                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0230
                              Filed January 9, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DEREK THOMPSON,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.



      Derek Thompson appeals the sentences imposed upon his convictions of

possession of a controlled substance with intent to deliver and failure to affix a

drug-tax stamp. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.



      Mark C. Smith, State Appellate Defender (until withdrawal), and Stephan J.

Japuntich, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee.



      Considered by Doyle, P.J., Schumacher, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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SCOTT, Senior Judge.

       Derek Thompson appeals the sentences imposed upon his convictions of

possession of a controlled substance with intent to deliver and failure to affix a

drug-tax stamp. He argues the court improperly ordered him to pay court costs on

a dismissed count and a drug abuse resistance education (DARE) surcharge

without first determining his reasonable ability to pay the same. He also argues

the imposition of law enforcement initiative (LEI) surcharges violates his right to

equal protection under the state and federal constitutions.

       The State “agrees that Thompson cannot be ordered to pay costs

associated with the dismissed count.”          The State correctly points out that

Thompson is still liable for costs not attributable to any single count. See State v.

McMurry, 925 N.W.2d 592, 600–01 (Iowa 2019). Finally, the State agrees the

imposition of court costs was premature. See State v. Albright, 925 N.W.2d 144,

158–61 (Iowa 2019). Under Albright, the imposition of court costs “must await the

filing of a final restitution plan and a determination of [Thompson]’s reasonable

ability to pay.” State v. Smeltser, No. 18-0998, 2019 WL 2144683, at *1 (Iowa Ct.

App. May 15, 2019). Thus, we vacate the sentencing order’s assessment of court

costs and remand the matter to the district court for the receipt of a final restitution

plan and subsequent assessment of Thompson’s reasonable ability to pay.

       We next turn to the court’s imposition of the DARE surcharge. Thompson

argues the surcharge amounts to a contribution to a local anticrime organization

and is therefore classified as category two restitution, which may only be ordered

subject to his reasonable ability to pay. See Iowa Code § 910.2(1)(a)(5) (2018);

Albright, 925 N.W.2d at 159. The State counters that imposition of the surcharge
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is mandatory and not subject to Thompson’s reasonable ability to pay. We agree

with the State. “In all criminal cases in which . . . a judgment of conviction is

rendered, the sentencing court shall order that restitution be made . . . for . . .

surcharges . . . .” Iowa Code § 910.2(1)(a) (emphasis added). And, “[i]n addition

to any other surcharge, the court or clerk of the district court shall assess a [DARE]

surcharge of ten dollars if a violation arises out of a violation of an offense provided

for in . . . chapter 124, subchapter IV.” Iowa Code § 911.2(1) (emphasis added).

Neither statute qualifies the imposition of the surcharge by a defendant’s

reasonable ability to pay; both mandate imposition of the surcharge. See id.

§ 4.1(30); Yohn v. Bd. of Dirs./Clear Lake Sanitary Dist., 672 N.W.2d 716, 717

(Iowa 2003).

       Finally, Thompson argues the imposition of LEI surcharges violates equal

protection. Both the federal and state constitutions provide all citizens equal

protection under the law. U.S. Const. amend. XIV; Iowa Const. art. I, § 6; Nguyen

v. State, 878 N.W.2d 744, 757 (Iowa 2016).           Equal protection “requires that

‘similarly situated persons be treated alike under the law’” and “that laws treat all

those who are similarly situated with respect to the purposes of the law alike.”

Nguyen, 878 N.W.2d at 757 (citations omitted).        In assessing a claimed equal-

protection violation, we first “determine whether there is a distinction made

between similarly situated individuals.” Id. at 758. If a party cannot make such a

showing, “courts do not further consider whether their different treatment under

[law] is permitted under the equal protection clause.” Id. (quoting Varnum v. Brien,

763 N.W.2d 862, 882 (Iowa 2009)).
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       Iowa Code section 911.3 mandates the imposition of a $125 surcharge

following judgment of conviction of certain offenses.1 Thompson argues “he is

similarly situated with other criminal defendants who are treated differently by

virtue of the fact that they are not assessed the LEI surcharge.” In other words, he

argues all individuals convicted of crimes are similarly situated but treated

disparately. He ignores the fact the crimes necessarily have categorical and

elementary differences. “[T]he legislature is free to impose disparate punishments

for different crimes so long as the offenses are distinguishable on their elements.”

State v. Ceaser, 585 N.W.2d 192, 196 (Iowa 1998), overruled on other grounds by

State v. Bruegger, 773 N.W.2d 862, 870–72 (Iowa 2009). “In other words, if the

elements of the offenses are not the same, persons committing the crimes are not

similarly situated and, therefore, may be treated differently for purposes of” equal

protection. Id. That is what we have here. We reject the constitutional challenge.

       We vacate the sentencing order’s assessment of court costs and remand

the matter to the district court for the receipt of a final restitution plan and

subsequent assessment of Thompson’s reasonable ability to pay. We affirm the

remainder of the sentence imposed.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




1 They include controlled-substance offenses under chapter 124; pharmacy-
related offenses under chapter 155A; excise-tax violations under chapter 453B;
burglary offenses under chapter 713; theft, fraud, and related offenses under
chapter 714; forgery and related crimes under chapter 715A; damage and trespass
to property under chapter 716; possessing contraband under section 719.7;
furnishing a controlled substance or intoxicating beverage to an inmate under
section 719.8; and prostitution, pimping, and pandering, in violation of sections
725.1 through 725.3.
