                    IN THE COURT OF APPEALS OF IOWA

                                   No. 13-1319
                               Filed June 25, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

NATHAN MICHAEL GOAD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Thomas L. Koehler

(plea) and Douglas S. Russell (sentencing), Judges.



      Nathan Michael Goad appeals from his sentence for domestic abuse

assault causing bodily injury.       SENTENCE VACATED IN PART AND

REMANDED WITH DIRECTIONS.



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

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney

General, Jerry Vander Sanden, County Attorney, and Nicholas G. Maybanks,

Assistant County Attorney, for appellee.



      Considered by Potterfield, P.J., McDonald, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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POTTERFIELD, P.J.

       Nathan Michael Goad appeals from his sentence for domestic abuse

assault causing bodily injury.   He argues the district court erred in failing to

suspend his sentence and in imposing court fees for dismissed charges. The

State agrees with Goad that the district court improperly imposed the fees. We

affirm the district court’s decision not to suspend the sentence and reverse the

imposition of the fees.

   I. Facts and proceedings.

       May 28, 2013, the State charged Goad by trial information with domestic

abuse assault causing bodily injury and harassment in the first degree. A no-

contact order was put into place, which Goad violated. Goad agreed to plead

guilty to the domestic abuse assault charge pursuant to a plea agreement. In

exchange, the State agreed to dismiss the harassment charge, postpone the no-

contact order violation hearing until after the sentencing date, and dismiss it if

Goad did not violate the no-contact order again.      The State also agreed to

recommend the sentence be suspended so long as Goad did not violate the no-

contact order again or otherwise incur new criminal charges.

       Prior to sentencing, Goad again violated the no-contact order and incurred

a new criminal charge. Goad pleaded guilty to this second no-contact order

violation and was sentenced to forty-five days in jail. The court granted Goad’s

unresisted request for dismissal of the original no-contact order violation,

assessing the costs to Goad.

       A presentence investigation was conducted, and the report was provided

to the court prior to sentencing. The sentencing hearing was held July 30, 2013.
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The district court entered judgment against Goad for domestic abuse assault

causing bodily injury. The State recommended incarceration because of Goad’s

behavior in violating the no-contact order.     The court sentenced him to an

indeterminate five-year term of incarceration.       It found incarceration was

appropriate because of Goad’s extensive prior criminal record. The sentencing

court noted it did not consider the pending charge but did consider Goad’s

violations of the no-contact-order.     The court assessed the costs on the

dismissed harassment charge to Goad. Goad appeals.

   II. Analysis.

      “Our review of a sentence imposed in a criminal case is for correction of

errors at law. A sentence will not be disturbed on appeal unless the defendant

shows an abuse of discretion or a defect in the sentencing procedure.” State v.

Kramer, 773 N.W.2d 897, 898 (Iowa Ct. App. 2009). “We review the district

court’s restitution order for errors of law.” State v. Petrie, 478 N.W.2d 620, 622

(Iowa 1991).

      A. Imposition of incarceration.

      First, Goad argues the court should have suspended his sentence instead

of imposing incarceration. The court noted Goad’s inability to abide by the no-

contact order and his criminal history in choosing incarceration over suspended

sentence. Goad argues the court should have given more weight to his efforts to

stop his substance abuse, to improve his marriage, and to provide for his

children. He also argues a probation officer would be able to hold him sufficiently

accountable.    Considering all pertinent factors, we cannot find the court
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exercised its discretion “on grounds clearly untenable or to an extent clearly

unreasonable.” State v. Evans, 672 N.W.2d 328, 331 (Iowa 2003).

       B. Imposition of fees for dismissed counts.

       Both the State and Goad agree the district court improperly ordered Goad

to pay court costs for the harassment charge and for the dismissed contempt

matter.

       We hold that the provisions of Iowa Code section 815.13 [(2011)]
       and section 910.2 clearly require, where the plea agreement is
       silent regarding the payment of fees and costs, that only such fees
       and costs attributable to the charge on which a criminal defendant
       is convicted should be recoverable under a restitution plan.

Petrie, 478 N.W.2d at 622. We therefore find the court improperly taxed the

costs of the harassment charge to Goad. Likewise, Iowa Code section 664A.7(4)

(2013) reads: “A person who is convicted of or held in contempt for a violation of

a protective order referred to in section 664A.2 may be ordered by the court to

pay . . . court costs.” We hold the court also improperly imposed fees for the

dismissed contempt action.

       We affirm the district court’s sentence regarding Goad’s conviction for

domestic abuse assault causing bodily injury, but “we remand this case for

further proceedings to determine the appropriate amount of restitution consistent

with this opinion.” See id.

       SENTENCE VACATED IN PART AND REMANDED WITH DIRECTIONS.
