State of Iowa v. Mark Alan Richards

IN THE COURT OF APPEALS OF IOWA

No. 21-1648
Filed August 3, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

MARK ALAN RICHARDS,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clinton County, Stuart P. Werling,

Judge.

A defendant appeals the sentence imposed on his conviction of incest.

AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Josh Irwin, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney

General, for appellee.

Considered by Badding, P.J., Chicchelly, J., and Gamble, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2022).
2

BADDING, Presiding Judge.

In his written guilty plea to incest,1 Mark Richards admitted that he

performed a sex act on his seventeen-year-old niece. Richards asked for a

deferred judgment at his sentencing hearing, telling the district court:

I know I’m here for incest, and it’s something I regret. I’ve
taken full responsibility for my actions in this, at least my part of it. It
was a mistake, and I just want to move on with my life.
. . . . I have a fiancé[e] overseas. If I register, they won’t allow
a registered person in. And I don’t need to register. I don’t need to
be on that list. This was consensual.

The court rejected Richards’s request for a deferred judgment, stating it was

convinced after considering the “seriousness of this offense,” Richards’s “age and

character, as well as the necessity to protect the public,” that “incarceration is the

appropriate outcome based on the heinous nature of this assault.” The court

continued by noting

that today at sentencing the defendant expresses no remorse
whatsoever for his criminal actions that involved a minor. He claims
that the acts were consensual when consent is not an issue when
you’re dealing with a minor here. For these reasons, and as
recommended by the [presentence investigation report], the court
will impose a term of incarceration in this matter.

Before closing the record, the court stated:

I just want to say one thing to you. What you did was wrong, and
you need to acknowledge it. You haven’t yet. Until you acknowledge
it, you’re a risk to society. Okay?
So think about what you did. This is a minor. This is a family
member, for God’s sake. This little girl trusted you and expected you
to protect her. She had the right to expect that, and you didn’t.

1 The original trial information charged Richards with three counts of third-degree
sexual abuse and three counts of incest. After Richards filed his written guilty plea,
the State moved to amend the trial information to remove the sexual-abuse
charges. As part of the plea agreement, the State dismissed the remaining counts
of incest and reserved the right to resist a deferred judgment, but otherwise agreed
to remain silent at sentencing.
3

Richards appeals,2 claiming the district court abused its discretion by

considering the following improper sentencing factors: (1) “its erroneous belief that

Richards had not expressed remorse or taken responsibility for his actions” and

(2) “an unproven offense” of sexual abuse given the court’s statements about

consent and the victim’s age.

“The decision to grant a deferred judgment . . . rests within the sound

discretion of the sentencing court.” State v. Denton, No. 14-0172, 2014 WL

3749417, at *1 (Iowa Ct. App. July 30, 2014). “But the use of an impermissible

sentencing factor is an abuse of discretion and requires resentencing.” State v.

Knight, 701 N.W.2d 83, 85 (Iowa 2005).

Richards acknowledges a defendant’s lack of remorse is an appropriate

sentencing factor, see id. at 89, yet argues “the court’s statements that [he] had

not expressed remorse or acknowledged that what he did was wrong are directly

contradicted by the record.” See State v. Shrimpton, No. 21-0516, 2022 WL

1100243, at *4 (Iowa Ct. App. Apr. 13, 2022) (“[T]he absence of facts to support a

factor on which a court states it relied in its sentencing decision renders such factor

improper and constitutes an abuse of discretion.”). He notes the presentence

investigation report contained “numerous expressions of remorse and culpability,”

as did his statement of allocution.

While Richards voiced some regret, those statements were tangled with

ones minimizing his crime and blaming it on outside factors—like the victim.

2 The parties agree Richards has good cause to appeal despite pleading guilty.
See Iowa Code § 814.6(1)(a)(3) (2021); State v. Damme, 944 N.W.2d 98, 104
(Iowa 2020).
4

Richards told the author of the presentence investigation report that he “confided

in the wrong person. Made bad choices and poor judgment.” He continued: “I had

just went through bankruptcy. I had relationship problems. She was always there

for me. It was both our faults.” And he said: “I waited for a whole year for her to

come out and to tell the truth about what all had happened. She made me out to

be a monster. I thought she would come forth and tell the truth but it never

happened.” These attempts continued at the time of allocution. Even though

Richards said he took “full responsibility for [his] actions,” he added that his actions

were only a “part of it,” and “[t]his was consensual.”

It is not an abuse of discretion to consider a defendant’s statements

“downplay[ing] the severity of his act” or “plac[ing] blame on outside factors,” both

of which show a failure to accept responsibility. State v. Pendleton, No. 15-0053,

2015 WL 8463202, at *3 (Iowa Ct. App. Dec. 9, 2015); accord State v. Dinovo,

No. 20-0486, 2021 WL 610179, at *2 (Iowa Ct. App. Feb. 17, 2021) (“The court’s

comments . . . suggest the court was taking into account Dinovo’s efforts to

minimize his responsibility, which was proper for the court to do.”). Because of

those statements, we agree with the State that the district court properly

recognized Richards’s “remorse or expression of responsibility rang hollow.” See

State v. Beard, No. 20-1673, 2021 WL 4593170, at *1–2 (Iowa Ct. App. Oct. 6,

2021) (finding sentencing court was “free to highlight” defendant’s “failure to

appreciate the consequences of his actions” when he characterized the victim as

the aggressor and apologized “but only because he could no longer go home”).

Richards next argues the district court improperly considered an “unproven

offense” by mentioning that “consent is not an issue when you’re dealing with a
5

minor.” The court was legally correct on the first point—consent is not an element

of incest under Iowa Code section 726.2 (2017). But Richards submits the court

was “legally incorrect” on the second point because the victim was seventeen, an

age at which she can consent to sex acts with a partner of any age. See Iowa

Code § 709.4(1)(b)(2)(d). So Richards argues the court’s statements about the

victim being a “minor” and a “little girl” show the court was talking about either

sexual abuse in the second or third degree, see id. §§ 709.3(1)(b), .4(1)(b)(2), and

not incest.

Trouble is, an appellate court will not reverse absent an affirmative showing

that the district court relied on an improper factor. State v. McCalley, 972 N.W.2d

672, 677 (Iowa 2022). That the sentencing court was merely aware of an improper

matter, such as unproven charges, cannot overcome the presumption the court

properly exercised its sentencing discretion. State v. Ashley, 462 N.W.2d 279, 282

(Iowa 1990).

At the start of the sentencing hearing, the court clearly stated it was

sentencing Richards on “a charge of incest, in violation of [section] 726.2.” Nothing

in the record supports a conclusion that the court thought a sexual-abuse

conviction was viable based on the facts. As Richards himself points out, the victim

did not meet the age requirements for the variations of sexual abuse he identifies.

The court’s statements at the close of the record clarified it was really

considering the victim’s status as a minor as a circumstance of the crime, along

with the facts that the victim was family, she trusted Richards, and Richards was

supposed to protect her. And the nature of the crime is a mandatory sentencing

factor. See Iowa Code § 907.5(1)(f). Considering the court’s statements in
6

context, we conclude Richards failed to affirmatively show that the court relied on

an improper sentencing factor. See State v. Jose, 636 N.W.2d 38, 43 (Iowa 2001)

(“When considered in context with the remainder of the court’s explanation for

imposing sentence, the reference to ‘additional crimes’ is not an ‘affirmative

showing’ that the court considered unproven charges.”); State v. Johnson,

No. 02-0676, 2003 WL 118531, at *2 (Iowa Ct. App. Jan. 15, 2003) (“When we

consider the statements in context, we conclude they show only a proper

consideration of . . . other proper factors, rather than an improper consideration of

unproven offenses.”); see also State v. Wieneke, No. 20-0126, 2020 WL 5944460,

at *2 (Iowa Ct. App. Oct. 7, 2020) (“This remark alone is insufficient to meet [the]

affirmative burden to show the district court relied on an improper factor when

sentencing him.”).

Finding no abuse of discretion, we affirm the district court’s sentencing

decision.

AFFIRMED.