State of Iowa v. Ernesto Antonio Guerra Pascual

IN THE COURT OF APPEALS OF IOWA

No. 20-1013
Filed September 1, 2021

STATE OF IOWA,
Plaintiff-Appellee,

vs.

ERNESTO ANTONIO GUERRA PASCUAL,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Buena Vista County, Don E.

Courtney, Judge.

Ernesto Antonio Guerra Pascual appeals his sentence. AFFIRMED.

Michael J. Jacobsma of Jacobsma Law Firm, P.C., Orange City, for

appellant.

Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant

Attorney General, for appellee.

Considered by Tabor, P.J., Greer, J., and Doyle, S.J.*

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

(2021).
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GREER, Judge.

Ernesto Guerra Pascual appeals his sentences following his Alford plea.1

He argues the district court violated his Fifth Amendment privilege against self-

incrimination under the United States Constitution and article I, section 9 of the

Iowa Constitution because it considered his lack of remorse as a sentencing factor.

Pascual recognizes our supreme court held that a defendant’s lack of remorse is

“a pertinent sentencing factor,” even when a defendant maintains their innocence

by entering an Alford plea, in State v. Knight, 701 N.W.2d 83, 88 (Iowa 2005). But

he asks us to overturn that holding, asserting the court’s reasoning in Schmidt v.

State, 909 N.W.2d 778, 787–790 (Iowa 2018), is at odds with the holding in Knight.

Pascual also asserts the district court erred by considering facts he claims were

either not in the record or were unproven.

Facts and Earlier Proceedings.

In January 2018, Pascual’s former stepdaughter accused him of sexually

assaulting her multiple times over a year-long period, starting when she was

eleven years old. Pascual was charged with second- and third-degree sexual

abuse, two counts of lascivious acts with a child, two counts of indecent contact

with a child, and first-degree harassment. He elected to enter Alford plea to

lascivious acts with a child, a class “C” felony, and to two aggravated

misdemeanors: assault with intent to commit sexual abuse and indecent contact

with a child. In exchange, the State dropped the four remaining charges.

1By entering an Alford plea, “the defendant acknowledges the evidence strongly
negates the defendant’s claim of innocence and enters a [guilty] plea to avoid a
harsher sentence.” Comm. on Prof’l Ethics & Conduct v. Sturgeon, 487 N.W.2d
338, 340 (Iowa 1992).
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Pascual appeared in the district court in December 2019 to enter his plea

for lascivious acts with a child and provided a written plea to the two aggravated

misdemeanors. The written plea agreement provided “[t]he parties stipulate that

the entirety of the minutes of testimony may be relied upon to supplement the

factual basis of the plea and may be used for consideration by the [c]ourt of

aggravating or mitigating circumstances during sentencing.” Additionally, the

parties agreed at the plea hearing that the district court could take “judicial notice

of the minutes in determining a factual basis” for Pascual’s crimes. The district

court engaged Pascual in a thorough colloquy before accepting his Alford plea and

scheduled sentencing for July 2020.

At the sentencing hearing, Pascual exercised his right of allocution and

denied having any sexual contact with the child. Before pronouncing the sentence,

the district court stated:

In this case I’m dealing with a 12-year-old sixth grader, your
stepdaughter, that I am convinced, based upon my review of the
minutes of testimony, you manipulated and you were, in fact, a
predator. You were in a position of power and authority over this
child. And the court feels that you need to be held accountable for
this behavior. The court agrees with the presentence investigation
[(PSI)] reporter that you failed to have any concern or empathy for
the victim in this matter and that your concern is how this impacts
your life.

Pascual was sentenced to an indeterminate ten-year sentence for lascivious acts

with a child, an indeterminate two-year sentence for assault with intent to commit

sexual abuse, and an indeterminate two-year sentence for indecent contact with a

child, all to run concurrently. Pascual was also ordered to register with the sex

offender registry. He appeals.
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Standard of Review.

We review Pascual’s constitutional challenge to his sentence de novo.

State v. Ragland, 836 N.W.2d 107, 113 (Iowa 2013). We review his claim the

district court considered unproven facts for abuse of discretion. State v. Hill, 878

N.W.2d 269, 272 (Iowa 2016). Because Pascual’s sentence falls within the

statutory parameters, we presume it is valid, and he must affirmatively show the

district court relied on improper evidence to defeat this presumption. State v.

Hopkins, 860 N.W.2d 550, 554 (Iowa 2015).

Analysis.

Pascual challenges his sentences following an Alford guilty plea. Because

judgment was entered against him in July 2020 and he pled guilty to crimes that

are not class “A” felonies, Iowa Code section 814.6(1)(a)(3) (2020) controls

Pascual’s right to appeal. See State v. Damme, 944 N.W.2d 98, 103 n.1 (Iowa

2020). And here, Pascual has good cause to appeal. See id. at 104 (“We hold

that good cause exists to appeal from a conviction following a guilty plea when the

defendant challenges his or her sentence rather than the guilty plea.”). So we

consider the merits of Pascual’s claims.

Pascual argues Knight is no longer viable in light of more recent case law,

Schmidt v. State, 909 N.W.2d 778, 789 (Iowa 2018), which held the Iowa

Constitution permits defendants that plead guilty to bring freestanding claims of

actual innocence. In reaching this conclusion, the court recognized defendants

sometimes plead guilty to crimes they did not commit. Schmidt, 909 N.W.2d at

788. Pascual reasons the holding of Knight runs afoul of Schmidt because Knight
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allows courts to “penalize” defendants entering Alford pleas for showing a lack of

remorse even while they maintain their innocence.

We disagree, and we decline Pascual’s invitation to overturn existing

precedent. First, “[g]enerally it is the role of the supreme court to decide if case

precedent should no longer be followed.” State v. Miller, 841 N.W.2d 583, 584 n.1

(Iowa 2014). And Pascual’s argument against Knight misses the mark; the case

does not stand for the proposition that defendants may be penalized at sentencing

for maintaining their innocence. Instead, it allows sentencing courts to “find[] a

lack of remorse based on facts other than the defendant’s failure to plead guilty.

A defendant’s lack of remorse can be discerned ‘by any admissible statement

made by the defendant pre-trial, at-trial, or post-trial,’ or by ‘other competent

evidence properly admitted at the sentencing hearing.’” Knight, 701 N.W.2d at 87

(quoting State v. Shreves, 60 P.3d 991, 996 (Mont. 2005)). We see no conflict

between the holdings of Knight and Schmidt. Noting “strong evidence of actual

guilt,” the district court based its finding that Pascual lacked remorse on the PSI

report, the minutes of testimony, and Pascual’s own statements to the court. The

district court gleaned from the PSI that Pascual seemed focused on how the case

impacted him rather than the child. Thus, it was not improper to consider lack of

remorse as a factor in imposing Pascual’s sentence.

Pascual fashions an additional but similar claim, asking us to overturn

Knight and hold “using lack of remorse as a sentencing factor when the defendant

maintains his innocence is a violation of [the] privilege against self-incrimination as

well as the same privilege under Article I Section 9 of the Iowa Constitution.”

Pascual postures he was “penalized” for maintaining his innocence via an Alford
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plea because the district court could have suspended his sentences but chose not

to because of his lack of remorse.

He relies on Brown v. State to bolster his argument, a case that is easily

distinguishable from the facts here. 934 P.2d 235 (Nev. 1997). In Brown, the

sentencing court told the defendant, who was found guilty at trial, that “it was going

to make a ‘big’ difference in the length of the sentence whether [he] was finally

going to admit his guilt or if he was going to maintain his innocence” before it

sentenced him to the maximum penalties. 934 P.2d at 240. The Nevada Supreme

Court held that “[r]equiring [the defendant] to either express remorse or receive a

harsher sentence violated [his] Fifth Amendment rights and constituted an abuse

of discretion.” Id. at 246. But the district court here made no such coercive

statements, and there is nothing in the record indicating the district court declined

to suspend Pascual’s sentences based solely on his refusal to admit guilt or show

remorse. Pascual’s lack of remorse was only one factor in the sentencing decision;

the district court also stated

[t]he court has chosen the sentence it has because it does feel that
it provides the maximum opportunity for the defendant’s
rehabilitation, that it does protect the community from further
offenses by this defendant and others, and the nature of the offense
committed along with those other reasons cited in the record earlier.

(Emphasis added.) We find no violation of Pascual’s privilege against self-

incrimination and decline his invitation to overturn Knight.

For his final claim, Pascual accuses the district court of considering

unproven facts contained in the minutes of testimony in its sentencing

determination. Specifically, he takes issue with two facts that were accepted as
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true: (1) his status as the abused child’s stepfather and (2) that he was in a position

of power and authority over the child. Once again, his claim lacks merit.

First, while Pascual and the child’s mother were no longer married at the

time of the underlying crimes, they had been married for approximately eight years

and the child, who was under twelve at the time, still considered him to be her

stepfather. She referred to him as such in interviews with investigators, and

Pascual is the father of the child’s half-siblings. The PSI also listed Pascual as the

child’s stepfather, and he raised no objection to this designation. More importantly,

the written plea agreement provided “[t]he parties stipulate that the entirety of the

[m]inutes of testimony . . . may be used for consideration by the [c]ourt of

aggravating or mitigating circumstances during sentencing.” The minutes of

testimony supported a finding that Pascual was the child’s stepfather and that he

was in a position of power and authority over her. Having expressly stipulated that

the district court could consider the minutes of testimony in determining his

sentence, we hold the district court did not abuse its discretion in doing so. See

State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999) (“Nothing is more basic in the

law of appeal and error than the axiom that a party cannot sing a song to us that

was not first sung in trial court.”).

Conclusion.

Because Pascual’s constitutional claims lack merit and we find no abuse of

discretion, we affirm the sentences imposed by the district court.

AFFIRMED.