State of Iowa v. Gerardo Antonio Andrade Zepeda ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0907
Filed February 5, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
GERARDO ANTONIO ANDRADE ZEPEDA,
Defendant-Appellant.
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Appeal from the Iowa District Court for Marshall County, James C. Ellefson,
Judge.
A defendant appeals the sentence imposed upon his criminal conviction.
SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee.
Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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MULLINS, Judge.
Gerardo Andrade Zepeda appeals the sentence imposed upon his
conviction, following a guilty plea, of conspiracy to commit a forcible felony. He
argues the court’s imposition of law-enforcement-initiative and drug-abuse-
resistance-education surcharges was illegal, the restitution provision of the written
sentencing order is inconsistent with the oral pronouncement of sentence and our
supreme court’s ruling in State v. Albright, 925 N.W.2d 144 (2019), and the court
considered improper factors in imposing sentence.
First, the State concedes error on the surcharge issue, and we agree. See
Iowa Code §§ 706.1, .3, 911.2, .3 (2018). Next, at the sentencing hearing, the
court stated Andrade Zepeda would be responsible for payment of court costs,
attorney fees, and restitution in an amount to be later determined, pending a
determination of the amounts and of Andrade Zepeda’s ability to pay the same.
However, the written sentencing order stated Andrade Zepeda “shall pay the court
costs of this action, to include correctional fees.”1 The parties appear to agree, as
do we, that the court’s oral pronouncement of sentence was correct, that the
imposition of restitution for court costs including correctional fees must await the
court’s receipt of the amount and a reasonable-ability-to-pay determination, but the
sentencing order’s statement otherwise was error. See Albright, 925 N.W.2d at
162. We thus vacate the challenged surcharge and restitution provisions and
remand for the entry of a corrected sentencing order concerning said provisions,
1 In a separately numbered paragraph, the court also ordered Andrade Zepeda to
“pay court-appointed attorney fees in an amount that does not exceed his ability to
pay as determined at the time of preparation of his restitution plan.”
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which shall be followed by appropriate procedures for the ordering of restitution.
See State v. McLachlan, 880 N.W.2d 513, 516 n.5 (Iowa Ct. App. 2016)
(discussing the importance of corrected sentencing orders).
Finally, Andrade Zepeda argues the court abused its discretion when it
considered improper factors in reaching its sentencing decision, namely that he
did not maintain employment or obtain his GED after he was granted pre-trial
release and his “failure to accomplish anything of note since his release,” despite
the fact that those endeavors were not a condition of his pre-trial release.
At the sentencing hearing, the court stated its primary considerations
included Andrade Zepeda’s rehabilitation and chance for reform; protection of the
community; the deterrent effect on Andrade Zepeda and others; the nature and
circumstances of the offense; and Andrade Zepeda’s age, character, and
propensities. See Iowa Code §§ 901.5, 907.5(1); State v. Hopkins, 860 N.W.2d
550, 554–55 (Iowa 2015). The court identified Andrade Zepeda’s young age as a
significant mitigating factor and highlighted the nature of the crime and attending
circumstances pointed toward a more strict sentence. The court went on to note
Andrade Zepeda’s failure to maintain employment and further his education, but
reiterated the “driving factor” of its decision was the nature of the crime and the
need for deterrence. The court also explained Andrade Zepeda’s “failure to
accomplish anything of note since his release” amounted to a failure to
demonstrate that he can improve himself. Thus, the court denied Andrade
Zepeda’s request for a deferred judgment or a suspended sentence and ordered
a term of imprisonment.
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Long story short, the fact that maintaining employment and obtaining a GED
were not conditions of pre-trial release is not dispositive. Andrade Zepeda’s
character, potentialities, social history, and employment circumstances—which
unquestionably involve the factors he complains were improperly considered—
were relevant and appropriate sentencing considerations. See Iowa Code §§
901.3(1)(a)–(b), .5, 907.5(1)(c). Finding the complained-of considerations were
fair game, we affirm.
SENTENCE AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.