IN THE COURT OF APPEALS OF IOWA

No. 13-2042

Filed February 11, 2015

DONZELL LINDSEY,

Applicant-Appellee/Cross-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellant/Cross-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Marsha A. 

Bergan, Judge.

The State appeals from the district court’s grant of Donzell Lindsey’s 

application for postconviction relief, and Lindsey cross-appeals. AFFIRMED ON 

APPEAL, REVERSED ON CROSS-APPEAL.

Thomas J. Miller, Attorney General, and Forrest Guddal, Assistant 

Attorney General, for appellant/cross-appeellee.

Mark Smith, State Appellate Defender, Patricia Reynolds, Assistant 

Appellate Defender, and Angela O’Kane, Student Legal Intern, for 

appellee/cross-appellant.

Heard by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
2

VAITHESWARAN, J.

We must decide whether the Iowa Department of Corrections has 

authority to refer an inmate to its sex offender treatment program where the 

district court did not make a finding that the crimes to which he pled guilty were 

sexually motivated.

I. Procedural Background

The State and Lindsey stipulated to the pertinent procedural history. The 

State charged Lindsey with first-degree burglary, domestic assault (second 

offense) and third-degree sexual abuse. Lindsey pled guilty to second-degree 

burglary, in violation of Iowa Code sections 713.1 and 713.5 (2009), and 

domestic abuse assault, second offense, in violation of section 708.2A(1) and 

(3)(a). The State dismissed the sexual abuse charge. The district court did not 

make a finding that the crimes to which Lindsey pled guilty were “sexually 

motivated” for purposes of the sex offender registration requirements and did not 

require Lindsey to register as a sex offender for this case. See Iowa Code 

§ 692A.126. 

On Lindsey’s confinement, the director of the Iowa Department of 

Corrections sex offender treatment program, Gail Huckins, notified Lindsey she 

had reviewed his crime and determined there was a “sexual component” which 

required referral to an administrative law judge for a determination as to whether 

Lindsey needed to participate in the Sex Offender Treatment Program. Following 

an unreported hearing, the administrative law judge ordered participation in the 

program. 
3

Lindsey filed an application for postconviction relief challenging the 

decision. At a hearing on the application, Huckins identified several groups of 

inmates as suitable candidates for the sex offender treatment program: 

(1) inmates convicted of sex offenses, (2) inmates with completely nonsexual 

crimes who acted out sexually in prison, and (3) inmates having “sexual 

components” to their offenses. She placed Lindsey in the third category. Her 

testimony was consistent with the parties’ stipulation concerning the reason for 

the referral. 

The district court preliminarily concluded the department had “the 

authority—subject to a due process hearing—to direct an offender in Lindsey’s 

shoes to complete [the sex offender treatment program], despite the fact that the 

offender is not convicted of a sex offense.” The court nonetheless granted 

Lindsey’s postconviction relief application after concluding the administrative law 

judge inappropriately applied a “harmless error analysis” and “went outside the 

record provided to him for the hearing without notice to Lindsey before the 

hearing,” thereby violating Lindsey’s due process rights. The court vacated the 

decision and ordered the State to “restore the earned time credits (if any there 

be) of [Lindsey] retroactive to the date on which earned time credit accrual was 

suspended.” 

The department appealed and Lindsey cross-appealed. In our view, the 

cross-appeal issue is dispositive: whether the department has the authority to 

determine if Lindsey’s offenses were sexually motivated for purposes of referral 

to the sex offender treatment program. Accordingly, we find it unnecessary to 

address the department’s appeal issues.
4

II. Authority for Referral

Lindsey bases his cross-appeal on the interplay between two statutes: 

Iowa Code chapter 903A, governing reduction of sentences, and Iowa Code 

chapter 692A, governing the sex offender registry. 

Chapter 903A allows inmates to earn reductions of their sentences based 

on their conduct in prison. Iowa Code § 903A.2(1)(a) (2013). For sentences like 

Lindsey’s second-degree burglary sentence, the reduction is “equal to one and 

two-tenths days for each day the inmate demonstrates good conduct and 

satisfactorily participates in any program or placement status identified by the 

director to earn the reduction.” Id. Pertinent to this appeal, “an inmate required 

to participate in a sex offender treatment program shall not be eligible for a 

reduction of sentence unless the inmate participates in and completes a sex 

offender treatment program established by the director.” Id. at § 903A.2(1)(a)(5). 

Iowa Code section 692A.103(1) requires a person to register as a sex 

offender if the person has “been convicted of any sex offense classified as a tier 

I, tier II, or tier III offense.” The statute lists as a tier III offense “[b]urglary in the 

second degree in violation of section 713.5, if a determination is made that the 

offense was sexually motivated pursuant to section 692A.126.” Iowa Code 

§ 692A.102(1)(c)(19). Section 692A.126, in turn, authorizes registration only if “a 

judge or jury makes a determination, beyond a reasonable doubt, that any of the 

following offenses for which a conviction has been entered on or after July 1, 

2009, are sexually motivated” including “[b]urglary in the second degree in 

violation of section 713.5.” Sexually motivated” means “one of the purposes for 

commission of a crime is the purpose of sexual gratification of the perpetrator of 
5

the crime.” Iowa Code § 692A.101(29) (defining term as it is defined in Iowa 

Code section 229A.2). Before July 1, 2009, this determination was vested with 

the department of public safety. See Iowa Code §§ 692A.1, .2 (2007) (repealed 

by 2009 Iowa Acts Ch. 119, section 31).

Lindsey essentially asserts he was not an inmate “required to participate 

in a sex offender treatment program” because the district court declined to make 

the finding necessary to classify him as a sex offender subject to the registry 

requirements of chapter 692A and the Iowa Department of Corrections lacked 

authority to make the finding in the district court’s stead. The department 

counters that “the requirements of either chapter are not necessarily contingent 

on the other, and the district court correctly determined that the absence of a 

duty to register on the [sex offender registry] does not preclude [the 

department’s] requirement of [sex offender treatment program] participation by 

Lindsey.” 

We have no quarrel with the department’s argument, in principle. We can 

envision circumstances in which the department may have authority to refer an 

inmate to the sex offender treatment program whether or not the inmate was 

required to register as a sex offender under chapter 692A. Huckins cited one 

such circumstance—sexual misconduct within the prison. But that is not the 

circumstance on which Huckins or the department relied in referring Lindsey for 

treatment. The department stipulated the referral was made on the basis of the

“sexual component” to his crime. The key question, then, is whether there was a 

sexual component to the crimes for which Lindsey was convicted. 
6

Because the crimes were not facially sexual, there had to be some finding 

they were sexual. The district court made no such finding under chapter 692A or 

otherwise. The department attempted to make the finding after the fact, relying 

on references to sexual misconduct contained in the minutes of testimony. 

These references, however, were not a predicate to a finding of guilt on either the 

burglary or domestic abuse assault charges. The references may have 

supported the sex-abuse charge but, as noted, that charge was dismissed. The 

allegations of sexual misconduct contained in the minutes were “facts” in name 

only-unadmitted and unproven.1If the department intended to base the referral 

on the “sexual component to the crime,” there had to be an admitted or otherwise 

established sexual component to the crime. There was none here. See 

Oldenkamp v. Iowa Dep’t of Pub. Safety, No. 10-2076, 2011 WL 5395062, at *7–

8 (Iowa Ct. App. Nov. 9, 2011) (finding minutes inadequate to establish predicate 

to placement on registry based on victim’s age because “[a]lthough the minutes 

of testimony identify the victim as a minor, they do not constitute a sentencing or 

adjudicatory order” and “minutes of testimony are ‘simply ex parte statements of 

certain witnesses, and hearsay.’”); cf. State v. De Bont, 273 N.W. 873, 874 (Iowa 

1937) (noting minutes of witnesses who appeared before grand jury “are not 

evidence for any purpose except when introduced to impeach the testimony of 

some witness who testified before the grand jury and later in a trial gives contrary 

evidence,” and it was “highly prejudicial” to allow consideration of minutes by jury 

 

1

The department cites Iowa Code section 904.602(2)(n) for the proposition that the 

department is authorized to consider minutes of testimony. This provision simply holds 

pretrial information not otherwise available to the public “is confidential and shall not be 

disseminated by the department.” (Emphasis added.). 
7

because “[i]t was as though there were twelve witnesses appearing before the 

jury without being sworn and without the appellant having a right to crossexamine said witnesses”).

The department nonetheless asserts it possessed authority to make the 

necessary finding where the district court did not. The department relies on

Dykstra v. Iowa District Ct., 783 N.W.2d 473 (Iowa 2010). Like Lindsey, Dykstra 

argued the department “could not require him to participate in the [sex offender 

treatment program] because he was not convicted of a ‘sex offense’ and was not 

serving a sentence for a sex-related crime when his ability to accrue earned time 

was revoked.” Dykstra, 783 N.W.2d at 478. The court concluded the department 

had “statutory authority to rely on a current conviction for a non-sex offense when 

the underlying facts are of a sexual nature.” Id. at 479–80. The court allowed 

the department to find the facts pursuant to its “broad discretion” to “develop 

policy and procedural rules to implement” criteria for which inmates will be 

“required to participate” under section 903A.2(1)(a). Id. at 478–79. 

We agree Dykstra empowers the department to adopt policies and rules 

and to sanction prisoners’ non-compliance with those policies and rules by 

withholding good time credit. See Iowa Code § 903A.4. But Dykstra does not

extend this authority to promulgation of policies and rules permitting the 

consideration of unproven and unadmitted “facts.” Indeed, the Dykstra court 

expressed specific concern about the department’s reliance on “unadmitted 

factual allegations surrounding the simple assault.” Id. at 484–85. 

Significantly, even district courts may not rely on these types of “facts.” 

See De Bont, 273 N.W. at 874. See also State v. Sailer, 587 N.W.2d 756, 762 
8

(Iowa 1998) (prohibiting court from relying “upon ‘additional, unproven, and 

unprosecuted charges’ when no facts before the court show the charges are 

valid and the defendant does not admit the additional charges”); State v. 

Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998) (“Where portions of [the minutes of 

testimony] are not necessary to establish a factual basis for a plea, they are 

deemed denied by the defendant and are otherwise unproved and a sentencing 

court cannot consider or rely on them.”); State v. Black, 324 N.W.2d 313, 315–16 

(Iowa 1982) (same as Sailer). The department should not be allowed to utilize 

information a district court would plainly be forbidden from considering. 

Our conclusion that the department may not adopt rules or policies 

permitting the consideration of unadmitted and unproven facts in referring an 

offender to a sex offender treatment program is bolstered by State v. Valin, 724 

N.W.2d 440 (Iowa 2006). There, a defendant convicted of operating a motor 

vehicle while intoxicated objected to special terms of probation, including a 

requirement he undergo sex offender treatment. Valin, 724 N.W.2d at 442. The 

department justified the requirement on the basis of a prior conviction for assault 

with intent to commit sexual abuse. Id. The district court ordered Valin to 

undergo sex offender treatment. Id. at 443. On appeal, the Iowa Supreme Court 

concluded there was “an insufficient nexus between Valin’s present conviction 

and his special conditions of probation to advance the goals of probation.” Id. at 

447. The court stated, 

[t]he 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 

[requiring all probationers with a prior sex abuse conviction to 

participate in sex abuse treatment] paints with a brush that is too 
9

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. 

Id. at 448. See also Waters v. Iowa Dist. Ct., 783 N.W.2d 487, 489 (Iowa 2010) 

(leaving open whether the discretion of the department would be limited if there 

were no “problem currently suffered,” but finding Waters “entered prison to serve 

two sentences: the five-year OWI sentence and a two-year sentence for assault 

with intent to commit sexual abuse.”); State v. Stringer, No. 13-0579, 2014 WL 

250252, at *2 (Iowa Ct. App. Jan. 23, 2014) (reversing district court order 

requiring sex offender treatment as term of probation for prostitution conviction

where defendant “had been accused of rape on two occasions but “one of those 

charges was dismissed completely and the other one was dropped down to false 

imprisonment” and it could not be said the thirty-year-old false imprisonment 

conviction stemmed from a sexual encounter.).

The department painted with an even broader brush in Lindsey’s case. 

The department made the referral for sex offender treatment without the benefit 

of any rules or policies to circumscribe its discretion. See Iowa Code § 903A.4

(requiring department to develop policy and procedural rules to implement 

statute); Dykstra, 783 N.W.2d at 479 (same). At the time of the referral, the 

department’s rule titled “Sex Offender Risk Assessment” had been rescinded. 

Iowa Admin. Code r. 201-38.3 (2013). The former version required the 

department to conduct a sex offender risk assessment upon

every offender under each agency’s authority who is required to 

register under Iowa Code chapter 692A on or after July 1, 2005, 

who has committed a criminal offense against a minor, or an 

aggravated offense, sexually violent offense, or other relevant 

offense that involved a minor in this state or in another state, or in a 
10

federal, military, tribal, or foreign court, or on a person required to 

register in another state under the state's sex offender registry. The 

risk assessment should be completed within 45 days prior to the 

offender's release from custody or upon the offender's placement 

on probation, parole, or work release.

Iowa Admin. Code r. 201-38.3 (2009). Under the former rule, Lindsey could not 

have been required to undergo a sex offender risk assessment because he was 

not required to register under Iowa Code chapter 692A. The department failed to 

implement other rules which would have required a referral to sex offender 

treatment under his circumstances. See Iowa Admin. Code r. 201-38.2, .4 

(2013) (applicable only to electronic monitoring of sex offenders and hormonal 

intervention therapy). Additionally, the department has pointed us to no policies 

in effect at the time Lindsey was referred to the program which authorized a 

referral based on a “sexual component” to the crime.2

In short, the department referred Lindsey to the sex offender treatment 

program notwithstanding the absence of any statute, rule, or policy supporting 

such a referral and notwithstanding the absence of a finding by the criminal court 

of a sexual component to any of the crimes for which he was convicted. Lindsey 

could not be required to participate in a sex offender treatment program for a 

crime lacking a sexual component. If that were the case, any inmate convicted of 

any crime could be required to undergo sex offender treatment. 

 

2 Policy number OP-SOP-08, which came into effect later, requires the department to 

review and refer offenders who “are not incarcerated for a Sex Crime but have a sexual 

component to their crime” to the sex offender treatment program director. Iowa Dep’t of 

Corr., OP-SOP-08, Sex Offender Program Referrals (2014), available at

http://www.doc.state.ia.us/Policies. The director will then review the “current conviction 

and circumstances of [the] offense” as well as the “minutes of testimony/court 

documents” and “prior arrests/convictions” to determine if the offender will be placed into 

a sex offender treatment program. Id.
11

Because the department lacked statutory, rule, or policy authority to make 

a finding that Lindsey’s current convictions contained a sexual component, it 

could not refer Lindsey to the sex offender treatment program based on a “sexual 

component” to his crime, even if the referral was subject to a due process 

hearing before an administrative law judge.

We recognize the administrative law judge “ha[d] the full authority to . . . 

receive in evidence the testimony of witnesses and any documents which are 

relevant and material.” Iowa Admin. Code r. 481-10.20(7)(e). However, the 

judge could not consider the minutes for the same reason Huckins could not and 

the district court could not—the sexual component allegation related to a 

dismissed charge. See De Bont, 273 N.W. at 874. See also Goodwin v. State, 

585 N.W.2d 749, 753 (Iowa Ct. App. 1998) (holding administrative law judge’s 

reliance on dismissed charge was abuse of discretion). 

We affirm the district court’s reversal of the department of corrections 

decision but on the alternate ground raised by Lindsey—the department lacked 

authority to refer Lindsey to the sex offender treatment program in the first 

instance.

AFFIRMED ON APPEAL, REVERSED ON CROSS-APPEAL.

Potterfield, J., concurs; Vogel, P.J., dissents.
12

VOGEL, P.J. (dissenting)

I respectfully dissent from the majority’s conclusion the Iowa Department 

of Corrections (IDOC) did not have the authority to refer Lindsey to the sex 

offender treatment program (SOTP). I agree that IDOC cannot rely on unproven 

factual allegations when requiring an inmate to participate in SOTP. However, I 

disagree with the conclusion that, even following a hearing before an 

independent factfinder—unless the inmate admitted or the district court found 

that the underlying facts of the crime were sexually motivated—IDOC cannot 

ultimately require participation in SOTP. Rather, I would conclude IDOC can rely 

on unadmitted-to facts when initially referring an inmate to SOTP, but, then, due 

process requires a hearing before an independent factfinder before participation 

in SOTP is required. This holding, I believe, is consistent with Dykstra v. Iowa 

Dist. Ct., 783 N.W.2d 473 (Iowa 2010). 

Our supreme court has held that, even when an inmate is not convicted of 

a crime involving a sexual element, pursuant to chapter 903A, the IDOC may 

nonetheless refer an inmate to SOTP. Dykstra, 783 N.W.2d at 479. Specifically: 

“IDOC has statutory authority to rely on a current conviction for a non-sex offense 

when the underlying facts are of a sexual nature.” Id. at 479–80. Though the 

Dykstra court did not examine the intersection between chapter 903A and section 

692A.126, its holding clearly states IDOC has the authority to examine the 

underlying factual basis of the crime, regardless of the actual statutory 

conviction. Id. This holding, therefore, implies IDOC is permitted to examine the 

minutes of testimony when initially deciding whether or not to refer an inmate to 
13

SOTP, regardless of whether the inmate admitted that the sexual-component 

allegations were true.

Nonetheless, the majority is correct that Dykstra held participation in 

SOTP cannot be required on the basis of unadmitted or unproven facts. 

Specifically, the Dykstra court held that, because there is a protected liberty 

interest in good time credits, procedural protections are required before an 

inmate can be required to participate in SOTP. Id. at 483. Thus, due process 

requires “advance written notice, a written statement of reasons and findings by 

the factfinder, and a neutral factfinder.” Id. That is the procedure that was 

followed here. Huckins reviewed the minutes of testimony and then referred 

Lindsey to the administrative law judge (ALJ). A hearing was held in which 

Lindsey presented his own evidence, and in a written opinion, the ALJ 

determined Lindsey’s convictions had underlying facts of a sexual nature; 

consequently, Lindsey was required to participate in SOTP. Under Dykstra, the 

proper procedures were followed, and Lindsey’s due process rights were 

satisfied. See id.; see also Office of Citizens’ Aide/Ombudsman v. Edwards, 825 

N.W.2d 8, 16 (Iowa 2012) (“Our review of the governing statutes confirms IDOC 

ALJs are to be independent and impartial adjudicators performing a quasi-judicial 

role in prison disciplinary cases.”).

With these procedural safeguards in place, I would conclude that, despite 

the fact Lindsey was not convicted of a crime with a sexual element, and the trial 

court made no finding his crime was sexually motivated, IDOC nonetheless had 

the authority to order him to participate in SOTP, particularly given the fact that 

his due process rights were satisfied. See Dykstra, 783 at 485 (stating “Iowa 
14

Code section 903A.2 vests discretion in IDOC to require SOTP.”). I would 

therefore affirm on the cross-appeal.3

 

3 Although the State’s appeal was not addressed in the majority, I would conclude the 

district court was correct in its holding that, pursuant to Dykstra, the ALJ is required to 

perform an independent determination regarding whether the inmate’s classification is 

appropriate under a “standard of proof” analysis, and the “harmless error analysis” is 

only applicable to a procedural due process challenge.