                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0998
                               Filed May 15, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TIMOTHY ERIC SMELTSER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Lee (South) County, John M. Wright

and Mary Ann Brown (correctional-fee order), Judges.



      Following a guilty plea, Timothy Smeltser appeals his sentence.

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



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

Lucey, Assistant Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.

           Timothy Smeltser pled guilty to aiding and abetting second-degree burglary,

in violation of Iowa Code sections 713.1, 713.5(1)(b), and 703.1 (2017). The

district court sentenced Smeltser to a prison term not exceeding ten years and

ordered him to pay victim restitution, a law-enforcement surcharge, and a fine,

which was suspended. The court waived reimbursement for attorney fees in light

of the prison sentence. Finally, the court ordered, “Court costs in an amount to be

assessed by the Clerk of Court.”1 In a post-sentencing order, the court required

Smeltser to pay correctional (jail) fees of $1680 but acknowledged Smeltser had a

right to seek a modification of the restitution plan once it was complete. The court

stated his ability to pay would only be considered “when the plan of restitution is

completed.”

           On appeal, Smeltzer argues (1) “the district court erred in ordering [him] to

reimburse the State for court costs and correctional fees without first considering

his reasonable ability to pay such restitution” and (2) “the sentencing court abused

its discretion” in considering facts that were “unsupported by the record.”

I.         Court Costs and Correctional Fees

           The supreme court recently addressed the proper procedure for ordering

restitution and for considering a defendant’s reasonable ability to pay restitution.

See State v. Albright, 925 N.W.2d 144, 158–61 (Iowa 2019). We summarized the

opinion in State v. Northern, No. 18-1634, filed on this date. In short, the court

stated, “Until the court issues the final restitution order, the court is not required to


1    Prior to sentencing, the clerk of court filed a statement estimating court costs at $215.
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consider the offender’s reasonable ability to pay.” Albright, 925 N.W.2d at 160–

61. The court held, “Once the court has all the items of restitution before it, then

and only then shall the court make an assessment as to the offender’s reasonable

ability to pay.” Id. at 162.

         Although Smeltser’s case predated Albright, the post-sentencing “jail-fee

order” correctly recited precedent reaffirmed in Albright.2 At the same time, the

court ordered Smeltser to pay the jail fees. Under Albright, imposition of the fees

must await the filing of a final restitution plan and a determination of Smeltser’s

ability to pay. See id. The same holds true for the court’s imposition of court costs.

See id.       Applying Albright, we vacate the sentencing court’s assessment of

correctional fees and court costs against Smeltser pending completion of a final

restitution order and a subsequent assessment of his reasonable ability to pay.

II.      Consideration of Facts Outside the Record

         Smeltser served as caretaker for his disabled wife. He received public

funds to compensate him for the service. At sentencing, the prosecutor informed

the court that Smeltser’s wife also was convicted of second-degree burglary. In

light of this information, the district court asked Smeltser, “Can you explain to me,

then, why, if your wife is on disability and receives disability payments from the

government, that you and she were burglarizing a home?” Smeltser responded

that he could not, other than to excuse their conduct based on heavy drug use. In

imposing sentence, the court made reference to the involvement of Smeltser’s wife

as follows:



2
    The post-sentencing order was filed before Smeltser appealed.
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              I also, if my questions to you weren’t indicative of my opinion,
       take into consideration that it is really hard to believe that you were
       your wife’s caregiver and that she was disabled at the time the two
       of you committed this offense. It’s a factor I do take into
       consideration as to you aiding and abetting your wife, who was
       supposed to be disabled, burglarizing another home.

       On appeal, Smeltser contends the district court expressed a “belief that [his]

wife was not disabled and [he] was not her caretaker,” a belief that he alleges is

unsupported by the record. To the contrary, the court simply weighed the nature

of the offense—joint breaking and entering into an occupied home—against the

arguably mitigating circumstance of Smeltser’s obligation to care for his disabled

wife. We discern no abuse of discretion in the court’s statements. See State v.

Laffey, 600 N.W.2d 57, 62 (Iowa 1999); see also Iowa Code § 901.5.

       We affirm all portions of the sentencing and post-sentencing orders except

the district court’s imposition of correctional fees and court costs. We vacate those

portions of the orders and remand for receipt of the final restitution plan and

consideration of Smeltser’s reasonable ability to pay.

       SENTENCE       AFFIRMED       IN   PART,    VACATED       IN   PART,      AND

REMANDED.
