613 N.W.2d 215, 217 (Iowa 2000) (quoting State v.
Ohnmacht, 342 N.W.2d 838, 842, 843 (Iowa 1983)). Thus, when “the claim
6
is that the sentence itself is inherently illegal, whether based on constitution
or statute,” the claim may be asserted at any time. State v. Bruegger, 773
N.W.2d 862, 872 (Iowa 2009); accord Ohnmacht, 342 N.W.2d at 843 (holding
“an illegal sentence is subject to correction regardless of whether or not it
was timely appealed”). The breadth of this rule was recently illustrated when
this court held that even expiration of the statute of limitations for
postconviction-relief actions will not bar a challenge to an illegal sentence.
See Veal v. State, 779 N.W.2d 63, 65 (Iowa 2010).
In summary, errors in sentencing may be challenged on direct appeal
even in the absence of an objection in the district court. Illegal sentences
may be challenged at any time, notwithstanding that the illegality was not
raised in the trial court or on appeal.
B. Preservation of Ex Post Facto Claim. We first consider whether
the defendant’s argument that imposition of lifetime parole violates the ex
post facto clause is a claim that the sentence is illegal. A challenge to an
illegal sentence “includes claims that the court lacked the power to impose
the sentence or that the sentence itself is somehow inherently legally flawed,
including claims that the sentence is outside the statutory bounds or that
the sentence itself is unconstitutional.” Bruegger, 773 N.W.2d at 871.
Here, the defendant contends application of section 903B.1 to conduct
that occurred before the statute’s effective date would violate the ex post
facto clause. For this reason, he argues it cannot be constitutionally applied
to him. We think this claim, like the one in Bruegger, is a claim that the
sentence is inherently illegal. Therefore, the defendant’s claim may be urged
on appeal notwithstanding trial counsel’s failure to object to imposition of
the sentence of lifetime parole. Accordingly, we will consider the defendant’s
ex post facto challenge to this aspect of his sentence directly and not under
an ineffective-assistance-of-counsel framework.
7
C. Preservation of Challenge to Condition of Probation. The
defendant does not challenge the sentencing court’s authority to impose
conditions on his probation. Rather, he claims the condition of his
probation ordering him to have no contact with anyone under the age of
eighteen without the permission of his probation officer is unreasonable
because its scope is excessive. We think this claim is indistinguishable from
the claim made in Bruegger.
“The legislature has given the courts broad, but not unlimited,
authority in establishing the conditions of probation.” State v. Jorgensen,
588 N.W.2d 686, 687 (Iowa 1998). Iowa Code section 907.6 provides:
Probationers are subject to the conditions established by
the judicial district department of correctional services subject
to the approval of the court, and any additional reasonable
conditions which the court or district department may impose to
promote rehabilitation of the defendant or protection of the
community.
Iowa Code § 907.6 (emphasis added). Although the sentencing judge has
discretion with respect to the conditions of probation, that discretion must
be exercised “within legal parameters.” State v. Formaro, 638 N.W.2d 720,
725 (Iowa 2002). The defendant contends the court has exceeded those
parameters here by imposing an unreasonable condition that does not
promote his rehabilitation and extends far beyond what is necessary to
protect the community. In essence, he claims the court has gone outside the
limits of allowable sentencing. As we stated in Bruegger, a claim that a
sentence “is outside the statutory bounds” is a claim the sentence is illegal,
and falls within our rule allowing the sentence to be corrected at any time.
Bruegger, 773 N.W.2d at 871.
This case is distinguishable from cases that concern sentences that
are within the court’s statutory and constitutional authority but were
procedurally flawed or imposed in an illegal manner. See, e.g., Ayers, 590
8
N.W.2d at 27 (considering whether the district court failed to exercise its
discretion in sentencing the defendant); Cooley, 587 N.W.2d at 754
(considering whether the district court improperly exercised its sentencing
discretion by requiring the defendant to choose between two proffered
sentences); Young, 292 N.W.2d at 435 (considering whether the district court
applied an improper factor in determining the proper sentence); see also
Bruegger, 773 N.W.2d at 871–72 (noting distinction between illegal sentences
and errors in the proceedings prior to imposition of sentence). Here, the
sentence itself is claimed to be illegal because the condition of probation
exceeded the statutory parameters. See Tindell v. State, 629 N.W.2d 357,
359 (Iowa 2001) (stating an illegal sentence is one not authorized by statute);
see also State v. Tensley, 334 N.W.2d 764, 765 (Iowa 1983) (vacating
condition of probation that was “not authorized by law”); cf. Biller v. State,
618 So. 2d 734, 734–35 (Fla. 1993) (holding condition of probation that was
unrelated to offender’s crime “could not be legally imposed”); State v. Burdin,
924 S.W.2d 82, 87 (Tenn. 1996) (holding condition of probation that was
unrelated to the defendant’s rehabilitation was “not authorized by statute”).
Because the defendant’s challenge to the no-contact condition of his
probation goes to the court’s authority to impose this condition in this case,
his claim is for the correction of an illegal sentence. Therefore, we will
consider the defendant’s challenge to this probation condition as a direct
challenge and not as a claim of ineffective assistance of counsel.
III. Sentence Under Section 903B.1.
The defendant claims the application of section 903B.1 to him violated
the constitutional prohibition against ex post facto laws. 4 See Iowa Const.
4Although the defendant has alleged a violation of both the federal and state
constitutions, we find it unnecessary to address the federal constitutional claim, as we find
the state constitutional claim dispositive.
9
art. 1, § 21 (“No . . . ex post facto law . . . shall ever be passed.”). An ex post
facto law includes “one that makes the punishment for a crime more
burdensome after its commitment.” State v. Iowa Dist. Ct., 759 N.W.2d 793,
797 (Iowa 2009). Thus, two elements must be present for a criminal law to
operate as an ex post facto law. Id. First, the law “ ‘must be retrospective,
that is, it must apply to events occurring before its enactment.’ ” Id. (quoting
Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17, 23
(1981), abrogated on other grounds by Cal. Dep’t of Corr. v. Morales, 514 U.S.
499, 506 n.3, 115 S. Ct. 1597, 1602 n.3, 131 L. Ed. 2d 588, 595 n.3 (1995)).
Second, it must “ ‘alter[] the definition of criminal conduct or increase[] the
penalty by which a crime is punishable.’ ” Id. at 797 n.5 (quoting Morales,
514 U.S. at 506 n.3, 115 S. Ct. at 1602 n.3, 131 L. Ed. 2d at 595 n.3).
Before we discuss whether these elements exist, we first consider whether
the statute imposing lifetime parole is a criminal or penal law.
A. Is Section 903B.1 a Criminal or Penal Law? The State suggests
section 903B.1 does not impose “punishment.” This issue is a question of
legislative intent. See State v. Pickens, 558 N.W.2d 396, 398 (Iowa 1997).
We must ask “ ‘whether the legislative aim was to punish [the] individual for
past activity, or whether the restriction of the individual comes about as a
relevant incident to a regulation of a present situation.’ ” Id. (quoting
DeVeau v. Braisted, 363 U.S. 144, 160, 80 S. Ct. 1146, 1155, 4 L. Ed. 2d
1109, 1120 (1960)). “If the legislature intended the statute to impose
criminal punishment, this intent controls, so the law is considered to be
punitive in nature.” Formaro v. Polk County, 773 N.W.2d 834, 843 (Iowa
2009).
In examining pertinent indicators of legislative intent, we conclude the
statute imposing lifetime parole was intended to be punitive in nature. The
bill in which this statute was enacted is entitled “Criminal Justice –– DNA
10
Sampling, Sex Offenders and Offenses, and Victim Rights.” 2005 Iowa Acts
ch. 158. This bill includes the following summary of its content:
AN ACT relating to criminal sentencing, victim notification, and
the sex offender registry, by establishing a special sentence
for certain offenders, requiring DNA testing of certain
offenders and lengthening the time an information or
indictment may be found in certain offenses where DNA
evidence is available, requiring sex offender treatment in
order to accumulate earned time, restricting certain
persons from residing with sex offenders, establishing a
sex offender treatment and supervision task force,
providing penalties, and providing effective dates.
Id. (emphasis added). The specific section that imposes lifetime parole on
offenders such as the defendant appears in division III of the act, entitled
“Enhanced Criminal Penalties and Statute of Limitations.” Id. ch. 158,
§§ 35–43. The lifetime-parole provision was codified in Iowa Code chapter
903B, entitled “Special Sentencing and Hormonal Intervention Therapy for
Sex Offenders.” Iowa Code ch. 903B. Section 903B.1 is labeled “Special
sentence –– class “B” or class “C” felonies,” and the statute itself refers to
lifetime parole as a “special sentence.” Id. § 903B.1. A “sentence” is
generally understood to be “the punishment imposed on a criminal
wrongdoer.” Black’s Law Dictionary 1393 (8th ed. 2004). Moreover, the
legislature’s use of “parole” as the framework for this special sentence is also
significant, as we have held that “[p]arole is a lenient form of punishment that
monitors a person’s activities to ensure the person is complying with the
law.” State v. Tripp, 776 N.W.2d 855, 858 (Iowa 2010) (emphasis added). We
think the legislative history of this statutory provision, as well as the
language of the statute, provide clear evidence of legislative intent that
lifetime parole is an additional punishment imposed on certain sex offenders.
11
Courts from other states have similarly concluded that the imposition
of lifetime parole on criminal offenders is punishment. 5 See State v. Payan,
765 N.W.2d 192, 203 (Neb. 2009) (holding legislature intended “to establish
an additional form of punishment for some sex offenders”), cert. denied, ___
U.S. ___ (2010); Palmer v. State, 59 P.3d 1192, 1195 (Nev. 2002) (holding
“post-release supervision increases the maximum range of an offender’s
sentence, thereby directly and immediately affecting the defendant’s
punishment”); State v. Jamgochian, 832 A.2d 360, 362 (N.J. 2003)
(concluding “community supervision for life . . . is a penal and not a
collateral consequence of the sentence”); see also Samson v. California, 547
U.S. 843, 850, 126 S. Ct. 2193, 2198, 165 L. Ed. 2d 250, 258 (2006)
(holding parole is punishment, noting “ ‘parole is an established variation of
imprisonment of convicted criminals’ ” (quoting Morrissey v. Brewer, 408
U.S. 471, 477, 92 S. Ct. 2593, 2598, 33 L. Ed. 2d 484, 492 (1972))). The
Nebraska Supreme Court’s analysis is particularly instructive.
In Payan, the Nebraska court concluded the legislature’s intent that
lifetime supervision be penal in nature was shown, in part, by the fact that
supervision was provided by the parole office of the department of
correctional services. 765 N.W.2d at 202. In addition, the provision
imposing lifetime supervision was placed in the code chapter pertaining to
correctional services and parole. Id. (noting “[t]he term ‘parole’ has a
distinctively penal connotation”). The court also found it significant that
5The statutory schemes in Nebraska, Nevada, and New Jersey are substantially
similar to Iowa’s section 903B.1. See Neb. Rev. Stat. § 83-174.03 (2007) (requiring that
certain sex offenders, upon completion of their term of commitment, “be supervised in the
community by the Office of Parole Administration for the remainder of his or her life”); Nev.
Rev. Stat. § 176.0931 (2009) (providing for “special sentence of lifetime supervision” for
specified sex offenders, to commence after any term of imprisonment or period of parole is
served); N.J. Stat. § 2C:43–6.4 (2005) (imposing “a special sentence of parole supervision for
life” on persons convicted of certain sexual offenses, such sentence to “commence
immediately upon the defendant’s release from incarceration”).
12
lifetime supervision began “upon completion of the offender’s term of
incarceration or release from civil commitment” and persons under lifetime
supervision were subject to “affirmative restraints and disabilities similar to
and arguably greater than traditional parole.” Id. at 203. Finally, the court
pointed out lifetime supervision was imposed without “any finding that the
offender poses a risk to the safety of others at the time he or she completes a
period of incarceration or civil commitment.” Id. Under these
circumstances, the court held, “the legislative intent . . . was to establish an
additional form of punishment.” Id.
The same factors found persuasive by the Nebraska Supreme Court
exist here with respect to section 903B.1. A defendant subject to a sentence
of lifetime parole is committed to “the custody of the director of the Iowa
department of corrections for the rest of the person’s life.” Iowa Code
§ 903B.1. “[T]he person shall begin the sentence under supervision as if on
parole,” and is subject to the same procedures and rules adopted “for
persons on parole.” Id. (emphasis added). As in Nebraska, this special
sentence commences upon completion of the sentence imposed for the
underlying criminal offense without any showing that the offender poses a
safety risk. Id. Based on these factors, we are convinced that the imposition
of lifetime parole was intended by the legislature to be additional
punishment for certain sex offenders. Therefore, this statute is subject to
the restrictions imposed by the constitutional prohibition against ex post
facto laws.
B. Was Section 903B.1 Applied Retrospectively? In determining
whether a new law is retrospectively applied, we ask “ ‘whether the law
changes the legal consequences of acts completed before its effective date.’ ”
Iowa Dist. Ct., 759 N.W.2d at 798 (quoting Weaver, 450 U.S. at 31, 101 S.
Ct. at 965, 67 L. Ed. 2d at 24). Thus, we must determine whether the
13
sentence of lifetime parole was applied to an offense committed before the
effective date of this new law.
Section 903B.1 became effective on July 1, 2005. See Iowa Code
§ 3.7(1); 2005 Iowa Acts ch. 158, § 39. The amended trial information in this
case alleged the defendant committed the prohibited sex acts with the victim
between June 2005 and September 2005. Evidence admitted at trial
included testimony by the victim that she had sex with the defendant soon
after they began dating in March 2005. In addition, two witnesses testified
to a specific sexual act occurring between the defendant and the victim in
June 2005.
The jury was instructed that, to establish the defendant committed
sexual abuse in the third degree, it must find, among other facts, that,
“[d]uring the months of June through September 2005, the defendant
performed a sex act with [the victim].” The jury returned a general verdict
finding the defendant “guilty of the crime of Sexual Abuse in the Third
Degree as charged in the Trial Information.” The general verdict form used
by the jury did not require it to make a determination of or specify the dates
on which the illegal sex acts occurred.
When circumstances make it impossible for the court to determine
whether a verdict rests on a valid legal basis or on an alternative invalid
basis, we give the defendant the benefit of the doubt and assume the verdict
is based on the invalid ground. See, e.g., State v. Heemstra, 721 N.W.2d
549, 558–59 (Iowa 2006) (reversing defendant’s conviction because general
verdict did not reveal whether it rested on ground found to be legally flawed);
State v. Hogrefe, 557 N.W.2d 871, 881 (Iowa 1996) (reversing conviction
based on general verdict of guilty, where three theories were submitted to
jury but only one was supported by substantial evidence, because there was
“no way of determining which theory the jury accepted”); State v. Pilcher, 242
14
N.W.2d 348, 354–56 (Iowa 1976) (holding conviction must be reversed when
general verdict did not specify upon which sodomy alternative the verdict
rested and one of the alternatives was unconstitutional); cf. State v. Byers,
456 N.W.2d 917, 919 (Iowa 1990) (“Statutes that are penal in nature are to
be strictly construed, with any doubt resolved against the State and in favor
of the accused.”).
We recently considered the application of this rule in State v. Cowles,
757 N.W.2d 614 (Iowa 2008), a case involving an ex post facto claim. In
Cowles, the defendant was charged with twenty counts of second-degree
sexual abuse occurring between April 1996 and February 1997. 757 N.W.2d
at 615 & n.1. He pled guilty to one count. Id. at 615. The resulting
sentence included a mandatory minimum sentence required by Iowa Code
section 902.12, a statute that did not become effective until July 1, 1996.
Id. at 616. In rejecting the defendant’s ex post facto challenge to the
imposition of the mandatory minimum sentence, we noted that at the plea
hearing the defendant expressly admitted he committed the illegal sex act
between April 9, 1996, and February 2, 1997. Id. at 617. Moreover, prior to
pleading guilty, the defendant was advised he would be required to serve the
mandatory minimum. Id. Under these circumstances, we found an implicit
admission by the defendant that he committed the offense after July 1,
1996. Id. Therefore, the statute was not applied to conduct occurring before
its enactment, and there was no violation of the ex post facto clause. Id. We
expressly distinguished “cases in which a general jury verdict of guilt leaves
the court with uncertainty as to whether the verdict is based on a valid
factual or legal basis, or on an alternative invalid theory submitted to the
jury.” Id. We noted that, “[i]n such cases of uncertainty, a conviction cannot
stand.” Id.
15
We have such a case of uncertainty here. There is no way to
determine whether the jury based its verdict on conduct that occurred before
or after the effective date of the law imposing a sentence of lifetime parole.
Therefore, we must presume the verdict rests on conduct that occurred
before the enactment of the lifetime-parole law. Consequently, section
903B.1 has been applied retrospectively in this case.
C. Has the Retroactive Application of Section 903B.1 Increased
Defendant’s Punishment? The second element of the ex post facto analysis
is whether the statutory change “alters the definition of criminal conduct or
increases the penalty by which a crime is punishable.” Morales, 514 U.S. at
506 n.3, 115 S. Ct. at 1602 n.3, 131 L. Ed. 2d at 595 n.3; accord Iowa Dist.
Ct., 759 N.W.2d at 797 n.5; State v. Smith, 291 N.W.2d 25, 28 (Iowa 1980)
(“ ‘[A] punitive measure is ex post facto if it . . . increases the malignity of or
possible penalty for past conduct which was criminal when it occurred.’ ”
(quoting State v. Quanrude, 222 N.W.2d 467, 469–70 (Iowa 1974))). In the
context of this statute, we must decide whether a sentence of lifetime parole
“increases the penalty by which [the defendant’s] crime is punishable.”
Morales, 514 U.S. at 506 n.3, 115 S. Ct. at 1602 n.3, 131 L. Ed. 2d at 595
n.3.
We think it clearly does. As we have discussed above, lifetime parole
is a form of punishment; it is an additional sentence on the specified sex
offenders. As such, it increases the penalty for the defendant’s crime.
Accordingly, the inclusion of lifetime parole in the defendant’s sentence for
conduct occurring prior to the effective date of section 903B.1 violates the ex
post facto clause of the Iowa Constitution. See State v. Simnick, 779 N.W.2d
335, 340–42 (Neb. 2010) (holding statute authorizing lifetime supervision
was an impermissible ex post facto law as applied to the defendant whose
16
crime was committed before the effective date of the statute). We vacate this
part of the defendant’s sentence.
IV. Condition of Probation.
The defendant contends the district court abused its discretion in
ordering him to have no contact with any person under eighteen years of age
as a condition of his probation. The State asserts this condition is
reasonable in view of the defendant’s offense. We will interfere with the trial
court’s terms of probation only upon a finding of abuse of discretion. See
State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006). “The court abuses its
discretion when its decision is based on untenable grounds or it has acted
unreasonably.” State v. Millsap, 704 N.W.2d 426, 432 (Iowa 2005).
As noted above, ‘[t]he legislature has given the courts broad, but not
unlimited, authority in establishing the conditions of probation.” Jorgensen,
588 N.W.2d at 687; accord 21A Am. Jur. 2d Criminal Law § 846, at 33 (2008)
(“Although broad, the trial court’s discretion to impose conditions of
probation is not without limits[.]” (Footnotes omitted.)). Pursuant to Iowa
Code section 907.6, conditions of probation must not be unreasonable or
arbitrary. State v. Rogers, 251 N.W.2d 239, 243 (Iowa 1977). “A condition is
reasonable when it relates to the defendant’s circumstances in a reasonable
manner and is justified by the defendant’s circumstances.” Valin, 724
N.W.2d at 446 (citations omitted). In assessing the court’s exercise of
discretion, we also keep in mind that probation is intended to “promote the
rehabilitation of the defendant and the protection of the community.” State
v. Ramirez, 400 N.W.2d 586, 590 (Iowa 1987). A condition of probation
promotes these dual goals “when it addresses some problem or need
identified with the defendant.” Valin, 724 N.W.2d at 446 (emphasis added).
Thus, “ ‘[t]he punishment should fit both the crime and the individual.’ ”
State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979) (quoting State v.
17
Cupples, 260 Iowa 1192, 1197, 152 N.W.2d 277, 280 (1967)); accord State v.
August, 589 N.W.2d 740, 744 (Iowa 1999). “ ‘ “The court is not permitted to
arbitrarily establish a fixed policy to govern every case.” ’ ” Hildebrand, 280
N.W.2d at 396 (quoting State v. Jackson, 204 N.W.2d 915, 916 (Iowa 1973));
accord State v. McKeever, 276 N.W.2d 385, 387 (Iowa 1979) (stating “each
[sentencing] decision must be made on an individual basis”).
Additionally, “[a] condition [of probation] is not reasonable if it is found
to be ‘unnecessarily harsh or excessive in achieving [the] goals’ ” of
rehabilitation and community protection. United States v. Friedberg, 78 F.3d
94, 96 (2d Cir. 1996) (quoting United States v. Tolla, 781 F.2d 29, 34 (2d Cir.
1986)); accord Valin, 724 N.W.2d at 446.
[A] reasonable nexus must exist between any special condition of
probation and the crime for which it is imposed. A condition of
probation which requires or forbids conduct which is not itself
criminal is valid [only] if that conduct is reasonably related to
the crime of which defendant was convicted or to future
criminality.
21A Am. Jur. 2d Criminal Law § 846, at 33–34 (footnotes omitted); accord
Jorgensen, 588 N.W.2d at 687 (holding requirement that probationer
participate in batterer’s education program was unreasonable because
defendant was acquitted of domestic abuse and had no history of such
conduct); State v. Stiles, 197 P.3d 966, 969 (Mont. 2008) (holding condition
prohibiting defendant from possessing or consuming alcohol was
unreasonable under statute similar to section 907.6).
The defendant points to several perceived flaws in the no-contact
probation condition, asserting this restriction is too broad, rendering it
unreasonable and an abuse of discretion. We agree that the no-contact
condition of the defendant’s probation is unnecessarily excessive. Certainly,
given the circumstances of the defendant’s offense, it is reasonable for the
18
court to restrict the defendant’s interaction with minors. 6 But the condition
imposed here literally prohibits any and all contact with any person under
the age of eighteen regardless of how unintended, incidental, or innocuous
such contact might be unless the defendant has obtained permission from
his supervising officer. Cf. State v. Hall, 740 N.W.2d 200, 204 (Iowa Ct. App.
2007) (ruling condition of probation that prohibited contact with minors was
not unreasonable “because the restriction contain[ed] an exception for
‘incidental contact in public places where other responsible adults are
present’ ”). Thus, without prior approval of his probation officer, the
defendant risks a probation violation by simply leaving his house. See id. (“A
total ban on all communication with all minors without an exception for
incidental communication where other responsible adults are present would,
in effect, require [the defendant] to become a hermit.”). A walk to the local
fast food restaurant may place the defendant in contact with children
playing on the sidewalk, the paper boy delivering newspapers, or an
underage clerk taking payment for his purchase.
The Vermont Supreme Court refused to enforce an almost identical
probation restriction in State v. Rivers, 878 A.2d 1070, 1072 (Vt. 2005). 7 In
6The court separately prohibited contact between the defendant and the victim and
her family.
7In addition to the Vermont Supreme Court, intermediate courts of appeal in two
states held in unpublished opinions that similar blanket no-contact conditions on probation
were unduly restrictive. See State v. Lacey, No. 23261, 2009 WL 4268572 (Ohio Ct. App.,
Nov. 25, 2009); State v. Jones, No. W2008–01877–CCA–R3–CD, 2010 WL 432418 (Tenn.
Crim. App., Feb. 8, 2010). In Lacey, the defendant was convicted of improperly furnishing a
firearm to a minor. 2009 WL 4268572, at *1. Relying on a prior unpublished decision of the
same court involving a similar restriction on a convicted sex offender, the Ohio Court of
Appeals held a probation condition that the defendant “have no contact with any non-
relative under the age of eighteen” was “unduly broad, by prohibiting unintended, chance,
and fleeting encounters with a juvenile that have no nexus with criminal conduct.” Id. at *1,
*2. The court ruled the trial court erred in imposing the no-contact probation condition. Id.
at *2. In Jones, the defendant was convicted of a sex offense and as a condition of his
probation was “not allowed unsupervised contact with any minor child under eighteen years
of age, including his own children.” 2010 WL 432418, at *1. The court held the term
“unsupervised contact” rendered the condition “overbroad,” “not properly defined,” and
19
Rivers, a condition of the defendant’s probation was the prohibition of any
“contact with children under the age of sixteen without prior approval of the
probation officer.” 878 A.2d at 1076. The defendant was found to have
violated this condition of his probation when he attended a local fair and
stood in line near minors under sixteen years of age. Id. at 1071. Aside
from the defendant’s proximity to these minors, there was no evidence that
he “physically touched, initiated or sought conversation with, or otherwise
stalked any particular children.” Id. at 1071–72. On the defendant’s appeal
from the district court’s finding that he had violated the terms of his
probation, the supreme court noted that the restriction in question was not
specific to the defendant’s victim nor was it limited to private locations
presenting “greater dangers to the protected class and to a probationer’s
rehabilitation.” Id. at 1074. This condition, the court pointed out, would
require the defendant “to refrain from going to numerous public places
where essential daily business is transacted.” Id. The court stated:
[T]his common probation condition could extend to any number
of other public places where children are regularly present such
as grocery stores, movie theatres, libraries, fast-food
restaurants, parks, or even downtown streets all across Vermont
where children often congregate in large numbers after school
and during the summer months. When removed from the
context of victim-contact or private locations where different
considerations apply, such a broad rule severely restricts a
probationer’s liberty while doing little to rehabilitate the offender
or prevent the behavior that led to the no-contact condition in
the first place.
“unduly restrictive.” Id. at *4. Noting the restriction would include “telephone
conversations, emails, and letters,” and “would also preclude the defendant from entering a
retail establishment if the clerk was alone and happened to be under eighteen,” the court
ruled “the condition is too indefinite to be reasonable or realistic.” Id. The court remanded
the case to the trial court “to fashion a more defined and less limiting condition.” Id.
20
Id. at 1075. The court concluded this “blanket no-contact condition” was
“overbroad and unduly restrictive of probationer’s freedom and autonomy”
and lacked “sufficient precision.” Id. at 1074, 1076.
For the same reasons, we conclude the challenged probation condition
here is unreasonable, and the district court abused its discretion in
imposing it. See Hall, 740 N.W.2d at 204–05 (holding restriction on
defendant’s communication with any child under eighteen years of age with
no exception for incidental communication was unreasonably restrictive).
We vacate the no-contact condition of the defendant’s probation, and
remand this case to the district court for the opportunity to fashion a more
realistic and precise condition on the defendant’s probation that would
ensure he does not have contact with minors in situations that would
jeopardize the safety of the community and the defendant’s rehabilitation.
V. Conclusion and Disposition.
That part of the defendant’s sentence imposing lifetime parole under
section 903B.1 violates the ex post facto clause of the Iowa Constitution. In
addition, the condition placed on the defendant’s probation prohibiting
contact with any person under the age of eighteen without approval of his
supervising probation officer is an abuse of discretion. Therefore, we vacate
those parts of the defendant’s sentence subjecting him to lifetime parole and
imposing the blanket no-contact condition on his probation. To the extent
the court of appeals reached contrary conclusions, we vacate the court of
appeals’ decision. This case is remanded to the district court for
resentencing as directed in this opinion.
DECISION OF COURT OF APPEALS VACATED IN PART; SENTENCE
VACATED IN PART AND CASE REMANDED FOR RESENTENCING.
All justices concur except Baker, J., who takes no part.