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IN THE SUPREME COURT OF IOWA
No. 37 / 04-0078 Filed April 21, 2006 ISAAC BENJAMIN KRUSE, Plaintiff, vs. IOWA DISTRICT COURT FOR HOWARD COUNTY, Defendant.

Certiorari to the Iowa District Court for Howard County, Margaret L. Lingreen, Judge.

Probationer challenges via certiorari an order requiring him to register as a sex offender. WRIT ANNULLED.

Kevin E. Schoeberl of Story & Schoeberl Law Firm, Cresco, for plaintiff.

Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Joseph M. Haskovec, County Attorney, for defendant.

2 CARTER, Justice. Having received a suspended sentence following conviction, by plea of guilty, of the aggravated misdemeanor of assault with intent to commit serious injury in violation of Iowa Code section 708.2(1) (2003), Isaac Benjamin Kruse was cited for a violation of his probation. The

violation report alleged that he had failed to register as a sex offender as specified in his probation agreement and had failed to participate in a prescribed sex offender education program. The district court found these violations to have occurred. Kruse sought to appeal that ruling, and this court, concluding that it was not a proper subject for appeal, has agreed to review the ruling by certiorari. After reviewing the record and considering the arguments presented, we annul the writ of certiorari. Kruse was originally charged with third-degree sexual abuse in violation of Iowa Code section 709.4, a class "C" felony. The trial

information alleged that Kruse, who was seventeen, performed a sex act with a thirteen-year-old girl. His effort to transfer the case to juvenile court was unsuccessful. Eventually, pursuant to a plea agreement, the offense charge was amended downward to the aggravated misdemeanor of assault with intent to inflict serious injury. Kruse entered a written plea of guilty to the amended charge. In his written plea of guilty, Kruse recited: My lawyer has informed me of the elements of the crime I have been charged with. Such elements are listed below as follows: Assault with Intent to Inflict Serious Injury. (a) (b) (c) (d) That on or about March 22, 2001; While in Howard County, Iowa; I did assault a person (Child K); With the intent to inflict serious injury.

3 If I plead not guilty, the State must prove each element beyond a reasonable doubt to convict me. By pleading guilty, I admit they can prove each and all elements. He further recited in the written plea: I know that the Court must be satisfied that there is a factual basis for a plea of guilty before my plea can be accepted. I represent to counsel and to the Court that the Minutes of Testimony accurately describe what happened in all significant aspects. In the event that I disagree with the Minutes of Testimony, the facts are as follows: [Nothing stated]. The district court accepted Kruse's guilty plea. An indeterminate prison sentence of two years was imposed, but that sentence was suspended, and Kruse was placed on probation for two years. The

sentencing order expressly provided a no-contact order for protection of the victim and directed that Kruse "participate in sexual abuse counseling." The sentencing order did not mention registration as a sex offender. Kruse's probation officer prepared a probation agreement that Kruse signed on September 25, 2003. That agreement was also signed by Kruse's mother. In that document, Kruse agreed that he would participate in the department of correction's sex offender treatment program and would "complete Sex Offender Registry by 9-30-03." When Kruse had not

registered as a sex offender by November 1, 2003, and had failed to keep two appointments for the sex offender treatment program, his probation officer filed a violation report with the court. At the hearing on the alleged probation violation, Kruse asserted for the first time that he could not be compelled to register as a sex offender because the offense for which he had been convicted was not a "criminal offense against a minor" as that term is used in Iowa Code section 692A.2(1). The district court concluded that the facts of Kruse's crime, as gleaned from his written guilty plea, fell within the definition of a criminal

4 offense against a minor contained in paragraphs (c) and (g) of subsection (5) of Iowa Code section 692A.1. We set forth the language of those statutory provisions in subsequent paragraphs of this opinion. Based on its

interpretation of these statutes, the district court found that Kruse was in violation of his probation for failing to register as a sex offender as required by law. 1 Other facts bearing on our decision will be discussed in our

consideration of the legal issues presented. I. Whether Kruse's Sentence Was Improperly Altered by the District Court. Iowa Code section 692A.2(1) provides "[a] person who has been convicted of a criminal offense against a minor . . . shall register as provided in this chapter." Persons convicted and placed on probation are required to register with the sheriff of the county of their residence within five days pursuant to Iowa Code section 692A.3. A "[c]riminal offense against a minor" is a statutorily defined term. The applicable statute defines such an offense as follows: 5. "Criminal offense against a minor" means any of the following criminal offenses or conduct: a. Kidnapping of a minor, except for the kidnapping of a minor in the third degree committed by a parent. b. False imprisonment of a minor, except if committed by a parent. c. Any indictable offense involving sexual conduct directed toward a minor. d. Solicitation of a minor to engage in an illegal sex act. e. Use of a minor in a sexual performance. f. Solicitation of a minor to practice prostitution. g. Any indictable offense against a minor involving sexual contact with the minor.
court withheld revocation of probation on the condition that Kruse comply with the requirement to register as a sex offender and attend the sex-offender treatment program.
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5 h. An attempt to commit an offense enumerated in this subsection. i. Incest committed against a minor. j. Dissemination and exhibition of obscene material to minors in violation of section 728.2. k. Admitting minors to premises where obscene material is exhibited in violation of section 728.3. l. Stalking in violation of section 708.11, subsection 3, paragraph "b", subparagraph (3), if the fact-finder determines by clear and convincing evidence that the offense was sexually motivated. m. Sexual exploitation of a minor in violation of section 728.12. n. Enticing away a minor in violation of section 710.10, subsection 1. o. An indictable offense committed in another jurisdiction which would constitute an indictable offense under paragraphs "a" through "n". Iowa Code

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