                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0882
                               Filed May 15, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

THOMAS VAN RAWLS JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Heather L. Lauber,

District Associate Judge.



      Thomas Rawls Jr. appeals the sentences imposed on his convictions of five

criminal counts. SENTENCES AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.



      Mark C. Smith, State Appellate Defender (until withdrawal), and Theresa R.

Wilson, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee.



      Considered by Vogel, C.J., Bower, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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SCOTT, Senior Judge.

       Thomas Rawls Jr. appeals the sentences imposed on his convictions of five

criminal counts.1 He argues the district court abused its discretion in ordering the

prison sentences on all counts to be served consecutively and erred in ordering

him to reimburse the State for court-appointed attorney fees as restitution without

first properly determining his reasonable ability to pay the same.

       The district court ordered the terms of incarceration imposed on each of

Rawls’s convictions to be served consecutively. Appellate review of a sentencing

court’s decision to impose consecutive sentences is for an abuse of discretion,

which “will only be found when a court acts on grounds clearly untenable or to an

extent clearly unreasonable.” State v. Leckington, 713 N.W.2d 208, 216 (Iowa

2006). A decision to impose a sentence authorized by statute “is cloaked with a

strong presumption in its favor.” State v. Formaro, 638 N.W.2d 720, 724 (Iowa

2002). The law is clear that a sentencing court may impose consecutive sentences

when each count is for a separate and distinct offense, even if they arise from the

same criminal transaction. State v. Criswell, 242 N.W.2d 259, 260 (Iowa 1976);

see Iowa Code § 901.8 (2017).

       Rawls agrees the offenses for which he was sentenced were “‘separate’ . . .

even though some of the offenses were committed in the course of a single

transaction.” He complains the court’s sentencing rationale, that the “offenses

were committed at separate times,” is inaccurate and the court therefore abused




1
 Rawls pled guilty to forgery and second-degree theft in one criminal case; forgery in a
second case; and third-offense possession of marijuana and driving while barred as a
habitual offender in a third case.
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its discretion in imposing consecutive terms of incarceration. As the State points

out, however, the court noted this as a consideration in determining probation to

be inappropriate, a determination Rawls does not challenge. In enunciating its

decision to impose consecutive sentences, the court clarified, “The court finds that

due to the separate and serious nature of these offenses and because they were

committed while you were on probation, that those sentences should run

consecutive to each other . . . .” The court reiterated its rationale in its written

sentencing order.

       In any event, while it is true that two of the convictions stemmed from a

transaction in December 2016, one conviction resulted from conduct in July 2017,

and the two remaining convictions were born out of an August 2017 transaction,

we do not find the sentencing court’s statement that the offenses were committed

at separate times to be entirely inaccurate or fatal to the sentence imposed. Rawls

committed five separate and distinct crimes on three different days over a period

of roughly eight months. Even if all of the crimes had been committed in a single

transaction, “Iowa precedent allows consecutive sentences under section 901.8

even when the defendant committed the offenses during a single transaction” and

“reconsideration of this principle would have to come from our supreme court.”

State v. Fields, No. 13-1200, 2014 WL 3511841, at *2 (Iowa Ct. App. July 16,

2014). We are unable to say the court acted on grounds clearly untenable or to

an extent clearly unreasonable. See Leckington, 713 N.W.2d at 216.

       Rawls also argues the non-violent nature of his crimes and his criminal

history do not support the court’s imposition of consecutive sentences. As noted,

Rawls committed multiple crimes over an extended period, while on probation. We
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find the imposition of consecutive sentences was not an abuse of discretion under

these circumstances.

       Next, Rawls argues the district court erred in ordering him to reimburse the

State for court-appointed attorney fees as restitution without first properly

determining his reasonable ability to pay the same. At the sentencing hearing, the

court noted the requirement that Rawls pay restitution, but the amount of restitution

was unavailable at the time. The court questioned defense counsel concerning

his fees for court-appointed representation, and he responded his fees were “within

the guidelines.” The written sentencing order provided the following:

              Pursuant to Iowa Code Section 815.9(5), if defendant is
       receiving court-appointed legal assistance, the court finds upon
       inquiry, review of the case file and any other information provided by
       the parties, defendant has the reasonable ability to pay restitution of
       fees and costs in the amount approved by the State Public Defendant
       or $, whichever is less.

       We review restitution orders for legal error. State v. Albright, 925 N.W.2d

144, 158 (Iowa 2019).     A court can only order restitution for court-appointed

attorney fees “to the extent the offender has the reasonable ability to pay.” Id. at

159. The State argues Rawls’s claim is not ripe for appellate review. The State

made the same argument in Albright,2 but the court implicitly rejected it by ruling

on the issue. Here the court determined Rawls possessed the reasonable ability

to pay court-appointed attorney fees as restitution, although the amount for the

same was not before the court. “This is contrary to the statutory scheme as

outlined in” Albright. See id. at 162. Consequently, we vacate the portions of the



2
 See Brief of Appellee, State v. Albright, 925 N.W.2d 144 (Iowa 2019) (No. 17-1286),
2018 WL 7890463, at *55–58.
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district court’s sentencing order concerning restitution and remand the case to the

district court to order restitution in a manner consistent with Albright.

       SENTENCES AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.
