Opinion
No. 2-1038 / 02-0745.
Filed March 12, 2003.
Appeal from the Iowa District Court for Butler County, PETER B. NEWELL, Judge.
John Mace appeals from the terms of his sentence requiring him to register as a sex offender as a condition of probation. AFFIRMED IN PART AND REVERSED IN PART.
James Beres of Letz, Sween Beres, P.C., Eldora, for appellant.
Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and Gregory Lievens, County Attorney, for appellee.
Heard by HUITINK, P.J., and MAHAN and HECHT, JJ.
John Mace appeals from the terms of his sentence requiring him to register as a sex offender pursuant to Iowa Code chapter 692A (2001) as a condition of probation.
On January 4, 2001, Mace was charged by trial information of neglecting livestock in violation of Iowa Code section 717.2. On April 3, 2002, judgment was entered and sentenced pronounced on Mace's written guilty plea. Mace was sentenced to serve ninety days in the county jail, all but ten days suspended, to pay a $250 fine, to participate in an animal care education program, to be on probation for two years, to pay restitution, to pay attorney fees, to not possess livestock, and to register as a sex offender. Mace only challenges the sex offender registration requirement of his sentence.
Mace's presentence investigation report revealed two prior Oregon convictions for sexual abuse. Mace was found guilty of the first offense of first-degree sexual abuse on March 15, 1983, and on May 24, 1983, was sentenced to five years probation. On June 18, 1984, Mace entered a guilty plea to his second offense of first-degree sexual abuse. On September 5, 1984, he was sentenced to five years. He was paroled on November 18, 1986, and an order of parole suspension and detention was issued on April 21, 1987, limited to Oregon. On March 5, 2002, an Iowa probation/parole officer confirmed Oregon still has an active warrant outstanding for Mace as a parole violator/absconder. Based on these prior convictions, the trial court's sentence for livestock neglect required Mace to register as a sex offender. Mace argues the trial court erred by requiring a person sentenced for animal neglect to register as a sex offender for convictions from 1983 and 1984.
The trial court entered a supplemental sentencing order correcting the county in which Mace was to register. The order also stated, "that both of the Defendant's prior convictions would meet the definition of a sexually-violent offense under Chapter 692A.1(8)(a)." Arguing the requirement to register as a sex offender was unenforceable, Mace asked the court to modify its order by eliminating the registration requirement. The court denied the request, believing Mace to still be "on parole although he has absconded from parole supervision." The court also stated "the Defendant may be able to request the Department of Correctional Services to determine whether the offenses for which he has been convicted require him to register under Chapter 692A or whether the period of time during which the person is obligated to register has expired pursuant to Section 692A.8."
We review a sentence imposed in a criminal case for errors at law. Iowa R.App.P. 6.4; State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). "A sentence will not be upset on appellate review unless the defendant demonstrates an abuse of trial court discretion. . . ." State v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000).
Pursuant to Iowa Code section 907.6, the court may impose reasonable conditions of probation "to promote rehabilitation of the defendant or protection of the community." Iowa Code § 907.6. The issue then is not whether Mace was required to register as a sex offender, but whether requiring him to do so was a reasonable condition of his probation in this case. The court's involvement in sex offender registration is restricted to (1) informing convicted defendants who are not sentenced to confinement of their duty to register and (2) to the collection of specified information from such defendants. See Iowa Code § 692A.5(1); State v. Bullock, 638 N.W.2d 728, 735 (Iowa 2002). Because none of those circumstances are present here, the sentencing court lacked authority to require Mace to register as a sex offender. Requiring him to do so as a condition of probation was unreasonable and an abuse of the trial court sentencing discretion. Cf. Jorgensen, 588 N.W.2d at 687 (finding trial court erred and acted unreasonably when it required defendant to participate in batterer's education program when defendant was not convicted of domestic abuse). We accordingly reverse the portion of Mace's sentence requiring him to register as a sex offender. See State v. Mai, 572 N.W.2d 168, 170 (Iowa Ct.App. 1997) (Where an improper sentence is severable, we may strike invalid portions of the sentence without disturbing the remainder.).