                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0376
                              Filed January 9, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

FRANKIE RAY O'CONNOR,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



      Frankie O’Connor appeals his sentence following his guilty plea to one

count of possession of more than five grams of methamphetamine with intent to

deliver in violation of Iowa Code section 121.401(1)(b)(7) (2016). AFFIRMED.



      Mark C. Smith, State Appellate Defender, (until withdrawal) and Melinda J.

Nye, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., Greer, J., and Potterfield, S.J.*
      *Senior   judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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POTTERFIELD, Senior Judge.

        Frankie O’Connor appeals his sentence following his guilty plea to one

count of possession of more than five grams of methamphetamine with intent to

deliver in violation of Iowa Code section 121.401(1)(b)(7) (2016). On appeal,

O’Connor argues the district court improperly considered risk assessment scores

in the presentence investigation report (PSI) because the scores are not

“validated” under Iowa Code Section 901.11(1) and reliance on unvalidated

scores violated his rights under the Due Process Clauses of the Fifth and

Fourteenth Amendment to the United States Constitution and article I, section 9

of the Iowa Constitution. He also argues his trial counsel was ineffective insofar

as they failed to raise those challenges at trial. Additionally, O’Connor claims the

district court erred by requiring him to pay court costs associated with the counts

dismissed by the State, and requests in a pro se supplemental brief that we

reduce his mandatory minimum sentence by fifty percent.

   I.      Background

        O’Connor was arrested on January 30, 2017, after entering another

person’s residence while it was being searched by the police. Police officers

searched O’Connor and discovered a bag containing three smaller bags of

methamphetamine.       O’Connor was initially charged with three counts: (1)

conspiracy to deliver a controlled substance and (2) possession of a controlled

substance with intent to deliver as a second offender, both in violation of Iowa

Code section 123.301(1)(b)(7); and (3) failure to affix a tax stamp in violation of

Iowa Code section 453B.12. The parties eventually agreed to a plea agreement
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in which O’Connor would plead guilty to count two in exchange for dismissal of

counts one and three.

      At the sentencing hearing, the court addressed the PSI with counsel

before sentencing O’Connor. Although neither party requested any changes or

corrections, the court asked the State to address whether risk assessment

information was “validated” under section 901.11:

              THE COURT: I do want to ask you one question about the
      validated risk assessment, because that’s one of the factors the
      Court can use to reduce the mandatory minimum as set forth in
      901.11(1). So would the risk assessment that is referenced in the
      presentence investigative report, would they be considered the type
      of verified—or I’m sorry—validated risk assessment that’s in the
      statute?
              [THE STATE]: Your Honor, I think that’s a good example of
      the legislature not being very practical in what it writes, because
      there’s really never a validated risk assessment done in the PSI.
      The PSI does give the Iowa risk assessment and the mental health
      screen, and those sort of things. And I think in my experience,
      that’s what the Court has relied upon as that factor that's set forth
      by the legislature.
              THE COURT: Okay. So I don’t know that the presentence
      investigative report refers to these as being validated, which is kind
      of a term of art.
              [THE STATE]: Correct.
              THE COURT: Do you consider it to be validated, or can you
      state that one way or the other?
              [THE STATE]: I can’t say that one way or the other, Judge. I
      don’t know any more about that portion of the screening than the
      Court does based on the PSI.

The court imposed a sentence of twenty-five years and reduced the mandatory

minimum by one-third, but did not grant any further reductions:

      With regard to the mandatory minimum reductions, you get the one-
      third off the one-third, that’s because you pled guilty. But I’m not
      going to grant you any reduction in this case. The factors I’m
      required to consider are your criminal history, validated risk
      assessments, and the negative impact the offense has on the
      victim or any other persons. Your criminal history is not favorable.
      I mean, you’ve pretty much been in trouble through your adult
                                           4


         lifetime. You’ve been offered probation or parole at various points
         in time. You haven’t been successful on those opportunities for the
         vast majority of them, so I don’t see where that factor could be
         granted to give you any further reduction with regard to the
         mandatory minimum.
                 We talked about the issue of the validated risk assessments.
         The risk assessments that are in the presentence investigative
         report don’t favor you either. But whether they’re validated under
         the statute, I can’t really say.
                 And with regard to the impact the offense has on the victim
         or the persons, okay, this isn’t an assault case or something where
         the impact is direct. But I think it’s fair to say that, you know, we
         have a meth epidemic in the country, and one of the reasons we
         have strong laws and strong sentences are to combat that. And
         even though we don’t have direct harm, I think we can say in
         general the harm of meth dealing in the public is great.
                 And you weren’t there with a small amount of meth. It was a
         significant amount. So I don’t think that favors you either. So there
         will be no further reduction with regard to the mandatory minimum
         that is allowed under sections 901.11 and 124.413.

         Finally, the court suspended the $5000 minimum fine because of

O’Connor’s incarceration, but it ordered him to pay several fees and restitution.

O’Connor appeals.

   II.      Standard of Review

         “Review of sentencing decisions is for correction of errors at law.” State v.

Letscher, 888 N.W.2d 880, 883 (Iowa 2016). “We will not reverse the decision of

the district court absent an abuse of discretion or some defect in the sentencing

procedure.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “An abuse of

discretion will not be found unless we are able to discern that the decision was

exercised on grounds or for reasons that were clearly untenable or

unreasonable.” Id. We review constitutional arguments de novo. Letscher, 888

N.W.2d at 883.
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          “We review the district court’s restitution order for errors of law.” State v.

McMurry, 925 N.W.2d 592, 595 (Iowa 2019). “When reviewing the restitution

order, we 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). “Evidence is substantial when a

reasonable mind would accept it as adequate to reach a conclusion.” Id. (quoting

Hasselman v. Hasselman, 596 N.W.2d 541, 545 (Iowa 1999)).

   III.      Discussion

             a. Error Preservation

          The State first argues O’Connor failed to preserve his challenges to the

district court’s use of the risk assessment information in the PSI by failing to

object at the sentencing hearing. Recent supreme court cases have addressed

due process challenges to the use of risk assessment tools by district courts and

have concluded defendants waive their rights to assert those challenges on

direct appeal when they failed to raise those challenges at sentencing. See

State v. Headley, 926 N.W.2d 545, 551–52 (Iowa 2019); State v. Gordon, 921

N.W.2d 19, 23 (Iowa 2018). “A court has the right to rely on the information in

the PSI when the defendant fails to object to the information contained in the

PSI.” Gordon, 921 N.W.2d at 24. The defendant here did not offer an objection

or any information about whether or how the risk assessment tools were

validated, as shown by the district court’s discussion with the prosecutor and the

comment about validation it made while sentencing O’Connor.                  The only

information on the record about the tools is the PSI itself, which O’Connor

acknowledges on appeal contains no other information about whether the risk
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assessment tools were “validated” apart from noting O’Connor was assessed

with the Iowa Risk Revised and Dynamic Risk Assessment for Offender Re-Entry

assessment tools. In that case,

       It is unfair to the State for us to reverse the district court’s sentence
       for allegedly considering an improper factor when the court needed
       more information to determine if the factor it considered was
       improper and the defendant failed to bring that issue to the
       attention of the court at the time of sentencing.

Id. Because we cannot “determine the due process implications of the district

court’s use of risk assessment tools,” id. at 23, and O’Connor failed to object, we

reject O’Connor’s due process challenge.

       Additionally, we cannot determine whether trial counsel was ineffective for

failing to object to the inclusion of and reliance on the risk assessment tool in the

PSI on direct appeal for that same reason. See State v. Soboroff, 798 N.W.2d 1,

8 (Iowa 2011) (“Generally, claims of ineffective assistance of counsel are

preserved for postconviction relief proceedings. . . . However, if we determine

the record is adequate, we may resolve the claim on direct appeal.”).              We

preserve O’Connor’s ineffective assistance of counsel claim for a potential future

application for postconviction relief.

          b. Court Costs

       O’Connor next argues the district court incorrectly assessed the fees

associated with the two dismissed counts against him, which makes his sentence

illegal. Because neither the plea agreement nor the sentencing order allocate

court costs, he argues, those court costs must have been at least partially

attributable to the dismissed counts, for which courts are not statutorily

authorized to make defendants responsible. See Iowa Code § 815.13 (“[F]ees
                                         7


and costs are recoverable by the county or city from the defendant unless the

defendant is found not guilty or the action is dismissed.”). But merely asserting

that some of the court costs were attributable to dismissed claims does not

establish that they were. See State v. Johnson, 887 N.W.2d 178, 182 (Iowa Ct.

App. 2018) (“The fact that some counts were dismissed does not automatically

establish that a part of the assessed court costs are attributable to the dismissed

counts. . . . [I]t is up to [the defendant] to establish an over-assessment of court

costs.”).   And the Iowa Supreme Court has recently clarified the rule for

apportioning fees to specify “the only costs that are not now part of the court

costs assessed against the offender in a multicount criminal case are those

clearly attributed to the dismissed counts.” State v. Ruth, 925 N.W.2d 589, 591

(Iowa 2019). O’Connor does not point to any evidence that shows court costs

were over-assessed, costs associated with dismissed charges were assessed

against him, nor does he state in his brief what amount of fees were assessed

against him at all. Because he has failed to establish costs “clearly attributed to

the dismissed counts” were assessed against him, we find no legal error and

affirm on this claim.

            c. Pro Se Claims

       Finally, O’Connor filed a pro se supplemental brief on August 6, 2018.1

The brief does not raise issues that were not raised in his appellate counsel’s


1
  Iowa Code section 814.6A(1) was recently enacted to prohibit defendants
currently represented by counsel from filing pro se briefs. See 2019 Iowa Acts
ch. 140, § 30. While the Iowa Supreme Court has not address that specific
provision, it has addressed another provision of that legislation and concluded
the change in the law does not apply to cases pending on July 1, 2019. State v.
Macke, 933 N.W.2d 226, 235 (Iowa 2019). Our court recently concluded Macke
                                        8


brief apart from a request to reduce his mandatory minimum sentence by fifty

percent. This we cannot grant. As noted above, we review sentencing orders for

correction of errors at law. Letscher, 888 N.W.2d at 883. Even if we determined

the district court abused its discretion in sentencing O’Connor, we cannot

resentence him.    See Iowa Code § 602.5103 (“The court of appeals . . .

constitutes a court for the correction of errors at law.”); State v. Luisell, 865

N.W.2d 590, 606 (Iowa 2015) (Mansfield, J., dissenting) (“The close question for

me is not whether we can sentence Louisell on our own to life with parole.

Clearly, we cannot do this. We are not a sentencing court.”).

      AFFIRMED.




applies to section 814.6A(1). See State v. Purk, No. 18-0208, 2019 WL
5790875, at *7 n.8 (Iowa Ct. App. Nov. 6, 2019). We conclude section 814.6A(1)
does not apply to this appeal, which was filed before July 1, 2019.
