                    IN THE COURT OF APPEALS OF IOWA

                                     No. 14-1496
                                 Filed June 24, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSHUA ALLEN BENEDICT,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Floyd County, Peter B. Newell,

District Associate Judge.



      A defendant appeals the sentence imposed following his guilty plea.

RESTITUTION ORDER VACATED IN PART, REMAINDER OF SENTENCING

ORDER AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, Normand Klemesrud, County Attorney, and Todd Prichard, Assistant

County Attorney, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, J.

       Joshua Benedict appeals his sentence following his guilty plea to willful

injury, in violation of Iowa Code Section 708.4(2) (2013). He asserts the district

court improperly considered the effect of parole on his sentence.              He also

contends the district court erred in imposing restitution for a broken door and a

damaged cell phone because there was no evidence that those damages were

the result of his actions. We vacate the portion of the sentencing order requiring

restitution for the door’s damages. We affirm the sentence in all other respects.

I.     Sentencing Factors

       Benedict asserts that the district court improperly considered the effect of

parole on his sentence. The district court held Benedict’s sentencing hearing on

September 2, 2014. At the hearing, Benedict told the court his mother was ill,

asked the court for mercy, and stated his belief that five years was too much

prison time. Afterwards, the court gave its reasons for the sentence. The court

stated Benedict committed the offense while on probation, it was a serious crime,

a crime of violence, and the presentence investigation report indicated that

Benedict was at a high risk of reoffend. After informing Benedict of the ruling, the

court stated:

       Now, Mr. Benedict, a five-year prison term does not mean that you
       will serve five years. You will serve substantially less than that.
       Again, you will get credit for all the time that you spent in jail on this
       offense. I don’t anticipate that you are going to prison all that long.

       Our standard of review for a sentencing decision is for an abuse of

discretion. State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). A sentencing

decision is “cloaked with a strong presumption in its favor, and will only be
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overturned for an abuse of discretion or the consideration of inappropriate

matters.” Id. at 724. Because the reviewing court “will not draw an inference of

improper sentencing considerations which are not apparent from the record,” our

analysis is limited to the record. Id. 725.

       Considering the effect of parole on time served is an impermissible factor

in sentencing.    State v. Remmers, 259 N.W.2d 779, 785 (Iowa 1977).            In

Remmers, the court improperly attempted to circumvent the work of the parole

board by making the sentence longer in order to compensate for the likelihood of

early release through parole. Id. at 785. However, in State v. Vanover, the court

engaged in a conversation about how many years the defendant would likely

serve in prison with a ten-year sentence. State v. Vanover, 559 N.W.2d 618, 635

(Iowa 1997). There, our supreme court ruled that the district court committed no

error by merely explaining the application of the mandatory minimum to the

sentence it imposed. Id. at 635. That court gave several coherent reasons for

the sentence given before any mention of the effect of parole on time served,

which was cited as further proof of consideration of appropriate factors. Id.

       The record in this case fails to affirmatively show that the district court

improperly considered the effect of parole in sentencing. The court’s statements

regarding how much time Benedict would actually serve were likely prompted by

Benedict’s earlier comments about the length of his sentence.          The court’s

comments served as an explanation of how parole works, placating Benedict with

the reality that he would likely not serve a full five years. Like in Vanover, the

district court here referred to the effect parole would likely have on the time
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defendant actually served. See id.; see also Iowa Code § 901.5(9) (requiring the

court to publicly announce the term of incarceration may be reduced for earned

time and credits, and defendant may be eligible for parole before sentence is

discharged). There is no evidence in the record to suggest the district court was

attempting to circumvent the parole system by sentencing Benedict to a longer

sentence to compensate for the effect of parole. We find the district court did not

improperly consider the effect of parole in sentencing Benedict.

II.    Restitution

       Next, Benedict claims that there is no causal connection between certain

restitution losses and his admitted actions constituting willful injury. The court

ordered restitution for a total amount of $985: $130 to the assault victim for lost

wages, $145 to the assault victim to fix her broken phone screen, and $710 to

the assault victim’s landlord to fix the door. Benedict disputes the charges for the

victim’s phone and the door. He claims because he did not admit to the facts

regarding breaking the victim’s phone screen and kicking down her door in the

guilty plea colloquy, he is not liable for restitution for those damages. Benedict

also claims restitution charges cannot be imposed on the basis of facts contained

within the minutes of testimony only.

       Restitution is required in all criminal cases where the defendant pleads

guilty. Iowa Code § 910.1(3). The purpose of restitution is to compensate the

victim for the injury. Iowa requires “a causal connection between the conduct for

which the defendant is convicted and the damages the victim suffers.” State v.

Starkey, 437 N.W.2d 573, 547 (Iowa 1989).
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         When reviewing a restitution order, we determine whether the district

court’s findings lack substantial evidentiary support, or whether the district 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. Restitution damages are to be determined

in the same manner as a civil case and will be affirmed if “within a reasonable

range of the evidence.” State v. Watts, 587 N.W.2d 750, 751-52 (Iowa 1998).

         Evidentiary support for the factual basis of a guilty plea can come from the

minutes of testimony.       State v. Finney, 834 N.W.2d 46, 62 (Iowa 2013).

However, State v. Black prohibits the district court from using the minutes of

testimony to establish facts beyond those needed to establish a factual basis for

the charge to which the defendant is pleading guilty. 324 N.W.2d 313, 316 (Iowa

1982). “Where portions of the minutes are not necessary to establish a factual

basis for the guilty plea, they are denied by the defendant, and they are

otherwise unproved, we find no basis to allow the sentencing court to consider

and rely on these portions.” Id.

         If the minutes of testimony include facts to support an element of the crime

to which a defendant is pleading guilty, and the defendant admits to those facts

by entering his guilty plea, the court can look to the minutes of testimony to cure

factual omissions. But the court cannot comb through the minutes of testimony

for facts that support charges other than the charge to which the defendant is

pleading guilty unless the defendant admits to facts that are not elements of the

crime to which he is pleading guilty. In this case, Benedict pled guilty to willful
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injury, in violation of Iowa Code section 708.4(2).         The district court was

permitted to look to the minutes of testimony, insofar as needed to establish the

elements of willful injury. The elements of willful injury include: (1) committing an

act which is not justified, (2) with the intent to cause serious injury, and (3)

causing bodily injury.

       The State argues that the following conversation allows the court to rely

on the minutes of testimony as a factual basis for the door and cell phone

damages.

              Court: Do you want to plead guilty to that Willful Injury?
              Benedict: Yes.
              Court: And you’re doing that because you believe that the
       State could prove that charge against you?
              Benedict: Yes.
              Court: Yes? Okay. And you want to take advantage of this
       plea agreement and have another Class “D” Felony dismissed
       against you, is that correct?
              Benedict: Yes.
              Court: Okay. And can the Court rely on the Minutes of
       Testimony for a factual basis, Mr. Prichard?
              Mr. Prichard: Yes, Your Honor?
              Court: And can the Court rely on that for a factual basis, Mr.
       Kuehner?
              Mr. Kuehner: Yes, Your Honor.

       Benedict’s written guilty plea filed July 10, 2014, contains the following

statement: “The Court may rely on the Minutes of Testimony attached to the trial

information as a further factual basis for this plea.” The State claims that this

statement is an admission of the facts contained in the minutes of testimony.

The problem with the State’s argument is that in both the court’s colloquy and the

written guilty plea, Benedict’s responses relating to the minutes of testimony are

in reference to establishing the factual basis for the guilty plea, not admitting to
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all contents of the minutes. Benedict cannot, however, limit the use of those

facts to only the guilty plea; those facts admitted in the guilty plea and

appropriately considered from the minutes may then be used in considering

restitution.

       Within the minutes of testimony, the landlord stated the victim told him the

door was kicked in on Friday, April 25, 2014, the day of the assault, but it is not

clear that the door was damaged during the assault. Officer Shirley also stated

the victim told him the door was kicked in on Friday, April 25, 2014. The minutes

of testimony are unclear as to when and how the victim’s phone was damaged.

Officer Dugan stated the victim told him the phone was damaged on Sunday,

April 27, when Benedict took the phone and threw it during the victim’s attempts

to call 911. Officer Shirley also stated the phone was damaged on Sunday when

Benedict threw it. However, Officer Cram stated the victim told him the phone

was damaged as the victim attempted to call 911 on Friday, April 25. Within the

guilty plea colloquy, Benedict did not admit to any facts regarding damages to the

door or the cell phone.

       Benedict’s plea of guilty to the assault and the minutes in reference to the

assault are properly considered in determining any restitution owed as a result of

the assault.    The district court could have reasonably inferred the victim’s

personal cell phone was in her possession and was damaged during the assault

on April 25. Accordingly, we affirm the district court’s order of restitution for $145

for repairing the assault victim’s cell phone.
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       Although the evidence within the minutes of testimony could also support

a finding that the door was damaged on April 25 during events leading up to the

assault, there is no evidence that supports a finding that it was damaged during

the assault. Because there is no causal connection between the specific crime to

which Benedict pled guilty and the door damage, the district court’s restitution

order with respect to the door damage lacks substantial evidence. We vacate

that portion of the sentencing order requiring restitution in the amount of $710 for

fixing the door.

       RESTITUTION       ORDER     VACATED       IN   PART,     REMAINDER       OF

SENTENCING ORDER AFFIRMED.
