                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0751
                              Filed March 18, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MATTHEW GENE SPAANS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Sioux County, Jeffrey L. Poulson,

Judge.



      Matthew Spaans appeals from his sentence for four counts of child

endangerment. SENTENCE AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.



      Martha J. Lucey, State Appellate Defender, and Mary K. Conroy, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., Doyle, J., and Gamble, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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GAMBLE, Senior Judge.

       Matthew Spaans appeals his sentence following his guilty plea to four

counts of child endangerment.1 Spaans seeks resentencing because he alleges

the State violated the plea agreement and the district court considered improper

sentencing factors. He also argues the district court improperly ordered restitution

without determining his ability to pay. We affirm in part, reverse in part, and

remand.

I. The State’s Sentencing Recommendation

       First, Spaans alleges the State violated the plea agreement when making

its sentencing recommendation.         Spaans failed to object to the State’s

recommendation at sentencing, so he asks us to review his claim within the

ineffective-assistance framework.23 We review ineffective-assistance claims de


1  We recognize Iowa Code section 814.6 was recently amended to prohibit most
appeals from guilty pleas. See 2019 Iowa Acts ch. 140, § 28. In State v. Macke,
however, our supreme court held these amendments “apply only prospectively and
do not apply to cases pending on July 1, 2019.” 933 N.W.2d 226, 235 (Iowa 2019).
Because this appeal was pending on July 1, 2019, the amendments “do not apply”
to this case. See id.
2 In the alternative, Spaans asks us to adopt the plain-error rule to review his claim

on appeal. But our supreme court has repeatedly declined to adopt the plain-error
rule. See, e.g., State v. Martin, 877 N.W.2d 859, 866 (Iowa 2016) (noting the
supreme court has “repeatedly declined ‘to abandon our preservation of error rules
in favor of a discretionary plain error rule’” (citation omitted)). As an intermediate
appellate court, we cannot adopt a doctrine repeatedly rejected by our superior
court.2 See State v. Beck, 845 N.W.2d 56, 64 (Iowa Ct. App. 2014) (“We are not
at liberty to overrule controlling supreme court precedent.”).
3 Iowa Code section 814.7 was recently amended to provide in pertinent part: “An

ineffective assistance of counsel claim in a criminal case shall be determined by
filing an application for postconviction relief” and “shall not be decided on direct
appeal from the criminal proceedings.” See 2019 Iowa Acts ch. 140, § 31. In
Macke, however, our supreme court held the amendment “appl[ies] only
prospectively and do[es] not apply to cases pending on July 1, 2019.” 933 N.W.2d
at 235. Because this appeal was pending on July 1, 2019, the amendments “do
not apply” to this case. See id.
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novo. State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006). Generally, ineffective-

assistance claims are preserved for postconviction relief so the record can be fully

developed. Id. But when the record is adequate, the claim may be resolved on

direct appeal. Id.

       To succeed on an ineffective-assistance claim, a defendant must prove by

a preponderance of the evidence that counsel failed to perform an essential duty

and constitutional prejudice resulted. State v. Walker, 935 N.W.2d 874, 881 (Iowa

2019). “Because the test for ineffective assistance of counsel is a two-pronged

test, a defendant must show both prongs have been met.” Nguyen v. State, 878

N.W.2d 744, 754 (Iowa 2016). If a defendant cannot prove either prong, we need

not address the other. See id.

       The first prong of the ineffective-assistance test requires Spaans to

demonstrate “counsel’s representation fell below an objective standard of

reasonableness.”      State v. Ortiz, 905 N.W.2d 174, 183 (Iowa 2017) (citation

omitted).    We consider whether counsel acted “outside the wide range of

professionally competent assistance.” Id. (citation omitted). We presume counsel

acted reasonably. See id. “[C]ounsel has no duty to raise an issue that lacks

merit . . . .” Id. So we consider if Spaans’s claim has merit. See id.

       Here, the plea agreement provided the State would recommend:

           [Spaans] be placed in the custody of the Director of the Iowa
            Department of Corrections for an indeterminate term of
            incarceration not to exceed two (2) years on each count. Count
            1 and Count 2 run concurrent while Count 3 and Count 4 each
            run consecutive to Counts 1 and 2, for a total indeterminate term
            not to exceed four (4) years; or in the alterative, a jail term to be
            determined by the court;
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          For each count, a $625 fine, 35% statutory surcharge ($218.75),
           and court costs of $100.00. If the court imposes a prison
           sentence the State will recommend all fines be suspended;
          The no contact orders protecting B.N. and P.S. be extended for
           five (5) years. The State would recommend the no contact order
           protecting E.S. be dismissed by the district court.

       When given an opportunity to make a sentencing recommendation at the

sentencing hearing, the prosecutor stated, “The State simply relies on the State’s

sentencing memorandum and request for judicial notice.” The State’s sentencing

memorandum provided:

       The State respectfully recommends that [Spaans] be sentenced to
       an indeterminate term of incarceration not to exceed four (4) years.
       If the court imposes any prison sentence, the State will recommend
       all fines be suspended. If the court declines to enter prison
       sentences, the State will recommend, in the alternative, a jail term to
       be determined by the court, along with a $625 fine, 35% ($218.75)
       statutory surcharge, and court costs of $100.00 be imposed against
       [Spaans] for each count. Finally, the State recommends the no
       contact order protecting B.N. and P.S. be extended for five (5) years,
       while the no contact order protecting E.S. be dismissed by the district
       court.

The sentencing court confirmed it reviewed the State’s sentencing memorandum. 4

The sentencing court sentenced Spaans in accordance with the State’s

recommendation.

       Spaans contends the State violated the plea agreement by not articulating

its recommendation in detail on the record and actively advocating for it at the

sentencing hearing.

       It is clear that the State’s promise to recommend specific sentences
       to the court requires the prosecutor to present the recommended
       sentences with his or her approval, to commend these sentences to
       the court, and to otherwise indicate to the court that the

4 The sentencing court also said it reviewed the transcript of an earlier sentencing
hearing where the prosecutor stated the same sentencing recommendation on the
record.
                                       5


      recommended sentences are supported by the State and worthy of
      the court’s acceptance.

State v. Horness, 600 N.W.2d 294, 299 (Iowa 1999). “The relevant inquiry in

determining whether the prosecutor breached the plea agreement is whether the

prosecutor acted contrary to the common purpose of the plea agreement and the

justified expectations of the defendant and thereby effectively deprived the

defendant of the benefit of the bargain.” State v. Frencher, 873 N.W.2d 281, 284

(Iowa Ct. App. 2015).

      Here, the State’s memorandum explicitly relied upon by the prosecutor at

sentencing comports with the terms of the plea agreement, including references to

lesser alternative sentences that overlapped with Spaans’s own sentencing

recommendation. Further, the memorandum made clear the State endorsed its

sentencing recommendation. This is not an instance of the State acknowledging

an agreed upon sentencing recommendation and then advocating for a harsher

sentence. See State v. Bearse, 748 N.W.2d 211, 216 (Iowa 2008); State v.

Burgess, No. 18-1793, 2020 WL 109579, at *5 (Iowa Ct. App. Jan. 9, 2020) (finding

the State did not breach a plea agreement because “the prosecutor did not

propose alternative sentences, request a more appropriate sentence rather than

the agreed-upon suspended sentence, make a recommendation and then remind

the court it is not bound by the plea agreement, or emphasize the more severe

punishment recommended by the PSI author”). Nor did the State express any

reservation regarding its sentencing recommendation during the sentencing

hearing or within the memorandum.          See Frencher, 873 N.W.2d at 285.

Furthermore, Spaans received the benefit of the State’s recommendation as the
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court sentenced him in accordance with the plea agreement as reflected in the

State’s sentencing recommendation. See Burgess, 2020 WL 109579, at *5 (noting

the defendant received the benefit of the State’s sentencing recommendation).

       Finally, in this instance, we are not troubled that the State made its

recommendation by referencing a sentencing memorandum rather than stating its

recommendation on the record because the court confirmed it was aware of the

memorandum and its contents. Since the court acknowledged it was aware of the

memorandum and its contents, we see no practical difference between an oral

pronouncement of the State’s recommendation and the State directing the court to

the written recommendation of the same.

       We conclude the State did not breach the plea agreement when it made its

sentencing recommendation. Accordingly, we conclude defense counsel was not

ineffective for failing to object to the State’s sentencing recommendation. See

State v. Halverson, 857 N.W.2d 632, 635 (Iowa 2015) (“Counsel, of course, does

not provide ineffective assistance if the underlying claim is meritless.”).

II. Sentencing Factors

       Next, Spaans contends the court considered improper factors at

sentencing. Spaans points to the court’s statement that “[t]he allegations are

ongoing in their nature and involved multiple children and multiple offenses over a

period of time.” He argues the court’s use of “allegations” as opposed to “offenses”

demonstrates the court relied on allegations of other offenses contained in the

minutes of testimony.

       “[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).
                                          7


       “The sentencing court should only consider those facts contained in
       the minutes that are admitted to or otherwise established as true.”
       Where portions of the minutes are not necessary to establish a
       factual basis for a plea, they are deemed denied by the defendant
       and are otherwise unproved and a sentencing court cannot consider
       or rely on them.

State v. Gonzalez, 582 N.W.2d 515, 517 (Iowa 1998) (internal citation omitted).

       In this case, we view Spaans’s complaint that the court used the word

“allegations” rather than “offenses” as a distinction without a difference. Spaans

complains the court referenced “allegations” that were “ongoing in their nature.”

But Spaans’s motion to plead guilty to each of four counts of the amended trial

information permitted the court to consider the minutes of testimony to establish a

factual basis “that in Sioux County, on or about the date alleged in the [t]rial

[i]nformation, [Spaans] did the following: [a]s a parent, guardian, or person having

custody or control over a child under the age of 14, [Spaans] did knowingly act in

a manner that created a substantial risk to a child’s physical, mental, or emotional

health or safety.” (Emphasis added.)

       The trial information for all four counts provided a range of time the offenses

occurred. So Spaans admitted that each admitted offense occurred over time—

that they were ongoing.      With respect to the remainder of the “allegations”

referenced by the sentencing court—that multiple children were involved, multiple

offenses occurred, and the offenses occurred over a period time—we note each

of the four different children were associated with each of the four different counts.

Spaans pleaded guilty to multiple counts of child endangerment involving multiple

children, and the date ranges relating to each count varied. These “allegations”

do not relate to some other unproven allegations found in the minutes of testimony;
                                           8


rather theses “allegations” are facts associated with the four counts of child

endangerment to which Spaans pleaded guilty.

       Accordingly, we conclude the court did not rely on improper factors at

sentencing.

III. Restitution

       Finally, Spaans claims the court erred in ordering him to pay restitution in

the form of court costs without making an ability-to-pay determination. “We review

the district court’s restitution order for correction of errors at law. State v. Roache,

920 N.W.2d 93, 99 (Iowa 2018).           “When reviewing a restitution order, ‘we

determine whether the court’s findings lack substantial evidentiary support, or

whether the court has not properly applied the law.’” State v. Klawonn, 688 N.W.2d

271, 274 (Iowa 2004) (citation omitted).

       There are two categories of restitution. State v. Albright, 925 N.W.2d 144,

159 (Iowa 2019). The district court orders category-one restitution without regard

to a defendant’s ability to pay. See id. But the district court must determine a

defendant’s ability to pay any form of category-two restitution before ordering a

defendant to pay category-two restitution. See id. Court costs are a form of

category-two restitution requiring the district court to make an ability-to-pay

determination before ordering a defendant to pay this form of restitution. Iowa

Code § 910.2(1)(a)(3); Albright, 925 N.W.2d at 159.
                                        9


      With respect to Spaans’s ability to pay category two restitution, the

sentencing order form appeared as follows:




      We might speculate that the court found Spaans had the reasonable ability

to pay court costs because the court did not check the applicable box indicating

Spaans did not have the reasonable ability to pay. However, it is more reasonable

to conclude that by failing to check either applicable box, the court failed to

determine whether Spaans either had the reasonable ability to pay court costs or

did not have the reasonable ability to pay court costs. Based upon our review of

the entire record, we conclude the court failed to make a reasonable ability to pay
                                          10


determination concerning court costs.5 Further, we note the clerk had not yet

certified the amount of court costs so a reasonable-ability-to-pay determination

was not possible at sentencing. Cf. Albright, 925 N.W.2d at 162 (holding the district

court’s ability-to-pay determination to be premature “without having the amount of

each item of restitution before it”).

       We conclude the court erred in ordering payment of court costs absent a

final amount and an ability-to-pay determination. See, e.g., State v. Tournier, No.

17-1697, 2019 WL 1868199, at *1 (Iowa Apr. 26, 2019) (per curiam) (vacating the

restitution portion of the defendant’s sentence when the district court imposed

category two restitution in an amount to be determined and did not make an ability-

to-pay determination); State v. Andrade Zepeda, No. 19-0907, 2020 WL 564821,

at *1 (Iowa Ct. App. Feb. 20, 2020) (reversing and remanding a sentencing order

requiring the defendant to pay court costs without a providing a definitive amount

and an ability-to-pay determination); State v. Leonard, No. 17-1994, 2020 WL

564652, at *1 (Iowa Ct. App. Feb. 5, 2020) (vacating restitution portion of the

sentencing order then restitution was ordered without determination of the amount

or the defendant’s ability to pay); State v. Nagel, No. 18-2079, 2020 WL 376555,

at *1 (Iowa Ct. App. Jan. 23, 2020) (vacating restitution portion of sentencing order

that failed to provide an amount of restitution or the defendant’s ability to pay).

       Therefore, we vacate the court’s imposition of indeterminate court costs and

remand to the district court for receipt of the clerk’s certification of court costs and



5This conclusion is supported by the court’s statement at sentencing announcing
Spaans “does not have a reasonable ability to pay court-appointed attorney’s fees
or correction fees.” The court was silent as to Spaans’s ability to pay court costs.
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entry of a final restitution order providing the amount of court costs due and

determination of Spaans’s ability to pay the same.     The remainder of the

sentencing order is affirmed.

      SENTENCE       AFFIRMED     IN   PART,   VACATED      IN   PART,   AND

REMANDED.
