State of Iowa v. Daniel Jason

IN THE COURT OF APPEALS OF IOWA

No. 14-1162
Filed October 28, 2015

STATE OF IOWA,
Plaintiff-Appellee,

vs.

DANIEL JASON,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Paul D. Miller,

Judge.

Daniel Jason appeals his convictions and sentences for extortion and

stalking, challenging the sufficiency of the evidence and the fairness of his

sentences, among other things. AFFIRMED.

Mark C. Meyer, Cedar Rapids, for appellant.

Daniel Jason, Clarinda, pro se.

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

General, Janet Lyness, County Attorney, and Beth Beglin and Anne Lahey,

Assistant County Attorneys, for appellee.

Considered by Doyle, P.J., and Mullins and Bower, JJ.
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PER CURIAM.

Daniel Jason appeals his convictions and sentences for one count of

stalking while restricted by a court order and two counts of extortion, all as a

habitual offender. He challenges the sufficiency of the evidence and the fairness

of his sentences, among other things. We affirm.

I. Background Facts and Proceedings.

Daniel Jason is an intelligent man with a photographic memory. When he

was fifteen, he was diagnosed with Asperger’s Syndrome, a high-functioning

autistic spectrum disorder. Jason explained the disorder “impairs [one’s] ability

to interact with others, to understand social cues, to have eye contact, to

understand the [reciprocity] in social relationships and people’s feelings . . . .

Also some . . . problems with impulse control.”

Cynthia Courter met Jason in early 2005 while both were in college, and

the two began a relationship. See State v. Jason, 779 N.W.2d 66, 68 (Iowa Ct.

App. 2009). Though Courter ended the relationship around early 2006, and

despite the entry of a no-contact order in November 2006, Jason has continued

to be a presence in her life against her wishes by way of harassment and

intimidation, to put it mildly. See id. at 68-69. Detailed facts concerning Jason’s

numerous unwanted actions and behaviors towards Courter from the time of their

break-up until he was incarcerated in approximately March 2007 can be found in

our 2009 opinion involving Jason’s direct appeal of his related criminal

convictions. See id.

Relevant here, Jason was first convicted in February 2007 of simple

assault and three counts of harassment concerning his unwanted actions toward
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Courter. See id. at 69. He also stipulated at that time to having violated the

existing no-contact order. Id. Jason received a suspended sentence of 120 days

in jail, and the no-contact order was extended for five years. See id. Contrary to

Jason’s declaration at that sentencing hearing that he would never contact

Courter again, he sent her an email a few hours after he was released. See id.

Jason’s unwanted activities towards Courter continued, and in April 2007,

he was charged with stalking while restricted by a court order, a class “D” felony,

in violation of Iowa Code sections 708.11(2) and 708.11(3)(b) (2007), and

tampering with a witness, an aggravated misdemeanor, in violation of section

720.4. During those criminal proceedings, Jason’s competency was challenged.

See id. at 70-71. Specifically, Jason’s trial attorney contended Jason was

“suffering from a mental disorder which prevent[ed] him from appreciating the

charge, understanding the proceedings, or assisting effectively in the defense.”

Id. at 70. Jason was evaluated by psychologist Frank Gersh, who found “Jason

was competent to stand trial,” “understood the role of all the parties in the

prosecution and was ‘involved in planning trial strategy’ with his attorney.” Id. at

71. Jason’s testimony at the competency hearing “demonstrated a

comprehension of the process,” and he was found to be competent to stand trial.

Id.

Jason then requested to represent himself. See id. After the court’s

extensive colloquy with Jason and advice that he reconsider, Jason persisted,

and the court permitted Jason to proceed pro se but appointed standby counsel.

See id. Following a jury trial, Jason was convicted as charged. See id.
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Thereafter, Jason filed a motion seeking a new trial, arguing the court

erred in allowing him to represent himself, among other things. See id. at 72.

The district court denied the motion and sentenced Jason to an indeterminate

term of five years on the stalking conviction and an indeterminate term of two

years on the tampering conviction, with the sentences to be served

consecutively. See id. The no-contact order was to remain in effect until May

2013.

Jason had no contact with Courter while he was in prison. He was

released May 30, 2012, and nine days later, he sent Courter an email, starting

her ordeal all over again. In November 2012, the State filed a trial information

charging Jason with three criminal counts, all as a habitual offender pursuant to

Iowa Code section 902.8 (2011), based upon his 2008 felony stalking conviction

and his 2010 federal conviction for mailing threatening communications to his

attorney. Count I charged Jason with stalking while restricted by a court order,

second offense, stating:

Jason on or about June 8, 2012 through October 14, 2012, . . . did
purposefully engage in a course of conduct directed at a specific
person that would cause a reasonable person to fear bodily injury
to, or the death of, that person or a member of that person’s
immediate family, while he had or should have had knowledge that
the person would be placed in such reasonable fear by the course
of conduct, and his course of conduct did induce such fear in the
person, to wit: In violation of two no-contact orders, [Jason] sent
[Courter] nineteen emails, requested to “friend” her on Facebook,
posted four messages on her Facebook page and left two threating
voicemail messages at her place of employment, all in an effort to
resume their relationship, the above beginning only nine days after
[Jason’s] discharge from federal supervision for Mailing
Threatening Communications in which [Courter] was a protected
party, and after previously being convicted of stalking her and
violating her [no-contact order sixty-five] times. [Jason’s] actions
caused [Courter] to be very afraid for her physical safety, caused
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her to seal all her college contact data from public view, withdraw
from a summer class, and meet with threat assessment teams of
college officials and local law enforcement agencies in order to
protect herself at school and work.

Counts II and III each charged Jason with extortion, in violation of section

711.4(3) and/or (4), alleging Jason, on two separate occasions, “did threaten to

expose any person to hatred, contempt, or ridicule and/or threaten to harm the

credit or business or professional reputation of any person, with the purpose of

obtaining anything of value, tangible or intangible.” Count II asserted that on or

about August 19, 2012, Jason “left a voicemail message at [Courter’s] place of

employment in which he threatened to send her office embarrassing information

unless she responded back to his emails.” Count III alleged that on or about

October 6, 2012, Jason left another voicemail at Courter’s “place of employment

stating he was ‘really angry’ and threatened to tell her employer all her ‘dirty

information’ and ‘secrets’ in order to embarrass her unless she text messaged or

emailed him.”

In February of 2013, Jason filed a motion for new counsel, “expressing

some dissatisfaction” with his attorney. At a pretrial hearing, the court addressed

the motion and appointed Jason new counsel as requested. Thereafter, Jason

asked the court, Judge Paul Miller, if he was the permanent judge assigned to his

case because another judge had previously been involved in other proceedings,

and Judge Miller advised Jason he believed he was “the permanent judge.”

At the next hearing in March, Jason requested he be allowed to represent

himself. The court ultimately granted his request but with standby counsel.
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At a May 2013 hearing, with Judge Miller presiding, Jason’s standby

counsel sought to withdraw, advising the court Jason had filed disciplinary

complaints against him, had inappropriate communications with him, and had

indicated he might “pursue a course of defense or procedure that would be

unethical, misleading . . . something that we as attorney would not be allowed to

do.” The court denied the motion to withdraw, noting this was Jason’s prior

“course of conduct,” “filing ethics complaints against his lawyers when he

became displeased with them for whatever reason.” The court noted if it

proceeded as Jason wished, the case would never get tried. Jason was

displeased and interrupted the court, and the court advised Jason of courtroom

protocol regarding speaking and told Jason he would ask him when he wanted

him to respond. In response, Jason threatened to “file judicial qualification

complaints on [the judge] to the disciplinary board” and stated, “I can get a new

judge. Motion for change of judge.” Judge Miller told Jason he was not going to

recuse himself and was the judge “until someone above [him told him] otherwise.

You don’t get to pick your judge.”

At a July 2013 hearing, Jason stated he had filed a motion “for change of

judge” and was going to write a letter to the Sixth District Chief Judge Grady and

get Judge Miller “off this case,” declaring Judge Miller was “causing way too

many problems in this case.” Jason continued to speak over the court, stating,

“I’ve already filed a judicial qualification complaint, and [the judge] should

definitely get the hell off of this case. I’ve had enough.” The court advised Jason

of the required conduct and decorum needed for Jason to proceed to represent
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himself, and the court stated it may reconsider letting Jason proceed pro se.

Jason complied thereafter at this hearing.

However, Jason proceeded to mail a letter to the chief judge requesting a

new judge. In his letter, Jason called “the court an idiot, sick pedophile, [and]

other derogatory terms using grossly inappropriate language, including a sexually

inappropriate drawing.” At the next court hearing at the end of July 2013, the

court asked Jason why he should be allowed to continue to act as his own

attorney. Jason gave a long response, explaining, among other things, that his

Asperger’s Syndrome affected his “ability to understand court directives,” and

“because of [his] Asperger Syndrome,” he might have acted out “a little bit . . . out

of frustration not knowing how to properly address the court” and suggested this

was why he might have complained about the judge. The court did not accept

Jason’s explanation and found that while “Jason may be able to comprehend the

legal issues involved in this case,” Jason did “not possess the functional abilities

and maturity necessary to conduct a defense at a jury trial.” The court rescinded

and revoked its prior order granting Jason permission to represent himself, and it

reappointed standby counsel as Jason’s attorney.

At a hearing in October 2013, Jason began talking before going on the

record, and the record begins with him stating to the court:

. . . by sodomizing and forcing my penis on your
granddaughter. Can you please remove yourself from the court,
please. Thank you.
I’d ask for recusal of Judge Miller because I’m going to
sexually abuse his granddaughter and sodomize her . . . .
....
. . . I want a new judge. Please recuse yourself from my
proceedings. There’s a conflict of interest. I filed a judicial
qualifications committee complaint on yourself. You’re very
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unbiased [sic] and unprejudicial [sic]. And your court reporter has
big breasts. That’s all.

The court did not take the bait but instead found Jason was seriously disrupting

the proceeding and had him removed from the courtroom pursuant to Iowa Rule

of Criminal Procedure 2.27(2).

On the day of trial, before jury selection, Jason informed his counsel he

wanted to have his case tried to the bench. The court made an extensive record

on the issue, stating to Jason, among other things:

THE COURT: You did actually, throughout this process, file
some motions to recuse me. But now you’re telling me that it’s your
desire, your desire, not your lawyers’, but your desire, sir, to waive
jury and have me be your trial judge?
[JASON]: Yes, that’s correct.

Jason then signed a written waiver requesting the court to accept the jury trial

waiver and proceed with a bench trial. The court, after further discussion with

Jason, accepted his written waiver, and trial to the bench commenced thereafter.

On April 11, 2014, the court entered its ruling finding Jason guilty as

charged on all three counts. The court specifically found the State’s expert’s

testimony to be more credible than the testimony of Jason’s expert, and it found

the State proved beyond a reasonable doubt that Jason possessed and formed

the necessary specific intent required for the corresponding elements in the

crimes of extortion. The court noted the habitual offender allegations would be

addressed at a later time.

At a later hearing, the court confirmed “Jason was not contesting identity

on the two prior convictions, but was contesting the validity of waiver of counsel

in the state court conviction.” Thereafter, the court found Jason’s waiver of
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counsel in his 2008 stalking case had been valid. The court concluded the State

had proved that both of the alleged prior convictions were prior felony convictions

that could be used to enhance Jason’s underlying recent convictions under

section 902.8.

Jason filed a motion for new trial, claiming, among other things, he did not

voluntarily waive his right to a jury trial and Judge Miller should have recused

himself. A hearing on the motion, as well as sentencing, was held thereafter, and

the court denied Jason’s motion in its entirety, noting it found Jason lacked “any

credibility.” The court proceeded to sentencing, and it sentenced Jason to an

indeterminate term not to exceed fifteen years on each count. Pursuant to

section 902.8, Jason was required to serve a minimum term of confinement of

three years on each count before being eligible for parole. The court ordered

that each sentence run consecutively to each other, resulting in a total-

indeterminate sentence not to exceed forty-five years. The court stated at length

its reasons for the tough sentence, first noting some of Jason’s past emails to

Courter stating, “I hate you, I wish I could just beat the shit out of you, I mean,

make you all black and blue. That would make me feel so good,” “I’m away now

but I’ll be back for you. I’ll do everything I can to embarrass you,” and “I will ruin

your life at all costs.” After serving time in prison for this prior conduct, he began

the same type of conduct again just nine days after his release. The court also

noted that Jason had previously stated “that violating a no-contact order was only

a simple misdemeanor, just [thirty] days in jail,” and would not stop his actions.

The court found Jason showed no lack of remorse for his actions, and prison was

necessary based upon his repeated conduct toward Courter. The court had “no
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doubt that [Courter] is terrorized by Daniel Jason’s continued behavior,” and it

explained its imposition of consecutive sentences, the maximum sentence

available, was “necessary to give [Courter] . . . as much protection as the justice

system and this court can give her from Mr. Jason’s conduct.” The court also

recommend[ed] to the Iowa Board of Parole that they should not
consider release of [Jason] on parole until he has served the
maximum term allowed under their rules and regulations or that he
has completed all of their recommended mental health treatment
requirements and they determine that his release would no longer
be a threat to the victim of this charge.

Jason now appeals.

II. Discussion.

On appeal, Jason asserts he was denied his constitutional right to an

impartial jury trial because his jury-trial waiver was not knowingly or voluntarily

made, the court should have recused itself after accepting Jason’s jury-trial

waiver, and the court denied his right to a jury trial concerning his habitual

offender status. He also argues there was insufficient evidence to support his

convictions, and the sentences imposed by the court were excessive. We

address his arguments in turn.

A. Right to a Jury Trial.

The right to a jury trial is, of course, a distinguishing feature
of the American criminal justice system. The right to a jury trial
allows a group of ordinary citizens, and not a single judge, to
determine the factual question of guilt. The right to a jury trial thus
has the potential of holding the government in check and
preventing government overreaching or persecution. The right to a
jury trial is widely accepted as a fundamental constitutional right.

State v. Feregrino, 756 N.W.2d 700, 705 (Iowa 2008).
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1. Jury-Trial Waiver.

Iowa Rule of Criminal Procedure 2.17(1) is designed to
protect a defendant’s constitutional right to a jury trial. The rule
provides that criminal “[c]ases required to be tried to a jury shall be
so tried unless the defendant voluntarily and intelligently waives a
jury trial in writing and on the record. . . .”

Id. Consequently, the court must “conduct an in-court colloquy with defendants

who wish to waive their jury trial rights.” State v. Keller, 760 N.W.2d 451, 452

(Iowa 2009) (citation and internal quotation marks omitted). To establish whether

a defendant’s waiver is knowing, voluntary, and intelligent, the court’s colloquy

should generally “inquire into the defendant’s understanding of the difference

between jury and nonjury trials” and advise the defendant of the rights he is

waving, including that the jury is composed of twelve members of the community;

the defendant may be involved in the jury’s selection; the jury’s verdict must be

unanimous; the defendant will not be rewarded for waiving his jury-trial right; and

by choosing to waive a jury trial, it is the court and only the court that will decide

the defendant’s guilt or innocence. Id. at 452 n.1. Whether a defendant

adequately waived the right to a jury trial “is a mixed question of fact and law

which we decide de novo.” Feregrino, 756 N.W.2d at 703.

On this issue, Jason claims his waiver was not intelligently made, pointing

to his Asperger’s Syndrome diagnosis and his courtroom antics. He also

maintains his waiver was not voluntary, claiming he only sought a waiver to get

out of wearing a shock belt that the court had required. Nevertheless, it is

abundantly clear Jason’s shenanigans were intelligently calculated in an attempt

to produce certain results he wanted—specifically, obtaining a different judge to

hear the matter. That Jason was not successful in his endeavors does not
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demonstrate his waiver was done unintelligently. Moreover, it was Jason, an

intelligent man, who initiated the request to change from a jury to bench trial, and

the court discussed with him at length all of the above factors he would be giving

up if he chose to proceed, including that Jason would not be rewarded in any

way for waiving the right. The court then required Jason execute a written waiver

detailing this information, then it went over it again on the record before it

accepted his waiver. Reviewing the record de novo, there is no question that

Jason’s jury-trial waiver was knowingly, voluntarily, and intelligently made.

2. Recusal.

Jason also argues the court should have recused itself once he waived his

right to a jury trial and proceeded to trial before the court. Jason again cites his

offensive behavior and statements, as well as the complaints he filed against the

judge, to support his belief the judge was biased against him. Jason has the

burden of showing grounds for recusal, and we review the district court’s recusal

ruling for an abuse of discretion, which only occurs when the court acts on

grounds clearly untenable or to an extent clearly unreasonable. See Taylor v.

State, 632 N.W.2d 891, 893-94 (Iowa 2005).

To be sure, there are “constitutional overtones to a recusal decision in a

criminal case because the Due Process Clause requires an impartial judge”;

however, “[o]nly personal bias or prejudice stemming from an extrajudicial source

constitutes a disqualifying factor.” State v. Millsap, 704 N.W.2d 426, 432 (Iowa

2005).

The judge who presides at a trial may, upon completion of the
evidence, be exceedingly ill disposed towards the defendant, who
has been shown to be a thoroughly reprehensible person. But the
13

judge is not thereby recusable for bias or prejudice, since his
knowledge and the opinion it produced were properly and
necessarily acquired in the course of the proceedings, and are
indeed sometimes (as in a bench trial) necessary to completion of
the judge’s task. As Judge Jerome Frank pithily put it: “Impartiality
is not gullibility. Disinterestedness does not mean child-like
innocence. If the judge did not form judgments of the actors in
those court-house dramas called trials, he could never render
decisions.”

Liteky v. United States, 510 U.S. 540, 550-51 (1994) (quoting in part In re J.P.

Linahan, Inc., 138 F.2d 650, 654 (2d Cir. 1943)). Consequently, “[j]udicial

predilection or an attitude of mind resulting from the facts learned by the judge

from the judge’s participation in the case is not a disqualifying factor.” Millsap,

704 N.W.2d at 432. Additionally, “the mere fact the defendant filed a complaint

[against the judge] does not automatically require recusal.” Id. Rather, the test

“is whether a reasonable person would question the judge’s impartiality,” and

mere “[s]peculation is not sufficient.” State v. Biddle, 652 N.W.2d 191, 198 (Iowa

2002). In fact, “there is as much obligation for a judge not to recuse when there

is no occasion for him to do so as there is for him to do so when there is.” Id.

(citation and internal quotation marks omitted).

Though we do not find any Iowa cases directly on point, several other

state and federal courts have addressed the issue of recusal based upon

defendants’ threats to judges. As one court aptly summarized: “The consensus

is that, barring extraordinary circumstances, a defendant will not be allowed to

profit from his own misconduct.” Ex parte Bentley, 849 So. 2d 997, 998 (Ala.

Crim. App. 2002) (and cases cited therein). “[E]ven in situations where a

defendant lodges a serious threat against a presiding judge, that judge may still

decline to recuse himself” at the judge’s discretion, thereby curbing the parties’
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ability “to use threats as a means of judge-shopping.” State v. Zorn, 88 A.3d

1164, 1172 (Vt. 2013) (discussing In re Basciano, 542 F.3d 950, 956-57 (2d Cir.

2008), and other cases).

Here, there is no indication that Judge Miller found Jason’s threats, as

disgusting as they may be, credible or that the judge was biased against Jason.

Despite Jason’s statements and behaviors, which were clearly designed to obtain

a different judge, Judge Miller remained both poised and fair throughout the

proceedings. The judge directly asked Jason if Jason wanted him, the judge he

had been seeking to have recused, to decide his case instead of a jury when

Jason asked to waive the jury trial, and Jason explicitly stated he did. Jason

failed to show any abuse of discretion on the part of the judge in not recusing

himself.

3. Habitual Offender Status.

Jason’s final jury-trial claim is that the court denied him the right to a jury

trial on the habitual offender phase of trial. Though Jason did not contest the

identity element of his two prior felony convictions used to enhance his sentence,

he maintains he was entitled to have a jury determine the validity of his waiver of

counsel in regards to his 2008 stalking conviction. We disagree.

Iowa Rule of Criminal Procedure 2.19(9), which governs the trial of

questions involving prior convictions, specifically provides:

After conviction of the primary or current offense, but prior to
pronouncement of sentence, if the indictment or information alleges
one or more prior convictions which by the Code subjects the
offender to an increased sentence, the offender shall have the
opportunity in open court to affirm or deny that the offender is the
person previously convicted, or that the offender was not
represented by counsel and did not waive counsel. If the offender
15

denies being the person previously convicted, sentence shall be
postponed for such time as to permit a trial before a jury on the
issue of the offender’s identity with the person previously convicted.
Other objections shall be heard and determined by the court, and
these other objections shall be asserted prior to trial of the
substantive offense in the manner presented in rule 2.11. On the
issue of identity, the court may in its discretion reconvene the jury
which heard the current offense or dismiss that jury and submit the
issue to another jury to be later impaneled. If the offender is found
by the jury to be the person previously convicted, or if the offender
acknowledged being such person, the offender shall be sentenced
as prescribed in the Code.

(Emphasis added.) Despite the emphasized language above, Jason contends

Alleyne v. United States, 133 S. Ct. 2151, 2155 (2013), requires a jury trial be

held to “decide the enhancing facts he disputed at the habitual offender trial.”

It is true that the Supreme Court in Alleyne stated that “[a]ny fact that, by

law, increases the penalty for a crime is an ‘element’ that must be submitted to

the jury and found beyond a reasonable doubt.” 133 S.Ct. at ___. However,

courts since Alleyne have repeatedly found that Alleyne did not apply to

“enhancements based on the fact of a prior conviction.” United States v.

Abrahamson, 731 F.3d 751, 752 (8th Cir. 2013); see also United States v. Paz-

Alvarez, 799 F.3d 12, 22 (1st Cir. 2015); United States v. Surratt, 797 F.3d 240,

248 (4th Cir. 2015); United States v. Soto, 794 F.3d 635, 664 (6th Cir. 2015);

State v. Laboy, 117 A.3d 562, 567-68 (Del. 2015); State v. Witherspoon, 329

P.3d 888, 897 (Wash. 2014). Consequently, Alleyne is inapplicable here.

Jason did not challenge his identity concerning the two felony convictions,

and he was permitted to be heard by the court on his allegation that he did not

adequately waive counsel in his 2008 stalking case. The judge thoroughly

addressed that claim, and Jason did not challenge that ruling. Jason was not
16

entitled to any other relief under rule 2.19(9) or Alleyne, and his claims that his

sentences were illegal for lack of a jury trial on the habitual offender convictions

are without merit. For all of these reasons, we conclude Jason’s constitutional

right to a jury trial was not violated.

B. Sufficiency of the Evidence.

Sufficiency-of-evidence claims are reviewed for correction of errors at law.

State v. Rooney, 862 N.W.2d 367, 371 (Iowa 2015). If the record contains

substantial evidence, the district court’s findings are binding. State v. Dewitt, 811

N.W.2d 460, 467 (Iowa 2012). If a reasonable factfinder could be convinced the

defendant is guilty beyond a reasonable doubt, when viewing the evidence in the

light most favorable to the State, the evidence is considered to be substantial.

Rooney, 862 N.W.2d at 371. “We consider all the evidence in the record and not

just the evidence supporting the finding of guilt.” See State v. Robinson, 859

N.W.2d 464, 467 (Iowa 2015). Moreover, in making our assessment,

circumstantial evidence is equally as probative as direct evidence. State v.

Vaughan, 859 N.W.2d 492, 497 (Iowa 2015). We may defer to the district court’s

credibility assessments where there is substantial evidence to support the court’s

findings, since the trier of fact is in a better position to evaluate credibility. State

v. Weaver, 608 N.W.2d 797, 804 (Iowa 2000).

1. Count I—Stalking.

Pursuant to Iowa Code section 708.11(2), when all of the following occur,

a person commits stalking:

a. The person purposefully engages in a course of conduct
directed at a specific person that would cause a reasonable person
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to fear bodily injury to, or the death of, that specific person or a
member of the specific person’s immediate family.
b. The person has knowledge or should have knowledge that
the specific person will be placed in reasonable fear of bodily injury
to, or the death of, that specific person or a member of the specific
person’s immediate family by the course of conduct.
c. The person’s course of conduct induces fear in the
specific person of bodily injury to, or the death of, the specific
person or a member of the specific person’s immediate family.

“Course of conduct” is statutorily defined as “repeatedly maintaining a visual or

physical proximity to a person without legitimate purpose or repeatedly conveying

oral or written threats, threats implied by conduct, or a combination thereof,

directed at or toward a person.” Iowa Code § 708.11(1)(b).

Jason contends the State failed to prove that he knew or should have

known Courter received his communications and that she would reasonably be

put in fear by them. He also asserts the State failed to prove both that Courter

was fearful of him and that her fear was reasonable. He maintains that,

“[o]bviously, if [he] did not know the emails were received by Courter, he would

not have any reason to know that they would have any effect on Courter

whatsoever.” Additionally, Jason states there is “no evidence that [he] knew,

despite the fact there was a no-contact order in place, that Courter actually did

not want him to send her messages.” He advances that Courter’s “enticing” 2007

emails—emails she sent Jason under police supervision in an effort to arrest him

for his actions, which Jason knew, and resulted in his 2008 stalking conviction—

indicated she welcomed the communications or at least did not fear bodily injury

or death by him. And even if she did have such fears, he basically asserts her

fears were unreasonable because he was far away and his emails were polite

and non-threatening.
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Considering all of the evidence in the record in the light most favorable to

the State, there is no question there was substantial evidence for a factfinder to

find beyond a reasonable doubt that Jason knew or should have known Courter

wanted nothing to do with him, did not welcome his communications, and feared

bodily injury or worse as a result of Jason’s continued actions and course of

conduct, and based upon his actions, a factfinder could find her fear was

reasonable. He was previously convicted of stalking her—that conviction alone

establishes Jason knew or should have known that any further contact with him

would place Courter in reasonable fear of bodily injury to her or worse. Her prior

“friendly” emails to him were sent in 2007 by way of a police sting, which Jason

knew or later learned. Yet, immediately after he was released from prison, he

started sending emails to the email address he knew was hers. His emails

indicated he had “googled” her sister and her grandmother; stated he was

coming to Iowa to see her in person and at her place of work; called her a “bitch”

and asked when she was having her child, among other things. When she did

not respond, his conduct escalated, and he started leaving messages with her

employer, whom he would have no reason to contact but for Courter’s

employment there. We affirm on this issue.

2. Counts II and III—Extortion.

Section 711.4(3) provides that a person commits the crime of extortion if

the person does any of the following with the purpose of obtaining
for oneself or another anything of value, tangible or intangible,
including labor or services:
3. Threatens to expose any person to hatred, contempt, or
ridicule.
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On appeal, Jason asserts the evidence was insufficient to establish he

threatened to expose Courter to hatred, contempt, or ridicule but rather merely

caused her “to be uncomfortable or embarrassed.” He claims his “conduct in

sending the two voice mails (although perhaps wrongful in other contexts)

reached only the level of bargaining because they did not threaten disclosure of

information sufficient to cause others to view the victim with the requisite degree

of animosity.” He also maintains his “communications were not intended as

threats to obtain something of value,” stating “the evidence does not prove that,

in the context of how his mind operates, which is limited in its ability to gauge

what is socially-appropriate conduct, he intended to threaten Courter to achieve

something of value.”

i. Threat of Exposure to Hatred, Contempt, or Ridicule.

Jason essentially admits he threatened Courter but argues the threat was

not one of exposure to hatred, contempt, or ridicule. He further supports his

argument by Courter’s coworker’s testimony that Jason’s revealed information

did not cause the coworker to harbor any hatred, contempt, or ridicule of Courter.

We think Jason misses the point.

In State v. Crone, the Iowa Supreme Court defined “threat,” as used in

section 711.4, as a “promise of punishment, reprisal, or other distress to,”

including an act of retaliation. 545 N.W.2d 267, 271 (Iowa 1996). To constitute a

“threat” within the statute’s meaning, the threat must “be definite and

understandable by a reasonable person of ordinary intelligence.” Id. However,

the “threat” “need not be explicit” and “may arise out of innuendo or suggestion.”

Id.
20

To satisfy this element of the crime, Jason’s threat needed only to suggest

that what he revealed could expose a person to hatred, contempt, or ridicule, so

long as that threat was definite and understandable by a reasonable person of

ordinary intelligence. Reviewing this record in its entirety, it is clear that a

factfinder could find beyond a reasonable doubt that Jason’s threats to expose to

Courter’s employer, “some really . . . embarrassing information” about Courter,

“and all [her] dirty information,” and “all [her] secrets,” was indeed a threat to

reveal information that could subject Courter to hatred, contempt, or ridicule,

even without knowing what the information was. Jason’s testimony that he was

referring to someone else is simply not credible. But for Courter’s employment

there, he had no reason to contact Courter’s office. Moreover, both of his

voicemails specifically referenced Courter. Viewing the evidence in the light

most favorable to the State, we conclude a factfinder could find the State

established this element of the crime beyond a reasonable doubt.

ii. Intent to Threaten to Achieve Something of Value.

Jason also maintains his threats were not made with the necessary intent

to obtain something of value. However, in making this determination, we “look to

whether the defendant hoped to obtain anything of value for himself or another.”

Id. at 272. Even though a defendant’s threat might only be intended to compel

the threatened person to do something that person does not want to do, if the

defendant’s conduct was “done for the purpose of obtaining something of value

for himself or another, that conduct falls within the scope of the statute.” Id.

Here, Courter wanted nothing to do with Jason. Both voicemails left by

Jason demanded Courter contact him or he would reveal her “dirty” and
21

“embarrassing” information and her “secrets.” Jason’s threats were intended to

compel Courter to contact him, and regardless of his Asperger’s Syndrome

diagnosis, there is no question that Jason intended to threaten Courter and that

Jason knew the demands he left on her employer’s voicemail were threats to

obtain something of value to him—contact with Courter. Viewing the evidence in

the light most favorable to the State, it is clear a factfinder could find the State

established this element of the crime beyond a reasonable doubt. Accordingly,

we find sufficient evidence supported both of Jason’s extortion convictions.

C. Reasonableness of Sentence.

Finally, Jason challenges the sentences imposed by the court as

“excessive.” He argues (1) the State suggested an improper reason for imposing

consecutive sentences, which the judge did not disavow when imposing

consecutive sentences as urged; (2) the sentences imposed were

unconstitutional; and (3) the sentences for stalking and two counts of extortion

should have been merged. He also asserts the judge should have recused

himself from sentencing, for essentially the same reasons previously advanced in

his other recusal claim. Because we conclude that claim fails for the same

reasons previously found above, Jason failed to show the judge abused its

discretion in not recusing himself, we do not address that matter any further.

1. Improper Reason for Imposing Consecutive Sentences.

The sentencing court must “state on the record its reason for selecting the

particular sentence.” Iowa R. Crim. P. 2.23(3)(d). There are many factors the

court can consider at sentencing, such as the propensity of the offender and his

chances of reform. See State v. Formaro, 638 N.W.2d 720, 725 (Iowa 2002).
22

However, the court cannot order consecutive sentences simply “to thwart a

perceived risk of early parole.” State v. Hulbert, 481 N.W.2d 329, 335 (Iowa

1992). Rather, the determination of a defendant’s minimum sentence rests

exclusively with the parole board, and the court cannot use its sentencing

decision as a “means for attempting to circumvent this principle.” State v.

Remmers, 259 N.W.2d 779, 785 (Iowa 1977).

We ordinarily review sentencing claims for errors at law. State v.

Gonzalez, 582 N.W.2d 515, 516 (Iowa 1998). Nevertheless, the “law is clear

regarding consideration of impermissible sentencing factors.” State v. Lovell,

857 N.W.2d 241, 242 (Iowa 2014). We will only remand for resentencing if the

defendant “demonstrates an abuse of trial court discretion or a defect in the

sentencing procedure such as the . . . consideration of impermissible factors.” Id.

(citation and internal quotation marks omitted). The use of an impermissible

sentencing factor is viewed as an abuse of discretion and requires resentencing.

See id.; see also State v. Pappas, 337 N.W.2d 490, 494 (Iowa 1983).

At Jason’s sentencing, the prosecutor advised the court:

In regards to the length of the incarceration that Mr. Jason is
facing that many individuals have mentioned as being 55 years,
and equating that time with that imposed for murder, the State
notes, first of all, that these assertions are not grounded in the
reality of Department of Corrections’ practices. Each of those
convictions carries with it an indeterminate sentence with a
mandatory minimum three years and a maximum of 15. The
Department of Corrections grants earned time credit of 1.2 days for
every day that the Defendant is sentenced to serve. Those—That
earned time credit applies to both the mandatory minimums and the
maximum sentences. So in this case, for each of the mandatory
minimum three years for—with earned time credit, that is now
reduced to one year and 132 days. For each count for the
mandatory maximum sentence, when applied to earned credit time,
it’s reduced from 15 years to six years and 298 days. And as of
23

today, the [Jason] has already been incarcerated for one year and
269 days. So in a matter of addressing what this means for Mr.
Jason should he be sentenced to consecutive or concurrent
sentences, this is what it means for Mr. Jason. If the Court
imposes three counts, which would run concurrently, all three
counts, for a total of 15 years, Mr. Jason would be eligible to
appear before the Parole Board after one year and four months.
He has already exceeded that time by five months. If the Court
were to run the two counts consecutively for—or two of the counts
consecutively for a total of 30 years, he would be eligible for parole
in two years and 265 days. And that would leave Mr. Jason with
approximately one year served before appearing before the Parole
Board for possible discharge. And if the Court were to run all three
counts consecutively for a total of 45 years, the [Jason] would be
eligible to appear before the Parole Board for possible discharge in
four years and 33 days, leaving him with two years and 129 days
left before he could appear before the Parole Board to be eligible
for parole.

In its sentencing explanation, the court did not specifically reference any of the

prosecutor’s statements cited above. However, it did not expressly state it was

not considering that information.

Jason maintains that State v. Matheson, 684 N.W.2d 243, 244 (Iowa

2004), requires we assume the court considered the improper “evidence”

because it was not specifically disavowed by the court. However, we do not think

that interpretation is demanded here. In State v. Decker, 744 N.W.2d 346, 356-

57 (Iowa 2008), the Iowa Supreme Court described Matheson as follows:

In Matheson, the district court in a sentencing proceeding admitted
into evidence a victim impact statement related to an out-of-state
crime. 684 N.W.2d at 244. The evidence offered and admitted in
Matheson’s sentencing proceeding was not admissible for any
purpose. Id. Further, the improperly admitted evidence in
Matheson contained substantial information not available from any
other source. Id. at 245. Because the district court in Matheson did
not affirmatively indicate that the harmful evidence was not
considered, we vacated the resulting sentence and remanded the
case for resentencing before a different judge. Id.

(Emphasis added.) We also note that the Matheson court observed that
24

an appellate court is less likely to reverse when improper evidence
is introduced in bench trials in which the matter is for a judge’s
determination rather than for determination by a jury. This is
because legal training helps equip those in the profession to remain
unaffected by matters that should not influence the determination.

684 N.W.2d at 244 (internal citations omitted).

Sentencing courts are not prohibited from referring to the possible effects

of parole practices on the time that a defendant will actually serve. See State v.

Vanover, 559 N.W.2d 618, 635 (Iowa 1997). In fact, Iowa’s truth-in-sentencing

provisions require the court to publicly announce that the defendant’s term of

incarceration may be reduced by earned time and that the defendant may be

eligible for parole before the sentence is discharged. See Iowa Code

§ 901.5(9)(a), (b). Here, the sentencing court stated numerous, valid reasons for

imposing consecutive sentences. That the court was aware of the implications of

time Jason would serve before imposing sentences does not evidence the court

relied upon an improper factor in imposing that sentence, despite the fact it did

not declare such at the hearing. Accordingly, we conclude Jason failed to

establish the court abused its discretion and used an impermissible sentencing

factor in its decision to impose consecutive sentences.

2. Constitutionality of Sentences.

Jason makes several other arguments concerning the “excessiveness” of

his sentences, most framed as violations of his constitutional rights based upon

his “mentally ill” status, having been diagnosed with Asperger’s Syndrome, and

asserting disproportionality of his sentences compared to his non-violent

conduct. “When a defendant attacks the constitutionality of a sentence, our

review is de novo.” State v. Seats, 865 N.W.2d 545, 553 (Iowa 2015). “A
25

sentence is illegal if it amounts to cruel and unusual punishment.” State v.

Louisell, 865 N.W.2d 590, 595 (Iowa 2015).

We first determine whether we infer gross disproportionality in Jason’s

sentence. See Graham v. Florida, 560 U.S. 48, 60 (2010). We consider four

general principles, first giving “substantial deference” to the penalties prescribed

by our legislature. See State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012).

Second, it is rare that a sentence rises to the level of gross disproportionality. Id.

Third, “a recidivist offender is more culpable and thus more deserving of a longer

sentence than a first-time offender.” Id. Lastly, a case’s unique circumstances

can converge and together “generate a high risk of potential gross

disproportionality.” Id. at 651.

Upon our de novo review, we do not find Jason’s consecutive sentences

to be disproportionate. Our legislature has determined habitual felons are

subject to longer sentences than first-time offenders, and we defer to its

determination. Additionally, we do not think Jason’s Asperger’s Syndrome

diagnosis makes his sentence disproportionate under the facts of this case. As

the experts in the case pointed out, this disorder is a mild and highly-functional

form of autism. The court found the State’s expert to be more credible, and that

expert concluded:

Although Mr. Jason has a long history of difficulties with social
skills, obsessional thinking, and intermittent depressive symptoms,
the concurrent documentation from the time of the alleged offenses
indicated that these did not rise to such a degree as to leave him
unable to form specific intent with regard to the charges of
extortion. His actions were not undertaken on an impulse. He
considered calling his ex-girlfriend at work, and communicated to
her his intent to do so, for approximately two months prior to acting.
26

Most of Jason’s actions previous to and during this case appear to have been

tactics intended to manipulate the judicial system to get what he wanted, and

whenever something did not go his way, he blamed his Asperger’s Syndrome

diagnosis. Indeed, his impressive legal knowledge displayed at trial indicates he

knew what he was doing in emailing Courter and leaving messages at her place

of employment, regardless of his diagnosis. Finally, Jason’s minimization of his

actions—he “sent her only a total of [nineteen] emails” this time and left “two

relatively innocuous phone messages”—after having been arrested and

convicted multiple times for his unwanted actions towards Courter and the

existence of a no-contact order, supports the court’s decision. His repeated

disregard of the law evidences he was more deserving of a longer sentence than

a first-time offender. We do not find his sentences were disproportionate under

the facts of this case.

3. Merger.

Jason’s final argument is that his sentences were illegal because all three

crimes merged into a single offense. See Iowa Code § 701.9 (stating “[n]o

person shall be convicted of a public offense which is necessarily included in

another public offense of which the person is convicted”). Our review of this

issue is for correction of errors at law. State v. Love, 858 N.W.2d 721, 723 (Iowa

2015).

“It is well established in Iowa law that a single course of conduct can give

rise to multiple charges and convictions.” State v. Velez, 829 N.W.2d 572, 584

(Iowa 2013). “If the legislature criminalizes two separate and distinct acts,

separate sentences on each act are not illegal.” State v. Copenhaver, 844
27

N.W.2d 442, 447 (Iowa 2014). To determine whether an offense is a lesser-

included offense—and therefore one that must merge—we employ the

“impossibility test.” State v. Stewart, 858 N.W.2d 17, 21 (Iowa 2015). This

requires determining “whether it is legally impossible to commit the greater crime

without also committing the lesser.” Id. (citation and internal quotation marks

omitted).

Having set forth the statutory elements of the crimes of extortion and

stalking above, we do not repeat them here. It is clear that the application of the

legal elements test plainly demonstrates that stalking is not a lesser-included

offense of extortion. Compare Iowa Code § 711.4(3) with § 708.11(2). Most

notably, to be convicted of extortion, as charged here, the State was required to

prove Jason threatened to expose Courter to “hatred, contempt, or ridicule.” Id.

Though Jason’s overall conduct was related to Courter, he committed separate

and distinct acts for which he was subject to punishment. He left two separate

voicemails threatening to reveal information about Courter if she did not contact

him. Excluding those voicemail messages, Jason still would be guilty of the

separate crime of stalking, based upon his emails alone. Because the crimes do

not merge, his sentence was not illegal.

III. Conclusion.

For all of these reasons, we affirm Jason’s convictions and sentences.

Any issues raised on appeal and not directly addressed here are without merit.

AFFIRMED.