Full Opinion (html_with_citations)

                    IN THE COURT OF APPEALS OF IOWA

                                   No. 22-0937
                            Filed December 20, 2023


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JAKE ROBERT SKAHILL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica

Zrinyi Ackley, Judge.



      Jake Skahill appeals his convictions for second-degree sexual abuse,

lascivious acts with a child, and enticing a minor. CONVICTIONS AFFIRMED;

SENTENCE VACATED AND REMANDED WITH INSTRUCTIONS.



      Martha J. Lucey, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellant.

      Brenna Bird, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.



      Considered by Ahlers, P.J., Chicchelly, J., and Gamble, S.J.*

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

(2023).
                                          2


GAMBLE, Senior Judge.

       Jake Skahill appeals his convictions for second-degree sexual abuse, in

violation of Iowa Code section 709.3(1)(b) (2018); lascivious acts with a child, in

violation of section 709.8(1)(a); and enticing a minor, in violation of section

710.10(1). Skahill asserts the court erred in denying his motion to disqualify the

presiding judge and in imposing consecutive sentences without adequate reasons.

Background Facts.

       Our supreme court vacated Skahill’s convictions after a prior trial

concerning the same charges involving allegations made in 2018 that Skahill

sexually abused his seven-year-old daughter K.W.1 State v. Skahill,
966 N.W.2d 1
, 4 (Iowa 2021). The supreme court concluded K.W.’s recorded Child Protection

Center (CPC) forensic interviews were not admissible under the medical diagnosis

exception.
Id. at 10
 (finding the interview was not conducted to seek a medical

diagnosis). Nor were they admissible under the residual exception to the hearsay

rule.
Id. at 10, 15
 (finding there are five requirements to the residual exception—

“trustworthiness, materiality, necessity, service of the interests of justice, and

notice”—all of which must be satisfied—and finding error because necessity had

not been shown); cf. State v. Maldonado,
993 N.W.2d 379
, 385–89 (Iowa Ct. App.

2023) (affirming admissibility of CPC interview under residual exception where all

five requirements were shown). Because the court could not conclude admitting




1 This is actually the third trial—the first ended in a mistrial due to the jury seeing

evidence it should not have; the second trial ended with convictions, which were
appealed, the convictions vacated, and the case sent back for this third trial.
                                          3


the interviews at trial was harmless error, the court remanded to the district court

for retrial. Skahill, 966 N.W.2d at 17.

       The district court ordered Skahill’s transport to jail on November 30, 2021.

Skahill posted bond on January 18, 2022. That same day, the State filed a motion

for bond modification, asserting the complaining witness “is in fear of the

[d]efendant” and asking that the court require Skahill to report to pretrial services

and be subject to GPS monitoring to ensure he made no contact with the child.

On January 19, the court, by the same judge who had presided at the earlier trials,

granted the State’s motion to require pretrial services “[b]ased on the nature of the

charges.”   On January 20, Skahill filed a resistance to the motion for bond

modification and request for hearing, asserting the court had not provided

adequate reasons for imposing different conditions of bond than before the

previous trial and he had not been given appropriate notice or had the opportunity

“to weigh in on the matter.” On January 25, the court filed a written order, stating

in part:

              Now that the Defendant has posted the cash bond, he is
       required to report to [the Department of Correctional Services
       (DCS)]. Standard pre-trial services are required, that in the case of
       a sex offender allegation require ankle monitoring. Additionally, the
       Defendant has always been subject to a no contact order and the
       court reiterated the conditions in its order. Violation of the no contact
       order is mandatory arrest per statute.
              The court will set a hearing however, to allow argument from
       the Defendant concerning the DCS requirements and how he
       believes he is exempt from the standard requirements for pretrial
       release conditions.

The court set Skahill’s objections for hearing but declined to modify its prior order

after that hearing.
                                         4


Recusal.

       The trial was scheduled to begin on April 26. On April 15, Skahill filed

several motions, including a motion to disqualify the judge. Skahill asserted,

“Based on the court’s actions and statements the court has made on the record,

the Defendant is concerned the court is not neutral, detached or impartial,” citing

statements made by the judge at his 2019 sentencing hearing, the pretrial

conditions of bond, and the judge’s statements at the bond review hearing.

       At the combined pretrial hearing, the court rejected the motion to disqualify,

stating:

       I had considered the possibility of maybe just having a whole clean
       slate, Mr. Skahill, so you just start completely over, but because it
       was a remand, the further that I thought about it and the research
       that I did over the weekend, if the supreme court had thought that I
       needed to step down, it would have directed that, and it didn’t. The
       commentary that is quoted in the motion was commentary
       subsequent to two jury trials in a sentencing order. The second
       commentary was relative to the manner of approaching a request
       from the State to have you on the GPS monitoring system. I have
       no bias in this case from my perspective. All I want is the evidence
       to come out properly. I never intended for my rulings to cause the
       difficulties that we’ve had now in bringing this back again. I really
       just want the facts to be portrayed as they are. I want the jury to be
       able to render a decision be it one way or the other. I think that you
       deserve to have justice, you deserve to have your life directed in the
       manner in which it needs to be, as well as does the named victim
       and her family from her maternal side, so I will deny the Motion for
       Recusal.[2]

2 The terms “motion to disqualify” and “motion to recuse” are used interchangeably.

See Taylor v. State,
632 N.W.2d 891, 896
 (Iowa 2001) (noting “recusal” is a
synonym of “disqualification”).
      We also note, subsequent to this trial, our rules of criminal procedure were
amended to no longer address motions for change of judge.
              Former rule 2.11(9) authorized a “motion for change of
      judge” . . . . References to the motion of change of judge have been
      deleted from revised rule 2.11 because they have been superseded
      by other sources of law relating to recusal and disqualification. See,
      e.g., Iowa Ct. R. 51:2.11. While a litigant should certainly move for
                                          5



       On appeal, Skahill repeats his claims of bias made at the time of the pretrial

hearing. But he also argues a “second instance of perceived bias took place during

the trial with an exchange between defense counsel and the district court,” which

he asserts “amplifies” the court’s inability to separate information provided in the

previous trials.” And he adds, “The final and arguably the most ardent example of

potential bias occurred during Skahill’s sentencing hearing . . . .”3

       Our supreme court has stated, “There is a constitutional right to have a

neutral and detached judge.” State v. Mann,
512 N.W.2d 528, 532
 (Iowa 1994).

“Before recusal is necessary, actual prejudice must be shown.” State v. Biddle,
652 N.W.2d 191, 198
 (Iowa 2002).              Because Skahill sought the court’s

disqualification, it is his burden to show grounds for recusal existed. See
id.

       “We review a judge’s decision on a motion to recuse for abuse of discretion.”

State v. Trane,
984 N.W.2d 429
, 433 (Iowa 2023) (citation omitted).           When

applying this standard, we are reminded “there is as much obligation for a judge

not to recuse when there is no occasion for the judge to do so” as there is for the




       disqualification of a judge when a legal ground for doing so arises,
       that is not the only way for disqualification to occur.
Iowa R. Crim. P. 2.11(4) cmt.
3 Skahill did not renew his motion to recuse during trial or at sentencing, so these

additional allegations were never considered by the district court, and we do not
consider them on appeal concerning the issue of recusal. See State v. Bynum,
937 N.W.2d 319
, 324 (Iowa 2020). However, we do consider the district court’s
statements at sentencing in determining whether a sentencing error occurred. See
State v. Lathrop,
781 N.W.2d 288, 293
 (Iowa 2010) (“[E]rrors in sentencing may
be challenged on direct appeal even in the absence of an objection in the district
court.”).
                                          6


judge to recuse when there is.
Id. at 434
 (emphasis added) (cleaned up for

readability).4

               A judge should recuse when the judge’s impartiality might
       reasonably be questioned. This is an objective test. Actual prejudice
       must be shown before recusal is necessary, and speculation is not
       sufficient.
               A judge’s impartiality might be questioned when the judge has
       a personal bias or prejudice concerning a party. But only personal
       bias or prejudice stemming from an extrajudicial source constitutes
       a disqualifying factor. Judicial 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.
Id.
 (emphasis added) (cleaned up for readability).

       Skahill’s complaints do not address “personal bias or prejudice stemming

from an extrajudicial source.”
Id.
 Rather, Skahill argues the court’s knowledge

from his prior trials has tainted its ability to be unbiased. See In re C.L.C.,
798 N.W.2d 329, 337
 (Iowa Ct. App. 2011) (“[O]pinions formed by a judge ‘on the basis

of facts introduced or events occurring in the course of the current proceedings, or

of prior proceedings, do not constitute a basis for a bias or partiality motion unless

they display a deepseated favoritism or antagonism that would make fair judgment

impossible.’” (quoting Liteky v. United States,
510 U.S. 540, 555
 (1994)).

       Skahill’s complaints are similar to those made by the defendant and rejected

by our supreme court in Trane:

       We have considered all of [defendant]’s arguments, including his
       claims that the judge engaged in combative dialogue towards
       [defendant]’s counsel, assumed the role of prosecutor, threatened to
       eject attendees supporting [defendant], and made impermissible
       statements during sentencing. From our review of the record,
       however, we find no statements or actions suggesting that the judge
       acted from “personal bias or prejudice stemming from an extrajudicial

4 We use the parenthetical (cleaned up for readability) to note all internal quotation

marks, citations, and alterations have been omitted.
                                          7


        source.” We note also that the judge issued a written order
        explaining his reasons for declining to recuse. In that order, we find
        no reasons to think that the court’s decision was “based on untenable
        grounds” or that the court “acted unreasonably.” Rather, the judge
        carefully considered [defendant]’s arguments—and also “examine[d
        his] own conscience”—before concluding there was “no basis for the
        recusal motion.”

984 N.W.2d at 434. For the same reasons noted in Trane, we conclude Skahill

has not shown that the district court abused its discretion by denying his recusal

motion.

Trial and Sentencing.

        At trial, evidence was presented that when K.W. was seven years old, she

divided her time between her mother’s house and Skahill’s house. Each parent

also had other children with different partners. K.W. recalled a time when she was

sitting on Skahill’s lap on a chair in his living room. Skahill “told the kids to go

upstairs,” which they did, and he told her to “stay downstairs.” K.W. testified Skahill

“took his penis from his pants, and then he told me to suck it, and I said no, and

then he told me to wiggle it, and then I did.” Skahill then put his hands inside of

K.W.’s pants, underneath her underwear, and touched her “private parts.” Skahill

was interrupted when his wife came home. He told K.W. “not to tell anybody, that

it’s our little secret.”

        But K.W. told her mother what Skahill had done when they were together a

few days later. The mother dropped K.W.’s brothers off at their grandmother’s

house and took K.W. to the emergency room, where K.W. told the doctor she was

sleeping in a chair and woke up with her father touching her and “her bottom hurts.”

K.W. displayed a “[s]hort linear mucosal wound inferior and to the left of the urethral

opening.” K.W.’s mother took K.W. to the CPC the next day.
                                            8


       Skahill did not testify at trial. The defense called CPC medical director

Regina Butteris to testify; she stated she did not see an injury to K.W.’s genitals

when she examined her one day after K.W. visited the emergency room.

Dr. Butteris testified that it would not be uncommon for the genital area to heal

quickly.

       The jury convicted Skahill of second-degree sexual abuse, lascivious acts

with a minor, and enticing a minor. Skahill filed motions in arrest of judgment and

for new trial.

       At the combined hearing on posttrial motions and sentencing, the court

stated:

               As you all know, I have sat now three times as the presiding
       judicial officer over the trial in this case, and I will honestly admit, it’s
       very difficult to keep everything compartmentalized, but listening to
       the testimony from the most recent trial, I do find that the jury was
       able to make a decision. They had appropriate standards to follow,
       and based on the weight of what I find to also be credible evidence,
       I do believe that the verdict rendered . . . has been supported by
       favorable testimony that concludes the verdicts are credible. I agree
       with the State that there is nothing that supports the Motion in Arrest
       of Judgment under the Rules of Criminal Procedure. So for those
       reasons, the Court denies both motions, and therefore, I am
       prepared to proceed to sentencing.

       The court noted that the updated presentence investigation (PSI) report

recommendation was that the court impose the statutory prison terms to run

concurrently for a twenty-five-year term. The court also noted the enticement and

lascivious-acts convictions merged for a single term of ten years and the second-

degree sexual abuse term carried a twenty-five-year term.

       The State recommended that the court impose consecutive sentences,

noting the “unique case” that had “seen a mistrial, a trial, an appeal, and now a
                                          9


retrial. It has lived and survived with the obstacles in the court system created by

COVID, and the victim here has shown that she is a survivor also.”

       The defense objected to two paragraphs of the PSI that had been used in

the prior proceedings, which “specifically refer to all of the statements that were

contained within the CPC interview, which were not admitted during the course of

this trial, so we would ask the Court to not consider those, that they would be

impermissible and non-prudent conduct at this point.” The defense recommended

that the court impose concurrent sentences as recommended by the department

of corrections in the PSI. Defense counsel asserted,

       The State’s recommendation for a consecutive sentence at this point
       would seem to punish Mr. Skahill for exercising his constitutional
       rights of which he was entitled to and what the [s]upreme [c]ourt
       found that he was eligible for, and so at this point, entering a
       consecutive sentence would be—would appear to be a punishment
       for him following the rights that he is entitled to by law.

       K.W. and her mother provided victim impact statements. The mother stated

K.W. “not only suffered at [Skahill’s] hands from the sexual abuse but continues—

but he continues to cause harm by denying the truth for years and forcing her to

tell her story over and over again.”

       The court then imposed sentence, stating:

               As a result of the jury’s findings, the Court is hereby entering
       the convictions for Counts I, II, and III already delineated with Code
       sections, and as I indicated, Counts II and III merge together. I do
       believe that the harm that has been suffered for this young lady, it is
       immense, and I said it before, that you can continue to believe that it
       didn’t happen, but she believes it, and she’s testified over and over
       and over again about what happened. Each time individuals have
       attempted to try to find ways to make her feel inappropriate, make
       her feel like she does not know what she’s talking about, and to make
       her feel bad for what has occurred. She was [seven]. It’s a long
       price. I want you to think about that. [Seven]. You took away so
       much from her. I take my own personal responsibility for what was
                                   10


done here when I made my CPC ruling. I was trying to do what was
fair, what was appropriate under the law, and what provided both you
and her an appropriate remedy for representation in the court
system. The Court of Appeals agreed with me, the [Iowa] Supreme
Court did not. They felt that the CPC was an inappropriate manner
and mechanism to present this information. I will say now on this
record clearly, I disagree with them. I know I have to follow that law,
and I did. But I disagree with them. Children who suffer at the hands
of an older individual that perpetrated a sexual assault on them need
to be protected. And [K.W.]’s mother is absolutely right. You’ve had
lots of rights here. I’ve given you every possible mechanism to keep
information before the juries. Every possible mechanism. But she
hasn’t been protected at all, and it’s a real shame. After sitting on
this bench for almost [twenty] years, it is a real shame to me that the
court system continues to ignore victims, the trauma that they suffer,
the harm that will never leave them. So having the CPC and giving
them an opportunity to take away some of that and to only have her
have to tell that story one time is a much better concept than making
her come back over and over and over and over again. And your
attorney is right. It is your right. The Constitution is there for a
reason. But in the final end of the day, you have to think about what
you did. You have to think about the harm. And you have to live with
that. It’s unfortunate that she has to also. And I’ve watched this
young lady from the cute, cuddly and loving and bubbly little girl that
she was in that CPC exam to come up here as a strong [eleven]-
year-old, that if you didn’t know age-wise, you could say she was a
much more mature [sixteen]- or [seventeen]-year-old.                She’s
eloquent, and she asked you a lot of very pertinent questions, and
you have the right not to say anything, but you have yet to say, I’m
sorry about the process. I didn’t ask you, at any point in time, to
admit anything, and neither did she. But you’ve never even just
apologized for the process. And to say that a [seven]-year-old would
be able to make all of this up just because she wanted to put you
through this, you’ve never thought about it in the reverse. And I think
it’s unfortunate. And I will apologize again to the family. If it goes up
on appeal, and the [Iowa] Supreme Court once again decides that I
did the wrong thing, I am sorry. I do believe that she deserves
protection, and I do believe that information needs to be before the
jury. They need to know what’s the information so that they can
balance it and they can weigh the credibility. I repeat over and over
to them that that’s their job. And my faith in the criminal justice
system has grown much stronger in the last year, since COVID has
hit. I’ve seen juries put so much effort into rendering their decisions,
and yours as well, as did the other jury. They never took this lightly.
They were all extremely thought out, extremely heartfelt decisions
and discussions that were had, and I appreciate very much what they
did to try to syphon through all that they had before them. But I will
                                           11


       repeat to you again, they found her credible. And at some point,
       maybe when you get to that stage, you’ll be able to tell her you’re
       sorry for the process. Because she’s lost a lot.
              Considering all the statutory requirements that the Court has
       before it, the [twenty-five]-year term for Count I will be imposed. I
       don’t have any discretion in that regard. With regard to the two
       counts that merge for the [ten] years, I find that it’s appropriate at this
       phase to require that they be served consecutively. I think that that
       provides the most protection for the community, protection for the
       victim. I think that provides the rehabilitation that’s necessary for the
       Defendant. It gives him the opportunity for all of the necessary
       treatment and therapy. That will include the sex offender therapy.

       On appeal, Skahill contends his due process right to a neutral and detached

judge was violated when the district court imposed a harsher sentence than

imposed after the prior trial without an appropriate explanation.

       “A claim of vindictiveness in sentencing implicates constitutional guarantees

of due process, making our review of that issue de novo.” State v. Mitchell,
670 N.W.2d 416, 418
 (Iowa 2003).         Where a harsher sentence is imposed upon

reconviction, “for the purpose of punishing a defendant for exercising his rights in

seeking to have the conviction set aside is a flagrant violation of due process of

law,’ the utmost scrutiny must be applied to ensure that the second sentence was

not the product of vindictiveness.”
Id. at 423
 (citation omitted)

       The Mitchell court adopted the United States Supreme Court’s “baseline

approach to vindictiveness questions”:

       Due process of law, then, requires that vindictiveness against a
       defendant for having successfully attacked his first conviction must
       play no part in the sentence he receives after a new trial. And since
       the fear of such vindictiveness may unconstitutionally deter a
       defendant’s exercise of the right to appeal or collaterally attack his
       first conviction, due process also requires that a defendant be freed
       of apprehension of such a retaliatory motivation on the part of the
       sentencing judge.
               In order to assure the absence of such a motivation, we have
       concluded that whenever a judge imposes a more severe sentence
                                         12


       upon a defendant after a new trial, the reasons for his doing so must
       affirmatively appear.[5] Those reasons must be based upon objective
       information concerning identifiable conduct on the part of the
       defendant occurring after the time of the original sentencing
       proceeding. And the factual data upon which the increased sentence
       is based must be made part of the record, so that the constitutional
       legitimacy of the increased sentence may be fully reviewed on
       appeal.
Id.
 (emphasis added) (quoting North Carolina v. Pearce,
395 U.S. 711, 725-26

(1969)).

       Without conceding vindictiveness, the State acknowledges the district court

did not affirmatively state its reasons for imposing a more severe sentence after

retrial and agrees this case must be remanded for resentencing. And we cannot

say Skahill’s successful appeal played no part in the court’s imposition of a harsher

sentence. As quoted above, the sentencing court made mention numerous times

about the appeal, the retrial, and the need for the child to repeat her testimony.

The court identified no conduct on the part of the defendant occurring after the time

of the original sentencing proceeding in support of the harsher sentence.

Consequently, we affirm the convictions, vacate the sentence, and remand for

resentencing before a different judge.

       CONVICTIONS AFFIRMED; SENTENCE VACATED AND REMANDED

WITH INSTRUCTIONS.




5 But note, “when a different judge sentences a defendant after a retrial, and that

judge articulates logical, nonvindictive reasons for the sentence, there simply is no
sound basis to presume that the sentence is the product of judicial vindictiveness.”
Mitchell,
670 N.W.2d at 424
 (citation omitted).