                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1930
                                Filed July 6, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JEFFREY ALLAN KIRK,
     Defendant-Appellant.
________________________________________________________________


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

Judge, (plea) and Peter B. Newell, District Associate Judge (sentencing).



      The defendant challenges his sentence after pleading guilty to sexual

exploitation of a minor, in violation of Iowa Code sections 728.12(3) and 903B.2

(2012). SENTENCE VACATED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Bradley M. Bender,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
                                         2


MCDONALD, Judge.

      Jeffery Kirk pled guilty to sexual exploitation of a minor, in violation of Iowa

Code sections 728.12(3) and 903B.2 (2011). He was sentenced to an

indeterminate prison term not to exceed two years. Kirk challenges his sentence.

      Our review is for the correction of legal error. See Iowa R. App. P. 6.907;

State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not disturb the

sentence imposed by the district court absent an abuse of discretion or defect in

the sentencing procedure. See Formaro, 638 N.W.2d at 724–25.

      Kirk raises two challenges to his sentence. He first argues the district

court abused its discretion in relying on just a single factor in imposing

sentence—the nature of the offense. He contends the district court employed a

fixed sentencing policy rather than making an individualized sentencing

determination. At sentencing, the district court gave the following reasons for the

sentence:

              THE COURT: . . . Mr. Kirk, I’ve had a chance to review the
      Presentence Investigation; again, that’s a very exclusive review of
      your life. I have had a chance to review the Psychosexual
      Evaluation. I have had a chance to consider the recommendations
      of the Department of Correctional Services. Mr. Kirk, I think that
      there are some crimes that are so serious that it’s not appropriate
      even for someone that doesn’t have a prior criminal history to
      receive a Deferred Judgment. I think that this is one of those
      crimes. The crime is the exploitation—sexual exploitation of a
      minor. I think that in the Presentence Investigation they make their
      recommendation to insure community safety and, again, I think it is
      important sometimes that we as a community express how serious
      an offense is by the imposition of a prison sentence. I think that
      this is an appropriate case for that sanction.

            I am going to follow the recommendations of the State and
      the Department of Correctional Services.       I think those are
      appropriate, well-thought-out sanctions. . . .
                                         3


       In imposing a sentence, the district court must actually exercise discretion.

State v. Jackson, 204 N.W.2d 915, 917 (Iowa 1973). “In applying its discretion

the court should weigh and consider all pertinent matters in determining a proper

sentence, including the nature of the offense, the attending circumstances,

defendant’s age, character, and propensity and chances for reform.” State v.

Lachman, No. 09-0630, 2010 WL 200819, at *1 (Iowa Ct. App. Jan. 22, 2010)

(citing State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999)). “The court must exercise

its discretion without application of a personal, inflexible policy relating only to

one consideration.” Id. (citing State v. Hildebrand, 280 N.W.2d 393, 397 (Iowa

1979) and State v. Kelley, 357 N.W.2d 638, 640 (Iowa Ct. App. 1984)).

       The application of a fixed sentencing policy constitutes the failure to

exercise discretion, which we treat as an abuse of discretion for the purposes of

appellate review. For example, in Hildebrand, the defendant pleaded guilty to

operating under the influence. 280 N.W.2d at 394. The district court denied the

defendant’s request for a deferred sentence, stating, “I have the policy that when

there is an accident involved, I do not and will not grant a deferred sentence.” Id.

at 395.   On appeal, the supreme court held the fixed policy precluded the

exercise of the sentencing court’s discretion and remanded the matter for

resentencing. See id. at 397. Similarly, in Lachman the district court explained it

would not grant the defendant’s request for a deferred judgment because

deferred judgments were appropriate for “people who maybe are young and have

made a mistake or who might lose permanently some job or some benefits if they

have judgment entered against them and who have otherwise clean records.”

2010 WL 200819, at *2. This court held the district court’s statements evidenced
                                         4


a policy regarding deferred judgments, vacated the sentence, and remanded for

resentencing. See id.

       We conclude the district court failed to exercise its discretion in applying a

fixed policy regarding the nature of the offense. The district court stated, “[T]here

are some crimes that are so serious that it’s not appropriate even for someone

that doesn’t have a prior criminal history to receive a deferred judgment.” The

district court then identified the offense by name without identifying any of the

specific underlying facts and circumstances of the offense. In short, the district

court made a categorical determination those convicted of sexual exploitation of

a minor should not receive a deferred judgment. A categorical determination a

defendant should not be eligible to receive a deferred judgment is a legislative

determination. See Iowa Code § 907.3(1)(a) (identifying circumstances in which

the sentencing court may not defer judgment); Jackson, 204 N.W.2d at 916–17.

The offense at issue in this case is not one of the offenses the legislature has

identified as deferred-ineligible. The defendant was eligible to receive a deferred

judgment. As in Hildebrand and Lachmann, it was error to categorically exclude

the possibility without making an individualized sentencing determination.

       Kirk also argues the district court erred in assessing court costs against

him for the charges dismissed as part of the plea agreement.              The plea

agreement was silent on the assessment of costs for the dismissed charges.

Absent an agreement, a defendant cannot be required to pay court costs for

dismissed charges. See State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991). But

see State v. Smith, No. 15-2194, 2017 WL 108309, at *4–5 (Iowa Ct. App. Jan.

11, 2017) (noting the relevant statutes allow the assessment of costs for
                                           5


dismissed charges in a multi-count trial information). The State concedes the

error.

         For the above-stated reasons, we vacate the defendant’s sentence and

remand this matter for resentencing.

         SENTENCE VACATED AND REMANDED.

         Vogel, P.J., concurs; Doyle, J., concurs specially.
                                          6


DOYLE, Judge. (concurring specially)

      I concur with the majority’s vacation of Kirk’s sentence and remand for

resentencing, but I am compelled to comment on the court costs issue. This

case is similar to State v. Johnson, 887 N.W.2d 178 (Iowa Ct. App. 2016).

There, Johnson contended the court entered an illegal sentence by requiring him

to pay court costs associated with the dismissed counts, and requested that

portion of the sentencing order be vacated and the case be remanded for a

corrected sentencing order. Johnson, 887 N.W.2d at 180. Like here, the State

agreed the court committed error in taxing court costs associated with the

dismissed counts to Johnson and agreed a remand was necessary for correction

of the sentencing order. Id. at 181.

             In cases such as this—where a defendant has been charged
      in one trial information with multiple criminal violations, pled guilty to
      some charges, and had others dismissed—there are three
      categories of costs: (1) those clearly attributable to the charges on
      which the defendant is convicted, (2) those clearly attributable to
      dismissed charges, and (3) those not clearly associated with any
      single charge. See [State v. Petrie, 478 N.W.2d 620, 622 (Iowa
      1991)]. A defendant may be assessed costs clearly attributable to
      the charges on which the defendant is convicted but may not be
      assessed costs clearly attributable to dismissed charges. See id.
      “Fees and costs not clearly associated with any single charge
      should be assessed proportionally against the defendant.” Id.

Johnson, 887 N.W.2d at 181-82. In Johnson, we observed, “The fact that some

counts were dismissed does not automatically establish that a part of the

assessed court costs are attributable to the dismissed counts.” Id. at 182. We

have also observed that,

      allowing for the assessment of costs for dismissed charges in a
      multicount trial information would improve the administration of
      justice without material detriment to the criminal defendant. Petrie
      has proved to be an administrative burden without material benefit.
                                          7


         In many cases, it is well-nigh impossible to determine which costs
         are associated with any particular count. See, e.g., Commonwealth
         v. Soudani, 165 A.2d 709, 711 (“We fail to perceive how the costs
         of prosecution in the instant case may be divided or apportioned
         between the first and second counts of the indictment.”). In
         addition, in many (perhaps most) cases, the costs are indivisible.

State v. Smith, No. 15-2194, 2017 WL 108309, at *5 (Iowa Ct. App. Jan. 11,

2017).

         The combined general docket report prepared by the district clerk of court

on November 16, 2016, six days after Kirk filed his notice of appeal, shows a

total of $754 in court costs accrued as of that date. The court costs Kirk accrued

through the date of his sentencing were: a filing fee of $100, court reporting fees

of $40 each for the guilty plea hearing and sentencing hearing, a sheriff’s

transportation fee of $224, a $250 civil penalty for a sex offense, and a $100

sexual abuse victim surcharge. These costs would have been the same even

had the State not charged Kirk with the counts later dismissed. Moreover, the

record shows none of the assessed charges are clearly attributable or discrete to

the dismissed counts. Additionally, it is telling that Kirk makes no attempt to

demonstrate that any of the taxed court costs in this case are not clearly

attributable to the count to which he pled guilty; in fact, Kirk does not even claim

he was over-assessed court costs. In this illegal sentence claim, it is up to Kirk

to establish an over-assessment of court costs. See Johnson, 887 N.W.2d at

182. He has failed to do so. I conclude the total taxed court costs are clearly

attributable to the count to which Kirk pled guilty and, therefore, are fully

assessable to him.
                                             8

       To the extent Kirk suggests a Petrie apportionment is indicated, I

disagree. See Petrie, 478 N.W.2d at 622 (“Fees and costs not clearly associated

with any single charge should be assessed proportionally against the defendant.

Since the defendant was only convicted on one of three counts he should be

required to pay only one-third of these costs.”). Petrie is distinguishable from the

case at hand. In Petrie, it is clear fees and costs were incurred relative to the

dismissed charges. Id. And apparently, although it is not clear from the opinion,

there were fees and costs incurred that were not clearly associated with any

particular charge, and it was those fees and costs that were to be assessed

proportionally, i.e., at one-third, since Petrie pled guilty to one of three charges.

Id. The Petrie court makes no suggestion that the court costs clearly attributable

to the charge to which Petrie pled guilty should be automatically apportioned.

See also Smith, 2017 WL 108309, at *4-5 (suggesting a Petrie apportionment is

contrary to relevant statutes). As stated above, I find all the taxed court costs

clearly attributable to the count to which Kirk pled guilty, so no apportionment is

required on remand.

       The judgment and sentencing order provides: “Companion Charges.

Counts II—VII are dismissed with costs assessed to the defendant on motion of

the State.” On remand, striking the words “with costs assessed to the defendant”

from the provision should be sufficient.1




1
  Citing Iowa Code section 814.20 (2013) (“The appellate court may . . . reduce the
punishment, but shall not increase it.”), the State suggests this court should exercise its
authority to affirm the sentence as modified by striking the cost provision for all costs not
solely attributable to Count I. For various administrative reasons, it is better that the
modification be done at the trial court level.
