                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1187
                               Filed August 1, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DANIEL HAYWOOD,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer,

Judge.



       Daniel Haywood appeals from the sentence imposing court costs related to

dismissed charges. AFFIRMED.



       Leah Patton, Walcott, until withdrawal, and then Michael K. Williams,

Hinton, for appellant.

       Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



       Considered by Danilson, C.J., McDonald, J., and Mahan, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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DANILSON, Chief Judge.

      Daniel Haywood entered a guilty plea to three of five counts of forgery, in

violation of Iowa Code section 715A.2(2)(A) (2017); the remaining two counts were

dismissed. He challenges as illegal the sentence imposing court costs related to

the dismissed charges.

      The State recited the plea agreement as follows:

              [PROSECUTOR] MS. WAGNER: . . . It’s my understanding
      that he’s supposed to plead to Counts V, VI, and VII forgeries, to
      have five years imposed, but that the counts run concurrent to each
      other and concurrent to parole. The note from Ms. Sullivan did state
      that she wanted him to plead to three of the five counts, and I do see
      seven. I don’t know if two were previously discussed or dismissed
      prior to the court date.
              THE COURT: There have not been any counts dismissed.
      Some of the counts in the trial information pertain to the other
      defendants.
              MS. WAGNER: . . . [Y]es, that is my understanding, then, to
      Counts V, VI, and VII, with the $750 suspended fine, a five-year
      prison term, and that the counts run concurrent to each other and
      concurrent to the parole, and to pay any victim restitution.
              THE COURT: And is the restitution for the dismissed counts
      as well?
              MS. WAGNER: That is, Your Honor.
              THE COURT: And Mr. Haywood, is that your understanding
      of the terms of the plea agreement?
              THE DEFENDANT: Yes.

      The district court accepted the pleas, adjudged Haywood guilty of three

counts of forgery, and imposed the following sentences:

              Pursuant to Iowa Code Sections 901.5, 902.9, and
      715A.2(2)(a), you are sentenced for each count to serve a term of
      not to exceed five years in prison. For each count you are fined $750
      plus 35 percent surcharge. For each count you are assessed a $125
      law enforcement initiative surcharge. The $750 fine plus 35 percent
      surcharge for each count is suspended. The terms of incarceration
      are not.
              In addition to these amounts, you’re ordered to pay victim
      restitution for these counts and the other counts that were dismissed,
      pursuant to the plea agreement. You’re ordered to pay restitution for
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       court costs, and we’ll address court-appointed attorney fees in a
       moment. These sentences are concurrent with each other and
       concurrent with your parole cases SRCR185637, FECR122081, and
       FECR106243.
               ....
               THE COURT: Do you know how much restitution will be
       required for your [attorney] services?
               [DEFENSE COUNSEL]: I don’t think it will be a whole lot, Your
       Honor. I guess we would ask the court to make a finding that Mr.
       Haywood’s not able to pay those, given the fact that he is going to
       be incarcerated and will owe, I think, roughly $4,000 in restitution as
       well.
               THE COURT: All right. I will make that finding as requested
       by defense counsel for that reason. I think that victim restitution
       would have a priority, and Mr. Haywood likely has other amounts that
       are still owed in his other cases as well.

(Emphasis added.) The court dismissed the two additional counts.

       Haywood appeals, claiming the order that he pay court costs constitutes an

illegal sentence.

       “[W]e review a defendant’s sentence for the correction of errors at law.”

State v. Valin, 724 N.W.2d 440, 444 (Iowa 2006).

       “Criminal restitution is a creature of statute.” State v. Watson, 795 N.W.2d

94, 95 (Iowa Ct. App. 2011). Iowa Code section 910.2(1) requires the sentencing

court to order a defendant who pleads guilty to make restitution. Restitution

includes payment of court costs. See Iowa Code § 910.1(4). However, our

supreme court has held a defendant cannot be held liable for court costs on

dismissed charges unless, as part of the plea agreement, the defendant has

agreed to pay them. See State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991). In

Petrie, the court noted that “where the plea agreement is silent regarding the

payment of fees and costs, . . . only such fees and costs attributable to the charge
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on which a criminal defendant is convicted should be recoverable under a

restitution plan.” Id. (emphasis added).

       Haywood contends that “[a]lthough the plea agreement specifically called

for [Haywood] to pay restitution on all counts, including the counts that were

dismissed, the plea agreement was noticeably silent on who would pay for the

court costs on the dismissed counts.”          As noted above, restitution includes

payment of court costs. The plea agreement was not silent in this case. While the

district court specified certain fines and surcharges were suspended, the plea

agreement specifically provided for Haywood to pay restitution for the dismissed

counts. See Petrie, 478 N.W.2d at 622 (“[N]othing in this opinion prevents the

parties to a plea agreement from making a provision covering the payment of costs

and fees.”). If court costs on the dismissed counts were not intended to be part of

“restitution” under the terms of the plea agreement, the district court should have

been so informed.

       Even assuming the plea agreement did not include payment of all court

costs, Haywood fails to demonstrate he was assessed any costs not attributable

to his convictions. See State v. Johnson, 887 N.W.2d 178, 182 (Iowa Ct. App.

2016) (“In this illegal sentence claim, it is up to [the defendant] to establish an over-

assessment of court costs.”). This case is unlike Petrie in which attorney fees and

court costs for the suppression hearing were clearly attributable to the dismissed

drug counts and not the driving-while-barred count to which the defendant pled

guilty. See Petrie, 478 N.W.2d at 621-22. Haywood pled guilty to three of five

fraud charges. And the case is not like Johnson, where the plea agreement

specified court costs would be assessed for only the two counts to which the
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defendant pled guilty. 887 N.W.2d at 182. Haywood does not prove that any of

these fees would have been different if the State had not charged him with the two

dismissed fraud charges.1 See id. Finding no legal error, we affirm.

       AFFIRMED.

       Mahan, S.J., concurs; McDonald, J., concurs specially.




1
  Haywood may challenge the plan of restitution pursuant to Iowa Code section 910.7,
which allows an offender to challenge restitution “at any time during probation, parole, or
incarceration.”
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MCDONALD, Judge (concurring specially)

       I respectfully concur in the judgment.         I disagree with the majority’s

conclusion the parties’ plea agreement encompassed the assessment of court

costs related to dismissed counts in the trial information. The plea agreement

related only to “victim restitution” for dismissed counts and not “restitution,”

including court costs, generally. Regardless, I agree the defendant’s sentence is

not illegal.   The defendant failed to prove he was assessed any costs not

attributable to his convictions. See State v. Johnson, 887 N.W.2d 178, 182 (Iowa

Ct. App. 2016). Also, the relevant sentencing statute does not prohibit the district

court from ordering the defendant to pay court costs associated with dismissed

counts in a multi-count trial information, although I acknowledge there is precedent

to the contrary. Compare State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991)

(prohibiting the assessment of costs associated with dismissed charges in a

multicount trial information unless the plea agreement so provides), with State v.

Ruth, No. 17-0270, 2017 WL 4317329, at *1 (Iowa Ct. App. Sept. 27, 2017) (“The

legal justification for the rule has been called into doubt.”), and State v. Smith, No.

15-2194, 2017 WL 108309, at *4–5 (Iowa Ct. App. Jan. 11, 2017) (noting the

relevant statutes allow the assessment of costs for dismissed charges in a multi-

count trial information, noting Petrie is internally inconsistent, and noting the rule

provides little benefit to the criminal defendant).
