                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1685
                             Filed October 23, 2019

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DEREK MORRISON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,

Judge.



      Defendant appeals his convictions and sentences after pleading guilty to

various offenses. ELUDING CONVICTION VACATED, SENTENCES VACATED

IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.



      Mark C. Smith, State Appellate Defender, (until withdrawal) and Shellie L.

Knipfer, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., and Mullins and May, JJ.
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MAY, Judge.

       Derek Morrison was charged in three trial informations.1 Morrison pled

guilty to several offenses, including attempting to elude in violation of Iowa Code

section 321.279(3).2 The district court imposed a sentence for each offense to

which Morrison pled guilty. Each sentence included a prison term. The district

court also ordered Morrison to pay court costs.

       On appeal, Morrison argues (1) the record contains an insufficient factual

basis for the attempt to elude charge and (2) the district court should not have

awarded court costs before determining his reasonable ability to pay. We agree.

       As to the eluding charge, the State concedes the record does not establish

a factual basis that Morrison was pursued by a vehicle “driven by a uniformed

peace officer,” as required by Iowa Code section 321.279(3). So we vacate his

conviction and sentence on that charge. We remand “for further proceedings at

which time the State may supplement the record to establish a factual basis.” State

v. Schminkey, 597 N.W.2d 785, 792 (Iowa 1999).




1
  We refer to each case by an abbreviated form of their case numbers: 659, 660, and 724.
In case 659, Morrison was charged with second-degree theft, in violation of Iowa Code
sections 714.1 and 714.2(2) (2017) and attempt to elude, in violation of Iowa Code section
321.729(3). And in case 660, he was charged with first-degree robbery, in violation of
Iowa Code sections 711.1(a) and 711.2. Finally, in 724, he was charged with attempted
murder, in violation of Iowa Code sections 707.11(1) and 707.11(2); first-degree robbery,
in violation of Iowa Code sections 711.1(1)(b), and 711.2; conspiracy to commit a forcible
felony, in violation of Iowa Code sections 706.1(b) and 706.3(1); intimidation with a
dangerous weapon, in violation of Iowa Code section 708.6; and carrying weapons, in
violation of Iowa Code section 724.4(1).
2
  We recognize Iowa Code section 814.6 was recently amended to prohibit most appeals
from guilty pleas. See 2019 Iowa Acts ch. 140, § 28. In State v. Macke, however, our
supreme court held these amendments “apply only prospectively and do not apply to
cases pending on July 1, 2019.” 933 N.W.2d 226, 235 (Iowa 2019). We are bound by our
supreme court’s holding. We conclude, therefore, the amendments “do not apply” to this
case, which was pending on July 1, 2019. See id.
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       As to the court costs, under Iowa Code section 910.2(1)(a)(3), the district

court may only order restitution for costs after finding the defendant has a

reasonable ability to pay. See State v. Albright, 925 N.W.2d 144, 159 (Iowa 2019).

And the district court must know the amount of costs before making an ability-to-

pay determination. Id. at 162 (“Here the court found Albright had the reasonable

ability to pay and ordered restitution for items in the second category of restitution

without having the amount of each item of restitution before it. This is contrary to

the statutory scheme . . . .”). Here, the amounts of the court costs were unknown

at the time of sentencing. So we vacate the restitution portions of all the sentencing

orders and remand to the district court to order restitution consistent with Albright.

See id. at 158–62.

       ELUDING CONVICTION VACATED, SENTENCES VACATED IN PART,

AND REMANDED FOR FURTHER PROCEEDINGS.
