                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1722
                            Filed September 27, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

QUINTEN BRICE MCMURRY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Kevin A. Parker,

District Associate Judge.



      Quinten McMurry appeals from judgments and sentences entered

following his pleas of guilty to child endangerment and false report of an

incendiary device. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
                                          2


DANILSON, Chief Judge.

       Quinten McMurry appeals from judgments and sentences entered

following his plea of guilty to child endangerment, and subsequent revocation of

his deferred judgment and probation due to a later plea of guilty to false report of

an incendiary device, which he stipulated was a violation of his probation.

I. Background Facts and Proceedings.

       In January 2016, the district court accepted McMurry’s written plea of

guilty to child endangerment     (FECR028439), deferred judgment, and placed

McMurry on probation.

       In June 2016, McMurry was charged with false report of an incendiary

device, threats, and first-degree harassment (FECR029413). The State moved

to dismiss the harassment charge in the interests of justice. On the day of trial,

McMurry and the State reached a plea agreement in which he would enter an

Alford plea to false report of an incendiary device and the State would dismiss

the threats charge. After entering his plea, McMurry stipulated that his conviction

for false report of an incendiary device was a violation of his earlier probation.

       On October 3, 2016, McMurry was sentenced in both cases. With respect

to the false report of an incendiary device, the State recommended a five-year

suspended prison sentence, two years supervised probation, a fine, plus

surcharge and court costs, and “that counts II and III be dismissed with costs to

Mr. McMurry.”     McMurry sought a deferred judgment and community-based

probation. The court imposed and suspended a five-year indeterminate prison

term and two years’ probation. The court also stated:
                                         3


              You’re to pay the minimum fine of $750, plus the statutory
       surcharge and court costs. You’re also ordered restitution. I don’t
       know if there is going to be any restitution as to the incident.
       Further, you’re to provide the DNA sample, continue with mental
       health and substance abuse counseling. You’re to pay court costs,
       costs for court-appointed attorney.
              Further, you’re to attend the program at the Fort Des Moines
       Correctional Facility until you attain maximum benefits. I looked in
       the presentence investigation. I did not see anything that says that
       you were not qualified for that program. If you’re not qualified for
       that program, then the Court, by an amendment to the judgment
       entry, will delete that provision, but you’re to attend that program at
       the correctional center, and you’re to remain in the Warren County
       custody until that matriculation happens.
              Counts II and III are dismissed.

       With respect to the child-endangerment conviction, the court revoked the

deferred judgment (upon McMurry’s written stipulation of a probation violation)

and imposed and then suspended a two-year indeterminate sentence, and

placed him back on probation under the same conditions as those imposed on

the false-report-of-an-incendiary-device charge. The court ordered him to pay

the minimum fine, statutory surcharge, and court costs. The sentences on these

two cases run consecutively.

       McMurry filed a motion to reconsider, asking the court to amend the

sentencing order by removing the requirement that he reside at the Fort Des

Moines Residential Facility, contending the program required a resident to work

full time and attaching a letter from his psychiatrist, who opined McMurry was not

presently able to work full time. The district court denied the motion.

       McMurry appeals.

II. Ineffectiveness Claim.

       A parent commits child endangerment when the parent “[k]nowingly acts

in a manner that creates a substantial risk to a child or minor’s physical, mental
                                          4


or emotional health or safety.” Iowa Code § 726.6(1)(a) (2014). On appeal,

McMurry asserts his plea counsel was ineffective in allowing him plead guilty to

child endangerment because his plea was without a factual basis.

       We review claims of ineffective assistance of counsel, which are grounded

on the Sixth Amendment, de novo. State v. Schminkey, 597 N.W.2d 785, 788

(Iowa 1999).

              It is a responsibility of defense counsel to ensure that a client
       does not plead guilty to a charge for which there is no objective
       factual basis. It follows that no advice to plead guilty would be
       considered competent absent a showing of a factual basis to
       support the crimes to which the accused has elected to plead guilty.
       Where counsel falls short, a Sixth Amendment violation is present.
       The determination of whether there is a factual basis in the record
       to support the charge to which the defendant seeks to plead guilty
       is an objective inquiry that has nothing to do with the state of mind
       of the accused, but everything to do with the state of the record
       evidence.

State v. Finney, 834 N.W.2d 46, 54-55 (Iowa 2013). “The factual basis must be

contained in the record, and the record, as a whole, must disclose facts to satisfy

all elements of the offense.” State v. Ortiz, 789 N.W.2d 761, at 767-68 (Iowa

2010). “[T]he record does not need to show the totality of evidence necessary to

support a guilty conviction, but it need only demonstrate facts that support the

offense.” Id. at 768.

       In his written plea, McMurry admitted: “On 12/27/14, I had visitation and

was supervising my children and I knowingly acted in a manner that created a

substantial risk to my child’s emotional health.” The minutes of testimony show

police went to McMurry’s residence, responding to a mother’s telephone call in

which she stated her son was with his father—McMurry—and had texted her

“dad was drinking and that he wanted her to come get him.” McMurry answered
                                           5


the door and said they “couldn’t be here without a warrant.” The officers smelled

“a strong odor of alcohol coming from [McMurry],” and they could see the child

sitting on a couch inside the house. An officer “asked the boy if everything was

ok and he shook his head no and covered his face.” McMurry would not let the

officers in to check on the child and tried to physically prevent officers from

entering. After placing McMurry under arrest, an officer who spoke with the child

noted injuries on his face.     Another officer also “observed the injuries to the

victim” and took photographs of those injuries. When notified that he would be

charged with child endangerment, McMurry replied by saying “his son was being

picked on at school so he was teaching him MMA [mixed martial arts] moves and

wrestling with him.”

       This record sufficiently establishes McMurry’s conduct created “the very

real possibility of danger” to the child’s emotional health or safety. See State v.

Anspach, 627 N.W.2d 227, 233 (Iowa 2001) (noting “the definition of ‘substantial

risk’ in the context of child endangerment is: [t]he very real possibility of danger

to a child’s physical health or safety”). Not only did the child’s text to his mother

show there was a possibility of danger to the child’s emotional health, but

McMurry acknowledged in statements to the police that his conduct with his child

resulted in injuries to the child’s face. We have no difficulty concluding McMurry

“acknowledge[d] facts that are consistent with the elements of the crime.”

Rhoades v. State, 848 N.W.2d 22, 30 (Iowa 2014). Because there is a factual

basis for his guilty plea, his ineffectiveness claim fails.
                                             6


III. Sentencing.

       “[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).

       A. Terms of probation.       “When a defendant challenges the terms of

probation, ‘[i]t has long been a well-settled rule that trial courts have a broad

discretion in probation matters which will be interfered with only upon a finding of

abuse of that discretion.’” Id. (alteration in original). “[A]ny abuse of discretion

necessarily results in a legal error.” Id.

       While acknowledging that a district court may impose “‘any reasonable

conditions’ [of probation] that either ‘promote rehabilitation of the defendant or

protection of the community,’” see id. at 445 (citations omitted), McMurry

contends the district court abused its discretion in ordering him to complete the

residential facility program. He asserts the residential facility program requires

participants to work full time and his mental health precludes him from doing so.

We are not convinced the court abused its considerable discretion.

       The district court did assure McMurry, “If you’re not qualified for that

[residential correctional facility] program,” the court “will delete that provision.”

McMurry relies upon a letter from his psychiatrist, which states in its entirety: “As

of this present day of 10/06/2016 Quinten McMurry is not able to maintain

responsibility of a full-time position. Hopefully, this changes when he becomes

stabilized so he can maintain a part-time position.” We are not convinced this

letter supports a conclusion that he is not qualified or able to participate in the

program to which he objects. We note McMurry himself stated in allocution that if
                                              7


given community probation he intended to “[s]eek out minimum part-time

employment, possible full-time employment.”

          B. Costs. McMurry next maintains the court imposed an illegal sentence

because taxing him with the “payment of costs associated with charges in counts

II and III were not authorized by statute.” He asserts some unspecified “portion

of the sentencing order taxing costs to McMurry should be vacated and the case

should be remanded to the district court for entry of a corrected sentencing

order.”

          This court recently observed:

                  “Criminal restitution is a creature of statute.” State v.
          Watson, 795 N.W.2d 94, 95 (Iowa Ct. App. 2011). Iowa Code
          section 910.2(1) (2015) requires the sentencing court to order a
          defendant who pleads guilty to make restitution. Restitution
          includes payment of court costs. See Iowa Code § 910.1(4). In
          addition, section 815.13 allows the county or city to recover fees
          and costs incurred in prosecuting a criminal action “unless the
          defendant is found not guilty or the action is dismissed.” Under
          these sections, a defendant should only be ordered to pay
          restitution on the counts on which the State obtains a conviction.
          See State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991). Unless a
          plea agreement provides for the recovery of costs associated with
          dismissed charges, only those costs associated with the charges
          on which a conviction is obtained may be recoverable; where the
          plea agreement is silent on costs, no costs are recoverable for
          dismissed charges. See id.
                  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 id. 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.
                                          8

State v. Johnson, 887 N.W.2d 178, 181-82 (Iowa Ct. App. 2016).

       The State asserts all of the court costs1 that were assessed were “clearly

attributable” to the charge to which McMurry pled guilty, “because they would

have all been incurred even if the dismissed charges were never filed.” See

Petrie, 478 N.W.2d at 622. We agree, and find no error in the assessment of

costs here.2



1
  The State notes the docket report shows $220 in costs: $100 from the filing/docketing
fee; $40 for the court reporter at the June 24 arraignment and bond review hearing; $40
for reporting at the August 26 plea hearing; and $40 for reporting at the October 3
sentencing hearing.
2
  This court has previously discussed problems resulting from Petrie:
        Petrie has proved to be an administrative burden without material benefit.
        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. As this court explained in
        [Johnson, 887 N.W.2d at 182]:
                 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. Here, the
                 record shows just the opposite. The combined general
                 docket report prepared by the district clerk of court on
                 December 10, 2015, two days after Johnson filed his
                 notice of appeal, shows a total of $210 in court costs
                 accrued as of that date. These costs would have been the
                 same even had the State not charged Johnson with the
                 counts later dismissed. Moreover, the record shows none
                 of the assessed charges are clearly attributable or discrete
                 to the dismissed counts. We therefore conclude the total
                 court costs are clearly attributable to the counts to which
                 Johnson pled guilty and, therefore, fully assessable to him.
        . . . . Further, Petrie provides no guidance on who is to determine the
        attribution of costs and the method of allocation. It is an inefficient use of
        judicial and administrative resources to vacate the defendant’s conviction
        and remand this matter only to have the district court enter the same
        sentence because the plea agreement is made of record, enter effectively
        the same sentence because all of the costs are deemed relevant to all of
        the counts and are indivisible, or enter an order based on an arbitrary
        allocation of costs with little relationship to the actual costs of securing a
        conviction.
                                            9

       C. Attorney’s fees. Finally, McMurry contends the court erred finding “the

defendant has the reasonable ability to pay restitution of fees and costs in the

amount approved by the State Public Defender or $___, whichever is less.”

Either this statement is a final ruling that McMurry is able to pay “$__,” that is

nothing, or it is a nonstatement and subject to a further hearing and ruling on a

final plan of restitution. If we treat it as a final ruling, McMurry has nothing about

which to complain. If we treat it as a preliminary ruling, 3 it is not properly before

us. See State v. Jackson, 601 N.W.2d 354, 357 (Iowa 1999) (stating that until a

plan of restitution is completed, the court is not required to consider the

defendant’s ability to pay, and noting that an offender may challenge the amount

of restitution by petition under Iowa Code section 910.7). In either event, it is a

nonissue.

       Finding no error, we affirm.

       AFFIRMED.




State v. Smith, No. 15-2194, 2017 WL 108309, at *5 (Iowa Ct. App. Jan. 11, 2017),
further review denied Mar. 2, 2017.
3
  We observe the court stated at the sentencing hearing: “I don’t know if there is going to
be any restitution as to the incident.” That statement supports the latter alternative—that
no plan of restitution is yet completed.
