State of Iowa v. Jack Freeman Purscell ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0616
Filed February 8, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JACK FREEMAN PURSCELL,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
Judge.
A defendant appeals his sentence. AFFIRMED.
Nicholas Einwalter, Des Moines, for appellant.
Brenna Bird, Attorney General, and Olivia D. Brooks, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Schumacher and Chicchelly, JJ.
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TABOR, Presiding Judge.
Jack Purscell pleaded guilty to one count of lascivious acts with a child. The
district court sentenced him to a term of incarceration not to exceed ten years. On
appeal, he claims the court abused its discretion in not granting probation as
recommended by the presentence investigation (PSI) report. Because the court
weighed permissible factors, including the victim’s age, Purscell’s age, and his best
chance at rehabilitation, we find a proper exercise of discretion and affirm.
I. Facts and Prior Proceedings
In 2020, Purscell’s wife ran a daycare out of their shared home. A three-
year-old girl attending the daycare began acting strangely. Shortly after her
strange behavior began, she reported to a therapist and a forensic interviewer that
Purscell had touched her bare vagina with his fingers while alone with her in the
bathroom.
The State charged Purscell with one count of sexual abuse in the second
degree. Under an agreement with the State, Purscell pleaded guilty1 to lascivious
acts with a child. At sentencing, Purscell asked the court to follow the PSI
recommendations and grant him supervised probation. On the other side, the
State asked the court to impose the maximum term of incarceration to ensure
Purscell would have a better chance of successful rehabilitation.
The court considered both parties’ positions, along with the PSI
recommendation and the mother’s victim impact statement. The victim’s mother
1 Purscell entered an Alford plea in which he maintained his innocence but
acknowledged strong evidence of his guilt. See North Carolina v. Alford, 400
U.S. 25, 38 (1970).
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explained how the crime “caused so much fear and mistrust in the home,” and how
the child has anger and fears that are not subsiding despite the abuse occurring
two years before the hearing. Persuaded by the victim impact statement, the court
denied probation: “The court agrees with the State and with the mother of the child
that the impact upon the child is going to be a lifetime sentence because this does,
that I’ve seen, create a trauma that is very hard to cope with.”
Purscell appeals his sentence and “bears the burden of establishing ‘good
cause’ to pursue an appeal of [his] conviction based on a guilty plea.” State v.
Damme, 944 N.W.2d 98, 104 (Iowa 2020). Good cause exists when a defendant
appeals the sentence rather than a guilty plea. Id. at 105.
II. Standard of Review
We review the sentencing procedure for abuse of discretion. State v.
Gordon, 921 N.W.2d 19, 24 (Iowa 2014). We will find an abuse of discretion when
“the district court exercises its discretion on grounds or for reasons that were
clearly untenable or unreasonable . . . .” State v. Thompson, 856 N.W.2d 915, 918
(Iowa 2014). We afford a strong presumption to the district court’s sentencing
decision. State v. Papas, 337 N.W.2d 490, 494 (Iowa 1983). Purscell bears the
burden of overcoming this presumption. See id.III. Analysis
The sentencing court must weigh all pertinent information and impose a
sentence that “will provide maximum opportunity for the rehabilitation of the
defendant and for the protection of the community[.]” Iowa Code § 901.5 (2020).
In doing so, the court should consider “the nature of the offense, the attending
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circumstances, the age, character and propensity of the offender, and the chances
of reform.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).
Purscell contends that the sentencing court did not give enough weight to
the mitigating factors in rejecting supervised probation. He points to his age of
sixty-seven, his limited criminal history, the lack of substance or alcohol abuse,
and his ability to complete sex offender treatment in the community. Beyond those
factors, Purscell highlights his health concerns; he needs a walker, has high blood
pressure, chronic obstructive pulmonary disease and glaucoma. For those
reasons, Purscell believes the court abused its discretion in sending him to prison.
We are not persuaded. The sentencing court did consider the necessary
factors including Purscell’s age, his retirement and family circumstances, the
nature of the offense, and the PSI report and victim impact statement. See Iowa
Code § 907.5. But the court did not view Purscell’s age as a mitigating factor.
“[T]he fact of the age of defendant, that this occurred at his age, I think is
important.” The court looked at the circumstances of the offense, the trust placed
in a daycare to keep a child safe, and how Purscell broke that trust. The court
emphasized that while incarcerated Purscell will be able to receive sex offender
treatment without distractions, so the treatment can “get his full attention.”
While the PSI report recommended supervised probation instead of prison,
“such recommendation was not binding on the court.” State v. Grgurich, 253
N.W.2d 605, 606 (Iowa 1977). The court did not abuse its discretion in determining
that a prison sentence was the “maximum opportunity for rehabilitation.” Iowa
Code § 901.5. Thus, resentencing is unnecessary.
AFFIRMED.