                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0267
                            Filed December 19, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ISAIAH MONTELL FOREST,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Timothy J. Finn,

Judge.



      Isaiah Forest appeals his sentences for two counts of second-degree

robbery.    SENTENCES VACATED IN PART AND REMANDED WITH

DIRECTIONS.




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

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant

Attorney General, for appellee.



      Considered by Tabor, P.J., and Mullins and Bower, JJ.
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MULLINS, Judge.

       Pursuant to a plea agreement, Isaiah Forest pled guilty to two counts of

second-degree robbery. The court accepted the plea. At the sentencing hearing,

the court approved the terms of the plea agreement and announced the sentence

on each count as follows: an indeterminate term of incarceration not to exceed ten

years with a mandatory minimum of five years, a fine of $1000 plus a 35%

surcharge, and $138 in restitution. In its sentencing order, the court also ordered

Forest to pay a $125 law-enforcement-initiative surcharge, court costs, and court-

appointed attorney fees in each case. The court directed defense counsel to file

a statement of legal services he had provided to Forest. The order provided: “All

costs, surcharges, fees, and restitution are due immediately and shall be

considered delinquent if not paid within 30 days of today’s date.” In a subsequent

nunc pro tunc order, the court clarified that the terms of incarceration were to run

concurrently.

       In his appeal, Forest first challenges the applicability of the law-

enforcement-initiative surcharge provided in Iowa Code section 911.3 (2017). The

State concedes and we agree the offenses to which Forest pled guilty are not

subject to the law-enforcement-initiative surcharge. We therefore vacate that

provision of each sentence.

       Forest also challenges the written sentencing order provisions in each case

that require him to pay court costs and court-appointed attorney fees.           He

complains the addition of those costs violated the sentences announced by the

court at the hearing, and they should be removed. Alternatively, Forest argues the

court assessed these restitution items without determining his ability to pay.
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       “[B]efore ordering payment for court-appointed attorney fees and court

costs, the court must consider the defendant’s ability to pay. ‘A defendant who

seeks to upset a restitution order, however, has the burden to demonstrate either

the failure of the court to exercise discretion or an abuse of that discretion.’” State

v. Kurtz, 878 N.W.2d 469, 473 (Iowa Ct. App. 2016) (quoting State v. Van Hoff,

415 N.W.2d 647, 648 (Iowa 1987)). As in Kurtz, “there is no indication in the district

court’s sentencing order that it considered [Forest’s] ability to pay” and without

knowing the amount of the court-appointed attorney fees, the court could not have

made an informed determination of Forest’s reasonable ability to pay.               Id.

Nonetheless, the court ordered both a plan of restitution—though the exact amount

of the attorney fees was not yet available—and a restitution plan of payment. See

id. at 472. Because the court proceeded to enter a restitution plan of payment as

a part of the sentencing order, Forest has the right to appeal. Id. Further, we find

the trial court abused its discretion by entering the restitution plan of payment

without first determining the amount of attorney fees to be assessed and

determining Forest’s reasonable ability to pay. Id. at 472–73.

       We vacate the law-enforcement-initiative surcharge and vacate the portion

of the sentencing order that ordered restitution for court costs and court-appointed

attorney fees. We remand for a determination of the amount of the attorney fees

and Forest’s reasonable ability to pay.

       SENTENCES         VACATED       IN       PART   AND     REMANDED         WITH

DIRECTIONS.
