State of Iowa v. Chad Richard Chapman ( 2020 )


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  •                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.