                      IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0524
                                Filed July 3, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

EDUARD NICKOLAS LESTER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Adria A.D. Kester,

Judge.



      Eduard Lester appeals his sentences for two counts of robbery and two

counts of burglary.      SENTENCES VACATED IN PART.             REMANDED FOR

RESENTENCING.



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

Lucey and Brenda J. Gohr, Assistant Appellate Defenders, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., May, J., and Carr, S.J.*

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

      Eduard Lester appeals his sentences for two counts of robbery in the

second degree and two counts of burglary in the first degree. See Iowa Code

§§ 711.3, 713.3 (2017). He appeals the provisions of his sentences that impose:

fines for his robbery charges without suspending the fines, consecutive sentences,

court costs and attorney fees, and law enforcement initiative surcharges. We find

the court did not abuse its discretion in imposing the fines or in running his

sentences consecutively. However, the court erred in imposing costs and fees

without evaluating his reasonable ability to pay and in imposing law enforcement

initiative surcharges for his robbery charges without statutory authorization.

Therefore, we vacate his sentences in part and remand for resentencing.

      I.     Background Facts and Proceedings

      On January 16, 2018, Lester pled guilty to four separate counts contained

in FECR055820 and FECR055930. In FECR055820, he pled guilty to committing

burglary in the first degree and robbery in the second degree at an Ames address

on July 24, 2017. In FECR055930, he pled guilty to committing burglary in the first

degree and robbery in the second degree at a Nevada address on July 31, 2017.

The parties entered into a plea agreement as part of the plea. For each burglary

charge, the parties agreed to recommend a term of incarceration not to exceed

twenty-five years plus costs, fees, and restitution. For each robbery charge, the

parties agreed to recommend a term of incarceration not to exceed ten years and

a $1000 fine, suspended, plus costs, fees, and restitution. The parties also agreed

to recommend running the terms of incarceration for each burglary charge

concurrently with each related robbery charge, with the total terms of incarceration
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for FECR055820 and FECR055930 run consecutively. On February 26, the court

entered the sentencing order, which includes the following provisions: terms of

incarceration as described in the plea agreement; a $1000 fine for each robbery

charge, not suspended; “restitution in an amount to be determined at a later time”

for each charge; and “a $125 law enforcement initiative surcharge” for each

charge. Lester appeals.

       II.    Standard of Review

       When a sentence is within the statutory limits, we review the sentence for

abuse of discretion. State v. Seats, 865 N.W.2d 545, 552 (Iowa 2015). “[A] district

court did not abuse its discretion if the evidence supports the sentence.” Id. at

553. When the defendant claims the sentence is outside the statutory limits, we

review the sentence for correction of errors at law. Id.

       III.   Fine for Robbery

       Lester argues the district court erred in imposing, but not suspending, a fine

for each robbery charge. He specifically argues the court erroneously believed it

had no authority to suspend his fines. Our supreme court has not ruled on whether

a trial court has authority to suspend the fine for a forcible felony. If there is no

such authority, his argument must fail. However, regardless of whether the court

had the authority to suspend his fines, the sentencing transcript shows the court

considered and declined to suspend the fine for each robbery charge, on the

merits, without citing any perceived lack of authority. Therefore, we assume the

court had authority to suspend his fines and review imposition of the fines for abuse

of discretion. See id.
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       For robbery under FECR055820, the court said:

       [Lester] will be assessed a fine in the amount of $1000, with a 35%
       surcharge. I have considered your request to suspend the fine and
       the surcharge, however, that will be denied. You are a relatively
       young man. Even though you’re going to prison, I do believe that
       that should be assessed as part of your punishment.

For robbery under FECR055930, the court again imposed a fine and said, “I have

considered your request to suspend the fine and surcharge in this case and I do

not think that’s appropriate.”

       A sentencing court must “state on the record its reason for selecting the

particular sentence.” Iowa R. Crim. P. 2.23(3)(d). “While the rule requires a

statement of reasons on the record, a ‘terse and succinct’ statement may be

sufficient, ‘so long as the brevity of the court’s statement does not prevent review

of the exercise of the trial court’s sentencing discretion.’” State v. Thacker, 862

N.W.2d 402, 408 (Iowa 2015) (quoting State v. Johnson, 445 N.W.2d 337, 343

(Iowa 1989)). The court’s statements at sentencing show the court, even if it had

authority to suspend Lester’s fines, declined to suspend the fines for robbery due

to his age and the seriousness of the offenses. Therefore, assuming the court had

discretion to suspend Lester’s fines for robbery, we find the court did not abuse its

discretion in declining to do so.

       IV.    Consecutive Sentences

       Lester argues the district court abused its discretion by running the

sentences for FECR055820 and FECR055930 consecutively and failing to provide

adequate reasons for doing so. At the sentencing hearing, the court said:

             I do think that a consecutive sentence is appropriate based on
       several factors. One being your criminal history. You are a young
       person but certainly old enough to know better. You were on
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       probation at the time these offenses occurred. I also think that due
       to the nature of the offenses themselves that a consecutive sentence
       is appropriate.
               In determining your sentence, again, I have considered your
       age; your prior criminal record; I’ve considered your employment
       history that’s outlined in the pre-sentence investigation; I’ve
       considered your family history, and your circumstances in
       determining what sentence would be appropriate.             I’ve also
       considered your need for rehabilitation and the need to protect the
       community from further offenses by you.

The written sentencing order also states:

              The Court grants this sentence because it provides for
       Defendant’s rehabilitation and the protection of the community. The
       Court has considered the sentencing recommendation of the parties
       and the circumstances of the case, including the criminal history,
       age, employment, and other circumstances pertaining to Defendant.

Regarding “the sentencing recommendation of the parties,” we note Lester and the

State in the plea agreement jointly recommended running the sentences for

FECR055820 and FECR055930 consecutive with each other.

       We find the district court adequately explained its reasons for running the

sentences for FECR055820 and FECR055930 consecutive with each other, and it

did not abuse its discretion in imposing consecutive sentences. Lester also asks

that we require the sentencing court, in addition adequately stating its reasons, to

elaborate how its selected factors or reasons achieve the legislatively mandated

sentencing goals of rehabilitation and protection of the community under Iowa

Code sections 901.5 and 907.5. We decline to impose such a requirement,

awaiting guidance from our supreme court.

       V.     Restitution

       Lester argues the district court erred by imposing restitution before

evaluating his reasonable ability to pay. In the sentencing order, the court imposed
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restitution and noted the amount of restitution would “be determined at a later

time.” After the parties submitted their briefs to us, our supreme court issued State

v. Albright, 925 N.W.2d 144, 162 (Iowa 2019), which held sentencing courts “must

wait to enter a final order of restitution until all items of restitution are before the

court.” Because the district court did not follow this procedure, we vacate Lester’s

sentences regarding restitution and remand for consideration of his reasonable

ability to pay with all items of restitution before the court.

       VI.    Law Enforcement Initiative Surcharge

       Finally, Lester argues the district court erred in imposing a law enforcement

initiative surcharge for each robbery charge.         The law enforcement initiative

surcharge is authorized for only certain offenses. See Iowa Code § 911.3(1).

While the court properly imposed the surcharge for burglary under chapter 713,

the court had no authority to impose the surcharge for robbery under chapter 711.

See id. The State concedes the error. Therefore, we vacate that part of his

sentence imposing a law enforcement initiative surcharge for his robbery offenses.

       VII.   Conclusion

       We find no abuse of discretion in the district court’s decision to impose, but

not suspend, fines for Lester’s robbery charges and in running his sentences for

FECR055820 and FECR055930 consecutively.                 However, the court erred in

imposing costs and fees without determining his reasonable ability to pay and in

imposing law enforcement initiative surcharges for his robbery charges. Therefore,

we vacate the parts of his sentences regarding costs and fees and the law
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enforcement initiative surcharges for his robbery charges, and we remand for

resentencing.

      SENTENCES VACATED IN PART. REMANDED FOR RESENTENCING.
