                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1735
                            Filed November 12, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAWSON KYLE DAVENPORT,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Tama County, Robert E. Sosalla,

Judge.




      Dawson Davenport appeals from his conviction and sentence for domestic

abuse assault causing bodily injury, third or subsequent offense. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Mary A. Triick, Assistant Attorney

General, for appellee.




      Considered by Doyle, P.J., and Mullins and Bower, JJ.
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DOYLE, Presiding Judge.

       Dawson Davenport appeals his conviction and sentence for the crime of

domestic abuse assault causing bodily injury, third or subsequent offense. He

argues his stipulation to the third-offense sentencing enhancement was

unknowingly and involuntarily made and therefore void. In the event we find he

failed to preserve error on this issue, he asserts the issue by way of an

ineffective-assistance-of-counsel claim.       Davenport also contends the district

court entered an illegal sentence in taxing to him all court costs in the action

rather than only those court costs associated with the one offense for which he

was convicted. We affirm.

       I. Background Facts and Proceedings.

       In April 2013, Davenport was charged by trial information with two counts

of domestic abuse assault, in violation of Iowa Code section 708.2A (2013).

More specifically, count I asserted that the assault was a third or subsequent

offense, in violation of section 708.2A(4), and count II asserted that the assault

was a strangulation with bodily injury, in violation of section 708.2A(4A).1 Prior to

trial, the State amended, with the court’s approval, the count I domestic abuse

assault charge to include bodily injury as an element, and it dismissed count II.

       A jury trial was held thereafter, and Davenport was found guilty of

domestic abuse assault causing bodily injury. The court then addressed the third

or subsequent offense element with Davenport, explaining the State was

asserting Davenport’s 2004 and 2007 domestic-abuse-assault convictions as the

underlying basis for the third or subsequent offense enhancement.             On the

       1
           The Iowa Code Editor has since renumbered section 708.2A(4A) as 708.2A(5).
                                         3


record, Davenport admitted those prior domestic abuse assault convictions, and

the court entered judgment against Davenport as charged in count I of the trial

information.

      After a short break, Davenport’s trial counsel told the court Davenport

wished to proceed with sentencing that day, noting counsel had “advised him of

the rights he gives up in requesting immediate sentencing.”         The court then

conducted the following colloquy with Davenport:

              THE COURT: I need to tell you with respect to that if we
      proceed to sentencing now, there are additional rights that you
      have that you would be giving up. For one thing, you have a right
      to have a presentence investigative report prepared before
      sentencing to be submitted to the judge and the judge would take it
      into consideration in terms of determining the appropriate sentence
      under the circumstances. Also, you have a right to file a motion
      in—for a new trial. If you wanted to challenge any of the aspects of
      the trial that you feel were not conducted fairly or properly, in order
      for you to do that, you would have to file that motion within forty-five
      days of the entry of the verdict, which would be today. But also at
      least five days before the date set for the pronouncement of
      judgment, which would also be now, today, if you want to proceed
      immediately to sentencing. That means it would be impossible for
      you to file that motion on time. So you’re giving up your right to file
      a motion for new trial. Do you understand that?
              (A discussion was held between [Davenport and his
      attorney] at this time.)
              MR. DAVENPORT: I understand, okay.
              THE COURT: You understand that you would be giving that
      right up, Mr. Davenport?
              MR. DAVENPORT: Yes.
              THE COURT: And that’s agreeable with you?
              MR. DAVENPORT: Yes.
              THE COURT: Then you also have a statutory right to delay
      the sentencing if you want to. Do you understand if we proceed to
      sentencing now, you will be giving that right up as well?
              MR. DAVENPORT: Yes.
              THE COURT: This is a decision you’ve made after
      consulting with [your attorney]?
              MR. DAVENPORT: Yes.
              THE COURT: And it’s knowing and voluntary on your part?
              MR. DAVENPORT: Yes.
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              THE COURT: No one has forced you to do this?
              MR. DAVENPORT: Yeah.

The court then sentenced Davenport to an indeterminate sentence of

incarceration not to exceed five years and a $750 fine. The court also assessed

court costs against Davenport.

       The same day, the court entered its written sentencing order containing

the above stated information. It also stated Davenport “waived the . . . right to file

a motion in arrest of judgment . . . .”    It again ordered Davenport to pay “all

applicable surcharges and court costs.”

       Davenport now appeals.

       II. Discussion.

       On appeal, Davenport argues his stipulation to the third-offense

sentencing enhancement was unknowingly and involuntarily made and therefore

void, but should we find the issue was not preserved for our review, he

alternatively asserts the issue can be addressed under the ineffective-

assistance-of-counsel-claim framework.        Davenport also contends the district

court entered an illegal sentence in taxing to him all court costs in the action

rather than only those court costs associated with the one offense for which he

was convicted. We address his arguments in turn.

       A. Third-Offense Sentencing Enhancement.

       Iowa Rule of Criminal Procedure 2.19(9), which governs the trial of

questions involving prior convictions, specifically provides:

             After conviction of the primary or current offense, but prior to
       pronouncement of sentence, if the indictment or information alleges
       one or more prior convictions which by the Code subjects the
       offender to an increased sentence, the offender shall have the
                                        5

      opportunity in open court to affirm or deny that the offender is the
      person previously convicted, or that the offender was not
      represented by counsel and did not waive counsel. If the offender
      denies being the person previously convicted, sentence shall be
      postponed for such time as to permit a trial before a jury on the
      issue of the offender’s identity with the person previously convicted.
      Other objections shall be heard and determined by the court, and
      these other objections shall be asserted prior to trial of the
      substantive offense in the manner presented in rule 2.11. On the
      issue of identity, the court may in its discretion reconvene the jury
      which heard the current offense or dismiss that jury and submit the
      issue to another jury to be later impaneled. If the offender is found
      by the jury to be the person previously convicted, or if the offender
      acknowledged being such person, the offender shall be sentenced
      as prescribed in the Code.

(Emphasis added.) This rule “gives the defendant an opportunity to affirm or

deny the allegations the State is obligated to prove at the second trial.” State v.

Kukowski, 704 N.W.2d 687, 692 (Iowa 2005). If the defendant in open court

“affirms the validity of the prior convictions, then the case proceeds to

sentencing.” Id. But the case will proceed to a second trial if the defendant in

open court “denies ‘being the person previously convicted’ or asserts that the

prior convictions were obtained without counsel and counsel was not waived,

then the case proceeds to the second trial.” Id. (quoting rule 2.19(9)). If the

defendant makes such denials, the rule “requires the State to prove that [the

defendant] was the same individual convicted in the prior proceeding and that he

was represented by counsel at the prior proceeding.” State v. Long, 814 N.W.2d

572, 584 (Iowa 2012).

      In Kukowski, the Iowa Supreme Court was faced with a trial court’s

interpretation of rule 2.19(9) as requiring a defendant to personally admit or deny

his prior convictions. 704 N.W.2d at 690-92. In that case, Kukowski argued his

admission of a prior conviction was flawed because the court failed to engage in
                                           6


a colloquy with him to ensure his admission was voluntarily and knowingly made,

among other things. See id. at 690. In its opinion on the issue, the supreme

court stated:

        An affirmative response by the defendant under the rule, however,
        does not necessarily serve as an admission to support the
        imposition of an enhanced penalty as a multiple offender. The
        court has a duty to conduct a further inquiry, similar to the colloquy
        required under rule 2.8(2), prior to sentencing to ensure that the
        affirmation is voluntary and intelligent.
                ....
                Notwithstanding, even if an abuse of discretion is found,
        reversal is required only when the abuse is prejudicial. An abuse is
        prejudicial when the rights of the defendant have been injuriously
        affected or the defendant has suffered a miscarriage of justice. In
        this case, the only evidence the district court relied on to find
        Kukowski was convicted of driving under the influence in 1995 was
        Kukowski’s admission. If the court had accepted defense counsel’s
        earlier denial of the prior convictions, then there would have been
        no other evidence before the court to support the prior conviction at
        issue. Thus, the error was clearly prejudicial.

Id. at 692-94 (alterations, internal citations, and quotation marks omitted).

        Davenport relies on Kukowski for the proposition that the court was

required to conduct a more detailed colloquy with him, similar to the colloquy

required under rule 2.8(2), to ensure his affirmation was voluntary and

intelligent.2   However, he does not assert any claim of prejudice, unlike

Kukowski. See id. Consequently, even assuming without deciding the trial court

abused its discretion in not conducting a more detailed colloquy as contemplated

in Kukowski, reversal is not required because there has been no showing of

prejudice. See id.



        2
         The State asserts Davenport did not preserve the matter for review. Bypassing
the error preservation concern, we address the issue on its merits. See State v. Taylor,
596 N.W.2d 55, 56 (Iowa 1999).
                                        7


      Here, the minutes of testimony specifically set forth details of Davenport’s

prior felony convictions on which the State intended to rely to support the

enhancement, including case numbers, dispositions, and dates of the

convictions, as well as listing as witnesses the county clerks of court that had

care, custody, and control over the conviction records, and stating certified

copies of the court records and documents would be offered into evidence to

establish Davenport’s prior convictions.    Clearly Davenport had notice of the

convictions on which the State intended to rely, and Davenport has never

claimed he is not the person previously convicted in those convictions, nor has

he asserted he was not represented by counsel and did not waive counsel in

those cases. See Iowa R. Crim. P. 2.19(9). The State was ready and able to

prove-up his prior convictions, and consequently, Davenport has failed to

establish the requisite prejudice to warrant reversal. See State v. McBride, 625

N.W.2d 372, 375 (Iowa Ct. App. 2001) (finding absence of prejudice based on

disclosure in minutes of testimony and defendant’s admission); State v. Vesey,

482 N.W.2d 165, 168 (Iowa Ct. App. 1991) (finding no prejudice where “[t]he

defendant admitted to what the state was ready and able to prove. . . . The State

had the ability to prove all the facts necessary to show the defendant’s habitual

offender status”); see also, e.g., State v. Braden, No. 13-2014,         2015 WL

359454, at *3 (Iowa Ct. App. Jan. 28, 2015) (finding no prejudice where State

was “prepared to offer appropriate testimony proving the prior convictions”); State

v. Doty, No. 14-0249, 2014 WL 5249761, at *3 (Iowa Ct. App. Oct. 15, 2014)

(finding no prejudice); State v. Lipsey, No. 13-1062, 2014 WL 3931434, at *3

(Iowa Ct. App. Aug. 13, 2014) (same); but see State v. Patrick, No. 13-1575,
                                         8


2015 WL 5278911, at *3 (Iowa Ct. App. Sept. 10, 2015) (preserving ineffective-

assistance-of-counsel claim alleging inadequate rule 2.19(9) colloquy for possible

postconviction-relief proceedings); State v. Seals, No. 12-2181, 2013 WL

5951307, at *2 (Iowa Ct. App. Nov. 6, 2013) (same). Accordingly, we affirm on

this issue.

       B. Illegal Sentence.

       Davenport also argues the court entered an illegal sentence when it

required him to pay as restitution court costs in the action without specifying he

was only responsible for the costs associated with count I. We review both

restitution orders and illegal-sentence claims for correction of errors at law. See

State v. Hoeck, 843 N.W.2d 67, 70 (Iowa 2014); State v. Hagen, 840 N.W.2d

140, 144 (Iowa 2013).

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

94, 95 (Iowa Ct. App. 2011).        A defendant is responsible for court costs

associated with the particular charge to which he pleads or is found guilty. Iowa

Code § 910.2. Additionally, Iowa Code section 910.1(4) identifies court costs as

a form of restitution. However, this section only applies to “criminal cases in

which there is a plea of guilty, verdict of guilty, or special verdict upon which a

judgment of conviction is rendered.” Id. § 910.2(1); see also State v. Petrie, 478

N.W.2d 620, 622 (Iowa 1991) (stating “only such fees and costs attributable to

the charge on which a criminal defendant is convicted should be recoverable

under a restitution plan”).

       Here, the State points out that the court’s order did not specifically require

Davenport to pay costs related to the dismissed charge.          Rather, it ordered
                                         9


Davenport to pay all “applicable” court costs, and it directed the Department of

Corrections to determine the appropriate amount of court costs owed by

Davenport pursuant to Iowa Code chapter 910. Iowa Code section 910.3 permits

the court to determine the amount of restitution due at a later time if the full

amount of restitution cannot be determined at the time of sentencing.

       Here, we do not have a final payment plan before us that has assessed

any inappropriate costs to Davenport. Nor do we have an approved restitution

order requiring Davenport to pay any costs related to count II, which was

dismissed by the State. Accordingly, we conclude that at the present time the

court’s restitution order was not contrary to law, and therefore, it was not entered

in error.

       III. Conclusion.

       For the forgoing reasons, we affirm Davenport’s conviction and sentence

for domestic abuse assault causing bodily injury, third or subsequent offense.

       AFFIRMED.
