State Of Iowa Vs. Christopher Lawrence Valin

IN THE SUPREME COURT OF IOWA

No. 99 / 05-0781

Filed December 1, 2006

STATE OF IOWA,

Appellee,

vs.

CHRISTOPHER LAWRENCE VALIN,

Appellant.

________________________________________________________________________

Appeal from the Iowa District Court for Polk County, Cynthia M.

Moisan, Judge.

Appeal from conditions of probation. REVERSED.

Linda Del Gallo, State Appellate Defender, and Shellie Knipfer,

Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant

Attorney General, John P. Sarcone, County Attorney, and Ramonda

Belcher Ford, Assistant County Attorney, for appellee.

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CADY, Justice.

In this appeal we must decide if special conditions of probation not

directly related to the crime of conviction, but related to a prior

conviction, may be imposed as a part of a sentence. We reverse the

decision of the district court.

I. Background Facts and Proceedings.

Christopher Valin was convicted of operating while intoxicated

(OWI), second offense, following his arrest in September of 2004. In April

2005, the district court sentenced Valin to a term of imprisonment not to

exceed two years and suspended all but seven days of the term. The

court imposed a fine of $1500, and placed Valin on probation for two

years. He was also required to undergo a substance abuse evaluation

and treatment program, and attend a weekend class offered by the

Des Moines Area Community College for OWI offenders. Valin was

placed under the supervision of the department of correctional services

(DCS). The sentencing order specifically required Valin to “submit to the

supervision of DCS during probation and . . . comply with all terms

imposed by the assigned probation officer, including any additional

programs and classes not set forth herein.” Valin filed a notice of appeal

on May 10, 2005.

Valin signed a DCS probation agreement on May 19, 2005. It

contained several standard rules and conditions, but also contained the

following “special conditions”:

401. I shall participate in a sex offender or mental

health counseling program as directed by my supervising

officer.

403. I shall successfully complete the Fifth Judicial

District Department of Correctional Services Sex Offender

Treatment Program and comply with any treatment

recommended as a result of the program.

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404. I shall not initiate, establish, or maintain contact

with victim(s) unless approved by my supervising officer.

405. I shall not initiate, establish, or maintain contact

with any minor child (under the age of 18) unless approved

by my supervising officer.

406. I shall not initiate, establish, or maintain contact

with my children unless approved by my supervising officer.

408. I shall not reside with my children unless

approved by my supervising officer.

409. I shall avoid any verbal or physical contact with

any child or groups of children. I shall avoid contact with

establishments, groups or organizations whose primary

purpose is the care of minor children unless I have the prior

written approval of my supervising officer.

411. I shall not be in possession of any sexually

explicit materials, videos, books, magazines, pictures,

posters, letters, etc., without express written approval from

my supervising officer and a sex offender treatment team.

412. I will not subscribe, nor will I attempt to access,

to the internet without prior approval from my supervising

officer. I also will not engage in or visit computer-generated

chat rooms under any circumstances. [Handwritten:]

internet banking, check email-ONLY

801. I shall participate in the Fifth Judicial District

Department of Correctional Services Sex Offender Treatment

Program unless my supervising officer determines otherwise.

Valin objected to the special terms of probation and filed a motion

in the district court for the court to “determine” the terms of his

probation. 1 Valin primarily objected to the requirement that he undergo

1Even though Valin had already filed his original notice of appeal for his

conviction, the district court did not lose jurisdiction to determine the terms of his

probation. See State v. Mallett, 677 N.W.2d 775, 776–77 (Iowa 2004) (“Generally, an

appeal divests a district court of jurisdiction. Restoration of district court jurisdiction

may be accomplished by only two means: the litigants’ stipulation for an order of

dismissal or an appellate court’s order for limited remand. Neither means applies here.

Moreover, a district court maintains jurisdiction over disputes between the parties that

are merely collateral to the issues on appeal. An example of a collateral matter as to

which a trial court retains jurisdiction is the modification of an order for restitution in a

criminal case.” (citing State v. Jose, 636 N.W.2d 38, 46 (Iowa 2001); Shedlock v. Iowa

Dist. Ct., 534 N.W.2d 656, 658 (Iowa 1995))). However, a statute “may authorize the

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sex offender treatment. At a hearing on the motion, the DCS justified the

special conditions based on Valin’s conviction in 1999 for assault with

intent to commit sexual abuse. The offense arose from an incident when

Valin was in college during a night of excessive consumption of alcohol.

Specifically, Valin fondled and groped the breasts and vaginal area of an

adult female student without her consent after the two ended up at an

apartment. Valin was placed on probation following the conviction and

was required to complete sex offender treatment. Valin successfully

completed the treatment, and was discharged from probation in 2001.

Notwithstanding, the DCS recommended Valin complete sex offender

treatment again because the DCS had a policy that required such

treatment and special terms of probation when persons have previously

been convicted of a sex offense. The policy is based on the proposition

that a person who has committed a sex offense always has the potential

to commit a sex offense again in the future. 2 The treatment begins with

a relapse assessment, which allows the DCS to “assess how much [the

defendant has] learned in previous treatment.” The relapse assessment

is followed by after-care treatment or more aggressive treatment,

depending upon the results of the relapse assessment.

________________________

trial court to enter further orders notwithstanding the taking of an appeal.” 5 Am. Jur.

2d Appellate Review § 421, at 171 (1995); accord United States v. D’Amario, 412 F.3d

253, 255 (1st Cir. 2005) (“[T]he district court has plenary jurisdiction to supervise a

convicted defendant’s release, including the jurisdiction to modify the conditions of

supervised release, even though an appeal from a revocation of supervised release may

be pending.”); see Iowa Code § 907.8 (2005) (stating jurisdiction over persons on

probation “shall remain with the sentencing court”).

2At the hearing, the probation officer stated, “Our philosophy is that once they’ve

committed a sex crime, they always have the potential to commit another one.” In

addition, the district court noted it was the DCS’s policy to require sex offender

treatment “when a person has committed a sex offense in the past and is later convicted

of another offense—whether or not the later offense is a sex crime.”

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After the hearing to determine the terms of Valin’s probation, the

court entered an order requiring Valin to comply with all terms except

one. Because there did not “appear to be any ‘evidence’ that would

require a limitation of [Valin’s] contact with minor children,” the court

permitted Valin “to have contact with minor children unless a

psychological evaluation or other testing” indicated otherwise. However,

the court held Valin must complete his sex offender treatment. It found

the sentencing order clearly stated Valin must submit to the supervision

of the DCS, it was in the best interests of the community for Valin to

undergo treatment, and there was a strong nexus between Valin’s

substance abuse and his criminal activity. Valin then filed a second

notice of appeal on July 19, 2005.

Following the hearing, the DCS required Valin to submit to a penile

plethysmograph (PPG) test as part of his relapse assessment. This test

measures deviant sexual arousal. It requires the subject to place a

gauge on his penis while he is shown images and told sexual stories.

The gauge then records computerized results based on the subject’s

responses to the visual and audio stimuli. It takes anywhere between

ninety minutes and two hours to complete, and the defendant must

contribute $250 for the procedure. Typically, the DCS requires a PPG

the first time a defendant receives sex offender treatment in order to

determine if the offender has any other paraphilias, or areas of sexually

deviant arousal. Such a test is then usually relied upon by the DCS

during the probationer’s participation in relapse assessment. Valin,

however, was not given this procedure during his first treatment because

the DCS did not have a sufficient budget at the time to perform the test.

As a result, the DCS wanted to perform it now, during his relapse

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assessment, to help evaluate other possible areas of sexual deviancy and

to specifically determine whether Valin should be allowed contact with

minor children, including his own newly born child.

Valin refused to submit to the PPG test and requested a hearing

before the district court. The hearing revealed that Valin successfully

completed the prior treatment program. Furthermore, there was no

evidence presented that Valin had engaged in any sexually deviant

behavior following his prior conviction, or had ever engaged in any

inappropriate contact with children, although the use of alcohol was

identified during his prior sex abuse treatment as a potential relapse

factor. Nevertheless, the court required Valin to submit to the PPG test

as a part of his treatment program. Although the court found no

evidence that he was a threat to his child, it required that visitation with

the child be supervised pending the outcome of the sex offender

treatment.

All three of his appeals have been consolidated. The issue on

appeal is whether Valin is subject to his special conditions of probation,

including the PPG test.

II. Standard of Review.

We have articulated two different standards of review when a

defendant challenges his or her sentence on appeal. Depending upon the

nature of the challenge, the standard of review is for the correction of

errors at law or for an abuse of discretion. Compare State v. Freeman,

705 N.W.2d 286, 287 (Iowa 2005) (“We review the district court’s

sentence for correction of errors at law.” (citing State v. Kapell, 510

N.W.2d 878, 879 (Iowa 1994); Iowa R. App. P. 6.4)), and State v. Shearon,

660 N.W.2d 52, 57 (Iowa 2003) (noting that the appellant challenged “the

7

legality of his sentencing,” and that “[o]ur review is for the correction of

errors at law”), with State v. Alloway, 707 N.W.2d 582, 584 (Iowa 2006)

(“We normally review sentencing decisions for abuse of discretion.”

(citing State v. Evans, 671 N.W.2d 720, 727 (Iowa 2003))), and State v.

Jose, 636 N.W.2d 38, 41 (Iowa 2001) (stating we review a sentence that

does not fall outside the statutory limits for an abuse of discretion (citing

State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998))), and State v. Neary,

470 N.W.2d 27, 29 (Iowa 1991) (“When a sentence is imposed within

statutory limits, it will be set aside only for an abuse of discretion.”).

Ultimately, however, we review a defendant’s sentence for the correction

of errors at law. See State v. Thomas, 547 N.W.2d 223, 225 (Iowa 1996);

Iowa R. App. P. 6.4. Nevertheless, in some circumstances it is necessary

to determine whether legal error occurred because the district court

abused its discretion. Such a circumstance occurs when the sentence

imposed is within the statutory limits or the defendant’s challenge to his

or her sentence does not suggest it is outside the statutory limits. See

Neary, 470 N.W.2d at 29 (noting that when the sentence imposed is

within the statutory limits it is reviewed for an abuse of discretion);

Thomas, 547 N.W.2d at 225 (noting that when “a defendant does not

assert that the imposed sentence is outside the statutory limits, the

sentence will be set aside only for an abuse of discretion”).

In this case, Valin challenges his sentence as illegal. However, he

is not challenging the district court’s authority to sentence him to, inter

alia, two years of formal probation whereby he “shall submit to the

supervision of DCS during probation and shall comply with all terms

imposed by the assigned probation officer, including any additional

programs and classes not set forth herein.” Iowa law clearly allows the

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district court to do so. See Iowa Code § 907.3(3) (2005) (empowering the

sentencing court in circumstances such as these to “place the defendant

on probation upon such terms as it may require including . . .

commitment of the defendant to the judicial district department of

correctional services for supervision or services under section 901B.1 at

the level of sanctions which the district department determines to be

appropriate”). Instead, Valin is challenging the specific probation

conditions imposed by the DCS, and approved by the district court, as

unreasonable.

When a defendant challenges the terms of probation, “[i]t has long

been a well-settled rule that trial courts have a broad discretion in

probation matters which will be interfered with only upon a finding of

abuse of that discretion.” State v. Rogers, 251 N.W.2d 239, 243 (Iowa

1977) (citing United States v. Alarik, 439 F.2d 1349, 1351 (8th Cir. 1971)

(“The granting of probation, and the conditions upon which it is granted

as well as its revocation are matters purely within the discretion of the

trial court and are reviewable only upon abuse of discretion.”)). Thus, we

review Valin’s sentence for an abuse of discretion, and note that any

abuse of discretion necessarily results in a legal error. State v. Ogle, 430

N.W.2d 382, 383 (Iowa 1988) (per curiam) (reviewing the probation

condition that the appellant reside at a certain residential facility for an

abuse of discretion); accord United States v. Jalilian, 896 F.2d 447, 449

(10th Cir. 1990) (“If the sentence is legal, we review probation

determinations for abuse of discretion.”).

Regarding an abuse of discretion standard, we have said:

In applying the abuse of discretion standard to

sentencing decisions, it is important to consider the societal

goals of sentencing criminal offenders, which focus on

rehabilitation of the offender and the protection of the

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community from further offenses. It is equally important to

consider the host of factors that weigh in on the often

arduous task of sentencing a criminal offender, including the

nature of the offense, the attending circumstances, the age,

character and propensity of the offender, and the chances of

reform. The application of these goals and factors to an

individual case, of course, will not always lead to the same

sentence. . . . Yet, this does not mean the choice of one

particular sentencing option over another constitutes error.

Instead, it explains the discretionary nature of judging and

the source of the respect afforded by the appellate process.

Judicial discretion imparts the power to act within

legal parameters according to the dictates of a judge’s own

conscience, uncontrolled by the judgment of others. It is

essential to judging because judicial decisions frequently are

not colored in black and white. Instead, they deal in

differing shades of gray, and discretion is needed to give the

necessary latitude to the decision-making process. This

inherent latitude in the process properly limits our review.

Thus, our task on appeal is not to second guess the decision

made by the district court, but to determine if it was

unreasonable or based on untenable grounds.

State v. Formaro, 638 N.W.2d 720, 724–25 (Iowa 2002) (citations

omitted). In short, there is an abuse of discretion when “there is no

support for the decision in the . . . evidence.” Rath v. Sholty, 199 N.W.2d

333, 336 (Iowa 1972).

III. Applicable Law.

We have noted that “[t]he legislature has given the courts broad,

but not unlimited, authority in establishing the conditions of probation.”

State v. Jorgensen, 588 N.W.2d 686, 687 (Iowa 1998) (per curiam)

(citations omitted). Our courts derive this authority from Iowa Code

section 907.6, which states:

Probationers are subject to the conditions established

by the judicial district department of correctional services

subject to the approval of the court, and any additional

reasonable conditions which the court or district department

may impose to promote rehabilitation of the defendant or

protection of the community.

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Iowa Code § 907.6. 3 Thus, our district courts are authorized to impose

“any reasonable conditions” that either “promote rehabilitation of the

defendant or the protection of the community.” 4 Jorgensen, 588 N.W.2d

at 687 (citing Iowa Code § 907.6; State v. Akers, 435 N.W.2d 332, 335

(Iowa 1989)); Ogle, 430 N.W.2d at 383 (per curiam) (stating probation

conditions “shall promote the rehabilitation of the defendant and the

protection of the community” and “must not be unreasonable or

arbitrary”); Rogers, 251 N.W.2d at 243 (stating “conditions of probation

cannot be unreasonable or arbitrary” and “should relate to the

rehabilitation of the convicted criminal or the protection of the

community, or both”); see also 5 Wayne R. LaFave et al., Criminal

Procedure § 26.9(a), at 833 (2d ed. 1999) (“In order to be valid, probation

conditions must be reasonably related to the offense involved, the

3We recognize section 907.6 does not qualify what conditions the DCS may

originally impose. Instead, it states “[p]robationers are subject to the conditions

established,” and qualifies “any additional” conditions imposed by requiring them to be

“reasonable” and either “promote the rehabilitation of the defendant or protection of the

community.” Iowa Code § 907.6. It would be illogical, however, to read from this

provision that the DCS may impose any conditions it wants—reasonable or not—the

first time around. After all, those conditions are “subject to the approval of the court.”

Id. The proper construction is that any condition of probation must be reasonable and

either rehabilitate the defendant or protect the community. We have always required

conditions of probation to meet this test. See, e.g., Jorgensen, 588 N.W.2d at 687.

4We also recognize Iowa Code section 907.7 states that the purposes of

probation are “to provide maximum opportunity for the rehabilitation of the defendant

and to protect the community from further offenses by the defendant and others.”

Notably, this provision uses the conjunctive “and,” whereas section 907.6 uses the

disjunctive “or.” Compare Iowa Code § 907.7 (stating “for the rehabilitation of the

defendant and to protect the community” (emphasis added)), with id. § 907.6 (stating

“to promote rehabilitation of the defendant or protection of the community” (emphasis

added)). Section 907.7, however, is simply recognizing the purposes of probation, and

not the authority of the court to impose conditions of probation. Thus, to be valid,

conditions need not (in addition to being reasonable) promote the defendant’s

rehabilitation and the protection of the community, but simply one or the other, or

both. See Rogers, 251 N.W.2d at 243.

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rehabilitation of the defendant, the protection of the public, or another

legitimate punitive purpose.”).

A condition of probation promotes the rehabilitation of the

defendant or the protection of the community when it addresses some

problem or need identified with the defendant, see Rogers, 251 N.W.2d at

244 (“The sentencing court’s probation conditions might well be tailored

to deter defendant from further offenses and thus contribute towards his

rehabilitation.”), or some threat posed to the community by the

defendant, see Ogle, 430 N.W.2d at 383 (per curiam) (“As the defendant

posed a threat to the community because of his willingness to drive while

under the influence, the court was well within its discretion to reject the

Antabuse option and to order the defendant to reside in the residential

facility [as a condition of probation].”). A condition is reasonable when it

relates to the defendant’s circumstances in a reasonable manner, see

United States v. Friedberg, 78 F.3d 94, 96 (2d Cir. 1996) (“A condition of

probation is not reasonable if it is found to be ‘unnecessarily harsh or

excessive in achieving these goals [of rehabilitating the defendant and

protecting the public].’ ” (quoting United States v. Tolla, 781 F.2d 29, 34

(2d Cir. 1986))), and is justified by the defendant’s circumstances, see

Jorgensen, 588 N.W.2d at 687 (finding the imposition of a batterer’s

education program condition unreasonable because the defendant was

acquitted of domestic abuse and had no history of such conduct). Thus,

the inquiry into the reasonableness of a condition of probation boils

down to whether the statutory goals of probation are reasonably

addressed. See, e.g., Sobota v. Willard, 427 P.2d 758, 759 (Or. 1967) (“In

testing the reasonableness of conditions imposed as part of a probation

plan, it is necessary to bear in mind the various purposes sought to be

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served by probation . . . .”); 21A Am. Jur. 2d Criminal Law § 907, at 171–

73 (1998) (“[C]onditions that are found to be vindictive, vague, or

overbroad, or unreasonable, will be stricken from the probation order.

Moreover, conditions of probation which have no relationship to the

crime of which the offender was convicted, relate to conduct which is not

in itself criminal, and require or forbid conduct which is not reasonably

related to future criminality, do not serve the statutory ends of probation

and are invalid.”). As a result, whether a condition meets the statutory

goals of probation and whether it is reasonable are questions that are

best addressed together.

IV. Discussion.

Although this case involves three appeals, there is essentially one

issue presented. The question is whether special conditions of probation

relating to the treatment and prevention of sexual abuse can be imposed

as terms of probation for a person convicted of OWI with Valin’s history.

In particular, Valin objects to the requirement that he participate in a sex

abuse treatment program and submit to a PPG test as a part of an

evaluation to determine the level of treatment and his ability to maintain

contact with children.

Normally, the crime of conviction serves as the circumstance to

support the conditions of probation. However, we have previously

recognized that a defendant’s background and history is also relevant

when determining the conditions of probation. See Jorgensen, 588

N.W.2d at 687, 687 n.1 (striking a condition of probation because, inter

alia, “there was no indication she had a prior history” associated with

such conditions, and no evidence in the record suggested such

conditions were appropriate). Other states have also recognized that a

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defendant’s history, as opposed to the defendant’s present conviction,

may form the basis for conditions of probation. See, e.g., State v.

Solomon, 111 P.3d 12, 26 (Haw. 2005) (holding sex-offender treatment

was a valid probation condition, even though the conviction was not for a

sex offense, because the defendant had a history of sex-offending); State

v. Cyr, 751 A.2d 420, 424 (Conn. Ct. App. 2000) (conviction need not be

for enumerated sex offense in order to warrant sex-offender treatment as

a probation condition); Miyasato v. State, 892 P.2d 200, 201–02 (Alaska

Ct. App. 1995) (“[A] condition of probation need not directly relate to the

offense for which the defendant stands convicted.”). Thus, a prior

conviction can provide the needed history to justify a special condition of

probation. Yet, it is axiomatic that such history is insufficient unless it

reveals a problem currently suffered by the defendant relating to the

need to rehabilitate the defendant or protect the community from the

defendant.

In this case, there is an insufficient nexus between Valin’s present

conviction and his special conditions of probation to advance the goals of

probation. The State suggests a sufficient nexus exists for two primary

reasons. First, the DCS maintains a policy that requires all probationers

with a prior sex abuse conviction to participate in sex abuse treatment.

The policy is based on the proposition that sex offenders always have the

potential to reoffend. See McKune v. Lile, 536 U.S. 24, 32–33, 122 S. Ct.

2017, 2024, 153 L. Ed. 2d 47, 56–57 (2002) (observing that sex offenders

who have re-entered society are “much more likely than any other type of

offender to be rearrested for a new rape or sexual assault”). Second, the

use of alcohol was recognized as a component of Valin’s relapse cycle

during his prior sex abuse treatment, which means the current

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conviction gives rise to a current potential for relapse. We address each

reason separately.

The DCS policy and its rationale are too broad to establish the

necessary relationship between the conditions of probation in this case

and either the current needs of rehabilitation of the defendant or the

current protection of the public from the defendant. The policy gives rise

to the need for the DCS to normally consider and inquire into the

potential need for sex abuse treatment for a probationer, but the policy

does not make treatment reasonable in each case. The reasonableness of

sex abuse treatment as a condition of probation for an unrelated crime of

conviction must be supplied by the individual facts or evidence in each

case. The DCS policy paints with a brush that is too broad, and covers

all defendants with a prior record of conviction for sex abuse, without

individually considering the actual or current need for rehabilitation or

public protection. See United States v. Scott, 270 F.3d 632, 636 (8th Cir.

2001) (“The government presented no evidence that [the defendant] has a

propensity to commit any future sexual offenses, or that [the defendant]

has repeated this behavior in any way since his [previous] conviction.”).

The problem with using the policy to establish a relationship

between the conditions of probation and the goals of probation is best

revealed by the other special conditions of probation imposed by the DCS

in this case, such as the no-contact-with-children provision. This

condition of probation restricts Valin’s contact with children, including

his own child, even though he has no history of sexual assault involving

children and there are no facts that give rise to a reasonable fear that

such behavior could occur. Consequently, the effect of the policy is to

treat Valin as a current sex offender solely because of his prior offense.

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In turn, the policy has the effect of imposing greater restrictions on an

offender than reasonably needed to achieve the goals of probation. This

is a consequence that probation must avoid. See Iowa Code § 907.9(4)

(“[A] person who has been discharged from probation shall no longer be

held to answer for the person’s offense.”). Accordingly, we turn to the

second reason offered by the State.

Alcohol abuse is a common factual connection between the prior

and current convictions that could support the current need for sex

abuse treatment. However, the common factor of alcohol relied on by the

district court in this case to justify the need for sex abuse treatment as a

condition of probation is simply too tenuous. There is no evidence in the

record to show the degree to which the use of alcohol is a factor of

relapse into sexual abuse, or even the degree to which alcohol abuse is a

current part of Valin’s life. The record only establishes a conviction that

shows Valin used alcohol five years after his conviction for sexual

assault, which, without additional evidence, does not reasonably support

the imposition of sex abuse treatment. The imposition of a treatment

program based on this one common circumstance between two unrelated

convictions is premature.

The record in this case shows that the sexual abuse treatment

program was to begin with an evaluation to determine the level of

treatment. Yet, the evaluation was not imposed to determine if treatment

should be required as a condition of probation, but what level of

treatment should be imposed. Thus, the condition of probation imposed

on Valin was a treatment program, not an evaluation. Regardless, any

condition of probation—whether a treatment term or an evaluation

term—must satisfy the critical inquiry that a reasonable relationship

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exists between the condition of probation and the statutory goals as

related to the current situation of the probationer. The inquiry must

reveal specific evidence that such a reasonable relationship exists.

We conclude there is no reasonable relationship between Valin’s

required participation in the sex offender treatment program, the

imposition of the other special terms of probation, and the goals of

probation for Valin’s current OWI conviction. Thus, the trial court

abused its discretion by imposing unreasonable special conditions of

probation, and this abuse of discretion resulted in legal error.

V. Conclusion.

We conclude the district court abused its discretion by ordering

the special conditions of probation, as well as the requirement that Valin

submit to the PPG. Therefore, we reverse the decision of the district

court that imposed the special conditions of probation, including the PPG

test, without prejudice to the State to impose additional terms and

conditions of probation in the future.

REVERSED.

All justices concur except Hecht, J., who takes no part.