                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0589
                            Filed December 9, 2015


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

THOMAS EDWARD JENKINS SR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Stuart P. Werling

(plea) and Marlita A. Greve (sentencing), Judges.



      Thomas Jenkins Sr. appeals from his sentence following his guilty plea to

two counts of second-degree sexual abuse. SENTENCE VACATED AND CASE

REMANDED FOR RESENTENCING.




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

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik and Louis Sloven,

Assistant Attorneys General, for appellee.




      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

      Thomas Jenkins Sr. appeals from his sentence following his guilty plea to

two counts of second-degree sexual abuse. He contends the sentencing court

considered impermissible factors in ordering the count 1 and count 2 sentences

to be served consecutively rather than concurrently.        He also asserts the

sentence entered was illegal because the court taxed to him “the costs of the

entire action, rather than only the costs associated with the convicted counts.”

We vacate the sentence and remand for resentencing before a different judge.

      I. Background Facts and Proceedings.

      Jenkins was charged by trial information in 2014 with three criminal counts

of second-degree sexual abuse, asserting he committed three separate sex acts

against a child under the age of twelve, in violation of Iowa Code section 709.3(2)

(2011).1 In 2015, Jenkins pled guilty pursuant to a plea agreement. The State

agreed to dismiss count 3 in exchange for Jenkins’s guilty plea to counts 1 and 2.

The plea was “open as to whether the sentences [would] run consecutively or

concurrently.”   As part of the agreement, Jenkins admitted “the incidents

underlying these pleas are separate and distinct acts.”

      At the subsequent sentencing hearing, the State recommended the court

order Jenkins to serve his sentences consecutively. The prosecutor stated:

             Looking through his previous history, he has been on
      probation before and his probations were revoked for non-
      compliance. He has an indecent contact with a child from April of
      2013. Subsequent to that, he had a sex offender registry violation
      in July of 2014. And it was during the pendency of the previous


      1
        Section 709.3 was renumbered in 2013, and the “under the age of twelve”
element is now found at section 709.3(1)(b). See 2013 Iowa Acts ch. 90, § 228.
                                         3


      indecent contact with a child that it would appear that this current
      case occurred in which he sexually abused an eight-year-old girl.
             And in looking at the presentence investigation [(PSI)],
      there’s almost an air of nonchalance about his rendition or speaking
      about what had occurred. It’s almost unimportant. The—It appears
      from his statements and his prior record that he’s likely to offend
      again if and when released.

In response, Jenkins’s attorney requested the court order his sentences be

served concurrently, stating, among other things:

      I will certainly not try to minimize at all the seriousness of . . . this
      offense because it is an extremely serious offense and I agree with
      [the prosecutor] in that regard. I do believe that this is a twenty-
      four-year-old man who aside from the indecent contact in this
      offense had very little criminal record. That does not excuse this
      offense.
              To [Jenkins’s] credit, he has not attempted to minimize that
      offense. He was up front with the police when he was interviewed.
      He did not try to disguise the offense. He, in his interview,
      described his—his interaction with the police that were interviewing
      him as cathartic, that it had been weighing on him for some time.
      He realizes that he has a problem and he needs to deal with that
      problem.
              He should be punished and he should be punished severely
      for this offense. And I would probably agree with [the prosecutor],
      except for the mandatory minimum sentences, no matter what this
      court does, Mr. Jenkins will be in prison for seventeen and a half
      years. I believe that does give him a chance at rehabilitation and
      still does inflict a punishment or at least the punishment that should
      be inflicted for these offenses.
              Because of those mandatory minimums, I would ask the
      court to run these sentences concurrently to give Mr. Jenkins a
      chance to perhaps rehabilitate. Even if he is released at the end of
      those sentences, he’s going to be subject to lifetime parole and all
      the other restrictions of a sex offender and it will give him a chance
      to rehabilitate and go through the sex offender treatment program,
      which as I understand it he’s scheduled to start very shortly as he is
      in Mount Pleasant at the present time. So for those reasons, I’d
      ask the court to consider running these sentences concurrently.

Thereafter, the parties’ counsels clarified for the court that Jenkins’s plea was to

touching one child, not two, in two separate acts.            In ordering Jenkins’s

sentences be served consecutively, the court explained:
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         Well, my job is to look at these cases and determine an
appropriate sentence. I am bound by what the law requires that I
do in certain cases. I look at the least restrictive going to the worst.
         Mr. Jenkins, the two crimes that you pled guilty to are what
are called forcible felonies and have mandatory prison time
required as well as a minimum sentence under 902.12, which
provides that you have to serve at least 70 percent of the maximum
time. You have pled guilty to two separate class “B” felonies. A
class “B” felony means that you can be put into prison for a period
not to exceed twenty-five years. So that does mean that you have
to serve seventeen-and-a-half years before you would have served
your 70 percent.
         That is not discretionary on my part. And frankly even if it
were, that would be the same sentence that I would give you for
these types of acts which were simply horrendous. You have
basically hurt, and I say that in a very plain way, you hurt a child in
a sexual manner, and that child in seventeen and a half years is not
going to be over that hurt. That child will not be over that hurt in
thirty-five years or one hundred and thirty-five years. This is the
type of thing that people never get over.
         I can tell you about having jury trials of these types of cases
where we individually interview potential jurors to see if they can
even hear this kind of a case, and on several different occasions, I
have had potential jurors break down and be almost hysterical
because it’s the first time they’ve had to admit to someone that this
type of thing happened to them as a child. And there—it never
goes away. Never.
         To your credit, you pled guilty. You are not making this little
girl go through a trial. But by the same token, I’m very concerned
because these types of acts are so horrendous and leave such a
lifetime of hurt for a child that they certainly deserve to be punished.
There is a need for us to have the community understand that this
type of behavior will be punished. There is a need for you to be
punished because of it and to receive whatever treatment you can.
And I think that the community needs to be protected from your
acts for as long as is possible.
         Because we have two separate and distinct acts, each of
those acts, in my mind, deserves a sentence. And I’m going to run
them consecutive for that reason. This is not a one-time thing.
This happened on two separate distinct times. If you had any
remorse or if you had any willingness to stop, it would have only
happened once, and it did not. So this little girl is going to suffer for
the rest of her life based on the acts that you committed.
         I can tell you . . . I was shocked when I read your rendition of
the version in the PSI. I have never seen something put in such
blunt and vulgar terms as what you put in there. In my mind, these
                                          5


         charges, as [the prosecutor] said, if they don’t deserve consecutive,
         I don’t know what would.
                 Taking into account what I read in the [PSI], the nature of
         this—these crimes, the fact that you have a criminal history which
         includes indecent contact with a child, that probation has been
         revoked because you, obviously, did not even register correctly or
         didn’t register when you were supposed to as a sex offender, all of
         those things are going into account as well as what I just stated as
         far as my reasons for sentencing.
                 Pursuant to your pleas of guilty to the charges of sex abuse
         in the second degree, in violation of Iowa Code section 709.3(1)(b)
         under Counts 1 and 2, and as provided by sections 902.3 and
         902.9 of the Iowa Code, it is the judgment and sentence of this
         court that you be committed to the custody of the Iowa Department
         of Corrections for a period not to exceed twenty-five years on each
         of these counts. I am running them consecutive for the reasons I
         stated on the record.

         The same day the court filed its written order sentencing Jenkins to two

consecutive terms of incarceration not to exceed twenty-five years on each

count.     The court ordered Jenkins “to make restitution for court costs and

surcharges, if any.” Thereafter, Jenkins was assessed court costs of $180: $100

for the case filing and docketing fee, $40 court reporter fee for the February 13,

2015, guilty-plea proceeding, and $40 court reporter fee for the April 2, 2015,

sentencing hearing.

         Jenkins now appeals.      He contends the sentencing court abused its

discretion because it considered information outside the case record and relied

on an erroneous belief that the acts happened “two separate distinct times.” He

also asserts the sentence entered was illegal because it taxed to him “the costs

of the entire action, rather than only the costs associated with the convicted

counts.”
                                        6


       II. Discussion.

       A. Improper Considerations.

       Jenkins asserts the court’s statement that this “happened on two separate

distinct times” is erroneous and therefore an impermissible factor, because its

use of the word “times” indicates the court believed the crimes to which he pled

guilty were “committed at temporally separate and distinct times—that is, that

[Jenkins] abused the child on more than one occasion.”

       “The law is clear regarding consideration of impermissible sentencing

factors.   We will not vacate a sentence on appeal unless the defendant

demonstrates an abuse of trial court discretion or a defect in the sentencing

procedure such as the trial court’s consideration of impermissible factors.” State

v. Lovell, 857 N.W.2d 241, 242-43 (Iowa 2014) (citation and internal quotation

marks omitted).   “In exercising its discretion, the district court is to weigh all

pertinent matters in determining a proper sentence including the nature of the

offense, the attending circumstances, the defendant’s age, character, and

propensities or chances for reform.” State v. Loyd, 530 N.W.2d 708, 713 (Iowa

1995) (citation and internal quotation marks omitted); see also Iowa Code

§ 907.5(1).

       It is also well-established that, in exercising its discretion, a sentencing

court may not rely upon additional, unproven, and unprosecuted charges or facts

“unless the defendant admits to the charges or there are facts presented to show

the defendant committed the offenses.” State v. Washington, 832 N.W.2d 650,

659 (Iowa 2013) (citation and internal quotation marks omitted); see also State v.

Jose, 636 N.W.2d 38, 41 (Iowa 2001).         When a defendant challenges the
                                        7


sentence on this basis, “the issue presented is simply one of the sufficiency of

the record to establish the matters relied on.” State v. Grandberry, 619 N.W.2d

399, 401 (Iowa 2000).     The sentencing court can consider only those facts

contained in the minutes of testimony “that are admitted to or otherwise

established as true.” Lovell, 857 N.W.2d at 243. Similarly, the “district court is

free to consider portions of a [PSI] that are not challenged by the defendant.”

Grandberry, 619 N.W.2d at 402.       We will not infer the court considered an

improper factor if it is not apparent from the record. See State v. Formaro, 638

N.W.2d 720, 725 (Iowa 2002). Our goal is not to second guess the sentencing

decision but to determine if the decision rests on an untenable or improper

ground. See State v. Seats, 865 N.W.2d 545, 553 (Iowa 2015).

      Jenkins asserts the sentencing court’s statement that “[t]his happened on

two separate distinct times . . . indicates that the district court erroneously

believed the count 1 and count 2 offenses to have been committed at temporally

separate and distinct times—that is, that [Jenkins] abused the child on more than

one occasion.” To support his contention, Jenkins claims on appeal that the

offenses to which he pled guilty “occurred during a single incident—that is during

a single game of hide and seek.” Jenkins then argues “[b]ecause the sentencing

court’s conclusion that the sex acts underlying the count 1 and count 2 offenses

occurred at temporally separate and distinct times were neither admitted by

Jenkins nor proven by the State, it was not a permissible sentencing

consideration.”

      To put the phrase in question in context, the sentencing court said, as

noted above:
                                         8


             Because we have two separate and distinct acts, each of
      those acts, in my mind, deserves a sentence. And I’m going to run
      them consecutive for that reason. This is not a one-time thing.
      This happened on two separate distinct times. If you had any
      remorse or if you had any willingness to stop, it would have only
      happened once, and it did not. So this little girl is going to suffer for
      the rest of her life based on the acts that you committed.
             I can tell you I was—I was shocked when I read your
      rendition of the version in the PSI. I have never seen something
      put in such blunt and vulgar terms as what you put in there. In my
      mind, these charges, as [the prosecutor] said, if they don’t deserve
      consecutive, I don’t know what would.

In our analysis of the consideration-of-impermissible-factors issue on appeal, we

are only able to look at the words used by the sentencing court. The words used

by the sentencing court—“This is not a one-time thing,” “This happened on two

separate distinct times,” and “If you had any remorse or if you had any

willingness to stop, it would have only happened once, it did not”—taken in the

context of the other words used by the court strongly suggests, in our minds, that

the court concluded the two acts of abuse were committed upon the one victim

on two separate and distinct occasions. To be fair to the sentencing court, this

conclusion, while erroneous, is understandable.

      We turn to the record before the sentencing court. Each count of the trial

information charged that, between October 2012 and April 2013, Jenkins

committed a sex act against a child under the age of twelve. The record is clear

that Jenkins admitted to committing two separate and distinct acts with regard to

the crimes to which he pled guilty.     In the memorandum of plea agreement,

signed by Jenkins, Jenkins “admits the incidents underlying these pleas are

separate and distinct acts.” The PSI provides no elucidation relevant to the facts

at issue. During the sentencing hearing, the prosecutor and defense counsel
                                             9


clarified for the court that Jenkins had pled to two separate acts concerning one

victim, not two. It’s no wonder the sentencing court was left with the impression

that Jenkins committed the acts during separate and distinct occasions.

       The sentencing court did not have the benefit of the record made at the

guilty plea hearing before a different judge.2 There, in reciting the elements of

the two offenses, the plea court said, “and that you committed that act on two

separate and distinct occasions. Have I correctly stated the elements of the two

offenses, Mr. [Prosecutor]?” The prosecutor responded, “In this case, I believe it

would be there were two separate and distinct sex acts.”                 Defense counsel

assisted the court with the factual basis. Jenkins admitted that on one day,

between October 2012 and April 2013, while playing a game of hide-and-seek,

he was alone “for some period of time” with the victim, and it was during that

period of time he committed two separate and distinct acts of sexual abuse upon

the victim. No reference was made to the minutes of testimony during the plea

colloquy and Jenkins made no admissions to the factual allegations contained

therein.

       There is no question that Jenkins committed two separate acts of abuse

upon the victim, but the acts were committed during one occasion—that is,

during the one game of hide-and-seek. Without the plea record before it, the

sentencing court could have reasonably believed it was considering separate and

distinct episodes of sexual abuse committed by Jenkins, but the court’s

conclusions are not supported by the record. Its apparent misunderstanding of


       2
        A transcript of the guilty plea hearing was not transcribed until after the notice of
appeal was filed.
                                        10


the facts is the equivalent to considering facts outside the record—an

impermissible factor. “If a court in determining a sentence uses any improper

consideration, resentencing of the defendant is required.”        Grandberry, 619

N.W.2d at 401. Jenkins must therefore be resentenced.

      Jenkins also argues the court’s reference in its sentencing statement to its

experiences with potential jurors who were victims of sexual abuse reveal it

improperly considered facts outside the case record. In view of our disposition of

the appeal, we need not consider this argument.

      B. Illegal Sentence.

      Jenkins 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 counts 1 and 2, to which he pled guilty.

Essentially, he contends he is only responsible for two-thirds of the court costs

because one of the three charges was dismissed. 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, restitution, as defined in section 910.1(4), 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);
                                        11

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”).      Similarly, section

815.13 authorizes the collection of costs of a criminal prosecution from a

defendant “unless the defendant is found not guilty or the action is dismissed.”

      Jenkins cites the Iowa Supreme Court’s statement in Petrie, that “[f]ees

and costs not clearly associated with any single charge should be assessed

proportionally against the defendant,” as requiring the district court to assess

fees proportionally here.    See 478 N.W.2d at 621-22.         However, Petrie is

distinguishable, in that the court only applied proportionality because it

specifically found the costs in that case were not clearly associated with any

single charge. See id. Here, the court costs assessed are clearly associated

with the charges to which Jenkins pled guilty. Put another way, none of the

taxed court costs were associated with the dismissed count.

      The record indicates the court costs consisted of a $100 filing and

docketing fee and two $40 court reporting fees, for a total of $180. The amount

of the filing and docketing fee would have been the same even if the State had

not charged Jenkins with a third count. The same is true for the court reporter

fees assessed. Those fees were charges for the court reporter’s time incurred at

the plea and sentencing hearings. Those fees would have been the same even if

Jenkins had not been charged with count 3. Unlike the situation in Petrie, the

record before us shows the court costs taxed to Jenkins are clearly attributable to

the charges to which Jenkins plead guilty.        There is no reason to invoke
                                         12


proportionality here. We agree with the State that Jenkins failed to establish the

court erred in approving the restitution order or entered an illegal sentence.

       III. Conclusion.

       For the foregoing reasons, we vacate Jenkins’s sentence and remand the

case to the district court for resentencing before a different judge consistent with

this opinion.

       SENTENCE           VACATED        AND       CASE      REMANDED            FOR

RESENTENCING.

       Tabor, J., concurs; Potterfield, P.J., dissents.
                                        13


POTTERFIELD, Presiding Judge. (dissenting)

      How long is a game of hide and seek? How many criminal acts can be

committed during one game? How much time must separate two acts during one

game of hide and seek to justify consecutive sentences? The majority concludes

the sentencing court acted under a misapprehension that the acts occurred at

different times, “temporally.” They reach this conclusion by stretching the court’s

explanation at sentencing, “we have two separate and distinct acts . . . . This

happened on two separate distinct times,” to indicate the court understood that

Jenkins’s acts occurred in two separate episodes as opposed to two separate

and distinct acts during a single game of hide and seek.

      A trial court “generally has discretion to impose concurrent or consecutive

sentences for convictions on separate counts.” State v. Delaney, 526 N.W.2d

170, 178 (Iowa Ct. App. 1994). That said, “the duty of a sentencing court to

provide an explanation for a sentence includes the reasons for imposing

consecutive sentences.” Id.; see also State v. Jacobs, 607 N.W.2d 679, 690

(Iowa 2000). Those reasons need not be detailed but must be sufficient to allow

for appellate review of the discretionary action. Jacobs, 607 N.W.2d at 690. The

sentencing court gave a sufficient explanation for imposing consecutive

sentences.   The explanation was consistent with the facts in the record and

within the range of the court’s discretion. As the majority concedes, both counsel

informed the sentencing court Jenkins’s plea was an admission he touched one

child in two separate acts. The plea agreement that Jenkins signed also contains

his admission there were separate and distinct acts. The majority parses the

words of the sentencing court as “the equivalent to considering facts outside the
                                      14


record”—a characterization based upon the majority’s assumption the sentencing

court considered a longer period of time between the criminal acts than actually

existed. I dissent.
