State of Iowa vs. Kenneth Ray Washington III

IN THE SUPREME COURT OF IOWA
No. 12–0305
Filed June 7, 2013
STATE OF IOWA,
Appellee,
vs.
KENNETH RAY WASHINGTON III,
Appellant.
Appeal from the Iowa District Court for Polk County, William A.
Price, Judge.
Defendant appeals sentence alleging district court improperly
penalized him for invoking his constitutional right against self-
incrimination. SENTENCE VACATED AND CASE REMANDED FOR
RESENTENCING.
Robert G. Rehkemper III of Gourley, Rehkemper & Lindholm, PLC,
Des Moines, for appellant.
Thomas J. Miller, Attorney General, Darrel L. Mullins, Assistant
Attorney General, John P. Sarcone, County Attorney, and Kevin D.
Hathaway, Assistant County Attorney, for appellee.
Matthew J. Clair-Femrite, Student Legal Intern, and Robert R.
Rigg, Supervising Attorney, Des Moines, for amicus curiae Drake
University Legal Clinic, Criminal Defense Program.

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Gary D. Dickey Jr. of Dickey & Campbell Law Firm, P.L.C.,
Des Moines, for amicus curiae ACLU of Iowa.

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WATERMAN, Justice.
In this appeal, we must decide whether the sentencing court
improperly penalized the defendant for invoking his Fifth Amendment
right against self-incrimination. We conclude that when the district
court asks the defendant a question at sentencing and then imposes an
adverse sentencing consequence unrelated to any legitimate penological
purpose of the inquiry because the defendant invoked his Fifth
Amendment rights, the defendant has been improperly penalized.
Kenneth R. Washington III pled guilty to possession of marijuana.
The State agreed to jointly recommend a deferred judgment with fifty
hours of community service, one year of probation, and a $500 civil
penalty. At the hearing on his plea and sentencing, the court (initially off
the record) first indicated it would defer judgment, but then threatened
to convict Washington immediately after he declined, on advice of
counsel, to answer the court’s question of whether he would test positive
if given a drug test. The court repeated the drug-test inquiry on the
record. Defense counsel again invoked Washington’s right to remain
silent. The court deferred judgment, but imposed 250 hours of
community service and a $350 civil penalty.
We granted Washington’s application for discretionary review and
retained the appeal. On our de novo review, we find that by imposing
250 hours of community service unconnected to a penological goal
related to the court’s inquiry, such as drug treatment, the sentencing
court improperly penalized Washington for invoking his Fifth
Amendment right against self-incrimination. We vacate the sentence and
remand the case for resentencing.

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I. Background Facts and Proceedings.
On October 6, 2011, Officer Jeremy Siepker was on patrol in
Windsor Heights and, just after midnight, pulled over a Dodge Neon with
a burned-out brake light. While speaking with the twenty-one-year-old
driver, Washington, Siepker smelled “a strong odor of marijuana coming
from inside the vehicle.” Siepker told Washington to step out of the car
and asked if he could search him. Washington consented to the search.
Siepker found two plastic bags of what Washington admitted was
marijuana in his pockets along with a metal marijuana pipe and a digital
scale. Siepker next found small plastic bags with marijuana residue and
a loaded revolver in the trunk of Washington’s car. Washington admitted
the handgun belonged to him. Washington was arrested and later
charged by trial information with carrying a weapon in violation of Iowa
Code section 724.4 (2011), an aggravated misdemeanor, and possession
of a controlled substance (marijuana) in violation of Iowa Code section
124.401(5), a serious misdemeanor. He also was charged with
possession of drug paraphernalia in violation of section 124.414, a
simple misdemeanor.
Washington completed a court-ordered substance-abuse
evaluation and reached a plea agreement with the prosecution. He
agreed to plead guilty to possession of marijuana in exchange for
dismissal of the weapons and drug paraphernalia charges. The State
agreed to jointly recommend deferred judgment with fifty hours of
community service, one year of probation, and a $500 civil penalty. The
plea agreement was not conditioned on the court’s acceptance of those
sentencing requests. On February 3, 2012, Washington appeared with
counsel, Robert Rehkemper, to enter his guilty plea and for sentencing.

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The proceedings began off the record. According to Rehkemper’s
on-the-record recapitulation of the off-the-record discussion minutes
later, the court had accepted the guilty plea and said, “I’m going to defer
judgment.” The court then explored Washington’s employment status
and ability to pay the $500 penalty. Matters suddenly became tense
when the sentencing court, still off the record, asked Washington if he
would be “clean or dirty” if required to drop a urinalysis. Rehkemper’s
account of what happened next is as follows:
I stepped in and informed the Court I did not believe it was
appropriate for the Court to inquire that of Mr. Washington.
And in any event, Mr. Washington would exercise his Fifth
Amendment right to remain silent, which he still retains
through sentencing.
At that point, the Court told Mr. Washington and
counsel that that’s fine, he didn’t have to defer judgment, he
can take the conviction.
Rehkemper asked for a court reporter to make a record. The
proceedings continued on the record. After stating what had just
transpired off the record, Rehkemper elaborated on his legal argument
that Washington had a right to remain silent at sentencing under the
Fifth Amendment and “the corresponding section of the Iowa
Constitution.” Rehkemper, referring to Mitchell v. United States, 526 U.S.
314, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999), argued that a “court may
not make an adverse inference of an individual’s exercise of his Fifth
Amendment rights at sentencing.” Rehkemper asserted that the district
court
had all but accepted [the plea agreement], and it appears the
only reason why the Court would not defer judgment, as to
Mr. Washington, would be his election of not to answer the
question of whether or not he would drop dirty or clean
today.

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The court, without otherwise disputing Rehkemper’s description of what
had transpired off the record, stated no plea had been accepted yet. At
the court’s direction, they started over with the plea process on the
record.
During the ensuing colloquy, the parties reiterated the plea
agreement. The court admonished Washington that the plea agreement
was not binding on the court, and he could be sentenced to up to 180
days in jail and a $1000 fine. Washington elected to proceed with his
guilty plea, which the court accepted. Washington also elected to
proceed with sentencing at that time. Counsel and Washington declined
to make any further statement before the court imposed sentence. The
court elicited from Washington that he had been unemployed since
August and had never received a deferred judgment. Then matters
became tense again:
THE COURT: Mr. Washington, if you were to drop a
urine sample today, would it be clean or dirty for marijuana?
MR. REHKEMPER: Your Honor, at this time I’m going
to instruct my client not to answer that question and invoke
his constitutional right against self-incrimination under the
Fifth Amendment [and] the corresponding section of the Iowa
Constitution.
THE COURT: Okay. What’s the State’s position?
MR. HATHAWAY: Your Honor, I would simply ask that
if the Court—it’s certainly within the Court’s discretion,
whether or not to impose—or to grant a deferred judgment in
this case. I would simply ask that the Court enunciate
specifically its reasons for granting or denying a deferred
judgment, in any event.
MR. REHKEMPER: And, Your Honor, I can provide the
Court with a copy of Mitchell versus United States, if the
Court would like to review it.
THE COURT: All right. Mr. Washington, are you
requesting a deferred judgment?
THE DEFENDANT: Yes, Your Honor.
THE COURT: And do you concur with your client’s
request, Mr. Rehkemper?

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MR. REHKEMPER: Yes, Your Honor. And we would
formally request a deferred judgment in this case.
THE COURT: In this matter, judgment is deferred. The
Court is basing this on the fact that Mr. Washington has no
prior criminal history. However, I'm not accepting that part
of the plea agreement making the fine $500—or the civil
penalty $500. I’m making it $315, because Mr. Washington
has not worked since the summer. However, in light of the
nature of the offense, the Court is going to order that
Mr. Washington complete 250 hours of community service,
to be completed within 150 days. And he is to complete 30-
hour—excuse me—50 hours in the next 30 days. A failure to
complete 50 hours in a 30-day period will be considered to
be a violation of probation.
. . . .
Anything else you want to place on the record?
MR. REHKEMPER: Yes, please.
THE COURT: Go ahead.
MR. REHKEMPER: Your Honor, I’d ask the Court
reconsider the imposition of the 250 hours of community
service, all but [quintupling] Mr. Washington’s community
service obligation.
Your Honor, this young man, who obviously as a
condition of probation will need to obtain full-time
employment—well, search for full-time employment, and
two, obtain it and maintain it while attempting to do that
amount of community service is unnecessarily burdensome
on Mr. Washington.
I would ask the Court to reconsider that. And also to
articulate the specific basis of why the Court believes 250
hours of community service is necessary and appropriate
under the facts and circumstances of this case as pertained
to Mr. Washington, when the Court routinely doesn’t impose
any community service on deferred judgments, or it is
anywhere from 50 to 100 hours.
There is nothing special about Mr. Washington’s case
that would warrant the 250 hours, other than the fact that
he invoked his constitutional right not to answer the Court’s
question.
THE COURT: To the contrary, Mr. Rehkemper. You
can look at the orders that were entered, yesterday, there
were several in that range that involved deferred judgments.
MR. REHKEMPER: Could the Court articulate why the
Court feels 250 hours is necessary for Mr. Washington’s
case?

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THE COURT: It just believes that Mr. Washington
would benefit by the community service, as would the
community, in light of the deferred judgment being granted
in this matter. Thank you.
Washington filed an application for discretionary review with our
court. We granted the application and stayed his community service
obligations pending resolution of his appeal. Meanwhile, Rehkemper
followed up on the court’s invitation to “look at the orders entered
yesterday.” On that day and the preceding Thursday combined,
sentencing orders had been entered in twenty-nine Polk County cases on
pleas to possession of a controlled substance, first offense. Judgment
was deferred in eleven of those cases. Community service was only
ordered in two. In one of those, the defendant was referred to drug
treatment and required to complete 150 hours of community service
within ninety days and pay a $315 civil penalty. Eight of the defendants
were ordered to provide urine samples before sentence was imposed. Six
defendants tested “negative” and received deferred judgments with no
community service requirement. Two defendants tested positive; one
received a ten-day jail sentence and the other received a deferred
judgment with 200 hours of community service to be completed in 100
days. There was no order for more than 200 hours of community
service. Washington filed a motion to take judicial notice of the
sentencing orders and court files in these twenty-nine cases and data
summarizing the dispositions. That motion is submitted with this
appeal.
II. Scope of Review.
We review de novo Washington’s claim that the sentencing court
improperly penalized him for invoking his constitutional right against
self-incrimination. See State v. Iowa Dist. Ct., 801 N.W.2d 513, 517

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(Iowa 2011) (reviewing evidence de novo on claimed violation of Fifth
Amendment); see also State v. Harrington, 805 N.W.2d 391, 393 (Iowa
2011) (reviewing de novo claim sentence was result of “judicial
vindictiveness”).
Because we resolve this appeal under the Fifth Amendment, we
need not and do not reach the claim under the Iowa Constitution. See
Mitchell County v. Zimmerman, 810 N.W.2d 1, 3 n.1 (Iowa 2012)
(declining to reach claim under Iowa Constitution when court held
defendant prevailed under the United States Constitution).
III. Analysis.
We must decide whether the sentencing court crossed the
constitutional line by requiring 250 hours of community service after
Washington invoked his right against self-incrimination to decline to
answer the following question: “[I]f you were to drop a urine sample
today, would it be clean or dirty for marijuana?” Washington contends
the sentencing court imposed 200 additional hours of community service
in retaliation for his refusal to answer an “improper” question about
“uncharged and unproven conduct.” The State contends that the
question was proper during sentencing on a drug charge and that the
community service imposed was within the court’s discretion and not
retaliatory. Before we frame the Fifth Amendment analysis, we must
determine the scope of the record by ruling on the motion to take judicial
notice of other court files.
A. Judicial Notice. When defense counsel challenged the 250
hours of community service as retaliatory, the sentencing judge
responded, “To the contrary . . . look at the orders that were entered
yesterday, there were several in that range that involved deferred
judgments.” Washington obtained the records of twenty-nine other Polk

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County District Court files with contemporaneous sentencing orders for
possession of a controlled substance, first offense, and filed a motion to
take judicial notice of these records. The State resisted. We deny the
motion.
Judicial notice may be taken on appeal. See Iowa R. Evid. 5.201(f)
(“Judicial notice may be taken at any stage of the proceeding.”); State v.
Sorensen, 436 N.W.2d 358, 363 (Iowa 1989) (taking judicial notice on
appeal). The rule permits a court to take judicial notice of adjudicative
facts “capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” Iowa R. Evid.
5.201(a)–(b). However, “[t]he general rule is that it is not proper for the
court to consider or take judicial notice of the records of the same court
in a different proceeding without an agreement of the parties.”
Leuchtenmacher v. Farm Bureau Mut. Ins. Co., 460 N.W.2d 858, 861 (Iowa
1990). Washington argues we should allow an exception here “because
the sentencing court specifically referenced the other cases as a point of
comparison for [his] sentence.” The State argues the filings in the other
misdemeanor cases “do not tell the full story” behind each sentence
imposed. We agree with the State.
The validity of any comparison between sentences depends on too
many individual variables, not all of which would be reflected in the
record. For example, unreported colloquies may have influenced certain
sentences.
“[No] appellate court should ever take judicial notice of any
facts that might control constitutional adjudication without
informing all counsel and sending the case back to the trial
court to give counsel an opportunity to show the erroneous
or irrelevant nature of the facts judicially noticed.”

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City of Council Bluffs v. Cain, 342 N.W.2d 810, 813–14 (Iowa 1983)
(quoting Chester J. Antieau, Modern Constitutional Law § 15:38 (1969)).
But, even minitrials on the similarities and differences between these
cases are unlikely to fully explain each sentence. Washington cites no
case, and we found none, allowing appellate judicial notice of other court
files to help show a judge abused his discretion in sentencing. Under the
circumstances, we conclude judicial notice of the other court files is
inappropriate. Accordingly, we will confine our review to the record in
Washington’s proceeding.
B. Fifth Amendment Claim.
1. Fifth Amendment caselaw. The Fifth Amendment to the United
States Constitution provides, “No person . . . shall be compelled in any
criminal case to be a witness against himself . . . .” A guilty plea does
not waive the right against self-incrimination at sentencing. Mitchell,
526 U.S. at 325, 119 S. Ct. at 1313, 143 L. Ed. 2d at 435. Indeed, the
protections of the Fifth Amendment continue through conviction and
imprisonment. Iowa Dist. Ct., 801 N.W.2d at 518 (“The Fifth
Amendment’s guarantees extend to [a defendant] despite his conviction
and imprisonment.”).
Nevertheless, the context in which the right is invoked—whether at
trial, sentencing, or postconviction proceedings—affects our analysis.
See McKune v. Lile, 536 U.S. 24, 36, 122 S. Ct. 2017, 2026, 153
L. Ed. 2d 47, 59 (2002) (“[T]he fact of a valid conviction and the ensuing
restrictions on liberty are essential to the Fifth Amendment analysis.”).
As the McKune Court noted, “A broad range of choices that might infringe
constitutional rights in a free society fall within the expected conditions
of confinement of those who have suffered a lawful conviction.” Id.
Washington was not incarcerated when he invoked his right against self-

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incrimination, but he was standing before a sentencing judge whose
options ranged from one-year of incarceration to a deferred judgment
with no conviction. We must analyze his Fifth Amendment claim in the
specific context of his sentencing on his guilty plea to possession of
marijuana. We begin with the leading Supreme Court decision on Fifth
Amendment claims raised at sentencing proceedings—Mitchell.
In Mitchell, the defendant pled guilty to drug offenses without
admitting the quantity of cocaine necessary to determine the length of
her mandatory minimum sentence. 526 U.S. at 317, 119 S. Ct. at 1310,
143 L. Ed. 2d at 430. The sentencing court relied on other witnesses to
establish the amount and expressly held defendant’s silence against her.
Mitchell, 526 U.S. at 318–19, 119 S. Ct. at 1310, 143 L. Ed. 2d at 431.
The Supreme Court reversed, holding that a sentencing court may not
draw an adverse inference from defendant’s silence in determining the
facts of the offense. Id. at 330, 119 S. Ct. at 1316, 143 L. Ed. 2d at 438.
The Supreme Court admonished that “[t]he Government retains the
burden of proving facts relevant to the crime at the sentencing phase and
cannot enlist the defendant in this process at the expense of the self-
incrimination privilege.” Id. Washington argues that Mitchell is
dispositive of this case. We disagree.
Mitchell is fundamentally distinguishable. It was decided under
the federal sentencing system then in effect in which the quantity of
cocaine directly determined the severity of the offense and, thus,
Mitchell’s sentence. The sentencing court used Mitchell’s invocation of
her Fifth Amendment rights to help resolve a fact question relating to the
seriousness of Mitchell’s crime. Here, by contrast, Washington had
already pled guilty to his crime, and there was no disagreement as to
what it was. Rather, the court’s question related to Washington’s drug

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use nearly four months after the crime to which he pled guilty, a
potentially relevant consideration in exercising sentencing discretion.
The Mitchell Court expressly left open the question whether a court may
consider the defendant’s silence to determine other factors relevant to
sentencing, such as lack of remorse or acceptance of responsibility:
Whether silence bears upon the determination of a lack of
remorse, or upon acceptance of responsibility for purposes of
the downward adjustment provided in § 3E1.1 of the United
States Sentencing Guidelines (1998), is a separate question.
It is not before us, and we express no view on it.
Id. at 330, 119 S. Ct. at 1316, 143 L. Ed. 2d at 438–39.
Mitchell, thus, does not address whether a defendant’s Fifth
Amendment right to remain silent is infringed whenever the court
considers his refusal to answer relevant questions in determining the
proper sentence. Furthermore, in this case, Washington was seeking a
deferred judgment, a benefit. See State v. Nail, 743 N.W.2d 535, 545
(Iowa 2007) (describing deferred judgment as a benefit that allows the
defendant to avoid a conviction). A sentencing judge could have a
legitimate reason for wanting to know whether Washington was
continuing to use marijuana months after his arrest before deciding
whether to defer judgment. As the State argues:
The Court’s question related to sentencing, whether
Washington had seen the error of his ways and stopped
involving himself with controlled substances or with other
people around him consuming them. If he had, the Court
could be more lenient, secure in the belief his chances for
reform were good. If Washington had not separated himself
from a drug culture, the Court might not believe leniency
was appropriate. His chances of re-offense would be higher.
We, thus, recognize that whether a defendant is continuing to use
marijuana may be a relevant consideration at sentencing on a drug
conviction. On the other hand, in a strict sense, a judge who asks about

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drug use at sentencing is asking for information that might incriminate
the defendant.
Some sentencing courts avoid Fifth Amendment issues altogether
by ordering the defendant to submit to a urinalysis to help determine
eligibility for probation on drug convictions. See generally Anne M.
Payne, Propriety of Conditioning Probation on Defendant’s Submission to
Drug Testing, 87 A.L.R.4th 929 (1991 & Supp. 2012). The Fifth
Amendment is not implicated because a urine test is not testimonial
evidence. See Hess v. Ables, 714 F.3d 1048, 1053 (8th Cir. 2013) (“[A]
urine drug test would not violate her Fifth Amendment right against self-
incrimination because urine samples, which are not testimonial
evidence, do not trigger Fifth Amendment protections.”). A court-ordered
blood test, however, is a search for Fourth Amendment purposes. See
Missouri v. McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1558, ___
L. Ed. 2d ___, ___ (2013). In State v. Guzman, a divided Wisconsin
Supreme Court rejected a Fourth Amendment challenge to a urinalysis
ordered for sentencing purposes to determine whether a defendant
convicted of a drug crime should be given probation. 480 N.W.2d 446,
456 (Wis. 1992). The majority noted, “Whether the convicted defendant
continues to use drugs is of paramount importance in his or her
rehabilitation. A judge must necessarily have such information to
ascertain the rehabilitative needs of one convicted of a drug-related
offense.” Guzman, 480 N.W.2d at 454. Two justices dissented, fearing
the majority opened the door to a broad array of unconstitutional
searches. See id. at 459 (Heffernan, C.J., dissenting). Washington’s
appeal does not challenge a court-ordered urinalysis. Rather, we are
confronted with the sentencing judge’s direct question to Washington
regarding his drug use.

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After Mitchell, a number of state appellate decisions have held the
sentencing court may consider the defendant’s silence or refusal to
answer questions in determining the appropriate sentence. See, e.g.,
State v. Hernandez, 295 P.3d 451, 454 (Ariz. Ct. App. 2013) (noting its
agreement “with those jurisdictions that have concluded the Fifth
Amendment does not preclude a sentencing court from considering a
defendant’s refusal to answer questions about the offense in determining
whether he or she is a suitable candidate for probation” and collecting
cases from other jurisdictions); State v. Blunt, 71 P.3d 657, 662 & n.13
(Wash. Ct. App. 2003) (recognizing that “most courts have generally
declined to extend Mitchell to prohibit inferences from silence in the
context of sentence enhancements that do not involve factual details of
the underlying crime” and collecting cases).
One situation federal and state courts have repeatedly addressed
since Mitchell is whether the court may properly consider a defendant’s
refusal to participate in a presentence investigation (PSI) when
sentencing the defendant. For example, in United States v. Kennedy, the
Sixth Circuit held Mitchell permits the district court applying federal
sentencing guidelines to consider the defendant’s refusal to participate in
a court-ordered psychosexual evaluation and interview that was part of
the PSI. 499 F.3d 547, 551–52 (6th Cir. 2007). The defendant objected
to the interview on Fifth Amendment grounds and argued the sentencing
court “improperly took account of his unwillingness” to answer
questions. Kennedy, 499 F.3d at 551. In rejecting his Fifth Amendment
challenge, the Sixth Circuit noted the sentencing court “plainly
considered Kennedy’s refusal to complete testing in determining his
propensity for future dangerousness, rather than in determining facts of
the offense.” Id. at 552. The Sixth Circuit read Mitchell narrowly:

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Given the narrowness of its holding, Mitchell simply does not
limit the district court’s ability to consider a wide variety of
“information concerning the background, character, and
conduct” of the defendant in determining an appropriate
sentence, 18 U.S.C. § 3661; to “order a study of the
defendant,” id. § 3552(b); and, therefore, to consider the
defendant’s refusal to cooperate in assessing what sentence
is necessary “to protect the public from further crimes of the
defendant,” id. § 3553(a)(2)(C).
Id.
State supreme courts likewise have read Mitchell as allowing the
sentencing court to consider the defendant’s noncooperation with a PSI.
See, e.g., Lee v. State, 36 P.3d 1133, 1141 (Wyo. 2001) (“It was
[defendant’s] right to refuse the [PSI] assessment and the district court’s
right to consider such refusal in determining the appropriate sentence.”).
In State v. Muscari, the defendant remained silent on advice of counsel
during the PSI interview. 807 A.2d 407, 415 (Vt. 2002). The sentencing
court accepted the PSI and sentenced him to a term in prison. Muscari,
807 A.2d at 415. The Vermont Supreme Court affirmed the prison
sentence. Id. at 416–17. The Muscari court noted that, consistent with
Mitchell, the sentencing court permissibly “considered defendant’s silence
at the PSI as one factor in determining whether defendant had accepted
responsibility and expressed remorse for his violent criminal behavior.”
Id. at 416. Similarly, in Dzul v. State, a divided Nevada Supreme Court
affirmed the denial of probation to a defendant who refused to admit guilt
for the charged offense during the PSI’s psychosexual evaluation. 56
P.3d 875, 885–86 (Nev. 2002). The Dzul court, however, noted a split in
authority on whether a sentencing court could withhold leniency based
on the defendant’s refusal to admit guilt. Dzul, 56 P.3d at 881–84
(surveying state and federal cases). The Dzul court relied on McKune to
hold the state may deny benefits to defendants who refuse to admit guilt
as to the crime of conviction during a sex-offender treatment program.

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Id. at 884–85. A majority of the Nevada Supreme Court concluded that
“presenting Dzul with the choice [to] admit[] responsibility for the offense
to which he pleaded guilty” to get a lighter sentence “does not violate his
Fifth Amendment right against self-incrimination.” Id. at 885. The Dzul
court distinguished cases holding the denial of sentencing reductions
could not be based on the defendant’s refusal to admit to uncharged
conduct. Id. at 883–84.
We, too, followed McKune in rejecting a Fifth Amendment challenge
in Iowa District Court. See Iowa Dist. Ct., 801 N.W.2d at 527–28. But,
both McKune and Iowa District Court involved the defendant’s refusal to
admit his guilt in the crime for which he was sentenced in connection
with a sex-offender treatment program. Id. at 527 (“Harkins does not
claim that he will be forced to disclose other, as-yet-unknown sex
offenses.”). By contrast, Washington argues the Fifth Amendment
violation here arises from his refusal to answer questions about
uncharged conduct, that is, his use of marijuana at the time of
sentencing rather than his possession of that drug at the time of his
arrest nearly four months earlier. Washington also relies on our caselaw
holding the sentencing court is not permitted to consider unproven and
uncharged conduct. “It is a well-established rule that a sentencing court
may not rely upon additional, unproven, and unprosecuted charges
unless the defendant admits to the charges or there are facts presented
to show the defendant committed the offenses.” State v. Formaro, 638
N.W.2d 720, 725 (Iowa 2002). “If a district court improperly considers
unprosecuted and unproven additional charges, we will remand the case
for resentencing.” Id.; accord State v. Jose, 636 N.W.2d 38, 42–43 (Iowa
2001) (discussing showing required to vacate sentence). Washington
argues the Fifth Amendment allowed him to refuse to answer whether his

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urinalysis at the time of sentencing would be “clean or dirty” and that the
sentencing court improperly penalized him with a harsher sentence for
invoking that right.
McKune and Iowa District Court did not decide whether the Fifth
Amendment precludes a sentencing court from considering the
defendant’s refusal to answer a question about uncharged conduct in
deciding whether to defer judgment or impose other conditions. But,
those decisions nevertheless provide guidance here regarding the choices
that may be imposed after the defendant’s guilt is established. In Iowa
District Court, we observed that, as in McKune, the inmate may be
confronted with hard choices. See Iowa Dist. Ct., 801 N.W.2d at 527–28.
The key question is “whether the choice arose as a result of the
defendant’s conviction within the criminal justice system and whether
imposing the choice serves a proper goal of that system.” Id. at 528. We
noted both the plurality and special concurrence in McKune “recognize[d]
that a fair criminal process may impose difficult choices on defendants to
serve a valid penological goal, without crossing the line into
unconstitutional compulsion.” Id. at 523. We quoted Justice Kennedy’s
observation that, “ ‘[R]ehabilitation is a legitimate penological interest
that must be weighed against . . . an inmate’s liberty.’ ” Id. at 520
(quoting McKune, 536 U.S. at 36, 122 S. Ct. at 2026, 153 L. Ed. 2d at 59
(plurality opinion)). We concluded the sex-offender treatment program
“was established for bona fide rehabilitative purposes,” and “requiring
the offender to acknowledge responsibility for his offense serves one of
those purposes.” Id. at 519.
The Fifth Amendment, thus, allows room for hard choices after a
conviction when legitimate penological goals are served. A defendant
facing sentencing may confront such choices when he or she is asked to

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provide his or her version of the offense for purposes of a PSI. Likewise,
the defendant may face the same dilemma when offered the right of
allocution at the sentencing hearing. If the defendant does not admit to
having engaged in criminal conduct, will the defendant appear
unremorseful or unlikely to benefit from rehabilitation?
We now apply these principles to determine whether the
sentencing court violated Washington’s Fifth Amendment right against
self-incrimination.
2. Application. On our de novo review, we find the sentencing
court improperly penalized Washington for invoking his right against
self-incrimination.
Washington concedes the sentence imposed was within statutory
limits. Accordingly, his sentence “is cloaked with a strong presumption
in its favor, and will only be overturned for an abuse of discretion or the
consideration of inappropriate matters.” Formaro, 638 N.W.2d at 724.
To overcome the presumption, we have required an affirmative showing
the sentencing court relied on improper evidence. Jose, 636 N.W.2d at
41; cf. State v. Mitchell, 670 N.W.2d 416, 424–25 (Iowa 2003) (requiring
showing of “actual vindictiveness” to prevail on due process challenge to
harsher resentence imposed by different judge after defendant’s
successful appeal).
It can be difficult to draw the line between protecting the right
against self-incrimination and preserving sentencing discretion. In Burr
v. Pollard, the Seventh Circuit described the line-drawing challenge as
follows:
The Fifth Amendment protects an accused’s right to remain
silent at trial and sentencing. That right, of course, would
mean little if a judge could punish a defendant for invoking
it. Nevertheless, silence can be consistent not only with

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exercising one’s constitutional right, but also with a lack of
remorse. The latter is properly considered at sentencing
because it speaks to traditional penological interests such as
rehabilitation (an indifferent criminal isn’t ready to reform)
and deterrence (a remorseful criminal is less likely to return
to his old ways). The line between the legitimate and the
illegitimate, however, is a fine one. As we have recognized,
“sometimes it is difficult to distinguish between punishing a
defendant for remaining silent and properly considering a
defendant’s failure to show remorse in setting a sentence.”
546 F.3d 828, 832 (7th Cir. 2008) (citations omitted).
Our line-drawing in this case is simplified by the fact Washington’s
Fifth Amendment challenge is to the sentence of 250 hours of community
service. Unlike in Iowa District Court, this is not a situation in which the
consequence (a determination that the defendant failed to complete sex-
offender treatment and was not eligible for earned-time credits) bore a
relationship to a legitimate penological purpose of the inquiry that the
defendant refused to answer. We do not see how additional community
service is related to a positive drug test or to an adverse inference drawn
from a refusal to answer whether the test would be “clean or dirty.” If
Washington is still using drugs, it might be logical to refuse to defer
judgment on the ground that Washington needs a more structured
approach, but additional community service seems purely punitive.
Neither the State nor the sentencing court contends Washington’s 250
hours of community service serves a legitimate penological purpose
connected to his refusal to answer whether he currently is using
marijuana. We need not decide today whether a sentencing court could
order drug treatment or rehabilitation or deny a deferred judgment based
on defendant’s refusal to answer whether a drug test would be positive.
The court did defer judgment for Washington. Rather, we must decide
on this record whether, as Washington argues, the court imposed

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additional community service hours to penalize him for invoking his right
to remain silent. If so, resentencing is required.
We accept as accurate defense counsel’s account of the off-the-
record colloquy and the plea and sentencing hearing, an account the
judge did not dispute when it was restated on the record. The State had
reached a plea agreement with Washington to recommend a deferred
judgment on the possession of marijuana, first offense, with one year of
probation, fifty hours of community service, a $500 civil penalty, and
dismissal of the companion weapon and drug paraphernalia charges.
According to defense counsel’s statement on the record, “the court
routinely doesn’t impose any community service on deferred judgments,
or it is anywhere from 50 to 100 hours.” The State does not argue
otherwise. The district court initially accepted the guilty plea and stated,
“I’m going to defer judgment.” The court next asked about Washington’s
employment and ability to pay the $500 civil penalty. So far, there is
nothing out of the ordinary.
The trouble began when the sentencing judge asked Washington if
he would be “clean or dirty” if he took a drug test. When defense counsel
objected and asserted Washington’s Fifth Amendment right to remain
silent, the court reacted by immediately stating that he “didn’t have to
defer judgment” and Washington “can take the conviction.” This raises a
red flag. The proceedings continued on the record with defense counsel
restating what had transpired moments earlier. The parties reiterated
the terms of the plea agreement, and the court conducted an appropriate
plea colloquy before accepting [again] Washington’s guilty plea on the
charge of the possession of a controlled substance, first offense. The
court reexamined Washington’s employment status and ability to pay the
civil penalty.

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The court then repeated the inquiry, “Mr. Washington, if you were
to drop a urine sample today, would it be clean or dirty for marijuana?”
Defense counsel instructed Washington not to answer and again invoked
his right against self-incrimination, citing Mitchell. The court at that
point granted Washington’s request for a deferred judgment, noting his
lack of prior criminal history. The court lowered the civil penalty by
$185 to $315 “because Mr. Washington ha[d] not worked since the
summer.” But, then, the court imposed 250 hours of community service
“in light of the nature of the offense.” This was a five-fold increase over
the fifty hours in the plea agreement. The sentencing court denied the
250 hours was imposed because Washington “invoked his constitutional
right not to answer the Court’s question.” Yet, when challenged to
“articulate why the Court feels 250 hours is necessary for
Mr. Washington’s case,” the court answered, “it just believes that
Mr. Washington would benefit by the community service, as would the
community, in light of the deferred judgment being granted in this
matter.” The court offered no other explanation, despite the earlier
request by the State that the “Court enunciate specifically its reasons for
granting or denying a deferred judgment.” The court articulated no
rehabilitative or penological purpose for the 200 additional hours that
was connected to Washington’s possible drug use.
We find the sentencing court’s cryptic explanation unsatisfactory
in light of what had just transpired. The court did not have a positive
drug test from Washington or any admission that he was using
marijuana at that time. The court had previously indicated it would
grant a deferred judgment. The court abruptly reversed course and
stated it would instead enter a conviction when Washington first asserted
his Fifth Amendment right to decline to answer the court’s “clean or

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dirty” question. We find that exchange reveals the court’s intent to
punish Washington for exercising his constitutional right. When
challenged, on the record, the court then allowed the deferred judgment,
but quintupled the community service over the fifty hours recommended
by the State in the plea agreement. It would take Washington more than
six, forty-hour weeks to discharge that community service. The $185
reduction in the civil penalty from $500 to $315 equates to ninety-two
cents per hour for the extra 200 hours. There is no evidentiary support
in the record for the district court’s assertion that 250 hours of
community service was in the “range” of other orders entered the
previous day. In the absence of any other plausible explanation
proffered, we find that the additional 200 hours was imposed in
retaliation for Washington’s invocation of his constitutional right against
self-incrimination. Resentencing is required.
IV. Conclusion.
For the foregoing reasons, we deny Washington’s motion to take
judicial notice of other court files. We hold that the sentencing court
improperly penalized Washington for invoking his Fifth Amendment right
against self-incrimination. We, therefore, vacate the sentence and
remand the case for resentencing.
SENTENCE VACATED AND CASE REMANDED FOR
RESENTENCING.
All justices concur except Cady, C.J., and Mansfield, J., who
dissent.

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#12–0305, State v. Washington
CADY, Chief Justice (dissenting).
I respectfully dissent. I would affirm the judgment of the district
court.
The law properly cloaks judges with a presumption that they acted
properly in the imposition of a sentence in a criminal case when faced
with a claim that they used an improper sentencing consideration. State
v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). This strong and venerable
presumption is overcome only by proof that an improper consideration
was used by the court. See id. (indicating an abuse of discretion will not
be found unless the reviewing court is able to discern the decision was
exercised on grounds that were clearly untenable).
When, as in this case, the judgment or sentence imposed by the
district court was within the scope of discretion, the presumption of
legality should shield the sentencing judge from an inference that an
improper sentencing consideration could have been used. The invocation
of a right under the Fifth Amendment by a defendant at the time of
sentencing in response to an inquiry by the sentencing court about any
criminal conduct committed by the defendant during the pendency of the
case can become the basis of an inference of retaliatory sentencing, but it
can also be a proper penological sentencing consideration. Cf. State v.
Iowa Dist. Ct., 801 N.W.2d 513, 527–28 (Iowa 2011). Yet, the imposition
of a sentence by the court, following the invocation of the right, that
merely falls within the high range of discretion does not establish proof of
retaliation. The invocation, instead, remains an uncertain factor in the
sentence.
In this case, the district court said it imposed a higher number of
community service hours as a part of the deferred judgment granted to

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the defendant because it felt the higher amount of community service
hours was proper, not because it wanted to retaliate against the
defendant for refusing to admit or deny any drug use. The defendant
was unemployed at the time of sentencing, in possession of a firearm at
the time of arrest, and rebuked all inquiries by the judge about his
current use of drugs. There was simply no direct evidence of retaliation.
Instead, it would appear the court wanted to make a very lenient form of
punishment, which provides offenders with an opportunity to avoid the
heavy burden of a record of a criminal conviction, more meaningful to
the offender to better promote successful rehabilitation.
Without direct evidence of a retaliatory motive by the sentencing
judge, the presumption of legality must prevail. The district judge
deserves such a result, as does the time-honored presumption given by
the law to judges in the performance of their work.
Mansfield, J., joins this dissent.

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