                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0446
                             Filed January 23, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

HAROLD LATHROP,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, Kim M. Riley,

District Associate Judge.



      A defendant appeals his sentence and restitution order after pleading guilty

to theft and driving while barred. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Ashley Stewart, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kyle P. Hanson, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Mullins and Bower, JJ.
                                           2


TABOR, Presiding Judge.

       Harold Lathrop challenges his sentence for second-degree theft and driving

while barred. First, he contends the district court did not provide sufficient reasons

for the sentence imposed.        Second, he argues the district court abused its

discretion by holding him responsible for an unknown amount of restitution without

determining he had the reasonable ability to pay. Because the district court gave

effect to the parties’ plea agreement when imposing the sentence and had not yet

issued the final plan of restitution, we affirm.

I. Facts and Prior Proceedings

       Lathrop faced criminal charges for writing an insufficient-funds check to

Menards and driving his truck to pick up the merchandise without a valid license.

After reaching an agreement with the State, Lathrop pleaded guilty to second-

degree theft and driving while barred. In exchange, the State dismissed several

less serious charges and recommended terms of imprisonment, fines, costs, and

restitution. During the plea hearing, the court heard the negotiated provisions and

ensured the parties’ assent to the terms. Consistent with those terms, the court

imposed indeterminate two-year and five-year prison sentences to run

concurrently.

       In a February 2018 judgment entry, the court ordered Lathrop to pay victim

restitution of $1137.16, court costs including correctional fees “as certified by the

Sheriff,”1 and court-appointed attorney fees. In the judgment entry, the court did

not determine Lathrop’s reasonable ability to pay restitution. Lathrop appeals.


1
  Ten days later, the Marshall County Sheriff filed a reimbursement claim totaling
$3069.36.
                                          3


II. Analysis

       A. Reasons for Sentence

       We review sentencing decisions for an abuse of discretion. State v. Crooks,

911 N.W.2d 153, 161 (Iowa 2018). “A district court abuses its discretion when it

exercises its discretion on grounds clearly untenable or to an extent clearly

unreasonable.” State v. Hill, 878 N.W.2d 269, 272 (Iowa 2016).

       Iowa Rule of Criminal Procedure 2.23(3)(d) requires the district court to

“state on the record its reason for selecting the particular sentence.” Id. at 273.

This requirement “ensures defendants are well aware of the consequences of their

criminal actions” and “affords our appellate courts the opportunity to review the

discretion of the sentencing court.” Id. (citing State v. Jacobs, 607 N.W.2d 679,

690 (Iowa 2000)). Even a “terse and succinct” statement may be sufficient, so long

as it does not impede our review. State v. Null, 836 N.W.2d 41, 51 (Iowa 2013).

       At the plea hearing, Lathrop waived the court’s use of a presentence

investigation report and proceeded to sentencing. The State recited the plea

agreement; Lathrop and his counsel expressed their assent. The court then

stated, “[T]he plea of guilty was made pursuant to the plea agreement, and I’ll tell

you now, Mr. Lathrop, that I will be adopting the recommendations that have been

made by the attorneys here today, and we’ll accept those.” Lathrop does not allege

the State or the court deviated from the agreed-upon provisions.

       On appeal, Lathrop notes he was eligible for a suspended term because

neither of his convictions was a forcible felony. He complains the sentencing court

failed to provide “any additional detailed reason” for sending him to prison.
                                             4

       But, in State v. Snyder, our supreme court found where the district court

accepted the parties’ plea agreement and incorporated it into the sentence, “failure

by the court to furnish reasons for the sentence was harmless.”2 336 N.W.2d 728,

729 (Iowa 1983); see also State v. Thacker, 862 N.W.2d 402, 408–09 (Iowa 2015);

State v. Cason, 532 N.W.2d 755, 756–57 (Iowa 1995) (per curiam). Where the

court accepted the plea agreement, “[t]he sentence of imprisonment was . . . not

the product of the exercise of trial court discretion but of the process of giving effect

to the parties’ agreement.” Snyder, 336 N.W.2d at 729.

       “[A] sentencing court does not abuse its discretion for failing to state

sufficient reasons for imposing a sentence if it ‘was merely giving effect to the

parties’ agreement.’” Thacker, 862 N.W.2d at 409 (quoting Snyder, 336 N.W.2d

at 729.) But, when a court elects not to follow the plea bargain, it must state on

the record the reasons for exercising its discretion in imposing a different sentence.

Id. (citing State v. Thompson, 856 N.W.2d 915, 920–21 (Iowa 2014)).

       Lathrop argues the rationale of Snyder does not apply here because the

court was not bound by the plea agreement. Because it had discretion to depart

from the plea, Lathrop insists the court should have given a full explanation of its

sentencing decision. We disagree with his contention Snyder and its progeny

require a detailed exposition of the court’s reasons for imposing a certain sentence

when the court explains it is giving effect to the terms of the plea agreement. See

Cason, 532 N.W.2d at 757. The sentencing court did not abuse its discretion.




2
 In Snyder, the court did state, “[T]he better practice is for the court to state reasons in
every case, even those in which it has no discretion.” Snyder, 336 N.W.2d at 729..
                                            5


       B. Restitution

       Lathrop next contends the district court erred in ordering restitution without

determining his reasonable ability to pay. We review restitution challenges3 for

errors at law. State v. Coleman, 907 N.W.2d 124, 134 (Iowa 2018).

       The district court must impose restitution in all cases of criminal conviction.

Iowa Code § 910.2 (2018). The court orders victim restitution, fines, penalties, and

surcharges without considering the defendant's ability to pay. Id. § 910.2(1). But

the court may impose restitution only to the extent it determines the offender is

reasonably able to pay other costs, including correctional fees under section 356.7

and court-appointed attorney fees. Id.

       At the time of sentencing or at a later date to be determined by the
       court, the court shall set out the amount of restitution . . . and the
       persons to whom restitution must be paid. If the full amount of
       restitution cannot be determined at the time of sentencing, the court
       shall issue a temporary order determining a reasonable amount for
       restitution identified up to that time. At a later date as determined by
       the court, the court shall issue a permanent, supplemental order,
       setting the full amount of restitution. The court shall enter further
       supplemental orders, if necessary. These court orders shall be
       known as the plan of restitution.

Id. at § 910.3.

       An offender dissatisfied with the amount of restitution required by the plan

may petition the district court for a modification under section 910.7. State v.

Swartz, 601 N.W.2d 348, 354 (Iowa 1999).




3
  In State v. Jose, our supreme court found the amount of restitution is a part of a
sentencing order and therefore directly appealable, “as are all orders incorporated in the
sentence.” 636 N.W.2d 38, 45 (Iowa 2001) (citing State v. Janz, 358 N.W.2d 547, 549
(Iowa 1984)).
                                          6


       The determination of whether the offender is reasonably able to pay is a

constitutional safeguard. Goodrich v. State, 608 N.W.2d 774, 776 (Iowa 2000).

On appeal, the defendant bears the burden to show either a failure to exercise

discretion or an abuse of discretion in relation to the reasonable-ability-to-pay

determination.    State v. Van Hoff, 415 N.W.2d 647, 648 (Iowa 1987).            “A

determination of reasonableness, especially in a case of long-term incarceration,

is more appropriately based on the inmate’s ability to pay the current installments

than his ability to ultimately pay the total amount due.” Id. at 649.

       Lathrop contends the court erred in not determining his reasonable ability

to pay the restitution amounts ordered for court costs and attorney fees. He

emphasizes the sheriff has now filed a reimbursement claim so at least one figure

subject to the reasonable-ability-to-pay requirement is known.

       The State counters Lathrop’s challenge is not ripe because the court has

not ordered a permanent plan of restitution. We agree the court is not obliged to

determine the defendant’s reasonable ability to pay until a “plan of restitution

contemplated by Iowa Code section 910.3 [i]s complete.” State v. Jackson, 601

N.W.2d 354, 357 (Iowa 1999); see also Swartz, 601 N.W.2d at 354 (finding

challenge to sentencing court’s failure to determine Swartz’s ability to pay

premature because (1) the plan of restitution was not complete when notice of

appeal was filed and (2) appellate court had no basis for review until offender

petitioned for modification under Iowa Code section 910.7).

       Here, the judgment entry set an amount of victim restitution ($1137.16 to

Menards) but did not include amounts for court-appointed attorney fees or jail fees.

The district court left those amounts to be determined and did not evaluate
                                              7


Lathrop’s reasonable ability to pay them. Although not explicit in the judgment

entry, the fact that those amounts were not yet known and the court’s order

directing the sheriff’s office to file its reimbursement claim show the restitution

provision was a temporary order as described in section 910.3. The court would

be required to set out the full plan of restitution in a permanent, supplemental

order.4 See Iowa Code § 910.3. Under Jackson and Swartz, until the plan of

restitution was complete, the court had no obligation to make an ability-to-pay

evaluation. Therefore, Lathrop’s challenge is not ripe.5

       AFFIRMED.




4
  The judgment entry did state: “Payment of court debt is due immediately and shall be
considered delinquent if not paid within 30 days.” The legislature defined “court debt” as
“all fines, penalties, court costs, fees, forfeited bail, surcharges under chapter 911, victim
restitution, court-appointed attorney fees . . . or fees charged pursuant to section 356.7 or
904.108.” Iowa Code § 602.8107(1)(a). On appeal, Lathrop does not focus on the
reference to “court debt” in the judgment entry. But we do not believe the amounts owed
for court-appointed attorney and jail fees could be due until the plan of restitution and a
plan of payment were complete. See Iowa Code §§ 910.3, 910.4, 910.6.
5
  We contrast this case with another decision filed today, State v. Perry, No. 18-0351,
2019 WL _______, at *___ (Iowa Ct. App. Jan. 23, 2019). In Perry, the sentencing court
entered orders for restitution for amounts not yet determined but also made an explicit
determination Perry was reasonably able to pay them. Perry, 2019 WL ______, at *___.
The court’s premature determination constitutes an abuse of discretion. Perry, 2019 WL
______, at *___.
