Full Opinion

IN THE COURT OF APPEALS OF IOWA _______________ No. 25-2163 Filed November 4, 2026 _______________ State of Iowa, Plaintiff–Appellee, v. Cole Alan Gilbertson, Defendant–Appellant. _______________ Appeal from the Iowa District Court for Cerro Gordo County, The Honorable Blake H. Norman, Judge. _______________ AFFIRMED _______________ Martha J. Lucey, State Appellate Defender, and Allison Linafelter, Assistant Appellate Defender, attorneys for appellant. Brenna Bird, Attorney General, and Joshua Henry, Assistant Attorney General, attorneys for appellee. _______________ Considered without oral argument by Schumacher, P.J., and Langholz and Sandy, JJ. Opinion by Langholz, J. 1 LANGHOLZ, Judge. Cole Gilbertson entered Alford pleas1 to one count of lascivious acts with a child and one count of indecent exposure for soliciting a child under the age of fourteen to engage in sex acts and exposing himself to the child. See Iowa Code §§ 709.8(1)(d), 709.9(1) (2021). At sentencing, the State argued for consecutive sentences of five years in prison and one year in jail. Gilbertson asked the district court to suspend the prison sentence and part of the jail sentence and to place him on probation.2 The court imposed a five-year indeterminate prison sentence and a thirty-day jail sentence and ordered them to run concurrently. Among other reasons for selecting that sentence, the court explained to Gilbertson that it had “read your version of events” in the presentence investigation report (“PSI”), and “that at best it would be considered minimizing. I understand that you have pled by Alford, but essentially you continue to deny that you committed this offense.” The court later reiterated: I do not decide this sentence lightly. However, this is a crime, which you have not truly taken accountability for. You have pled guilty by way of Alford, which again you have pled guilty without requiring a trial; but you continue to deny that this occurred and the Court does consider that as one of the factors in deciding this sentence. 1 An Alford plea lets a defendant plead guilty and accept the sentence while still maintaining his innocence. See North Carolina v. Alford, 400 U.S. 25, 37 (1970). 2 On the indecent exposure conviction, Gilbertson technically asked “for one year all but seven days in jail, so that he would have to go back in and serve some time” that would be “consecutive to the probation” on the other conviction. And he later said he was “asking for the Court’s sentence not to be suspended” so that “we have a portion of the jail sentence be imposed.” The court understood this as a request for “seven days in jail.” 2 After Gilbertson objected to the court’s consideration of his “minimizing his involvement” in the offense because the “ability to maintain innocence is one of the aspects” of an Alford plea, the court explained that it had considered: Not that [Gilbertson] took an Alford plea, but his lack of remorse and his ability to be rehabilitated through this. He also made no statement to the Court, he’s never acknowledged that he committed this offense or the impact that it’s had on his victim, so I have neither of those two things so that is what the Court is considering towards rehabilitation specifically. And the court emphasized at the close of sentencing: “Again, it is the Court’s desire and hope that you do take responsibility for these actions in treatment towards your rehabilitation. We’ve had some discussion here you are not being penalized for entering an Alford plea in itself, but it is a factor I consider towards rehabilitation.” Gilbertson now appeals, arguing that the court considered improper factors—his Alford plea and his decision not to address the court at sentencing (known as an “allocution”)—when selecting his sentences. He asks us to vacate his sentences and remand for resentencing before a different judge. We review a district court’s discretionary sentencing decisions for an abuse of discretion. See State v. Gordon, 998 N.W.2d 859, 862 (Iowa 2023). This deferential standard of review recognizes that the court’s decision “to impose a particular sentence within the statutory limits is cloaked with a strong presumption in its favor.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). Still, a district court exceeds its discretion—and we must remand for resentencing—when the court relies on an improper factor, “even if it was merely a secondary consideration.” State v. Schooley, 13 N.W.3d 608, 618 (Iowa 2024) (cleaned up). A defendant must “show that the court was 3 not just merely aware of the factor, but that it relied on the factor in determining its sentence.” State v. McCollaugh, 5 N.W.3d 620, 627 (Iowa 2024). And “[w]e will not draw an inference of improper sentencing considerations which are not apparent from the record.” Formaro, 638 N.W.2d at 725. One such improper factor is a defendant’s decision to plead not guilty and “put the state to its burden of proving the offense to a jury.” State v. West Vangen, 975 N.W.2d 344, 355 (Iowa 2022). But there is nothing improper about considering a defendant’s acceptance of responsibility or, conversely, a defendant’s lack of remorse. See id. at 355–56 (rejecting defendant’s challenge that the district court’s reliance on lack of remorse improperly considered her not-guilty plea when there was other evidence of lack of remorse). Indeed, “a defendant’s lack of remorse is highly pertinent to evaluating his need for rehabilitation and his likelihood of reoffending.” State v. Knight, 701 N.W.2d 83, 88 (Iowa 2005); see also Iowa Code § 901.5 (requiring the sentencing court to consider, “[a]fter receiving and examining all pertinent information, including the presentence investigation report and victim impact statements, if any,” which authorized sentence “will provide maximum opportunity for the rehabilitation of the defendant, and for the protection of the community from further offenses by the defendant and others”). And this “lack of remorse can be discerned by any admissible statement made by the defendant pre-trial, at trial, or post-trial, or by other competent evidence properly admitted at the sentencing hearing.” Knight, 701 N.W.2d at 87–88 (cleaned up). A defendant who enters an Alford plea is “subject to the same assessment for purposes of sentencing as are other defendants, including an evaluation of the factors relevant to their need for rehabilitation and their 4 likelihood to reoffend.” Id. at 89. This includes the defendant’s failure to accept responsibility for the offense. See id. (holding that a “defendant entering an Alford plea amidst claims of innocence is no different than a defendant found guilty amidst claims of innocence” and so, a “lack of remorse is a pertinent sentencing factor in both situations”). So just as the court can consider a defendant’s continued assertion of innocence rather than accepting responsibility after being convicted by a jury, so too can the court consider such an assertion here after an Alford plea. See id. at 88 (“Alford does not require that a court accept a guilty plea from a defendant while simultaneously treating the defendant as innocent for purposes of sentencing.” (cleaned up)). Gilbertson argues that it follows from this governing precedent that the district court’s reliance on his “claim of innocence in his PSI” and its acknowledgment that he entered an Alford plea were improper. We disagree. Gilbertson does not dispute that his statements in the PSI describing his version of the offense continued to assert his innocence rather than accepting responsibility or showing remorse. And it was proper for the district court to consider these statements in “evaluating his need for rehabilitation and his likelihood of reoffending.” Id. at 88; see also State v. Gibson, No. 25-2013, 2026 WL 3025105, at *3 (Iowa Ct. App. Oct. 7, 2026). So too was it proper for the court to acknowledge that Gilbertson entered an Alford plea rather than a regular guilty plea and thus had admitted only “that the State had sufficient evidence to prove that [he was] guilty”—not that he was guilty. Only by acknowledging that fact could the court accurately understand that despite Gilbertson’s plea and conviction without a trial, he had never admitted his guilt. 5 In arguing otherwise, Gilbertson contends that factoring in the Alford plea at all is akin to improperly “penalizing a defendant for refusing to plead guilty and insisting on his right to trial.” Knight, 701 N.W.2d at 87; see also State v. Nichols, 247 N.W.2d 249, 255–56 (Iowa 1976) (remanding for resentencing because court improperly considered that the defendant had “exercised the fundamental and constitutional right of requiring the state to prove at trial his guilt as charged”); State v. Drake, 224 N.W.2d 476, 479–80 (Iowa 1974) (same). But Gilbertson did not insist on his right to trial. So the cases he relies on from that context do not control here. There is no similar “right, constitutional or otherwise, to enter an Alford plea.” Knight, 701 N.W.2d at 89 (reasoning that there was “no problem with the possibility that” defendants might be inhibited “from offering an Alford plea”). And nothing in Knight suggests that a sentencing court must remain blind to the Alford nature of a defendant’s plea.3 What’s more, this is not a case where a sentencing court relied on a defendant’s mere silence after an Alford plea to conclude that the defendant failed to accept responsibility and lacked remorse. The court relied on Gilbertson’s statements in the PSI. Thus, as in Knight, Gilbertson’s Fifth Amendment right to silence or self-incrimination is not implicated. See id. at 87 n.1. And we express no opinion as to whether the court could rely solely 3 Gilbertson contends that the supreme court “recognized in State v. Staton, [that] Knight brings Alford plea claims of sentencing error under the umbrella of Drake and Nichols.” But Staton was an appeal after a jury trial—not an Alford plea. See State v. Staton, 13 N.W.3d 795, 796 (Iowa 2024). It did not even mention Alford pleas. See id. at 796–800. And its discussion of Knight was merely to “reiterate that district courts in determining the appropriate sentence may consider a defendant’s remorse or lack of remorse, but not his rejection of plea offers.” Id. at 799. Because Gilbertson did not reject plea offers or enter a not-guilty plea, Staton provides him no support here. 6 on the refusal to admit guilt in the Alford plea without any additional statements from the defendant continuing to maintain his innocence. Gilbertson still contends that the court violated his Fifth Amendment rights by considering his lack of allocution at sentencing. He contends this is shown by the court saying, when responding to his objection about its consideration of his failure to take responsibility, that “[h]e also made no statement to the Court, he’s never acknowledged that he committed this offense or the impact that it’s had on his victim, so I have neither of those two things.” But even assuming the consideration of his lack of allocution for this purpose would be improper,4 Gilbertson has not met his burden to show that the district court did so. The court’s explanation is ambiguous. It seems just as likely, if not more likely, that its first few words referring to the lack of statement to the court were an incomplete extemporaneous thought. And then the court restarted with a more careful statement focusing on “two things”—that “he’s never acknowledged that he committed this offense or the impact that it’s had on his victim.” Given the “strong presumption” in favor of the district court’s sentence, “[w]e will not draw an inference of improper sentencing considerations” from this ambiguous remark. Formaro, 638 N.W.2d at 724–25. Because the district court did not consider any improper factors, we affirm Gilbertson’s sentences. AFFIRMED. 4 But see State v. Washington, 832 N.W.2d 650, 660 (Iowa 2013) (noting that the Fifth Amendment “allows room for hard choices after a conviction when legitimate penological goals are served,” including “when [the defendant] is asked to provide his or her version of the offense for purposes of a PSI” or “when offered the right of allocution at the sentencing hearing”). 7