Opinion
No. 5-574 / 04-0652
Filed August 31, 2005
Appeal to the Iowa District Court for Dickinson County, David C. Larson, District Associate Judge.
Defendant appeals the sentence on his conviction for lascivious conduct with a minor. CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sheryl A. Soich and Denise A. Timmons, Assistant Attorneys General, for appellee.
Considered by Sackett, C.J., and Mahan and Miller, JJ.
I. Background Facts Proceedings
Based on acts which occurred in 2001, Bruce Christoffer was convicted in 2004 of lascivious conduct with a minor, in violation of Iowa Code section 709.14 (2001). Christoffer was sentenced to serve one year in the county jail, with all but ninety days suspended. He was also placed on probation for a period of two years and was ordered to complete sex offender counseling. Additionally, under section 901.5(7A) (a) (Supp. 2003), Christoffer was ordered to have no contact with the victim and other persons residing with her.
II. Allocution
Christoffer contends that he was denied his right of allocution. Iowa Rule of Criminal Procedure 2.23(3)( d) provides that prior to the rendition of sentence, "counsel for the defendant, and the defendant personally, shall be allowed to make a statement in mitigation of punishment." A defendant should be given the opportunity to volunteer any information helpful to his or her cause. State v. Lumadue, 622 N.W.2d 302, 304 (Iowa 2001). The right to allocution is personal to the defendant. State v. Craig, 562 N.W.2d 633, 637 (Iowa 1997).
The State concedes that Christoffer was not given an opportunity to address the court prior to the rendition of his sentence. Our review of the record shows that although Christoffer presented the testimony of several witnesses, he was not given an opportunity to personally address the court. We conclude the sentence imposed in this case should be vacated and the case should be remanded for a new sentencing hearing in order to afford Christoffer an opportunity to exercise his right of allocution.
III. Victim Impact Statement
Christoffer claims he received ineffective assistance due to his counsel's failure to object to the introduction of a victim impact statement from the victim's aunt at the sentencing hearing. Because this issue may arise on remand, we will address it.
Under section 915.21(1) (2001), a victim may present a victim impact statement at sentencing. The term "victim" is defined as follows:
"Victim" means a person who has suffered physical, emotional, or financial harm as the result of a public offense or a delinquent act, other than a simple misdemeanor, committed in this state. "Victim" also includes the immediate family members of a victim who died or was rendered incompetent as a result of the offense or who was under eighteen years of age at the time of the offense.
The supreme court has determined that aunts and uncles are not immediate family members and are not "victims" within the meaning of section 915.10(3). State v. Sumpter, 438 N.W.2d 6, 8 (Iowa 1989). Because they are not "victims," they have no standing under section 915.21 to file victim impact statements. Id.
Ordinarily, we would vacate a sentence only if we found the admission of an improper victim impact statement was prejudicial. Id. at 9. In this case, however, we have already determined the case should be remanded for resentencing. At the new sentencing hearing, the district court should not consider the victim impact statement by the victim's aunt. Additionally, the resentencing hearing should be held before a judge who has not read the improper victim impact statement. See State v. Matheson, 684 N.W.2d 243, 245 (Iowa 2004) (holding that the case should be remanded for resentencing by a judge who had not read an impact statement which was impermissible under section 915.21).
IV. Ex Post Facto
Christoffer asserts the district court did not have authority to issue a no-contact order as part of his sentence because the conviction was based on acts which occurred in 2001, and section 901.5(7A) was not enacted until 2003. Because this argument will also likely arise on remand, we will address it now.
Section 901.5(7A) (a) provides that on a finding that the defendant "poses a threat to the safety of the victim, person's residing with the victim, members of the victim's immediate family, or witnesses to the offense," the court may enter a no-contact order as part of the sentence. The no-contact order may extend for five years, or the maximum term of confinement, whichever is greater. Iowa Code § 901.5(7A) (b).
Generally, a defendant is sentenced under the law which was in effect at the time the crime was committed, here the 2001 code. See State v. Austin, 585 N.W.2d 241, 244 (Iowa 1998). The ex post facto clauses of the federal and Iowa constitutions prohibit laws making the punishment of a crime more burdensome after its commission. U.S. Const. art. I, § 10; Iowa Const. art. I, § 21; Schreiber v. State, 666 N.W.2d 127, 129 (Iowa 2003).
The ex post facto clauses do not apply to civil penalties, "even though their penalties may be retroactive and more burdensome." Hills v. Iowa Dep't of Transp., 534 N.W.2d 640, 641 (Iowa 1995). We must consider whether section 901.5(7A) (Supp. 2003) is punitive or remedial in nature. See State v. Seering, ___ N.W.2d ___, ___ (Iowa 2005); State v. Corwin, 616 N.W.2d 600, 602 (Iowa 2000). The United States Supreme Court has stated:
We must ascertain whether the legislature meant the statute to establish civil proceedings. If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is so punitive either in purpose or effect as to negate the State's intention to deem it civil. Because we ordinarily defer to the legislature's stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.
Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 1146-47, 155 L. Ed. 2d 164, 176 (2003).
We consider several factors in determining whether a statute is punitive: (1) whether it involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it involves a finding of scienter; (4) whether it promotes the traditional aims of punishment; (5) whether it applies to behavior which is already a crime; (6) whether there is a rational alternative purpose; and (7) whether it is excessive in relation to the alternative purpose assigned. State v. Pickens, 558 N.W.2d 396, 398-99 (Iowa 1997) (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 567-68, 9 L. Ed. 2d 644, 661 (1963)).
While a no-contact order involves an affirmative disability, in that it precludes a defendant from contacting specific persons, we find that it does not meet any other of the criteria to be considered punitive rather than remedial. In considering a similar statute, the Washington Court of Appeals stated:
The prohibition imposes an affirmative burden. [Defendant] cannot contact [the victim]. But no-contact provisions have not traditionally been considered punishment. They are civil in nature and designed to protect third parties. The restriction does not depend on a finding of scienter. It is intended to regulate contact, not punish. Finally, the restriction is not exaggerated or excessive. It is specifically limited to the inappropriate contact between [defendant] and [the victim]. [Defendant's] term of confinement is not altered. Thus, neither the double jeopardy clause nor the ex post facto clause is implicated.
In re Arseneau, 989 P.2d 1197, 1203-04 (Wash.Ct.App. 1999) (citations omitted).
We conclude section 901.5(7A) is civil in nature because the purpose of the statute is to protect victims of a crime, persons residing with the victim, members of the victim's immediate family, or witnesses to the offense. We believe the intent of the legislature was to protect the health and safety of certain individuals. Cf. Seering, ___ N.W.2d at ___ (noting that the purpose of the sex offender registry was to "protect the health and safety of individuals, especially children, not to impose punishment"). As noted above, civil penalties do not violate ex post facto clauses. Hills, 534 N.W.2d at 641. We conclude the imposition of the no-contact order in this case did not violate the ex post facto clauses of the State and federal constitutions.
We affirm Christoffer's conviction, but vacate the sentence and remand this case for resentencing under the guidelines outlined above.