IN THE COURT OF APPEALS OF IOWA

No. 16-2090

Filed September 13, 2017

STATE OF IOWA,

Plaintiff-Appellee,

vs.

NICKALAS MICHAEL LAWRENCE SPIKER,

Defendant-Appellant.

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Appeal from the Iowa District Court for Des Moines County, John G. Linn

(Plea), and John M. Wright (Sentencing), Judges.

Nickalas Spiker appeals his conviction and sentence for lascivious acts 

with a child. CONVICTION AFFIRMED, SENTENCE VACATED, AND

REMANDED FOR RESENTENCING.

Mark C. Smith, State Appellate Defender, Stephan J. Japuntich, Assistant 

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney 

General, for appellee State.

Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.

Nickalas Spiker appeals his conviction and sentence for lascivious acts 

with a child. We find the record sufficient to vacate the sentence and remand for 

resentencing before a different judge because of the consideration of improper 

factors in sentencing. We affirm Spiker’s conviction, but remand for 

resentencing.

I. Background Facts and Proceedings

On February 27, 2015, A.D., age thirteen, manually stimulated Spiker, age 

sixteen. Spiker pled guilty to lascivious acts with a child, in violation of Iowa 

Code section 709.8(1)(b) and (2) (2015) on September 14, 2016. Pursuant to a 

plea agreement, the State recommend the minimum fine, a suspended sentence, 

and placement in the youthful-sex-offender program. 

In announcing the sentence, the district court referred multiple times to the 

forcible nature of the offense and stated the act was oral sex. The district court 

further referred to portions of the minutes of testimony regarding threats of 

violence if the act was not performed or “she screamed or yelled.” The district 

court imposed a ten-year sentence, stating the act was not the result of “youthful

naiveté” and was a “horrible crime” for which the victim would require extensive 

therapy. Spiker was sentenced to a term of incarceration not to exceed ten 

years.

After both the State and defense counsel alerted the district court the 

forcible oral sex was not the act with which Spiker had been charged, the district 

court held a second hearing on November 14. The district court admitted it 

“made a mistake during [Spiker’s] sentencing hearing.” The district court further 
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stated, “sometimes we don’t have a lot of time to read through the files before we 

come into court and hold hearings” it had “I scanned the minutes of testimony to 

find information contained therein” and, in doing so, gave justifications for the 

sentence based on “something that was irrelevant to [Spiker’s] sentencing 

hearing.” The district court then corrected the record to refer to the sex act 

Spiker pled guilty to, but the sentence it imposed remained the same. Spiker 

now appeals.

II. Standard of Review

“Generally, a sentence will not be upset on appellate review unless a 

defendant can demonstrate an abuse of discretion or a defect in the sentencing 

procedure, such as the trial court’s consideration of impermissible factors.” State 

v. Cheatheam, 569 N.W.2d 820, 821 (Iowa 1997). “A trial court’s sentencing 

decision is cloaked with a strong presumption in its favor, and an abuse of 

discretion will not be found unless a defendant shows such discretion was 

exercised on grounds or for reasons clearly untenable or to an extent clearly 

unreasonable.” Id. However, when constitutional claims are raised, our review is 

de novo. State v. Ragland, 836 N.W.2d 107, 113 (Iowa 2013). 

III. Consideration of Unproven and Uncharged Conduct

Spiker claims the district court relied on uncharged and unproven facts 

contained in the minutes of testimony and that this reliance resulted in a violation 

of his due-process rights. The district court relied heavily on sections of the 

minutes of testimony, alleging another child, E.R., was forced to perform oral sex

on Spiker. “A sentencing court may consider unprosecuted offenses in imposing 

sentences only if admitted by the defendant or adequate facts are presented at 
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the sentencing hearing to show the defendant committed the crimes.” See State 

v. Delaney, 526 N.W.2d 170, 179 (Iowa Ct. App. 1994) (citing State v. Black, 324 

N.W.2d 313, 316 (Iowa 1982)). 

The district court properly admitted it considered improper factors and had 

the foresight to make a full and accurate record of its decision. The district court 

stated, “After the sentencing hearing, counsel for the State and your attorney 

advised the Court that the Court had made a mistake in stating that the act which 

was mentioned in the minutes was not the act you participated in.”

However, the district court failed to resentence Spiker. Even when “the 

district court attempt[s] to disclaim the reference to the impermissible sentencing 

factor, ‘we cannot speculate about the weight the sentencing court gave to these 

unknown circumstances. Since we cannot evaluate their influence, we must 

strike down the sentence.’” State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014) 

(citing Black, 324 N.W.2d at 316). We applaud the district court’s candid 

admission but are required to “vacate the defendant’s sentence and remand the 

case to the district court for resentencing before a different judge.” Id. 

CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED 

FOR RESENTENCING.