                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-0050
                             Filed October 9, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NATHAN D. JACOBSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, DeDra Schroeder,

Judge.



      The defendant appeals his sentence for child endangerment causing bodily

injury following his plea of guilty.   CONVICTION AFFIRMED; SENTENCE

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender, (until withdrawal) and Vidhya K.

Reddy, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Mullins and May, JJ.
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TABOR, Presiding Judge.

       Nathan Jacobson pleaded guilty to child endangerment causing bodily

injury. The district court sentenced him to an indeterminate five-year prison term.

Jacobson contests his prison sentence on four grounds: (1) the district court

violated his due process rights by considering a risk-assessment tool; (2) the court

abused its discretion by considering the sentencing recommendation in the

presentence investigation (PSI) report; (3) the court abused its discretion by failing

to consider mitigating features of youth when sentencing Jacobson, who was

seventeen years old when he committed the crime; and (4) the sentencing order

improperly assessed court costs and jail fees.

       Those first and second grounds for relief are derailed by our supreme

court’s recent decision in State v. Headley, 926 N.W.2d 545, 549–50 (Iowa 2019)

(deciding the district court could consider risk-assessment tools and sentencing

recommendations contained in a PSI when defense did not object to either matter

at the sentencing hearing). On the third ground, we find no abuse of discretion in

the sentencing court’s consideration of Jacobson’s youth. Jacobson may raise his

alternative claim that trial counsel failed to effectively argue those mitigating factors

in a postconviction-relief action. On the fourth ground, applying State v. Albright,

925 N.W.2d 144, 150 (Iowa 2019), we vacate the restitution order and remand for

the district court to receive the final restitution plan before determining Jacobson’s

reasonable ability to pay.
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  I.   Facts and Prior Proceedings

       At his guilty plea hearing, Jacobson admitted he “slapped” a child in his care

and “caused a bruise.” He also acknowledged the court could look to the minutes

of testimony to establish a factual basis for his guilty plea. According to the

minutes, Jacobson was caring for his girlfriend’s two-month-old son, E.J., when he

called for an ambulance. Jacobson told the first responders E.J. had fallen and

was not breathing. But they saw heavy bruising to the infant’s face “consistent

with child abuse.” The ambulance took E.J. to the emergency room at the Floyd

County Medical Center, where doctors decided the severity of his injuries required

transfer to University Hospitals in Iowa City. The hospital reported E.J. suffered

an acute subdural hematoma. He had visible bruising on his left cheek, consistent

with a hand print, as well as a linear bruise across his lower lip. The infant also

suffered extensive diffuse multi-layer retinal hemorrhages.

       The State originally charged Jacobson with child endangerment resulting in

serious injury, a class “C” felony.    After negotiations, Jacobson accepted the

State’s offer to plead guilty to child endangerment resulting in bodily injury, a class

“D” felony. Each side was free to argue for any available sentencing option.

       At sentencing, the State lobbied for an indeterminate five-year prison term.

Jacobson asked for a deferred judgment. In his allocution, Jacobson maintained

“there was an accident” during which the baby fell out of his arms to the floor and

stopped breathing. He told the court: “I slapped him with a desire to see him
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breathe again. It was a mistake, and I regret it very much.” The district court

imposed a prison sentence. Jacobson now appeals.1

     II.   Scope and Standards of Review

           When a sentence falls within statutory limits, we review challenges for an

abuse of the district court’s discretion. Headley, 926 N.W.2d at 549. We will find

an abuse only if that court exercises its discretion on grounds or for reasons that

are “clearly untenable or unreasonable.”            Id.   A ground or reason fits that

description “when based on an erroneous application of the law.” Id. We engage

in a de novo review of constitutional claims, like due process and ineffective

assistance of counsel. More v. State, 880 N.W.2d 487, 499 (Iowa 2016). We

review restitution orders for correction of errors at law. Albright, 925 N.W.2d at 158.

    III.   Analysis

           A.    Sentencing Court’s Discretion to Consider Risk Assessment
                 and the PSI Sentencing Recommendation

           The PSI included a risk assessment completed for Jacobson using the Iowa

Risk-Revised (IRR), a validated assessment tool. The IRR ranked Jacobson as

“high risk.” The PSI also included the preparer’s recommendation that Jacobson

be sentenced to five years in prison.

           At the sentencing hearing, defense counsel objected to the PSI’s inclusion

of reports from the Iowa Department of Human Services (DHS) investigation. But



1
 Before reaching the merits of Jacobson’s arguments, we address his ability to appeal his
sentence following a guilty plea and our jurisdiction or authority to decide his ineffective-
assistance-of-counsel claim on direct appeal. Our supreme court decided recent
amendments to Iowa Code section 814.6 (2019) (limiting direct appeals from guilty pleas)
and 814.7 (prohibiting resolution of ineffective-assistance-of-counsel claims on direct
appeal) apply only prospectively and do not apply to cases, like this one, pending on July
1, 2019. See State v. Macke, ___ N.W.2d___, ___, 2019 WL 4382985, at *7 (Iowa 2019).
                                          5


counsel did not object to the risk assessment or the preparer’s sentencing

recommendation.       The district court advised Jacobson that it considered

“everything [it] learned about [him]” through the PSI, with the exception of the DHS

reports. The court also explained: “I take into account the fact that you were given

a validated risk assessment and that assessment determines you to be a high risk.”

       For the first time on appeal, Jacobson argues (1) the district court violated

his right to due process by considering his “high risk” rating on the IRR and (2) the

court abused its discretion by considering the PSI recommendation that he be

incarcerated. Jacobson filed his final appellant’s brief raising these issues in

August 2018. In April 2019, our supreme court issued its decision in Headley,

rejecting almost identical claims raised by the defendant in that case.

       On the risk-assessment issue, Headley held:

       [T]he district court did not abuse its discretion in considering the risk
       assessment tools on their face as contained within the PSI. . . . [T]he
       defendant failed to preserve error on his due process and abuse-of-
       discretion claims regarding the court’s consideration of the risk
       assessment tools contained in the PSI. . . . [T]he record is insufficient
       to reach these due process and abuse-of-discretion claims on direct
       appeal.

Id. at 548.

       On the PSI suggestion for incarceration, the court rejected Headley’s claim

“that the district court abused its discretion when it considered the department of

correctional services’ sentencing recommendation.” Id. at 548, 552 (noting PSI

recommendations are not binding on sentencing court).

       Following Headley, we must reject Jacobson’s first and second claims.
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       B.     Sentencing Court’s Consideration of Mitigating Features of
              Youth

       Jacobson next argues the sentencing court abused its discretion in failing

to consider “the mitigating features of youth” in sentencing him for this crime he

committed when he was seventeen years old. He lists those “distinctive (and

transitory) mental traits” as “lack of maturity, underdeveloped sense of

responsibility, vulnerability to peer pressure, and the less fixed nature of the

juvenile’s character.” See State v. Null, 836 N.W.2d 41, 74 (Iowa 2013). But

Jacobson recognizes sentencing courts are not required to expressly consider

these factors “on the record” unless the juvenile offender faces a mandatory

minimum period of incarceration. See State v. Crooks, 911 N.W.2d 153, 172 (Iowa

2018); State v. Propps, 897 N.W.2d 91, 104 (Iowa 2017).

       At the sentencing hearing, Jacobson’s youth was a key consideration.

Jacobson told the court he “wasn’t ready” for the burden of caring for the baby. In

asking for a deferred judgment, defense counsel noted Jacobson was only a

teenager and was “emotionally immature.”        Many of the letters in support of

Jacobson mentioned the many family responsibilities he had taken on at a young

age. And the court expressly considered Jacobson’s youth as a factor in its

sentencing determination: “I look at your age, which you’re young.”

       On this record, we find no abuse of discretion in district court’s weighing of

the myriad of factors at play in sentencing Jacobson, including the mitigating factor

of his youth. See Crooks, 911 N.W.2d at 173. To the extent that Jacobson claims

his attorney should have more fully identified “the mitigating features of youth
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in arguing for a lesser sentence,” he can raise that claim of ineffective assistance

of counsel in any future postconviction-relief action.

       C.      Reasonable Ability to Pay Jail Fees and Court Costs

       In its written sentencing order, the district court directed Jacobson to pay

the amount of room-and-board fees to be assessed later by the county. And the

court determined Jacobson was “reasonably able to pay” those fees “pursuant to

Iowa Code § 910.2 (2018).”2 The order also assessed court costs, as determined

by the clerk of court, against Jacobson.

       On appeal, he argues the written sentencing order conflicts with the oral

pronouncement of sentence, where the court did not mention court costs, jail fees,

or Jacobson’s reasonable ability to pay.3                   Jacobson argues the oral

pronouncement must govern and we should remand for entry of a nunc pro tunc

order removing the assessment of court costs and jail fees from the written

sentencing order.       See State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995)

(explaining “when a judgment entry incorrectly differs from the oral rendition of the

judgment merely as a result of clerical error, the trial court holds the inherent power

to correct the judgment entry so that it will reflect the actual pronouncement of the

court”). In the alternative, Jacobson argues the district court abused its discretion

in deciding he had the reasonable ability to pay correctional fees before knowing




2
  In the same order, the court decided Jacobson was not reasonably able to pay attorney
fees “pursuant to Iowa Code § 815.9.”
3
  At the sentencing hearing, the court stated: “Restitution was not requested by the State
that I heard, and I don’t see a restitution amount, so that will not be imposed. The State
does have 30 days to file for restitution, and a hearing could be held on that if a restitution
request is made.”
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the entire amount and in ordering him to pay court costs without deciding he had

the reasonable ability to pay that category of restitution.

       The State questions whether a discrepancy actually exists between the oral

pronouncement and the written sentencing order.               The State also argues

Jacobson’s complaint about room-and-board fees is premature because the

record does not reflect a sheriff’s claim for reimbursement.

       To address Jacobson’s first point, we do not find Hess applies to this

situation. Any difference between the oral pronouncement of sentence and the

written order does not appear to be “the result of clerical error.” See id. We read

the sentencing court’s statements at the hearing as delaying its decision on

restitution until more information was available.

       But Jacobson’s restitution claim is governed by Albright, 925 N.W.2d at 159.

In that case, our supreme court emphasized a final restitution order must account

for the offender’s reasonable ability to pay certain items of restitution, including

court costs and jail fees. See id. at 160. Jacobson’s written sentencing order does

not comply with the statutory procedures outlined in Albright. Accordingly, we

vacate that part of the sentence and remand for the district court to impose

restitution consistent with the Albright directives.

       CONVICTION AFFIRMED; SENTENCE AFFIRMED IN PART, VACATED

IN PART, AND REMANDED.
