                    IN THE COURT OF APPEALS OF IOWA

                                      No. 14-0886
                                  Filed May 25, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

KIMBERLEE DON BLACK,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Timothy

O’Grady, Judge.



      A defendant challenges the order requiring him to pay costs associated

with dismissed counts.      SENTENCE VACATED IN PART, AND CASE

REMANDED WITH DIRECTIONS.



      Mark C. Smith, State Appellate Defender, and Melinda J. Nye, 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 Bower and McDonald, JJ.
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TABOR, Presiding Judge.

       Kimberlee Black challenges the restitution portion of his sentence after

pleading guilty to a felony drug offense. He argues the court improperly ordered

him to pay court costs for two charges dismissed as a part of his plea agreement.

Because Black did not expressly accept responsibility for those restitution

amounts, we remand for entry of a corrected judgment order vacating the

provision requiring him to pay the costs associated with the dismissed charges.

       The State charged Black with two counts of delivery of less than five

grams of methamphetamine, class “C” felonies, and one count of delivery of

prescription drugs, a serious misdemeanor. In May 2014, Black and his attorney

filed a written “waiver of rights and plea of guilty,” stating in relevant part:

       [Black] will plead guilty to Count ll, Delivery of a Controlled
       Substance in violation of Iowa Code § 124.401(1)(c)(6) [(2013)]. At
       sentencing, [Black] will be sentenced to ten years imprisonment.
       Iowa Code section 124.413 will not be applicable to [Black’s]
       sentence, and [Black] shall be eligible for parole prior to serving
       one third of the maximum indeterminate sentence. Counts I and Ill
       will be dismissed.

Black’s written plea was silent on the assessment of costs.

       At the start of the plea-and-sentencing hearing, defense counsel recited

the parties’ agreement, as set out in Black’s filing and detailed above, and did not

mention any agreement between the parties on court costs.                   Immediately

thereafter, the State told the court that defense counsel’s recitation was the

State’s agreement. Black concurred. During the court’s colloquy with Black, the

following exchange occurred:

              THE COURT: Count II of the trial information is a class “C”
       felony in Iowa. The maximum penalty is up to ten years in the state
       penitentiary. The maximum fine is $50,000. The minimum fine is
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      $1000. There is some restitution and court costs involved. You
      lose your driving privileges for 180 days. And I understand from the
      terms of the plea agreement, that you are asking me to waive any
      minimums . . . . You understand the penalties and consequences?
             BLACK: Yes.
             THE COURT: And knowing about those, you still intend to
      plead guilty?
             BLACK: Yes.

      The court accepted Black’s plea and imposed sentence, telling Black:

“You are fined the minimum fine, which is $1000, and you are taxed court costs.”

The court’s written order accepting the plea and imposing sentence, filed after

the hearing, stated: “Counts I and III are dismissed at defendant’s cost, pursuant

to the plea agreement.”

      We review challenges to the legality of a sentence for errors at law. Kurtz

v. State, 854 N.W.2d 474, 478 (Iowa Ct. App. 2014). The amount of restitution is

part of the sentencing order and may be appealed directly. State v. Janz, 358

N.W.2d 547, 549 (Iowa 1984). Generally, a “defendant cannot be taxed costs

regarding a dismissed charge.” State v. Foth, No. 14-1250, 2016 WL 719044, at

*7 (Iowa Ct. App. Feb. 24, 2016). Iowa Code section 910.1(4) identifies court

costs as a form of restitution. Our supreme court has instructed that court costs

may not be assessed against a defendant for dismissed counts unless the

defendant expressly agrees to that assessment as part of a plea agreement.

See State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991).

      On appeal, Black points out his written plea was silent regarding his

responsibility for the costs of the dismissed charges. Further, at the plea hearing

the prosecutor agreed with defense counsel’s recitation of the parties’

agreement—a recitation that did not include an agreement obligating Black to
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pay the costs for dismissed counts. In light of these facts, Black contends the

court erred in requiring him to pay court costs for the dismissed charges. See id.

(holding “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”).

       The State responds the record “does not contain an all-encompassing

recitation of the plea agreement, such as a written plea offer memorandum” and

asks us to “apply the presumption of regularity and avoid condemning the district

court’s judgment without more definite proof of error.”

       We are not persuaded by the State’s argument. Our rules of criminal

procedure require the disclosure of the plea agreement, on the record, at the

time the plea is offered. See Iowa R. Crim. P. 2.10(2). In this case, both Black’s

written plea and the plea agreement “on the record” were silent on allocation of

costs of dismissed counts, demonstrating the parties had not reached an

agreement on the matter as a part of the plea agreement. See id.          The court’s

written order, without explanation, added a term to the plea agreement regarding

restitution that had not been previously disclosed.1

       Because the written plea and the plea agreement disclosed on the record

were silent regarding the payment of fees and costs attributable to the dismissed

counts, we vacate that portion of the sentencing order and remand for the district

court to enter a corrected order deleting the provision requiring Black to pay

costs associated with the dismissed counts.

1
 We find it significant the court mentioned “some restitution and court costs” to Black
when advising him regarding the consequences of pleading to count II.
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     Costs of this appeal are taxed to the State.

     SENTENCE VACATED IN PART, AND CASE REMANDED WITH

DIRECTIONS.
