STATE OF IOWA, Appellee, vs. CAMERON JAMES HESS, Appellant.
No. 21–0079
IN THE SUPREME COURT OF IOWA
December 29, 2022
Submitted September 14, 2022
Appeal from the Iowa District Court for Polk County, Sarah E. Crane, Judge.
Defendant prosecuted in district court for felony sex offenses committed as a juvenile appeals his sex offender registration requirement and special sentence imposed after he reached adulthood. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Waterman, J., delivered the opinion of the court, in which Christensen, C.J., and Mansfield and McDermott, JJ., joined. McDonald, J., filed an opinion concurring in part and dissenting in part, in which Oxley and May, JJ., joined.
Martha J. Lucey, State Appellate Defender, and Josh Irwin (argued), Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven (argued), Assistant Attorney General, for appellee.
In this appeal, a defendant—who at age seventeen confessed to sexually abusing three children—was prosecuted in district court, convicted on four class “B” felony counts, and sentenced at age twenty. The district court suspended his sentence of incarceration and placed him on probation without suspending his lifetime special sentence under
The defendant appealed, renewing his constitutional challenge to the sex offender registration requirement and further arguing
On our review, we hold that In re T.H. applies only to juvenile sex offenders whose cases are prosecuted and resolved in juvenile court, and we decline the defendant’s invitation to apply its holding to a juvenile offender prosecuted and convicted in district court. Sex offender registration protects the public regardless of the age of the offender and is properly viewed as nonpunitive for adults as well as juveniles who are рrosecuted in district court. As matters of first impression, we hold that the district court lacks discretion under
I. Background Facts and Proceedings.
Defendant Cameron James Hess is now twenty-two years old. His parents separated years ago. Hess has several half- and step-siblings. Hess lived with his mother and stepfather and attended high school in Van Meter, but he spent significant time in De Soto with his maternal grandparents and in Des Moines with his father and stepmother. During his time at those households, Hess sexually abused children, including his family members.
Hess began sexually abusing his younger half-sister, A.H., in 2010. Hess abused A.H. through manual fondling and digital penetration of her genitals when she was four years old. In 2011, Hess’s parents discovered the abuse and admonished him to stop. By all accounts, Hess stopped abusing A.H.
In 2016, Hess began abusing M.F., a neighbor in Des Moines. Hess forced M.F. to kiss him and forced oral sex on her repeatedly. Hess threatened to hurt her if she told anyone. M.F. was seven years old.
In early 2018, Hess abused C.H., his younger half-sister. Hess subjected C.H. to manuаl fondling of her genitals and forced oral sex. C.H. was five or six years old.
In May 2018, when M.F. was nine years old and Hess was seventeen, she reported his abuse. Des Moines Police officers investigated and discovered that Hess had also abused A.H. and C.H. Officers referred the three girls for forensic interviews at the Blank Children’s STAR Center. Hess confessed to two instances of forced sexual contact with A.H., two with M.F., and two more with C.H.
The State charged Hess with six counts of second-degree sexual abuse, a class “B” felony, in 2018—two counts each arising from Hess’s sexual contact with A.H., M.F., and C.H.
alleged in the six counts cover a time period of eight years . . . [with victims] who were at various times 6, 7, and 10 years of age.” The court relied in part on a juvenile court officer’s report that Hess, now age еighteen, was “not a good candidate for placement in Juvenile Court” because he “cannot be placed in any juvenile treatment facilities due to his age” and was “eligible for supervision by the Juvenile Court for only 18 months.” The court recognized that “the life consequences for the Defendant are severe” and that “[t]he consequences to the public are also severe if the Defendant is not properly deterred, supervised[,] and treated.”
Hess waived his right to a jury trial, and the case proceeded to a bench trial on the minutes when Hess was age nineteen. On September 2, 2020, the district court found Hess guilty on four of the six counts.2 The district court conducted a two-day sentencing hearing by GoTo Meeting in January 2021. Hess was then age twenty. A defense expert, Dr. Luis Rosell, testified about juvenile recidivism and psychology, Hess’s history and risk assessment scores, and testing referenced in the presentence investigation report. Dr. Anthony Tatman, director of the Fifth Judicial District Department of Corrections, testified on the same subjects. The court also heard from a victim’s stepmother who said, “The
emotional damage that this child has received is beyond anything I can describe tо you.” She noted that the child has “severe trust issues [and] mental health issues” and that their family is “continuously in counseling and therapy.”
Defense counsel requested a deferred judgment and raised constitutional objections to imposing the sex offender registration requirement, relying on In re T.H. Defense counsel otherwise never argued that the court had discretion under
Hess appealed, renewing his argument that it is unconstitutional under In re T.H. to rеquire sex offender registration for offenses he committed as a juvenile. Hess also argues on appeal that the district court had discretion to suspend the special sentence and sex offender registration requirement
sentence and sex offender registration are mandatory collateral consequences of his convictions. We retained the case.
II. Standard of Review.
“Our standard of review for rulings on constitutional challenges to a sex offender registration statute is de novo.” Aschbrenner, 926 N.W.2d at 245–46.
[W]e must remember that statutes are cloaked with a presumption of constitutionality. The challenger bears a heavy burden, because [he] must prove the unconstitutionality beyond a reasonable doubt. Moreover, “the challenger must refute every reasonable basis upon which the statute could be found to be constitutional.” Furthermore, if the statute is capable of being construed in more than one manner, one of which is constitutional, we must adopt that construction.
Id. at 246 (alterations in original) (quoting State v. Seering, 701 N.W.2d 655, 661 (Iowa 2005), superseded by statute on other grounds, 2009 Iowa Acts ch. 119, § 3 (codified at
“A sentencing court’s decision to impose a specific sentence that falls within the statutory limits ‘is cloaked with a strong presumption in its favor . . . .’ ” State v. Wilbourn, 974 N.W.2d 58, 67 (Iowa 2022) (omission in original) (quoting State v. Davison, 973 N.W.2d 276, 289 (Iowa 2022)). “But when the sentencing court fails to exercise discretion because it ‘was unaware that it had discretion,’ we typically vacate and remand for resentencing.” Id. (quoting Davison, 973 N.W.2d at 289).
III. Analysis.
Hess raises both constitutional and statutory challenges to his special sentence and sex offender registration requirement. He argues that the district court has discretion under
A. Is Sex Offender Registration Cruel and Unusual Punishment for Crimes Committed as a Juvenile? Hess relies on In re T.H. for the proposition that requiring a juvenile offender to register as a sex offender is unconstitutional cruel and unusual punishment. In In re T.H., we held that mandatory sex offender registration for a juvenile sex offender prosecuted in juvenile court amounted to punishment but not cruel and unusual punishment for constitutional purposes. 913 N.W.2d at 596–97. In so doing, we drew a
offender registration remains nonpunitive. See Aschbrenner, 926 N.W.2d at 248–49. The State argues that In re T.H. does not apply because Hess was prosecuted in district court and reached adulthood before his sentencing. Alternatively, the State urges us to overrule In re T.H. as wrongly decided and difficult to administer. We resolve Hess’s constitutional claim by distinguishing In re T.H.
In Aschbrenner, which involved an adult sex offender, we concluded that “In re T.H. is readily distinguishable based on the unique concerns of juvenile offenders that are inapplicable to adult offenders.” 926 N.W.2d at 248. One factor we used to distinguish adults from juveniles was the publicity of the proceedings: “[A]n adult offender’s criminal conviction is already a matter of public record, unlike juvenile adjudications, which are sealed unless the juvenile’s case is transferred to adult criminal court.” Id. Here, Hess was tried in district court, so record of his conviction was never sealed. Hess therefore stands in a position closer to Aschbrenner than to In re T.H. We decline to apply In re T.H. to juvenile sex offenders prosecuted in district court and reject Hess’s constitutional challenge to his sex offender registration requirement.3
B. Whether the District Court Has Discretion Under Iowa Code Section 901.5(13) to Suspend the Sex Offender Registration Requirement. We turn to Hess’s statutory claims. He argues that the district court had discretion under
offender registration is a mandatory collateral consequence of his conviction and not a part of his “sentence” that can be suspended under
13. Notwithstanding any provision in
section 907.3 or any other provision of law prescribing a mandatory minimum sentence for the offense, if the defendant, other than a child being prosecuted as a youthful offender, is guilty of a public offense other than a class “A” felony, and was under the age of eighteen at the time the offensе was committed, the court may suspend the sentence in whole or in part, including any mandatory minimum sentence, or with the consent of the defendant, defer judgment or sentence, and place the defendant on probation upon such conditions as the court may require.
We rejected a similar argument in Richardson, which addressed the same statute (previously numbered 901.5(14)) to hold that criminal restitution imposed under
consequence of the judgment of conviction). And as we determine today, for juvenile offenses prosecuted in adult court, the sex offender registration requirement is a regulatory measure to protect the public, not punishment. For these reasons, we hold that registration under
C. Whether the District Court Has Discretion Under Iowa Code Section 901.5(13) to Suspend a Special Sentence Under Section 903B.1. Hess argues that the district court had discretion under
committed an offense under the age of eighteen. Although
The dissent disregards the juxtaposition of subsections 12 and 13 of
the right to be informed of it before his guilty plea.”); State v. Hallock, 765 N.W.2d 598, 605 (Iowa Ct. App. 2009) (holding that the
The dissent relies on the “shall” language in
the canon to hold a more specific statute controlled without any cross-reference to the more general statute.5 The dissent’s interpretation violates this canon, too.
We also note that
The text of
The State and dissent argue we should interpret the statutes in context to define “sentence” in
confinement, it presumably would have used that term (or “prison,” “jail,” or “incarceration”). It did not.
Importantly,
words “of incarceration” that the legislature chose to omit from
The “notwithstanding” clause confirms that the district court’s discretion to suspend a sentence in
The dissent ignores a practical problem with its interpretation: that some offenders would be left in limbo.
interpretation violates this canon, among others. By contrast, our interpretation harmonizes the statutes by allowing the sentencing court to suspend the special sentence when it grants a deferred sentence for the underlying offense.
Richardson determined that “sentence” as used in
We are mindful that the purpose of the special sentence in
We hold that
IV. Disposition.
For the foregoing reasons, we affirm Hess’s sex offender registration requirement. We remand the case for resentencing consistent with this opiniоn.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Christensen, C.J., and Mansfield and McDermott, JJ., join this opinion. McDonald, J., files an opinion concurring in part and dissenting in part, in which Oxley and May, JJ., join.
#21–0079, State vs. Hess.
McDONALD, Justice (concurring in part and dissenting in part).
Sentencing is wholly a creature of statute. “The legislature possesses the inherent power to prescribe punishment for crime, and the sentencing authority of the courts is subject to that power.” State v. Iowa Dist. Ct., 308 N.W.2d 27, 30 (Iowa 1981). Pursuant to that inherent authority, the legislature has prescribed mandatory terms of incarceration for certain offenses in
I.
The question presented is: What additional authority does
fair and ordinary meaning of the statutory language at issue. Id. In determining the fair and ordinary meaning of the statutory language at issue, the court considers the language‘s relationship to other provisions of the same statute and other provisions of related statutes. See
With respect to offenders under the age of eighteen not convicted of a class “A” felony, section 901.5(13) gives the district court sentencing authority it otherwise would not have. Specifically, the statute gives the district court the discretion to
The statute does not, however, provide the district court with this additional sentencing authority as an exception to any and all mandatory sentencing provisions. Instead, the statute provides the district court with additional authority “notwithstanding” two particular sentencing provisions: (1) “any provision in section 907.3,” and (2) “any other provision of law prescribing a mandatory minimum sentence for the offense.” Id. To understand the boundaries of the additional authority granted in section 901.5(13), we must first understand the substantive ground in these two particular sentencing provisions to which section 901.5(13) is an exception.
Section 907.3 is entitled “Deferred judgment, deferred sentence, or suspended sentence.” As the title suggests, section 907.3 “relates to deferred judgments, deferred sentences, and suspended sentences.” State v. Richardson, 890 N.W.2d 609, 617 (Iowa 2017). The section relates to sentences of incarceration and “identifies certain circumstances[,] including forcible felonies[,] where incarceration is mandatory and the deferred and suspended options are not available.” Id. Section 907.3 has nothing to do with and nothing to say about the sex offender registration requirement under chapter 692A or the special sentence under sections 903B.1, 903B.2, or 901.5(12). Section 901.5(13)‘s exception to section 907.3 is thus a grant of additional authority to defer or suspend what would otherwise be a mandatory sentence of incarceration.
Section 901.5(13) grants the district court discretionary authority with respect to “any other provision of law prescribing a mandatory minimum sentence for the offense.”
Notably, Black‘s Law Dictionary defines “sentence” as “[t]he judgment that a court formally pronounces after finding a criminal defendant guilty” or “the punishment imposed on a criminal wrongdoer” but defines “minimum sentence” as ”[t]he least amount of time that a convicted criminal must serve in prison before becoming eligible for parole.” Sentence, Black‘s Law Dictionary (10th ed. 2014); Minimum Sentence, Black‘s Law Dictionary; see State v. Hoyman, 863 N.W.2d 1, 11 (Iowa 2015) (citing Black‘s Law Dictionary in interpreting a criminal statute).
Other provisions of the Iowa Code use “mandatory minimum sentence” to refer to a mandatory period of incarceration. See
Iowa Code § 124.413 (section entitled “Mandatory minimum sentence“);id. § 232.45(14)(a) (cross-referencing section 124.413);id. § 462A.14(3)(a) (“mandatory minimum sentence of incarceration“);id. § 901.5(7) (“The court shall inform the defendant of the mandatory minimum sentence, if one is applicable.“);id. § 901.10(2) (allowing reductions in the “mandatory minimum sentence” for certain offenses if the defendant pleads guilty or cooperates in the prosecution of other persons);id. § 903A.2(5) (addressing the interaction between earned time accrued by inmates and “any mandatory minimum sentence“);id. § 903A.5(1) (addressing the interaction between earned time and certain “mandatory minimum sentence[s]“);id. § 904.902 (“An inmateserving a mandatory minimum sentence of one year or more . . . .“); id. § 906.5(1)(a) (stating that the board of parole does not need to annually review the status of a person “serving a mandatory minimum sentence“);id. § 907.3(1)(a)(7) (“a mandatory minimum sentence must be served or mandatory minimum fine must be paid“);id. § 907.3(2)(a)(3) (“a mandatory minimum sentence must be served or mandatory minimum fine must be paid“);id. § 907.3(3)(c) (“[a] mandatory minimum sentence of incarceration“);id. § 907.3(3)(f) (“[a] mandatory minimum sentence or fine imposed for a violation of section 462A.14“).
Id. (alterations and omission in original) (emphases added). The Richardson court then concluded that “mandatory minimum sentence” as used in section 901.5(13) refers only to the minimum sentence of “incarceration.” Id. at 619. Thus, the phrase “any other provision of law prescribing a mandatory minimum sentence for the offense” has nothing to do with and nothing to say about the sex offender registration requirement under chapter 692A or the special sentence under sections 903B.1, 903B.2, or 901.5(12). The exception contained in section 901.5(13) is thus a grant of additional authority to defer or suspend what would otherwise be a mandatory minimum sentence of incarceration.
The conclusion that section 901.5(13) relates only to mandatory sentences of incarceration or mandatory minimum sentences of incarceration is supported by the text of related statutes. See Griffin Pipe Prods. Co. v. Guarino, 663 N.W.2d 862, 865 (Iowa 2003) (stating that where statute is ambiguous, we look to other statutes to try to read them as an integrated whole). The related statutes provide that the registration requirement and the special sentence are mandatory in all circumstances and discretionary in none.
Given the legislature‘s unambiguous instruction that the registration requirement and special sentence shall be mandatory in all circumstances, a legislative exception to these mandatory schemes would likely be equally unambiguous. But that is not the case. As the majority explains, section 901.5(13) “nowhere mentions sex offender registration or the sex offender registry chapter, Iowa Code chapter 692A.” Similarly, section 901.5(13) nowhere uses the term “special sentence.” Section 901.5(13) does not cross-reference or in any way address chapter 692A or sections 903B.1, 903B.2, or 901.5(12).
In sum, the text of the relevant statutes can be harmonized into a coherent whole. The legislature passed a comprehensive scheme to require the registration of sex offenders commencing upon the date they are no longer incarcerated and the mandatory monitoring of those convicted of certain qualifying offenses after they have discharged their respective sentences for the underlying offense. This scheme is set forth in chapter 692A and in sections 903B.1, 903B.2, and 901.5(12). In 2013, the legislature passed section 901.5(13) to afford the sentencing court some discretion in sentencing offenders under the age of eighteen. See 2013 Iowa Acts ch. 42, § 14 (originally codified at Iowa Code § 901.5(14) (2014), now codified at
II.
With that understanding, I circle back to the majority‘s discussion of the registration requirement and the special sentence to highlight points of disagreement on the question of statutory construction. I address the majority‘s application of section 901.5(13) to both the registration requirement and the special sentence.
A.
I agree with the majority that section 901.5(13) does not afford the district court discretion with respect to the sex offender registration requirements set forth in chapter 692A. As part of its rationale, the majority explains section 901.5(13) “nowhere mentions sex offender registration or the sex offender registry chapter, Iowa Code chapter 692A.” I аgree with this rationale, and the majority should stop there.
But the majority does not stop there. As further justification for its decision, the majority turns its focus to the meaning of the word “sentence” as used in
The majority contends that anything that is not punishment is not part of a sentence. This contention is contrary to basic sentencing law. The statutory purpose of sentencing is to “provide maximum opportunity for the rehabilitation of the defendant, and for the protection of the community from further offenses by the defendant and others.”
Not only is the majority‘s rationale contrary to basic sentencing law, but it is also directly contrary to controlling precedents stating thаt an order to be placed on the sex offender registry is part of the defendant‘s sentence. See, e.g., State v. Goodson, 958 N.W.2d 791, 806 (Iowa 2021) (“Goodson argues that the district court entered an illegal sentence because the sentence specified a duration for his sex offender registration. . . . The State agrees that the district court‘s sentence is illegal and must be corrected. As a result, we reverse the illegal portion of Goodson‘s sentence.“); State v. Zacarias, 958 N.W.2d 573, 579 (Iowa 2021) (“Zacarias was also required to register as a sex offender as part of his sentence.“); State v. Chapman, 944 N.W.2d 864, 870–71 (Iowa 2020) (“Chapman agrees his appeal involves a challenge to that part of his sentence requiring him to register as a sex offender.“); State v. Petty, 925 N.W.2d 190, 194 (Iowa 2019) (“As part of the sentence, Petty was ordered to register with the sex offender registry for life.“); State v. Graham, 897 N.W.2d 476, 478 (Iowa 2017) (allowing challenge to sex offender registration requirement on illegal sentence grounds).
For these reasons, I join the majority in holding that section 901.5(13) does not afford the district court discretion with respect to the sex offender registration requirement under chapter 692A. I cannot, however, join the majority‘s full rationale in support of its holding.
Although the majority correctly holds that section 901.5(13) does not grant the district court authority tо suspend the sex offender registration requirement, it also erroneously holds that section 901.5(13) does grant the district court authority to suspend the special sentence. The difference in the majority‘s treatment of the registration requirement and the special sentence is inconsistent, contrary to the purposes of all the relevant statutes, and foreclosed by controlling authority.
The majority‘s conclusion is inconsistent. Why would section 901.5(13) not apply to the registration requirement but apply to the special sentence? The registration requirement and the special sentence work in tandem to provide a continuous process of registration and monitoring of sex offenders. For example, the duration of the registration requirement is determined by the duration of the special sentence. See
The majority rejects both of these logically consistent outcomes and instead splits the difference by concluding that section 901.5(13) applies to one but not the other. It is odd to conclude that the legislature intended the grant of additional authority in section 901.5(13) to apply to one and not the other given that the legislature crafted these statutory regimes to work together. It is even more odd to conclude that the special sentence—the sentence designed to provide extended supervision for the most heinous sex offenders like Hess—is the sentence the legislature intended the sentencing court to have discretion in imposing.
The majority justifies this illogical distinction based on its interpretation of the word “sentence.” In the majority‘s view, section 901.5(13) grants the district court the authority to “suspend the sentence.” In the majority‘s view, because the sex offender registration requirement is not punishment, it is not a “sentence” within the meaning of the statute. As discussed above, this rationale is incorrect. It is contrary to basic sentencing law and contrary to controlling precedents. See Goodson, 958 N.W.2d at 806; Zacarias, 958 N.W.2d at 579; Chapman, 944 N.W.2d at 870–71; Petty, 925 N.W.2d at 194; Graham, 897 N.W.2d at 478. The majority ignores this and continues on by reasоning that because the special sentence is a type of sentence, section 901.5(13) grants the district court the authority to suspend the special sentence.
I respectfully disagree with the majority‘s reasoning. There is no doubt that section 901.5(13) grants the district court discretion with respect to the imposition of certain types of “sentences” on offenders under the age of eighteen. There is also no doubt that section 901.5(13) does not grant the district court discretion with respect to the imposition of any type of sentence on offenders under the age of eighteen. For example, in Richardson, we held that section 901.5(13) does not give the district court discretion to suspend mandatory restitution under section 910.3B, which is punitive and part of the defendant‘s sentence. See 890 N.W.2d at 619. And today the majority holds that section 901.5(13) does not give the district court the authority to suspend the sex offender registration requirement even though controlling precedents deem registration a sentence when part of the sentencing order.
As discussed in part I, the relevant question is what additional authority section 901.5(13) gives the district court at the time of sentencing? By asking the right question, we get the right answer: Section 901.5(13) grants the district court additional discretion only with respect to what would otherwise be mandatory sentences of incarceration or mandatory minimum sentences of incarceration. In addition to the reasons given in part I, this conclusion is supported by additional statutory authority that provides the special sentence is separate and distinct from the types of sentences encompassed within section 901.5(13).
These separate authorities are the very statutory provisions creating the special sentence.
This conclusion is also supported by the fact that the relevant statutes provide that the special sentence is in addition to any other punishments. Both
The majority tries to avoid these significant problems with its construction of section 901.5(13) by taking a fallback position: the special sentence for sex offenders is encompassed within the phrase “mandatory minimum sentence for the offense” as used in section 901.5(13). I disagree for three reasons.
First, the majority‘s interpretation of the term “mandatory minimum sentence” is implausible. The task of statutory interpretation is to determine the ordinary meaning of the statutory language at issue. See Doe, 943 N.W.2d at 610. The majority‘s interpretation does not do that. To anyone who has practiced criminal law, the majority‘s interpretation is an inordinary
Second, the majority‘s fallback position is foreclosed by Richardson. As discussed in part I, in Richardson this court looked exhaustively at how the term “mandatory minimum sentence” was used throughout the Code. 890 N.W.2d at 618. Based on that exhaustive analysis, we concluded that the phrase “mandatory minimum sentence” as used in section 901.5(13) refers only to the mandatory minimum sentence of “incarceration.” Id. The majority‘s interpretation of “mandatory minimum sentence” as covering something other than a mandatory minimum term of incarceration is the interpretation of the dissenters in Richardson. Id. at 630–32 (Appel, J., dissenting). The term “mandatory minimum sentence” has nothing to do with the special sentence mandated by sections 903B.1, 903B.2, and 901.5(12).
Third, the majority‘s approach is inconsistent with the purpose of statutory interpretation and construction. In interpreting and construing statutes, courts should seek to harmonize statutes to effectuate the legislature‘s purpose as evidenced in the text of the statute, but the majority seeks to do the opposite. The majority goes out of its way to interfere with the statutory scheme: it misstates basic sentencing law, it ignores controlling authority, and it twists our precedents to create conflict where no conflict exists. For example, the majority repeatedly states that the more specific provision controls over the general, but that canon, and the related canons on which the majority rely, applies only where there is an actual conflict between statutes. See State v. Lutgen, 606 N.W.2d 312, 314 (Iowa 2000) (en banc) (“If a court can reasonably harmonize two statutes dealing with the same subject, it must give concurrent effect to both, even though one is specific, or special, and the other general.” (quoting 82 C.J.S. Statutes § 355, at 474–75 (1999))). As shown above, there is no actual conflict between statutes here: sections 903B.1, 903B.2, and 901.5(12) require the imposition of the special sentence, and section 901.5(13) is simply silent on the issue. It is unclear to me why the majority goes out of its way to put a stick in the legislature‘s spokes.
III.
In addition to these interpretive and doctrinal issues, the majority‘s interpretation is at odds with the purpose of the special sentencing regime. “[S]ex offenders present a special problem and danger to society.” State v. Wade, 757 N.W.2d 618, 626 (Iowa 2008). This is true with respect to juvenile sex offenders as well. In 2005, recognizing this risk, the general assembly created a special sentence for certain high-risk sex offenders. See 2005 Iowa Acts ch. 158, §§ 39, 40 (codified at
To advance this important public-safety purpose, the general assembly declined to vest the sentencing court with discretion to determine ex ante whether a sex offender should be subject to the special sentence. Instead, the general assembly made the special sentence mandatory at the time of sentencing and vested the board of parole with the discretion to determine ex post when a sex offender no longer presents a risk and should be discharged from the special sentence. See
Administration of the special sentence is textually committed to the discretion of the other branches of government.
The majority ignores this and now interjects itself into and interferes with the board of parole‘s administration of the special sentence. This impedes the public-safety purpose of the statute. The legislature has determined that sex offender risk assessments should be made with as much information as possible. To advance that policy, the legislature has determined that the sentencing court must impose the special sentence at the time of sentencing without making an ex ante determination of the sex offender‘s risk to the public. After more time has passed and the sex offender has discharged the sentence for the underlying offense, the sex offender then commences the special sentence. At that time, the board of parole can begin extended monitoring of the offender and can make an ex post determination of risk based on the most recent information regarding the offender.
To illustrate the problem, just consider the facts of this case. The district court ordered the defendant tо serve four concurrent terms of incarceration not to exceed twenty-five years each, suspended those sentences, and placed the defendant on probation for five years. The district court then imposed the special sentence as required by section 903B.1. Under the district court‘s sentence, the defendant is under the district court‘s supervision for the five years of probation and then under the supervision of the Iowa department of corrections until such time as the board of parole determines the defendant no longer poses a risk to the public and should thus be discharged from the special sentence. The board of parole‘s information would be based on the most recent and relevant information regarding the risk posed.
Consider a different hypothetical. What if the district court had not suspended Hess‘s sentences of incarceration? In that scenario, Hess would have been sentenced to an indeterminate term of incarceration not to exceed twenty-five years. What sense does it make to ask the sentencing court to exercise its discretion at the time of sentencing? Can the district court make a nonspeculative determination on whether Hess should serve a special sentence that does not commence until he is released from prison perhaps twenty-five years in the future? No, which is presumably why the legislature did not grant the district court the discretion to make the speculative determination the majority now orders. Instead, the statute requires the district court to impose the special sentence and allows the board of parole to look at more relevant information after the “completion of the sentence imposed under any applicable criminal sentencing provisions for the underlying criminal offense.”
IV.
Because of the high risk to reoffend, the legislature has concluded that sеx offenders like Hess must serve a “special sentence” of parole that is separate from and “in addition to” the defendant‘s sentence and “commence[s] upon completion of the sentence imposed under any applicable criminal sentencing provisions for the underlying criminal offense.”
Oxley and May, JJ., join this concurrence in part and dissent in part.
Notes
A person convicted of a class “C” felony or greater offense under