State of Iowa v. Quinten Brice McMurry , 925 N.W.2d 592 ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 16–1722
Filed March 29, 2019
STATE OF IOWA,
Appellee,
vs.
QUINTEN BRICE McMURRY,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Warren County, Kevin A.
Parker, District Associate Judge.
Defendant appeals from the judgment and sentence for the crime of
making a false report and from revocation of probation. DECISION OF
COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AND
SENTENCE AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.
Mark C. Smith, State Appellate Defender (until withdrawal), and
Melinda J. Nye, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant
Attorney General, Doug Eichholz, County Attorney, and Bobbier A.
Cranston, Assistant County Attorney, for appellee.
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CADY, Chief Justice.
In this appeal, we primarily consider whether the district court
properly assessed court costs and court-appointed attorney fees in the
prosecution of a multicount trial information when one of the counts
resulted in a conviction based on a plea of guilty and the other counts were
dismissed. On our review, we explain and modify our rule relating to the
equitable apportionment of fees and court costs in criminal cases and
conclude the district court properly assessed all of the court costs in the
case against the defendant. We also hold that the amount of court-
appointed attorney fees assessed against the defendant must be
determined before the sentencing court determines the reasonable amount
the defendant is able to pay. Accordingly, we vacate the decision of the
court of appeals, affirm the judgment and sentence of the district court in
part, reverse in part, and remand for resentencing on restitution for court-
appointed attorney fees.
I. Background Facts and Proceedings.
Quinten McMurry was charged by a trial information filed on
June 24, 2016, with the crimes of false report of an incendiary explosive
device in violation of Iowa Code section 712.7 (2016), threats to place an
incendiary or explosive device in violation of section 712.8, and
harassment in violation of section 708.7(1) and (2). The charges stemmed
from an incident on June 14, 2016, while McMurry was serving a term of
probation imposed by a deferred judgment for the crimes of child
endangerment and interference with official acts. On August 24, 2016,
the State dismissed the harassment charge, and the case subsequently
proceeded to trial on the false report and threats crimes.
On the day of trial, McMurry reached a plea agreement with the
State. The agreement required McMurry to enter into an Alford plea of
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guilty to the false report charge, and the State would dismiss the threats
charge. The plea agreement did not cover payment of court costs. The
district court subsequently accepted the guilty plea. McMurry also
stipulated to the violation of his probation.
McMurry appeared in court on October 3, 2016, for sentencing on
the crime of making a false report and for a hearing on the revocation of
probation. The district court sentenced him to a five-year indeterminate
term of incarceration for the crime of false report and imposed a two-year
indeterminate term of incarceration for the crimes of child endangerment
and interference after revoking the deferred judgment. It ordered the two
sentences to run consecutively. The district court then suspended the
terms of incarceration and placed him on probation. One term of
probation required McMurry to reside at the Fort Des Moines Residential
Facility. The court also ordered McMurry to pay restitution, including
court costs and court-appointed attorney fees. The provision in the
sentencing order relating to restitution provided for the payment of “court
costs in the amount” to be determined “(clerk to assess).” The provision
relating to attorney fees included a finding by the sentencing court that
McMurry had “the reasonable ability to pay” the fees and costs, but the
amount of fees was left open for a later determination.
Ten days following sentencing, the clerk of court issued a docket
report. The report assessed court costs totaling $220, consisting of the
trial information filing and docketing fee of $100 and three separate court
reporter fees of $40 for the arraignment and bond review hearing, guilty
plea hearing, and sentencing hearing.
McMurry appealed from the judgment and sentence, and raised four
claims of error. First, he claimed his trial counsel was ineffective for
allowing him to enter a plea of guilty to child endangerment without a
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factual basis. Second, he claimed the district court erred in ordering him
to complete the Fort Des Moines Residential Facility program as a term of
probation. Third, he claimed the district court imposed an illegal sentence
by ordering him to pay costs associated with counts of the trial information
that were dismissed by the State. Finally, he claimed the district court
erred in assessing court-appointed attorney fees before the amount of the
fees was known.
We transferred the case to the court of appeals. The court of appeals
affirmed the judgment and sentence of the district court. It held that a
factual basis supported the plea of guilty to child endangerment and that
the district court did not abuse its discretion when imposing the terms of
probation. It also held that the court costs assessed to McMurry were
attributed to the count of conviction and declined to address the attorney-
fee claim without a final determination of the total fees. McMurry sought,
and we granted, further review.
On further review, we vacate the decision of the court of appeals,
but consider only two of the issues raised. We consider whether the
district court imposed an illegal sentence by failing to assess court costs
proportionately between the count that resulted in the conviction and the
two counts dismissed. We also consider whether the district court erred
in assessing attorney fees before the amount had been determined. We
otherwise agree with the court of appeals decision and summarily hold
that the district court did not err in finding a factual basis to support
McMurry’s plea of guilty to the crime of child endangerment and did not
abuse its discretion in ordering placement at the Fort Des Moines
Residential Facility as a term of probation.
As to the issues considered on further review, we conclude the
district court did not err in ordering McMurry to pay court costs, but erred
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in finding he had the ability to pay attorney fees before the amount had
been determined. Therefore, we vacate the decision of the court of appeals,
reverse the sentence of the district court relating to the ability to pay, and
remand the case for resentencing.
II. Standard of Review.
“We review the district court’s restitution order for errors of law.”
State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991) (per curiam); see also
State v. Jose, 636 N.W.2d 38, 43 (Iowa 2001). Through our review, we
seek to “determine whether the court’s findings lack substantial
evidentiary support, or whether the court has not properly applied the
law.” State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001); see also State
v. Driscoll, 839 N.W.2d 188, 190–91 (Iowa 2013).
III. Court Costs.
We first address the claim by McMurry that the district court
imposed an illegal sentence by ordering him to pay the full amount of the
court costs in the case. He claims the district court could only order him
to pay one-third of the total costs of the three-count prosecution because
the State dismissed two of the counts against him. He asserts the district
court was required to apportion the total costs between the counts of
conviction and the counts dismissed.
We acknowledge that a sentencing order that imposes an obligation
on a defendant to pay court costs not authorized by law would be illegal.
See City of Cedar Rapids v. Linn County, 267 N.W.2d 673, 673 (Iowa 1978).
However, the sentencing order in this case only ordered “court costs” to be
paid by McMurry in an amount to be determined and assessed by the clerk
of court. The order did not specifically direct McMurry to pay all court
costs. Thus, the sentencing order is not illegal on its face because
McMurry was convicted and our law authorizes sentencing courts to order
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court costs be paid by the offender. See Iowa Code § 910.2. Moreover, the
sentencing court in this case never addressed or decided which court costs
McMurry was required to pay. Instead, we presume the sentencing order
only intended McMurry to pay those court costs authorized by law. Thus,
the question in this case is whether the amount subsequently set forth in
the docket report and assessed by the clerk of court complied with the law.
Thus, we review the sentencing order together with the docket report from
the clerk of court to determine if McMurry has been assessed court costs
not authorized by law.
A. Apportionment of Court Costs. Historically, the rule in Iowa
that permits apportionment of court costs in civil cases has not been
applied to criminal cases. State v. Basinger, 721 N.W.2d 783, 786 (Iowa
2006). The rationale for this distinction is a judgment for the plaintiff in
a civil case may not necessarily be an unsuccessful outcome for a
defendant who was successful on part of the demand. This general
reasoning has supported equitable apportionment of costs between the
parties. In a criminal case, however, a successful outcome traditionally
has been viewed differently. State v. Belle, 92 Iowa 258, 260–61, 60 N.W.
525, 526 (1894). A criminal prosecution has been viewed as having two
distinct outcomes—guilty or not guilty—and success has been defined for
a defendant as not guilty. Id.
Notwithstanding, twenty-eight years ago in Petrie, we recognized a
place for equitable apportionment of costs in criminal prosecutions
involving multicount indictments or trial informations when some counts
resulted in a conviction and others were dismissed. 478 N.W.2d at 622.
In Petrie, the defendant was charged by a three-count trial information
with the crimes of driving while barred, possession of a controlled
substance with intent to deliver, and being a habitual offender. Id. at 621.
 7
The State brought the charges after the defendant was stopped for
violating a rule of the road while driving a vehicle. Id. Police subsequently
discovered marijuana in his vehicle. Id. The defendant moved to suppress
the marijuana as evidence at trial. The district court found the search of
the vehicle was illegal and suppressed the evidence. Id. A plea bargain
subsequently led to a conviction for the charge of driving while barred and
a dismissal of the other two counts. Id.
Based on those circumstances, we held the restitution order entered
at sentencing in the case could only direct the defendant to pay those fees
and costs attributable to the charge that resulted in the conviction. Id. at
622. To apply this rule, we said (1) restitution for costs was limited to
costs attributed to the count or counts of conviction, (2) restitution could
not be ordered for costs attributed to dismissed counts, and (3) restitution
for court costs not associated with any single count should be assessed
proportionally between dismissed counts and the counts of conviction. Id.
Thus, we said the attorney fees associated with the suppression hearing
could not be assessed against the defendant and the defendant should
only be required to pay one-third of the costs. Id. Court costs were
apportioned in the same manner because they were not discrete to any
single charge, and the defendant was convicted of one of the three counts.
Id. McMurry relies on the rule in Petrie to support his claim in this case
that he should only be responsible for one-third of the court costs.
Since Petrie, we have not extended its holding beyond the
prosecution of multicount cases resulting in a conviction for some counts
and the dismissal of other counts. See State v. Klindt, 542 N.W.2d 553,
555–56 (Iowa 1996) (refusing to apply apportionment based on a
conviction to a lesser included offense). Additionally, we refused to apply
the rule to restitution other than fees and costs in the prosecution of a
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multicount case resulting in a conviction for some counts and the
dismissal of others in the absence of equitable circumstances supporting
apportionment. State v. Moore, 500 N.W.2d 75, 76 (Iowa 1993) (refusing
to apply the apportionment rule to restitution for money provided by the
state to a cooperating witness to make three controlled drug purchases
due to defendant’s failure to contest the criminal activity); see also Belle,
92 Iowa at 261, 60 N.W. at 526 (refusing to apply the apportionment rule
to court cost when the defendant was charged with murder but was
ultimately convicted of a lesser offense).
In applying the holding in Petrie in other cases, however, our court
of appeals has observed a flaw in the application of the rule as it pertains
to the apportionment of court costs not associated with any one charge.
See, e.g., State v. Johnson, 887 N.W.2d 178, 182 (Iowa Ct. App. 2016). In
Johnson, it observed that the dismissal of some counts in a multicount
trial information does not automatically establish that a portion of the total
court costs in the case is attributable to the dismissed counts. Id. Instead,
it observed that court costs are often the same in multicount prosecutions
as in a single count prosecution. Id. Johnson, for example, involved a six-
count prosecution that resulted in a conviction based on a plea of guilty
to two of the counts and a dismissal of the remaining counts. Id. at 180.
The court costs in the case consisted of a filing fee, two service fees, and
two court reporter fees for the plea hearing and sentencing. Id. at 182 &
n.3. The total costs in the case were $210. Id. at 182.
While the Petrie rule would support apportionment of the total costs
between the counts dismissed and the counts resulting in a conviction,
the counts dismissed under the plea agreement in Johnson had no impact
on the total costs in the case. See Iowa Code § 331.655(1)(a) (providing
that the sheriff shall collect $15 for service and return of service); id.
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§ 602.8106(1)(a) (establishing a fixed $100 fee for “filing and docketing a
criminal case” regardless of the number of charges within the case); id.
§ 625.8(2) (setting a flat $40 fee for court reporter services per case no
matter how many charges are included). In other words, the four
dismissed counts did not affect the amount of the filing and service fees
that were a part of the court costs. Those costs would have been the same
if the four dismissed counts had never been prosecuted. Additionally, the
reporter fees for the guilty plea hearing and sentencing hearing that made
up the remainder of the total court costs were attributed to the counts of
conviction. Thus, the State uses Johnson to argue there is no justification
to apportion court costs between the dismissed counts and the counts of
conviction that would have been the same if the defendant had never been
charged with the counts that were later dismissed. Other decisions by the
court of appeals have made similar observations, which the State seizes
upon to support its claim that costs in this case should not be apportioned.
See, e.g., State v. Haywood, No. 17–1187, 2018 WL 3650328, at *2 (Iowa
Ct. App. Aug. 1, 2018); State v. Smith, No. 15–2194, 2017 WL 108309, at
*5 (Iowa Ct. App. Jan. 11, 2017); State v. Kemmerling, No. 16–0221, 2016
WL 5933408, at *1 n.1 (Iowa Ct. App. Oct. 12, 2016).
We turn to address the issue presented by first looking to the
primary statute governing restitution in criminal cases. We do this
because costs are generally taxable only when provided by statute. See
City of Cedar Rapids, 267 N.W.2d at 673. This restitution statute, Iowa
Code section 910.2, requires “the sentencing court,” in all criminal cases
following the entry of guilt or a special verdict upon which a judgment of
conviction is entered, to order the offender to pay various forms of
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restitution, including “court costs” and “court-appointed attorney fees.” 1
For many of the enumerated forms of restitution, including court costs
and court-appointed attorney fees, the statute requires the sentencing
court to set the amount only “to the extent that the offender is reasonably
able to pay.” Id. The statute clearly provides for the taxation of court costs
and fees to the offender, and the question turns on the manner in which
the fees and costs are taxed.
The State argues the statute only establishes restitution within the
context of a criminal case, not counts within each case, which makes the
defendant responsible for all fees and costs if any count results in a
conviction. It asserts no apportionment should occur because a conviction
in a case is what makes an offender responsible for all restitution under
the statute, including fees and costs, and points to Basinger, 721 N.W.2d
1Iowa Code section 910.2(1) provides,
In all criminal cases in which there is a plea of guilty, verdict of guilty, or
special verdict upon which a judgment of conviction is rendered, the
sentencing court shall order that restitution be made by each offender to
the victims of the offender’s criminal activities, to the clerk of court for
fines, penalties, surcharges, and, to the extent that the offender is
reasonably able to pay, for crime victim assistance reimbursement,
restitution to public agencies pursuant to section 321J.2, subsection 13,
paragraph “b”, court costs including correctional fees approved pursuant
to section 356.7, court-appointed attorney fees ordered pursuant to
section 815.9, including the expense of a public defender, when applicable,
contribution to a local anticrime organization, or restitution to the medical
assistance program pursuant to chapter 249A. However, victims shall be
paid in full before fines, penalties, and surcharges, crime victim
compensation program reimbursement, public agencies, court costs
including correctional fees approved pursuant to section 356.7, court-
appointed attorney fees ordered pursuant to section 815.9, including the
expenses of a public defender, contributions to a local anticrime
organization, or the medical assistance program are paid. In structuring
a plan of restitution, the court shall provide for payments in the following
order of priority: victim, fines, penalties, and surcharges, crime victim
compensation program reimbursement, public agencies, court costs
including correctional fees approved pursuant to section 356.7, court-
appointed attorney fees ordered pursuant to section 815.9, including the
expense of a public defender, contribution to a local anticrime
organization, and the medical assistance program.
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at 786, and State v. McFarland, 721 N.W.2d 793, 794 (Iowa 2006), as
examples in which we have applied the statute consistent with this
approach.
In Basinger, we rejected the apportionment of statutory jury and
reporter fees among thirteen jointly tried defendants. 721 N.W.2d at 786.
Instead, we held such costs were taxed separately to each individual case
because the prosecution was required to present evidence specific to each
case, and the court reporter was required to record testimony specific to
each case. Id. Similarly, in McFarland, we applied the same one-fee-for-
each-case approach involving a defendant convicted of eight counts arising
from a trial involving three separate cases. 721 N.W.2d at 794–95. We
rejected the defendant’s claim that the fees and costs should have been
apportioned among the three cases for the same reasons we expressed in
Basinger. Id. In both cases, we found restitution was based on the
outcome of each case, but each holding was a response to claims by the
defendants that the total costs should be apportioned among each case
consolidated for trial instead of fully assessed separately to each case. See
McFarland, 721 N.W.2d at 794–95; Basinger, 721 N.W.2d at 786. Thus,
these cases are not a rejection of apportionment among counts, but a
rejection of apportionment of costs among separate cases tried together.
While the governing statute relies on a “conviction” as the trigger for
the sentencing court to impose the requirement on “each offender” to pay
restitution “[i]n all criminal cases,” Iowa Code § 910.2, it is far from clear
that the statute expresses the further legislative intent to exclude any
equitable apportionment among counts within a case under any
circumstances. Instead, it is fair to say that the statute is silent on the
issue of apportionment of restitution in multicount prosecutions when one
or more counts result in a conviction and other counts are dismissed. In
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Petrie, we did not view this silence in the statute to foreclose the
apportionment of costs and fees between counts that resulted in a
conviction and those that were dismissed. See 478 N.W.2d at 622.
Instead, we supplemented the silence in the statute with a rule that
permitted the court to apportion costs and fees or to direct the costs to be
paid based on an agreement between the parties for the payment of fees
and costs associated with the dismissed counts. See State v. Mootz, 808
N.W.2d 207, 221 (Iowa 2012) (indicating when a statute is silent on a
matter and the gap was not intended by the legislature, we can carry out
the legislative intent with a rule based on the purposes and policies of the
statute and the consequences of competing interpretations).
Consequently, the statute, supplemented by our caselaw, permits the
apportionment of costs and fees in criminal cases.
The State also launches a frontal attack on the holding in Petrie by
asserting it is contrary to the traditional rule that does not recognize
apportionment of costs in any criminal cases. Yet, this traditional rule did
not develop in the context of a multicount criminal case we faced in Petrie
but, instead, arose in the context of criminal cases in which costs followed
the judgment without the need to consider apportionment because
success under the judgment came down to either guilt or innocence. Belle,
92 Iowa at 260–61, 60 N.W. at 526. The principle case, Belle, involved a
verdict on a lesser included offense that did not support apportionment of
costs based on an acquittal on the greater offense since the case still
resulted in a verdict of guilt. Id. In creating the bright-line rule in Belle,
a potential distinction for cases involving multiple offenses was recognized
but not used to frame a narrower rule. Id.; see also City of Cedar Rapids,
267 N.W.2d at 674 (indicating Belle recognized the distinction between
single and multiple charges but declined to use the distinction to decide
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the case on the narrow ground that it did not involve multiple counts).
Yet, no equitable circumstances were present in Belle to drive a narrower
rule. Petrie, of course, reversed this broad approach sub silentio and now
sits alongside the restitution statute to govern the narrow application of
equitable apportionment. See 478 N.W.2d at 622.
This background helps to explain the approach we took in Petrie, as
well as the equitable exception we carved from the general rule that fees
and costs are not apportioned in criminal cases. It reveals that success
for defendants to criminal cases can include more than a complete
acquittal when some counts of a multicount case are dismissed. It reveals
that the particular circumstances of the case can make it equitable to
apportion the costs and fees between those that are clearly attributed to
the counts of conviction and those that are clearly attributed to the
dismissed counts. For example, in Petrie, all of the attorney fees in
defending the case were not generally connected to the prosecution of the
case. Id. Instead, a portion of those fees connected to the suppression
issues were clearly attributed to the dismissed drug count. Id. Finally,
the background also helps to reveal that equitable apportionment should
not apply to costs and fees not specifically connected to a count that is
dismissed or to one that results in a conviction. Instead, these costs and
fees should be taxable to the offender.
We conclude Petrie took a misstep when it apportioned fees and
costs not clearly attributed to any single count. If costs and fees would
have been incurred in the prosecution of a count of conviction even if the
dismissed counts had not been prosecuted, equity does not support
apportionment. In Petrie, the filing fee for the trial information was the
same regardless of the number of counts or the fact that some of the
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counts were dismissed. Thus, no equitable basis existed to order the
defendant to pay only one-third of these costs.
Accordingly, the problem with Petrie is not the exception created to
the general rule against apportionment in a criminal case, but the way the
rule was articulated to permit apportionment of fees and costs not
attributed to any single count. Apportionment must be based on equitable
circumstances, and the portion of the fees and costs attributed to the
dismissed count must relate to those circumstances.
In this case, McMurry’s claim of error only relates to the assessment
of the total court costs of $220. Yet, all these costs fall within the category
of fees that would have been the same even if the dismissed counts would
not have been prosecuted. The filing fee and the three court reporter fees
were court costs associated with the charge that resulted in the conviction
and were assessed properly against McMurry under Petrie, as modified by
this case. As a result, we affirm the restitution order entered by the district
court as assessed by the clerk of court on the ground that the costs were
attributed to the count of conviction.
B. Modification of Petrie. We continue to recognize the limited
role of equitable apportionment of restitution in criminal cases involving
multicount prosecutions. It remains as important today as when
recognized in Petrie in 1991. The taxation of court costs has a broad and
significant impact on criminal offenders, and it is important that our rules
relating to the assessment of these costs operate fairly and equitably.2
2[T]hose with lower socioeconomic status and in predominately
minority communities are more likely to bear the burden of these direct
and collateral costs. This creates a contradictory effect that
disproportionately penalizes citizens for their poverty or the community
they live in, adding to their cumulative disadvantage, perpetuating a cycle
of criminal justice involvement.
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However, fees and costs should not be apportioned in multicount cases
that result in both a conviction and a dismissal when the fees and costs
would have been the same without the dismissed counts. We, accordingly,
modify our rule in Petrie and disavow the language that fees and costs not
associated with any one charge should be assessed proportionally between
the counts dismissed and the counts of conviction. These fees and costs
were properly assessed to McMurry.
We emphasize that the role of the sentencing court in utilizing
equitable apportionment of fees and costs under the restitution statute is
predicated on equity. The rule is not hard and fast, nor time-consuming
in its application. It rests within the sound discretion of the sentencing
court and is applied to achieve justice, not precision. It is more easily
applied to court costs than expenses like attorney fees, but its application
to attorney fees can be examined in conjunction with the determination of
the ability of an offender to pay such fees. Finally, we reiterate the
observation in Petrie that the parties are free to agree to the apportionment
of fees and costs in a plea agreement. See 478 N.W.2d at 622. Since
apportionment of fees and costs is recognized in Iowa, the parties to a case
may properly agree on the meaning of the equitable apportionment of those
fees and costs in a case. Without an agreement, the sentencing court
needs to identify the court costs at the sentencing hearing or a
supplemental hearing so that the clerk of court can properly assess them.
IV. Attorney Fees.
Finally, we address the claim by McMurry that the district court
erred by determining his reasonable ability to pay court-appointed
Lily Gleicher & Caitlin DeLong, Ill. Crim. Justice Info. Auth., The Cost of Justice: The
Impact of Criminal Justice Financial Obligations on Individuals and Families 2 (2018)
(footnotes omitted).
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attorney fees before the total amount of the fees was determined. We
recently addressed this issue in State v. Albright, ___ N.W.2d ___, ___ (Iowa
2019), State v. Petty, ___ N.W.2d ___, ___ (Iowa 2019), and State v. Covel,
___ N.W.2d ___, ___ (Iowa 2019). In those cases, we held that a court shall
not enter a final order of restitution until all items of restitution are before
it and it has assessed the offender’s reasonable ability to pay certain items
of restitution. 3 In the present case, the district court failed to determine
whether McMurry had the reasonable ability to pay court-appointed
attorney fees before entering a restitution amount on this item. In
summary, it did not follow the statutory procedures as outlined in our
recent case law. Accordingly, we reverse the sentencing order pertaining
to the assessment of court-appointed attorney fees and remand the case
for resentencing on restitution for court-appointed attorney fees.
V. Conclusion.
We affirm the district court on all issues raised on appeal except to
remand the case for resentencing on restitution for court-appointed
attorney fees.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT AND SENTENCE AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED.
All justices concur except McDonald, J., who takes no part.
3Restitution items requiring an “ability to pay” determination include
crime victim assistance reimbursement, restitution to public agencies
pursuant to section 321J.2, subsection 13, paragraph “b”, court costs
including correctional fees approved pursuant to section 356.7, court-
appointed attorney fees ordered pursuant to section 815.9, including the
expense of a public defender, when applicable, contribution to a local
anticrime organization, or restitution to the medical assistance program
pursuant to chapter 249A.
Iowa Code § 910.2.