                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1781
                             Filed February 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NICOLE ELIZABETH ZIMMERMAN,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      Defendant appeals convictions for theft, identity theft, and forgery, alleging

ineffective assistance of counsel and sentencing errors.           CONVICTIONS

AFFIRMED; SENTENCES AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.



      Martha Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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SCHUMACHER, Judge.

       A defendant appeals her convictions for theft, identity theft, and forgery,

raising claims of ineffective assistance of counsel and sentencing errors. We

affirm the convictions but remand for the entry of a restitution order consistent with

the sentencing court’s oral pronouncements and with State v. Albright, 925 N.W.2d

144, 159 (Iowa 2019).

       I.     Background Facts and Proceedings

       Defendant Nicole Zimmerman resided with her fiancé from approximately

2011 through 2017. During 2017, her fiancé discovered several credit cards in his

name had substantial unpaid balances. Upon receiving collection notices, he

learned of more than $30,000 in unauthorized transactions that had amassed on

various accounts and credit cards. A law enforcement investigation ensued.

       On February 15, 2018, Zimmerman was charged by trial information with

first-degree theft and identity theft. The trial information was amended several

times and on September 24, 2018, Zimmerman entered an Alford plea1 to theft in

the third degree, identity theft, and forgery, all aggravated misdemeanors. The

court accepted the plea and scheduled sentencing for October 2018.

       At the sentencing hearing, the district court orally suspended the fines and

waived the defendant’s obligation to make restitution for court-appointed attorney

fees based on a reasonable-ability-to-pay determination. However, the court’s



1See North Carolina v. Alford, 400 U.S. 25, 37–38 (1970); State v. Klawonn, 609
N.W.2d 515, 520 (Iowa 2000) (describing Alford pleas as “designed to permit a
defendant to make a voluntary and intelligent decision to plead guilty to a crime
without admitting participation in the underlying facts which constitute the crime”).
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October 12, 2018, written sentencing order conflicted with the oral pronouncement,

as the written sentencing order did not waive the defendant’s obligation to make

restitution for court-appointed attorney fees. The written order also required the

defendant to make restitution for court costs.

       The court sentenced Zimmerman to thirty days of incarceration on the

forgery count and sentenced her to two years on each of the other counts to run

consecutively. The terms of incarceration were suspended, with the exception of

the thirty-day period relating to the forgery conviction. A nunc pro tunc order

entered four days later corrected the level of the offenses to which Zimmerman

had entered an Alford plea. However, such order did not resolve the attorney fee

restitution issue.

       Zimmerman appeals, alleging ineffective assistance of counsel; that the trial

court abused its discretion in imposing a term of incarceration; that the oral and

written restitution orders are inconsistent and premature; and that the district court

erred by calculating her reasonable ability to pay restitution before the total amount

of restitution was determined.

       II.    Standard of Review

       Ineffective-assistance-of-counsel claims are reviewed de novo. Dempsey

v. State, 860 N.W.2d 860, 868 (Iowa 2015). We review sentencing decisions for

correction of errors at law. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002).

“We will not reverse the decision of the district court absent an abuse of discretion

or some defect in the sentencing procedure.” Id.
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         III.   Analysis

         A. Ineffective Assistance of Counsel

         Zimmerman argues her counsel was ineffective by allowing her to plead

guilty to the forgery charge without a factual basis.2 If counsel allows a defendant

to plead guilty without a factual basis, counsel has breached a duty and we

presume the defendant was prejudiced. See State v. Rodriguez, 804 N.W.2d 844,

849 (Iowa 2011). This requirement exists even where the plea is an Alford plea.

State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). The question is whether

“the record before the district court as a whole supports a factual basis for each

element of the offense.” State v. Brown, 911 N.W.2d 180, 183 (Iowa Ct. App.

2018).

         To succeed on a claim of ineffective assistance, a defendant must show

counsel breached a duty and prejudice resulted. See id. The claim fails if the

defendant fails to prove either ground. See State v. Clay, 824 N.W.2d 488, 495

(Iowa 2012). In the context of a guilty plea, a defendant shows prejudice by proving

that, but for counsel’s breach, there is a reasonable probability the defendant

“would not have pled guilty and would have insisted on going to trial.” State v.

Carroll, 767 N.W.2d 638, 641 (Iowa 2009).


2  We recognize Iowa Code was recently amended to provide in pertinent part: “An
ineffective assistance of counsel claim in a criminal case shall be determined by
filing an application for postconviction relief” and “shall not be decided on direct
appeal from the criminal proceedings.” See 2019 Iowa Acts ch. 140, § 31 (codified
at Iowa Code § 814.7 (2019)). In State v. Macke, however, our supreme court held
the amendment “appl[ies] only prospectively and do[es] not apply to cases pending
on July 1, 2019.” 933 N.W.2d 226, 235 (Iowa 2019). We are bound by our
supreme court’s holding. We conclude, therefore, the amendment does not apply
to this case, which was pending on July 1, 2019. Id.
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         Zimmerman’s sole argument on appeal concerning the ineffective-

assistance-of-counsel claim is that a factual basis did not exist to accept the plea

concerning the forgery charge. We disagree and find her argument unconvincing.

         To consider the merits of Zimmerman’s ineffective-assistance-of-counsel

claim, we examine whether the record shows her plea was supported by a factual

basis.    Zimmerman focuses on the date of March 23, 2017.                 That focus is

misplaced.      Although we note the State was prepared to offer evidence of

Zimmerman’s actions on March 23, 2017, such proof was not necessary because

the record as a whole “demonstrates the facts to support the elements of the

offense” of forgery. See Rhoades v. State, 848 N.W.2d 22, 29 (Iowa 2014). When

a date is not a material element of the crime, the State does not have the burden

of proving when the offense occurred. State. v. Griffin, 386 N.W.2d 529, 532–33

(Iowa Ct. App. 1986). The State need only establish that the crime occurred within

the limitations period. State v. Bell, 233 N.W.2d 181, 184 (Iowa 1974).

         We look to the elements of the forgery count, for which we find a factual

basis in the record. Zimmerman pleaded guilty to forgery under Iowa Code section

715A.2(1)(b) (2017), which provides as follows:

         A person is guilty of forgery if, with intent to defraud or injure anyone, or with
         knowledge that the person is facilitating a fraud or injury to be perpetrated
         by anyone, the person does any of the following:
                ....
               b. Makes, completes, executes, authenticates, issues, or transfers a
               writing so that it purports to be the act of another who did not
               authorize that act, or so that it purports to have been executed at a
               time or place or in a numbered sequence other than was in fact the
               case, or so that it purports to be a copy of an original when no such
               original existed.
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       When analyzing a record to determine if the record supports a factual basis

for a plea, “we do not require the record to show the totality of evidence necessary

to support a guilty conviction, but only that the record demonstrates the facts to

support the elements of the offense.” Rhoades, 848 N.W.2d at 29. “We review (1)

the prosecutor's statements, (2) the defendant's statements, (3) the minutes of

testimony, and (4) the presentence report, if available at the time of the plea, to

determine if the record supports a factual basis for the plea.” Id. In reviewing

minutes of testimony, we will consider police reports that include a defendant’s

statements. See id. at 31.

       At the plea hearing, Zimmerman stated, “there was a definite possibility”

she could be convicted of the charges based on the information in the minutes of

testimony. Additionally, the written plea agreement signed by Zimmerman

contained the following statement: “I acknowledge that there is strong evidence of

my guilt and that the Court may consider statements of counsel, minutes of

testimony and police reports to make an independent determination that there is

strong evidence of my actual guilt.”

       The elements of the forgery charge were satisfied by the factual basis

provided in the record, including the minutes of testimony. The minutes

demonstrate a pattern of conduct by Zimmerman leading to thousands of dollars

in damages. A witness was prepared to testify to Zimmerman’s conduct on March

23, 2017, and the record reflects that Zimmerman engaged in a pattern of

deceptive behavior including the opening of credit accounts in her fiancé’s name.

The minutes reflect that Zimmerman obtained loans in her fiancé’s name, and he

was prepared to testify that Zimmerman had obtained credit cards and loans in his
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name without his authorization. The minutes further reflect that designees from

his creditors would testify regarding the authenticity of documentation related to

the accounts. The additional minutes of testimony indicated that a witness would

testify concerning an email written on March 23, 2017, and would testify to his

knowledge of the defendant. The record further reflects that the above occurred

within the limitations period. We conclude a factual basis in the record supported

the forgery conviction.

       B. Sentencing Discretion

       Zimmerman argues the court abused its discretion by sentencing her to a

thirty-day period of confinement, as serving such a jail term would impede her

ability to pay restitution and support her children. She does not dispute on appeal

that the sentence imposed was permissible by law or argue that the sentence was

grossly disproportionate or constitutionally invalid. Rather, her argument is that a

less harsh sentence was available to the court following her plea.

       When a sentence is within statutory limits, we review a sentencing decision

for abuse of discretion. State v. Seats, 865 N.W.2d 545, 552 (Iowa 2015). A trial

court abuses its discretion if its decision “was unreasonable or based on untenable

grounds.” Id. at 553. We consider a variety of factors when reviewing a sentencing

decision for abuse of discretion:

       In applying the abuse of discretion standard to sentencing decisions,
       it is important to consider the societal goals of sentencing criminal
       offenders, which focus on rehabilitation of the offender and the
       protection of the community from further offenses. It is equally
       important to consider the host of factors that weigh in on the often
       arduous task of sentencing a criminal offender, including the nature
       of the offense, the attending circumstances, the age, character and
       propensity of the offender, and the chances of reform. Furthermore,
       before deferring judgment or suspending sentence, the court must
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      additionally consider the defendant’s prior record of convictions or
      deferred judgments, employment status, family circumstances, and
      any other relevant factors, as well as which of the sentencing options
      would satisfy the societal goals of sentencing. The application of
      these goals and factors to an individual case, of course, will not
      always lead to the same sentence. Yet, this does not mean the
      choice of one particular sentencing option over another constitutes
      error.

State v. Formaro, 638 N.W.2d 720, 724–25 (Iowa 2002) (citations omitted). The

trial court below considered many of these factors.

      The district court articulated its reasons as to why a period of incarceration

was appropriate. The court was aware that Zimmerman owed significant amounts

in victim restitution and had children. The court reviewed the file and considered

the circumstances of the offense, Zimmerman’s age, and the multiplicity of the

offenses. The court found the sentence appropriate because it would “deter the

defendant from further criminal activity and provide reasonable protection of the

public.” The court expressed there was a “danger of this continuing,” referring to

Zimmerman’s actions. The court’s written sentencing order further indicated the

court had considered the nature and circumstances of the crime, protection of the

public from further offenses, defendant’s propensity for further criminal acts,

defendant’s statement, the maximum opportunity for rehabilitation, the victim

impact statement, and the defendant’s age and character.3 We find no abuse of

discretion in the sentences.




3 Iowa Rule of Criminal Procedure 2.23(3)(d) requires a trial court to state on the
record its reasons for selecting a particular sentence. The court's statement of
reasons may be either written or oral. State v. Alloway, 707 N.W.2d 582, 584-585
(Iowa 2006), overruled on other grounds by State v. Thompson, 856 N.W.2d 915,
921 (Iowa 2014). “The purpose of this requirement is to give appellate courts the
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       C. Restitution Calculation

       Zimmerman ascribes two flaws to the sentencing court’s restitution

calculation. First, she notes a discrepancy between the court’s oral finding at the

sentencing proceeding and the written sentencing order.            At the sentencing

hearing, the court recited in reference to the attorney fee restitution that the court

would “put it at zero.” However, the written order indicated the defendant had the

“reasonable ability to pay restitution of fees and costs” and ordered the defendant

pay restitution for the same.

       Second, Zimmerman raises a claim based on Albright, 925 N.W.2d at 162,

which clarified that, “Courts must wait to enter a final order of restitution until all

items of restitution are before the court. Once the court has all the items of

restitution before it, then and only then shall the court make an assessment as to

the offender’s reasonable ability to pay.” In the context of Albright, Zimmerman

asserts that as a final figure for victim restitution was not known when the court

determined she had a reasonable ability to pay restitution, such determination was

improper.

       To the extent that Zimmerman is arguing that victim restitution is subject to

a reasonable ability to pay analysis, such analysis in incorrect. Iowa Code creates

two categories of restitution. Albright, 925 N.W.2d at 159. The first category

includes restitution to victims and to the clerk of court for fines, penalties, and

surcharges.    Id.; Iowa Code § 910.2(1)(a).        The second category includes




opportunity to review the discretionary nature of the sentencing.” State v. Wisecup,
No. 09-0469, 2009 WL 3337638, at *2 (Iowa Ct. App. Oct. 7, 2009).
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restitution for crime victim assistance reimbursement, restitution to public

agencies, court costs including correctional fees approved pursuant to section

356.7, court-appointed attorney fees, including the expense of a public defender,

when applicable, contribution to a local anticrime organization, and restitution to

the medical assistance program. See Iowa Code § 910.2(1)(b); Albright, 925

N.W.2d at 150. “The court can only order restitution for items in this second

category to the extent the offender has the reasonable ability to pay.” Id. at 159.

       Upon review of the record, we find that the transcript of the sentencing

proceeding reflects that the court waived the defendant’s obligation to make

restitution for court-appointed attorney fees.4 This is in conflict with the written

order. Additionally, the transcript does not reflect a reasonable-ability-to-pay

determination as to court costs, contrary to the written order. As such, we vacate

the portions of the trial court’s sentencing orders regarding restitution for court-

appointed attorney fees and court costs and remand for the entry of a final

restitution order consistent with Albright and with this opinion.

       IV.    Conclusion

       We reject Zimmerman’s claims of ineffective assistance of counsel and

abuse of discretion with regard to sentencing. We vacate the portions of the




4 We hold that in the case before us, the record unambiguously demonstrates that
the error in question concerning the attorney fees was not the result of judicial
intention but was merely clerical in nature. Where such a clerical error is made in
a written judgment entry following an accurate oral pronouncement of a sentence,
we hold that the proper remedy is for the district court to correct the written
judgment entry by issuing a nunc pro tunc order. State v. Hess, 533 N.W.2d 525,
529 (Iowa 1995). However, as the court costs ordered require an Albright
consideration, a nunc pro tunc order is insufficient on these facts.
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sentencing court’s orders that pertain to restitution, and remand to allow the district

court to calculate restitution in accordance with Albright and this opinion.

       CONVICTIONS        AFFIRMED;       SENTENCES        AFFIRMED       IN   PART,

VACATED IN PART, AND REMANDED.
