                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1718
                             Filed January 23, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

RANDALL BROCKSIECK,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.



      Randall Brocksieck appeals the sentence and restitution order imposed

following his guilty plea.   AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.



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

Lucey, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, 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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GREER, Judge.

       Randall Brocksieck appeals the sentence and restitution order imposed

following his guilty plea.1 On our review, we affirm Brocksieck’s sentence, vacate

the restitution order, and remand for entry of a final restitution order.

       I. Background Facts and Proceedings.

       Brocksieck pleaded guilty to one count of failure to stop at the scene of an

accident resulting in death in violation of Iowa Code section 321.261(4) (2016), a

class “D” felony.2    The district court accepted his guilty plea and ordered a

presentence investigation report (PSI).          The PSI included a sentencing

recommendation concluding that, even though Brocksieck was at a low risk to

reoffend according to the Iowa Risk Assessment Revised instrument, incarceration

was appropriate given the circumstances of the case.

       At the sentencing hearing, Brocksieck’s counsel acknowledged receiving

the PSI, noted he saw “no material corrections or changes” to make to the PSI,

and recommended probation. The State recommended a five-year prison term.

       The district court sentenced Brocksieck to a prison term not to exceed five

years. The court imposed a $5000 fine and a thirty-five percent surcharge. The




1 Brocksieck appeals from a guilty plea for a class “D” felony. Because the relevant
judgment and sentence was entered before July 1, 2019, the amended Iowa Code
section 814.6(1)(a)(3) (2019) is not applicable here. See State v. Macke, 933
N.W.2d 226, 228 (Iowa 2019) (“On our review, we hold Iowa Code sections 814.6
and 814.7, as amended, do not apply to a direct appeal from a judgment and
sentence entered before July 1, 2019.”); see also Iowa Code § 814.6(1)(a)(3)
(limiting appeals from guilty pleas for crimes other than class “A” felonies).
2 Brocksieck also pleaded guilty to one count of operating without insurance, a

simple misdemeanor, charged under a separate case number. That plea and the
sentence of a $500 fine are not relevant to this appeal.
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court also ordered Brocksieck to reimburse the State for the cost of court-

appointed counsel. Brocksieck appeals.

       II. Standard of Review.

       We review the district court’s sentence for correction of errors at law. State

v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not disturb a sentence

unless the defendant shows an abuse of discretion or a defect in the sentencing

procedure. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). An abuse of

discretion occurs when the “court acts on grounds clearly untenable or to an extent

clearly unreasonable.” State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). We

review claims of ineffective assistance of counsel de novo. State v. Risdal, 404

N.W.2d 130, 131 (Iowa 1987).

       “We review restitution orders for correction of errors at law.”      State v.

Albright, 925 N.W.2d 144, 158 (Iowa 2019). “[W]e determine whether the court’s

findings lack substantial evidentiary support, or whether the court has not properly

applied the law.” Id. (alteration in original) (quoting State v. Klawonn, 688 N.W.2d

271, 274 (Iowa 2004)).

       III. Analysis.

       Brocksieck raises three claims on appeal: (1) the PSI improperly included a

sentencing recommendation; (2) the district court erred by considering improper

factors when imposing the five-year sentence; and (3) the court erred by ordering

Brocksieck to pay court-appointed trial and appellate attorney fees.

       A. PSI Sentencing Recommendation. First, Brocksieck argues that the

department of correctional services (DCS) sentencing recommendation in the PSI

is a procedural defect that requires resentencing. We disagree. These sentencing
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recommendations are not binding on the court. See State v. Headley, 926 N.W.2d

545, 552 (Iowa 2019). Nor does the court abuse its discretion by considering a

sentencing recommendation. Id. For that reason, it was not a procedural defect

for DCS to include a sentencing recommendation in the PSI.

       B. Sentence. Next Brocksieck contends the sentencing court abused its

discretion in imposing judgment and sentence. Iowa Rule of Criminal Procedure

2.23(3)(d) requires the trial court to state on the record the reasons for a sentence.

“‘[I]f a court in determining a sentence uses any improper consideration,

resentencing of the defendant is required,’ even if it was ‘merely a “secondary

consideration.”’” State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014) (quoting State

v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000)).

       “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.” Formaro, 638 N.W.2d at 724. “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.” Id. at 724–

25.

       At the sentencing hearing, the district court stated the reasons for the

sentence on the record,

       Well, Mr. Brocksieck, I’ve looked at your presentence investigation.
       You were charged and pled guilty to leaving the scene of an accident
       on January 12, 1998. You were fined at that time. You were charged
       with leaving the scene of an accident on July 21, 2001. You received
       12 months supervision and judgment withheld. You were charged
                                           5


       with operating an uninsured motor vehicle on multiple occasions, and
       yet you continue to drive.
               You haven’t really done much with your life. It’s unfortunate.
       You’re 38 years old, and you have a part-time job delivering phone
       books. You live with your mother. You don’t have a GED. . . .
               The problem is that you have—you’re a serial accident maker.
       Leaving the scene of an accident twice before indicates to me that
       you knew what the consequences were going to be on this date, and
       you still left the scene, despite the fact that the victim was, obviously,
       in dire need of aid. I don’t know whether it would have made a
       difference. It’s irrelevant under the statute whether or not it would
       have made a difference. But in this case the impact that you had, as
       you heard from the family, is that they don’t know whether or not it
       would have made a difference. There was somebody that came on
       the scene shortly after you left. But, again, that’s not an excuse that
       it would not have made any difference if you did stop and call an
       ambulance and call law enforcement.
               There is something to be said about facing the consequences
       of your actions. In this case, your actions caused the family of this
       person, even if it was an accident, untold grief because you left that
       person in the middle of the street, subject to further harm if it
       occurred. In this case, it didn’t. But I think—as they stated, they
       could have accepted the fact that this was an accident, but leaving
       somebody out in the middle of the street in dire need of aid is, in my
       opinion, inexcusable. You showed callous disregard for the welfare
       of a human being, and that’s—that’s why this statute’s a felony, as
       opposed to a misdemeanor, because, again, the consequences are
       so great. So based on your criminal record, as well as the facts and
       circumstances of this case, the court does find that a period of
       incarceration is warranted.

       Brocksieck points to several factors referenced by the court. He argues it

was impermissible for the court to consider his part-time job and the fact that he

lived with his mother and to assume that he was a “serial accident maker” with no

proof he was at fault in the prior accidents. Brocksieck also argues the court did

not give sufficient reasons to justify the sentence and fine it imposed.

       1. Brocksieck’s employment status and living situation. Nothing in the

sentencing record suggests the court considered Brocksieck’s job and living

situation as aggravating factors. The district court’s decision to impose a term of
                                          6


incarceration was “based on [Brocksieck’s] criminal record, as well as the facts and

circumstances of this case,” not his living situation or financial status.         As

Brocksieck concedes, these considerations are appropriate to determine his

financial responsibility, whether his employment could aid in his rehabilitation and

ability to restore the victim, and to decide whether a suspended sentence was

appropriate. See Formaro, 638 N.W.2d at 725 (“[B]efore deferring judgment or

suspending sentence, the court must additionally consider the defendant’s . . .

employment status, family circumstances, and any other relevant factors, as well

as which of the sentencing options would satisfy the societal goals of sentencing.”).

We find no abuse of discretion on this claim.

       2. Calling Brocksieck a “serial accident maker.” Brocksieck next argues it

was impermissible for the trial court to call him a “serial accident maker” because

there is no evidence that he caused the accidents that formed the basis of his prior

criminal convictions. The sentencing court may not rely on facts or allegations not

established by the evidence or admitted by the defendant. Witham, 583 N.W.2d

at 678.

       While the district court called Brocksieck a serial accident maker, in its next

sentence the court followed up by noting two prior convictions for leaving the scene

of an accident. Brocksieck does not argue that these convictions are unproven,

only that there is no proof that he was at fault for the accidents underlying the

charges. Despite the use of the term “accident maker,” the court’s concern was

not that Brocksieck caused the accidents but that Brocksieck fled the scene after

being involved in the accidents. We conclude that the district court did not abuse
                                          7


its discretion by considering Brocksieck’s past similar criminal behavior in

rendering its sentence.

       3. Reasons for sentence. Finally, Brocksieck argues the district court did

not give unique reasons for the sentence and fine imposed because leaving the

scene of an accident involving a death is common to everyone convicted of this

offense. Brocksieck’s arguments have no merit. Here, the district court considered

Brocksieck’s criminal history and recounted the facts of the fatal accident

Brocksieck caused by hitting a pedestrian and leaving him in the street severely

injured and subject to the risk of further injury. The court explained,

       [L]eaving somebody out in the middle of the street in dire need of aid
       is, in my opinion, inexcusable. You showed callous disregard for the
       welfare of a human being, and that’s why this statute’s a felony, as
       opposed to a misdemeanor, because, again, the consequences are
       great. So based on [Brocksieck’s] criminal record, as well as the
       facts and circumstances of this case, the Court does find that a
       period of incarceration is warranted.

       Moreover, the district court imposed a sentence within the guidelines for a

class “D” felony.3 Brocksieck has failed to show an abuse of discretion.

       C. Restitution Order. Finally Brocksieck argues the district court erred by

ordering him to pay restitution for his court-appointed trial and appellate attorney

fees because the court failed to consider his reasonable ability to pay when it

imposed the restitution order. The State counters that Brocksieck’s claims are not

ripe for review, were not preserved, and are without merit.




3  “A class ‘D’ felon, not an habitual offender, shall be confined for no more than
five years, and in addition shall be sentenced to a fine of at least seven hundred
fifty dollars but not more than seven thousand five hundred dollars.” Iowa Code
§ 902.9(1)(e).
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       The court may order attorney fees as restitution when the defendant is

reasonably able to pay.        Albright, 925 N.W.2d at 159; see also Iowa Code

§§ 815.9(5), 910.3. The court must set the amount of restitution at the time of

sentencing. Albright, 925 N.W.2d at 160. “If not all of the items of restitution are

available at the time of sentencing, the Code allows the sentencing court to file

temporary, supplemental, and permanent orders prior to the final plan of

restitution.” Id. “This constellation of orders is the plan of restitution.” Id. “Until

the court issues the final restitution order, the court is not required to consider the

offender’s reasonable ability to pay.” Id. at 160–61.

       At sentencing, the court ordered Brocksieck to pay his trial attorney’s fees

and court costs because he was employable upon release from prison. The district

court determined Brocksieck had the reasonable ability to pay court-appointed

attorney fees not to exceed $800 and directed the clerk of court to file notice of the

amount approved. Yet the record does not reflect that the court entered a final

restitution order. So we vacate the portion of the sentencing order discussing

restitution and remand for a final determination of the amount of restitution and

Brockseick’s reasonable ability to pay.4




4
 The corrected sentencing order should not include any language requiring Brocksieck to
affirmatively challenge his ability to pay appellate attorney fees prior to their imposition.
See, e.g., State v. Singleton, No. 18-0397, 2019 WL 1494641, at *3 (Iowa Ct. App. Apr. 3,
2019) (finding the exact language used in Brocksieck’s original sentencing order regarding
appellate attorney fees to be improper).
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       IV. Conclusion.

       For all of the above stated reasons, we affirm in part and vacate in part the

district court’s sentencing order and remand for a final restitution order.

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
