State of Iowa v. Cory Glenn Carter ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1016
Filed March 29, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CORY GLENN CARTER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Joel W. Barrows,
Judge.
A defendant challenges his prison sentence for lascivious acts with a child.
AFFIRMED.
John O. Moeller, Davenport, for appellant.
Brenna Bird, Attorney General, and Nicholas E. Siefert, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Schumacher and Ahlers, JJ.
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TABOR, Presiding Judge.
Cory Carter appeals the prison sentence imposed following his guilty plea
to lascivious acts with a child. He raises two complaints.1 First, he contends the
district court failed to give sufficient reasons for the sentence—specifically for
rejecting the probation recommendation in the presentence investigation report
(PSI). Second, he oppugns the court’s reliance on the victim impact statements.
Finding no error in the sentencing process, we affirm Carter’s prison term.
I. Facts and Prior Proceedings
Carter climbed into bed with a young relative in his care and groped the
child’s penis. After Carter returned to his own room and fell asleep, the eleven-
year-old victim texted his mother before running outside and calling 9-1-1.
The State charged Carter with second-degree sexual abuse—later adding
a charge of lascivious acts with a child. Carter reached a deal with the State,
agreeing to plead guilty to that second count in return for the State dismissing the
first count. The State was free to make any sentencing recommendation. Before
sentencing, the district department of correctional services prepared a PSI, which
recommended supervised probation.
At the sentencing hearing, the prosecutor proposed playing a recording of
the victim’s 9-1-1 call.2 Defense counsel asked whether it was “intended for
1 Carter divides his argument into five sections, but we believe they can be boiled
down to this pair of challenges.
2 The State also informed the court that the victim’s mother and stepmother
planned to present oral victim impact statements.
3
inflammatory purposes or informative purposes.”3 The prosecutor responded that
playing the call would enable the court “to evaluate the serious nature of this
offense.” The court then listened to the recording.
When it came to sentencing recommendations, the State advocated for a
term of imprisonment not to exceed ten years. Why? The State emphasized the
nature of the offense, noting that Carter was “in his fifties” and had been “entrusted
to watch this child.” The State asserted that Carter exploited that trust in a
calculated way: “It wasn’t by accident. He intentionally waited for this child to be
asleep, or so he thought. He waited for him to be in a bed and be in that vulnerable
position.” The State insisted that incarceration was necessary to protect the
community from further offenses by Carter and to deter others from molesting
children.
To counter, the defense asked the court to follow the PSI recommendation
of a suspended sentence. Why? Defense counsel urged that those investigators
had expertise with sexual offenders and could tell if someone was willing and able
to participate in treatment. In his allocution, Carter acknowledged doing something
“very wrong” and promised it would never happen again.
After receiving those competing recommendations, the sentencing court
took a recess and directed the prosecutor to review the victim impact statements.
The court noted it could not consider “uncharged or unproven conduct.” The
prosecutor reviewed the statements and provided copies to the defense. The
3On appeal, Carter includes an oblique argument that introducing the 9-1-1 call
may have violated the plea agreement. Because the argument is not fully
developed, we decline to address it.
4
mother and stepmother then read their prepared statements for the court.4 They
both described a marked change in the child’s outlook since he was victimized.
Once “happy-go-lucky,” he transitioned into “a child of introversion, anger, and
doubt.”
The court then accepted the plea agreement and imposed an indeterminant
ten-year prison sentence. The court explained: “The reasons for the sentence are
due to the nature of the offense and protection of the community. The Court shares
the concerns expressed by the State in this case.”
Carter appeals his sentence.5
II. Analysis
We review Carter’s sentencing claims for correction of legal error. See
Wilbourn, 974 N.W.2d at 65. We will reverse only if we find an abuse of discretion
in the sentence selection or some other defect in the sentencing process. State v.
Damme, 944 N.W.2d 98, 103 (Iowa 2020). We review de novo a sentencing
challenge that implicates due process. State v. Harrington, 805 N.W.2d 391, 393
(Iowa 2011).
A. Reasons for the Sentence
A district court must “state on the record its reason for selecting the
particular sentence.” Iowa R. Crim. P. 2.23(3)(d). The purpose of that rule is two-
4 The parents qualify as victims entitled to present impact statements. Iowa Code
§ 915.10(3) (2022) (defining “victim” to include “immediate family members of a
victim” who was under age eighteen at the time of the offense). Carter does not
contest their eligibility to give victim impact statements.
5 Carter meets the good-cause requirement under Iowa Code section
814.6(1)(a)(3) to proceed with a direct appeal challenging his sentence. See State
v. Wilbourn, 974 N.W.2d 58, 66 (Iowa 2022).
5
fold: (1) to ensure that defendants understand the consequences of their crimes
and (2) to allow appellate courts to review the sentencing court’s exercise of
discretion. Wilbourn, 974 N.W.2d at 67.
Carter contends that “[t]he court’s failure to explain its decision to reject
probation as recommended by the presentence investigator prevents appellate
review of the sentence.” We disagree. Iowa Rule of Criminal Procedure 2.23(3)(d)
does not require a court to give reasons for rejecting a particular sentence. Id.
Here the court gave reasons, granted they were “terse and succinct” reasons, for
the prison sentence. See State v. Garrow, 480 N.W.2d 256, 260 (Iowa 1992). It
did not need to say why it rejected the PSI recommendation. Such
recommendations are not binding on the sentencing court. State v. Grgurich, 253
N.W.2d 605, 606 (Iowa 1977). After selecting its sentence, the court cited the
nature of Carter’s offense, as described by the State, and the need to protect the
public from those kinds of offenses. The brevity of the sentencing court’s remarks
does not prevent us from reviewing its exercise of discretion.
B. Victim Impact Statements
Carter next argues that the court relied on impermissible factors referenced
in the victim impact statements. In particular, he highlights this sentence in the
stepmother’s victim impact statement:
There is absolutely no question that the act committed is Sexual
Abuse in the Third Degree, and we are asking for a maximum
sentence of ten years in prison to rightfully assign these feelings of
blame and guilt and to allow our family closure, healing, and further
victimization by this man.
This layperson’s mistaken reference to a crime—which was never included in the
trial information—is not grounds for reversal. The record shows that the court did
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not rely on that misstatement. In fact, the court was clear that it would not consider
unproven or unprosecuted offenses. And we are mindful of the importance of
allowing victims “to fully convey the impact a crime has had.” State v. Sailer, 587
N.W.2d 756, 764 (Iowa 1998) (trusting district courts to filter out improper
evidence). We reject the claim that the court entertained improper information.
Finally, Carter contends that the victim impact evidence violated his
constitutional rights. Drilling down, he insists: “The presentation of the 911 call
and [victim impact statements] without prior notice to or opportunity by the
defendant to object or refute violates due process.”
The State does not address this contention, not even to question whether
error was preserved. But we may raise error preservation on our own accord. See
Top of Iowa Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (“In view
of the range of interests protected by our error preservation rules, this court will
consider on appeal whether error was preserved despite the opposing party’s
omission in not raising this issue at trial or on appeal.”). And while many
sentencing issues defy the normal rules of error preservation, this one doesn’t. Cf.
State v. Gordon, 921 N.W.2d 19, 23 (Iowa 2018) (holding error preservation rules
applied to due-process challenge to risk assessment tools used at sentencing).
Without any objection from Carter at the sentencing hearing, the court could
consider the victim impact evidence. Cf. State v. Grandberry, 619 N.W.2d 399,
402 (Iowa 2000) (holding court may rely on information in PSI report if defendant
fails to object). Carter failed to preserve error on his due-process challenge.
But even if Carter could raise this issue for the first time on appeal, we would
find no violation. “[V]ictim impact evidence serves entirely legitimate purposes.”
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Payne v. Tennessee, 501 U.S. 808, 825 (1991). In line with that precedent, crime
victims in Iowa have the right to present an impact statement to the court. Iowa
Code § 915.21(1). And filed victim impact statements will be included in the PSI.
Id. § 915.21(1)(a). But alternatively, crime victims may choose to orally present a
victim impact statement at the sentencing hearing in the presence of the
defendant. Id. § 915.21(1)(b). Carter provides no authority for asserting that he
had a right to notice of the content of those statements or an opportunity to refute
them. “The victim impact statement is not an adversarial proceeding.” State v.
Ahrenholz, No. 21-1263, 2022 WL 17829367, at *6 (Iowa App. Dec. 21, 2022). In
fact, the legislature directed us that “[a] victim shall not be placed under oath and
subjected to cross-examination at the sentencing hearing.” Iowa Code
§ 915.21(3). So, Carter fails to show a constitutional violation.
AFFIRMED.