John Feller v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 23-0005
Filed May 8, 2024

JOHN FELLER,
Petitioner-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Michael J.

Shubatt, Judge.

A registrant challenges the denial of his application to modify sex offender

registration requirements. AFFIRMED.

Philip B. Mears of Mears Law Office, Iowa City, for appellant.

Brenna Bird, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.

Considered by Bower, C.J., Schumacher, J., and Blane, S.J.*

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

(2024).
2

BLANE, Senior Judge.

John Feller appeals the denial of his application to modify sex offender

registration requirements. He contends the district court abused its discretion in

finding the circumstances do not warrant ending the requirement that he register

for life. We affirm.

I. Factual and Procedural Background

In April 2011 the State initially charged Feller by trial information with

lascivious acts with a child and third-degree sexual abuse for conduct occurring

between 2007 and 2011. His victim was his then-fifteen-year-old stepdaughter,

J.B. The abuse came to light in April 2011 when J.B. disclosed it to her mother,

Kayla. The abuse consisted of Feller kissing J.B. and placing his mouth or fingers

on her breasts and genitals. Feller and Kayla also have a biological daughter

together, L.F., who was around five years old at the time of his convictions. Feller

and Kayla have since divorced.

According to a memorandum of plea negotiation, the State agreed to

dismiss the sexual abuse charge and substitute a second count of lascivious acts

with a child to the April 2011 trial information. While awaiting trial, Feller received

a letter from his attorney explaining that an inexperienced assistant in the county

attorney’s office failed to amend the open case file. Instead, the State filed a

second trial information in July alleging one count of lascivious acts with a child for

the same timeframe as the first information. Going forward with two case numbers,

Feller pleaded guilty to two counts of lascivious acts with a child in October 2011.

See Iowa Code § 709.8 (2011). He received a sentence of five years

imprisonment on each count to be run concurrently and a ten-year special
3

sentence committing him to the custody of the Iowa Department of Corrections

(DOC). He was also ordered to register as a sex offender “as required under Iowa

Code chapter 692A.”

After entering prison in 2012, Feller submitted an “application for

determination” to the Iowa Department of Public Safety (DPS) to establish his sex

offender registration (SOR) requirements. The DPS informed him he was required

to register “for a period of ten years.”

Feller discharged his term of incarceration in 2014 and his special sentence

in 2018. After his release from prison, he applied for SOR determination again. In

2016, the DPS informed him he was required to register for life:

Your convictions October 24, 2011 for Lascivious Acts with a
Child, in violation of Iowa Code Section 709.8(3), case FECR95382,
and Lascivious Acts with a Child, in violation of Iowa Code
Section 709.8(3), case FECR96569.
According to Iowa Code Section 692A.103(1)(c)(26)[1 (2016)]
and 692A.102(5), Lascivious Acts with a Child, Iowa Code
Section 709.8(3), if committed against a person under thirteen years
of age, is a Tier III sexual offense.
According to Iowa Code Section 692A.106(5), a conviction for
a second/subsequent sex offense requires a sex offender to register
for life.

Feller did not challenge that determination.

Five years later, in December 2021, Feller applied to modify his SOR

requirements under Iowa Code section 692A.128. At the hearing, he chose not to

testify but submitted an affidavit. He stated he discharged his sentence in 2014

and only then learned that he would have to register for life. He completed sex

offender treatment while incarcerated and another sex offender treatment program

1 We note this code section in 2016 was for the offense of “[i]ndecent contact with

a child in violation of section 709.12,” not lascivious acts with a child.
4

while on parole. He has had no criminal charges in the eight years since his

release including no registration violations. This means, as a Tier III offender, he

has registered properly every quarter. And for the last eight years he maintained

full-time employment and had his own apartment and vehicle. He also submitted

a letter from the DCS affirming that he had “no compliance issues” with his SOR

requirements, had completed all sex offender treatment programs that were

required, and his risk assessment classified him as “a low risk to reoffend.” The

most recent assessment was in 2021 and affirmed that classification.

At the hearing on the petition, J.B. and Kayla testified opposing the

modification. Their primary concern was Feller’s effort to maintain contact with

L.F. who, at the time of the hearing, was fifteen years old. They testified that since

Feller went to prison, he has sent letters or cards to L.F. nearly every month. J.B.

testified that the letters were of the same demanding and manipulative tone that

Feller used to groom her for abuse as a child. Kayla testified that at first L.F.

wanted to see the letters and cards and wrote a few back to her father. But for

more recent years, L.F. had not even opened the missives from Feller. Kayla

testified that L.F. was “very scared that what happened to her sister will happen to

her” and did not want any relationship with her father.

The district court denied the request for modification, giving J.B.’s testimony

almost controlling weight:

Having observed and listened to [J.B.], the court finds her to
be an extremely credible witness and accepts her unrebutted
testimony as fact. For these reasons, the court also gives weight to
her belief, which is based on her own experience and Feller’s similar
pattern with respect to his younger daughter, that Feller’s obligation
to register as a sex offender should continue.
5

The court considered other factors as well including Feller’s demeanor at the

hearing, his lack of remorse, and the pattern of behavior he exhibited. It

determined, “Feller presents a significant enough risk to reoffend that he should

continue to register as a sex offender.” Feller appeals the denial of his application.

II. Scope and Standards of Review

The district court has the authority to modify sex offender registration

requirements under Iowa Code § 692A.128 on application by the offender. See

Becher v. State, 957 N.W.2d 710, 714 (Iowa 2021). At the first of this two-step

process, the court determines whether the offender has met the threshold statutory

requirements for modification. Iowa Code § 692A.128(2) (directing that a

modification “shall not be granted unless all” the statutory criteria are met); Becher,

957 N.W.2d at 714. We review the district court’s determinations pertaining to

those criteria for correction of errors at law. Id.

If met, at the second step the district court exercises discretion on whether

to ultimately grant the modification. Iowa Code § 692A.128(5) (“The court may

modify the registration requirements under this chapter.”); Becher, 957 N.W.2d at

714 (“The word ‘may’ ordinarily vests the trial court with discretion.”).

Consequently, review of that decision is for an abuse of discretion by the district

court. Id. The court has abused its discretion when its ruling’s rationale is

unreasonable or untenable. Id. “A ruling is clearly unreasonable or untenable

when it is ‘not supported by substantial evidence or when it is based on an

erroneous application of the law.’” Id. (citation omitted).

Under more recent guidance from the supreme court, “a district court

commits an abuse of discretion when it fails to consider a relevant factor, or
6

considers an improper or irrelevant factor, on the question of whether the ongoing

risks of danger from the sex offender justifies continuation of the registration

requirements.” Fortune v. State, 957 N.W.2d 696, 707 (Iowa 2021). What factors

are relevant versus irrelevant or improper is a developing question in Iowa

caselaw. See, eg., id.; Becher, 957 N.W.2d at 716–17. “Where only proper factors

have been considered, we find an abuse of discretion only where there is a clear

error of judgment.” Fortune, 957 N.W.2d at 707.

In exercising discretion, the court must recall that the purpose of Iowa Code

chapter 692A “is not to punish but to aid the efforts of law enforcement officers in

protecting society.” Newton v. Iowa Dep’t of Pub. Safety, No. 10-1696, 2011 WL

3480993, at *4 (Iowa Ct. App. Aug. 10, 2011) (citation omitted). So the court “must

take care to ensure that public safety, and not punishment, provides the lens

through which facts are evaluated.” Fortune, 957 N.W.2d at 707.

III. Analysis

The parties agree that Feller met the threshold statutory criteria for

consideration of his modification request.2 The only question is whether the district

2 Those criteria, set out in Iowa Code section 692A.128(2), are:

a. The date of the commencement of the requirement to
register occurred at least two years prior to the filing of the application
for a tier I offender and five years prior to the filing of the application
for a tier II or III offender.
b. The sex offender has successfully completed all sex
offender treatment programs that have been required.
c. A risk assessment has been completed and the sex
offender was classified as a low risk to reoffend. The risk
assessment used to assess an offender as a low risk to reoffend shall
be a validated risk assessment approved by the department of
corrections.
d. The sex offender is not incarcerated when the application
is filed.
7

court abused its discretion in determining modification was not warranted. In

making that decision, on top of the statutory requirements, the court “may consider

additional factors that are relevant to” two considerations: first, the risk of reoffense

and, second, whether “public safety would require” that registration continue.

Fortune, 957 N.W.2d at 707. The discretion afforded to the district court allows it

“to consider a wide range of potentially relevant factors,” but the factors considered

must be “rationally related to the underlying goals” of the registry. Id. at 706–07.

We ask whether the factors the district court considered were relevant and proper

and whether any relevant factors were omitted.3 Id. at 707. Then we consider

whether there is “a clear error of judgment.” Id.

Feller contends the district court considered improper factors and there was

not substantial evidence to support its decision. He argues: (1) the primary reason

for denial was the district court’s “imagined” threat to L.F., which is not supported

by substantial evidence; (2) there is no substantial evidence that Feller poses a

threat to the community at large as L.F. already knows of his sex offender status

and thus his presence on the registry does not make her any safer; (3) the district

court failed to consider that the procedural error in the filing of the charges against

Feller led to him being required to register for life, rather than ten years, which is a

relevant factor to why he should be granted modification; and (4) the district court

e. The director of the judicial district department of correctional
services supervising the sex offender, or the director’s designee,
stipulates to the modification, and a certified copy of the stipulation
is attached to the application.
The final element is not required when the offender is off supervision.
3 We do not require the district court to state every factor it considered. We only

require the stated reasons to be sufficient to review the discretionary action.
Fortune, 957 N.W.2d at 707.
8

relied on improper factors when it cited Feller’s demeanor during the hearing,

choice to testify by affidavit rather than personally, and the letter-writing.

A. Letter-writing

Feller contests the primary basis of the denial: the alleged threat posed by

his letters to L.F. Feller argues, “When evidence about that threat is examined, it

should be clear that there is not substantial evidence to support that need to

continue Feller on the registry.” The district court anchored its decision in the

perceived threat to L.F. that J.B. identified. J.B. testified that Feller started sending

letters to L.F. in 2012 and continued monthly for roughly a decade. The last letter

on the “giant stack” was dated April 2022, approximately six months before the

hearing. She testified that she found the letters to contain a “theme” from Feller

that resembles the pushy dynamic she once experienced with him.

[I]t’s a push. Right? It’s I want to see you. Why haven’t I heard from
you? It’s like a jab after jab. It’s why haven’t you contacted me?
Why this? Why that? And [L.F.] has opportunities to write back, and
she doesn’t, and that’s her decision. But I think what these letters
prove is the language before parole and after parole have the same
enticing language of why this? Why that? Why haven’t you done
this? Why haven’t you given back to me, you know?

J.B. further identified the persistence of Feller’s pushes as typical of his conduct

toward her. She brought along a sampling of Feller’s notes and letters that she

thought “had the most manipulative tactics in them.”

On our review, Feller’s letters and cards, without context, overwhelmingly

consist of sentiments of love and good wishes for his daughter and updates on his

life and activities. But they also contain appeals to hear from her and the desire to

maintain a relationship with her. As examples of potentially troubling language,

Feller wrote: “[L.F.] maybe someday you will forgive me and want me in your life”;
9

“father’s day is on the 21st if you care hope you do”; “September 16th was my

birthday hope you know this been nice to get a card and let me know you care or

are thinking of me”; “please send me a card”; “[b]e nice to hear from you”; “the last

time I heard from you was September of 2016 it’s been almost 4 years”; “be nice

to hear from you with all that is going on in the world with COVID-19”; and “have

not heard from you in a long time 4 or 5 years.”

Kayla also testified at the hearing that L.F. is aware Feller writes her letters

and cards but does not open or read them anymore. According to Kayla, L.F.

“does not want communication with her father.” Kayla also testified L.F. remains

“very scared that what happened to her sister will happen to her if she had any

contact with” Feller.

Feller argues it is improper to criticize him for the letters to his daughter

because Kayla gave permission through his probation officer to send them. 4 And

no one told Feller to stop sending the letters. He also questions J.B.’s

characterization of the letters and disputes that they indicate a theme or pattern of

behavior consistent with grooming. Finally, he argues continuing on the registry

provides no benefit to public safety because L.F. knows about his convictions and

history.

4 An email record going back to 2012 shows Kayla granted that permission and

even asked if L.F. could send a Father’s Day card back. The permission to contact
L.F. was renewed several times through 2017. The State argues Feller should
have stopped when he received no response. But we think it’s fair for Feller to
have continued his efforts to maintain contact with his biological daughter in the
absence of other instruction even if she was a passive recipient. No evidence was
presented that Feller’s parental rights to L.F. were terminated. Still, it is the
character and tone of his appeals for further contact that are the most concerning.
10

While we understand a parent’s wish to have a connection with their child,

the fact of the letter-writing concerned the district court less than the content of the

letters. The court stated: “Feller continues to engage in an identifiable pattern of

behavior that he exhibited with his older daughter in the prelude to and course of

his sexual abuse of her.” In naming the troubling pattern of behavior, the court

cited Larvick v. State, where the district court determined that after his release the

offender continued to “utiliz[e] his relationship with the mother of his biological

daughters to have access to those daughters,” having already sexually abused the

elder. No. 20-1273, 2022 WL 610361, at *4 (Iowa Ct. App. Mar. 2, 2022). Feller

argues his case is not like Larvick because the mother there offered her children

no protection, while Kayla would protect L.F. The district court agreed with that

observation but nevertheless found the similarity that repeating the patterns of

behavior that led to his conviction “suggests [Feller] is a potential danger” to the

new focus of that behavior, L.F. See id. Further, the consideration of patterns of

behavior in past offenses to better understand future conduct is permissible and

not an abuse of discretion. See State v. Buck, No. 21-0129, 2022 WL 951067,

at *2 (Iowa Ct. App. Mar. 30, 2022); see also Fortune, 957 N.W.2d at 709.

J.B. explained that she selected messages that best showed the risk Feller

poses to L.F. To an outside observer, they show only that a parent wants to

reconnect with his child. But J.B. provided context for the messages, that

constitutes evidence that supports the court’s finding—pressure and grooming. In

addition, the district court found her to be highly credible and “accept[ed] her

unrebutted testimony as fact.” The court also relied on Kayla’s testimony on L.F.’s

behalf that she does not want contact with her father.
11

Feller did not testify to rebut those concerns, other than offering the email

record from his supervision officer authorizing the letters. He did not express an

intent to stop writing the letters or acknowledge L.F.’s wishes. And L.F. is around

the same age as J.B. was when his abuse of her stopped. The court considered

Feller’s clean record over the eight years since his release and his success at

rebuilding his life, as well as his risk assessment indicating low risk, and his

successful completion of sex offender treatment. But it still determined that the

content of the letters overcame those factors by presenting a risk of reoffense and

that public safety concerns warranted keeping Feller on the registry. We defer to

the district court’s credibility determinations and find substantial evidence supports

the court’s conclusions that Feller continues to present a risk of reoffense based

on the threat to L.F.

B. Feller’s threat to public safety

Feller contends that the court also abused its discretion because there is no

substantial evidence that he poses any danger to the community. Feller further

contends that since L.F. already knows of his status as a sex offender, that there

is no threat to her by removing him from the registry as his presence on it does not

make her any safer, and that there is no substantial evidence to show he is a threat

to the community at large. As we stated in Larvick:

The fact that the district court had safety concerns for a specific
person in addition to the public in general does not constitute an
abuse of discretion. The younger daughter is a member of the public.
As the goal of sex-offender-registration requirements is to ensure
public safety, that goal is advanced by protecting all members of the
public, which includes Larvick’s younger daughter.
12

2022 WL 610361, at *4. The district court found Feller posed a risk to L.F. who is

a member of the public. Thus, we find no abuse of discretion in this conclusion.

C. Failure to consider procedural error

Feller contends the district court abused its discretion when it failed to

consider the alleged procedural error that resulted in his lifetime registry

requirement. The State’s brief does not address the issue. Feller claims his cases

should have been consolidated and not brought separately as they were, that the

State’s error violated his plea agreement, and that the DCS changed its

determination of his registry requirement in 2016 without warning. But he did not

challenge his convictions in an appeal or in postconviction-relief proceedings. Nor

did he challenge his lifetime registry determination when he received it in 2016.

See, e.g., Newton, 2011 WL 3480993, at *1. He has not applied for a correction

of illegal sentence and even on appeal does not raise an illegal-sentence claim.5

5 Feller acknowledges that the Iowa Code treats his convictions as separate
offenses for registry purposes. See Iowa Code § 692A.102(6) (“Convictions of
more than one sex offense which require registration under this chapter but which
are prosecuted within a single indictment shall be considered as a single offense
for purposes of registration.”); but see c.f., Newton, 2011 WL 3480993, at *4
(rejecting offender’s request to hold “each succeeding conviction must be
subsequent in time to the previous conviction” for registry purposes and finding his
offenses, though committed on the same date, were two convictions “based on two
different trial informations, which resulted from two separate incidents on different
dates, against two separate victims” (emphasis added)). The single-indictment
rule would tend to incentivize the error the State made here when it failed to amend
the trial information. Both informations in this case contained the same facts,
timeframe, and minutes of testimony. And we do not have a record of the factual
basis for the plea. But Feller did not petition for judicial review of the 2016
determination or apply for correction of an illegal sentence. We are authorized to
correct an illegal sentence at any time. See Iowa R. Crim. P. 2.24(5). But the
record is too sparse to assess the issue, even if we could classify DCS’s 2016
determination as an illegal sentence issue rather than—as Feller implies—a
breach of plea agreement or ineffective assistance or a nonpunitive sentencing
factor or requiring Feller to seek judicial review.
13

Recognizing that, he insists this mistake should be a factor in assessing his

modification request. The district court must not omit relevant factors and has the

authority to consider any factors that are relevant to the risk of reoffense or the

needs of public safety. See Fortune, 957 N.W.2d at 707. But the court did not

address this factor in its order and issued a summary denial of Feller’s post-order

motion to amend specifically requesting that the court consider it. The State in

resistance asserted the issue is moot. There is no determination that Feller’s

lifetime registration requirement is wrong. So that factor cannot bear on his risk of

reoffense or public safety concerns. The court did not fail to consider a relevant

factor, so we find no abuse of discretion.

D. Improper factors

Feller lastly contends that the district court abused its discretion by relying

on his demeanor to find a lack of remorse and his choice to submit an affidavit

rather than testify. The court acknowledged that “[t]he law does not require him to

testify,” but insisted this “left the court no impression of Feller other than its

observations of his demeanor in the courtroom,” which the court described as

“discomfort and avoidance.” The court criticized Feller for not making eye contact

with the court or the witnesses and for not expressing any remorse for the victim.

The court professed that it was “not entirely discounting the affidavit” and that it

had “no reason not to believe” that Feller has been successfully living and working

in the community after his release.

Courtroom demeanor and lack of remorse are valid factors for the court to

consider if those have a factual basis in the record. See Fortune, 957 N.W.2d at

709.; State v. Seidell, No. 21-0493, 2022 WL 951002, at *2 (Iowa Ct. App. Mar. 30,
14

2022). And it is fair for the court to point out that Feller offered no explanations or

rebuttal testimony to the State’s witnesses. But substantial evidence does not

support the court’s finding that Feller lacked remorse. The court cited Seidell,

where the offender listened to the child victim’s testimony and still informed the

court, “I’m not this monster that my victim claims me to be. I didn’t rape her . . . .”

2022 WL 951002, at *2. The district court in Seidell noted his “facial expressions

and demeanor” demonstrated a “lack of empathy for the victim who he knew was

listening to the testimony” and “indicate[d] to the court that he does not fully

comprehend the gravity” of his offense. Id.

No one placed Feller’s remorse in issue—the State did not reference it in

supportive briefing or at the hearing and no witness was asked about it. See

Fortune, 957 N.W.2d at 709 (finding the record did not support lack of remorse

when it “seems to have been a nonissue to the parties”). Nothing in the record

shows Feller denied culpability, used inappropriate facial expressions, lacked

empathy, or failed to comprehend the gravity of his crime, as in Seidell. Feller was

under no obligation to testify at the hearing to express affirmative remorse; but in

his affidavit he stated, “I fully accept responsibility for my actions.” There is also

evidence through Feller’s letters to his daughter acknowledging his wrongdoing

and seeking forgiveness. And he successfully completed sex offender treatment,

which typically requires acceptance of responsibility. See id. With that backdrop,

failure to make eye contact with his victim and perceived “discomfort and

avoidance” during an inherently uncomfortable court proceeding does not rise to

substantial evidence of a lack of remorse.
15

IV. Conclusion

This is a difficult case because Feller has completed all the threshold

requirements for modification successfully, has a low risk of reoffense according

to validated risk assessments, and has steadily built a successful life in the

community for the last eight years. Feller also has an understandable desire to

reconnect with his daughter. On the other hand, we have J.B.’s characterization

of his statements, the repetition of a troubling pattern of behavior in his appeals to

L.F., the ongoing fear L.F. experiences because of his continued attempts to

establish contact, and the absence of any intent to stop or acknowledgement that

she wants it to stop. This record shows substantial evidence supporting the district

court’s decision based on Feller’s risk of reoffense and the interests of public safety

that compels his continued placement on the registry at this time. Accordingly, we

find no abuse of discretion and affirm.

AFFIRMED.