              IN THE SUPREME COURT OF IOWA
                              No. 18–0594

                           Filed April 12, 2019


STATE OF IOWA,

      Appellee,

vs.

EVAN PAUL HEADLEY,

      Appellant.



      Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.



      A defendant appeals his sentence on various grounds. SENTENCE

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.



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

Theresa R. Wilson, Assistant Appellate Defender, for appellant.


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

Attorney General, John Sarcone, County Attorney, Jaki Livingston and

Kevin Hathaway, Assistant County Attorneys, for appellee.
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WIGGINS, Justice.

      A defendant appeals his sentence for domestic abuse assault and

second-degree burglary. He argues the sentencing court violated his due

process rights and abused its discretion by considering the risk

assessment tools contained in the presentence investigation report (PSI).

He also argues the court abused its discretion by considering the

investigator’s recommendation in the PSI.       If these claims were not

preserved, he claims ineffective assistance of counsel in the alternative.

      The defendant also challenges the restitution imposed by the district

court. He claims the court imposed an illegal sentence by ordering him to

pay the court costs associated with the dismissed charges. He further

claims the court erred by failing to determine his reasonable ability to pay

prior to determining the amount of restitution owed.

      On appeal, we find the district court did not abuse its discretion in

considering the risk assessment tools on their face as contained within the

PSI. We further find the defendant failed to preserve error on his due

process and abuse-of-discretion claims regarding the court’s consideration

of the risk assessment tools contained in the PSI. We also find the record

is insufficient to reach these due process and abuse-of-discretion claims

on direct appeal.

      In regard to his claim that the district court abused its discretion

when it considered the department of correctional services’ sentencing

recommendation, we find it did not. We also find the court did not enter

an illegal sentence by requiring the defendant to pay the court costs

associated with dismissed charges. However, we find the district court

erroneously ordered restitution without first conducting the applicable

reasonable-ability-to-pay analysis.   Therefore, we vacate the restitution

portion of the defendant’s sentence and remand for resentencing in light
                                         3

of this opinion and our opinion in State v. Albright, ___ N.W.2d ___ (Iowa

2019).

       I. Factual and Procedural Background.

       On July 28, 2017, Des Moines police officers responded to a

domestic fight at the home of S.M.              When officers arrived in the

neighborhood, S.M. was several houses north of her address and waived

the officers down. S.M. told officers her ex-boyfriend, Evan Headley, had

shown up to her house uninvited and forced his way into her home. S.M.

said she and Headley began arguing and Headley forced S.M. into her

bedroom, onto her bed, and held her down with his body weight. Headley

left swelling on S.M.’s shoulders before S.M. was able to escape Headley’s

grasp.

       When officers entered S.M.’s home, they made contact with Headley

as he was attempting to jump out of a window of the residence. Officers

took Headley into custody and transported him to the Polk County Jail.

At the time of this incident, Headley was on supervised probation for

domestic abuse assault, and a nonexpiring protection order was in place

between S.M. and Headley, with S.M. being the protected party. 1
       On September 11, the State charged Headley with burglary in the

second degree, assault with intent to commit a sexual abuse, domestic

abuse assault enhanced, and stalking in violation of a protective order.

On December 26, pursuant to a plea deal, Headley pled guilty to burglary

in the second degree in violation of Iowa Code sections 713.1 and 713.5

(2018), and domestic abuse assault, enhanced second offense, in violation

of sections 708.1(2)(a) and 708.2A(3)(b).


       1S.M. has two protective orders against Headley. The court filed one order on
December 12, 2016, with an expiration date of February 7, 2022. The court filed a
second, the nonexpiring order, on July 29, 2017.
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      On January 25, 2018, the department of correctional services filed

a PSI. The PSI included evaluations of Headley using both the Iowa Risk

Revised (IRR) and the Dynamic Risk Assessment for Offender Re-Entry

(DRAOR) risk assessment tools.      Headley’s IRR score was “in the high

category for future violence and the high category for future victimization.”

His DRAOR score “placed him in the moderate/high category to

recidivate,” or in other words, indicated he would fail on community-based

supervision.   Based on the personal interview with Headley, the Iowa

Mental Health Screen, the IRR, the DRAOR, and Headley’s criminal

history, education, employment, and family history, the presentence

investigator recommended incarceration.

      On March 13, at the sentencing hearing, the district court judge

asked Headley’s counsel about the PSI, questioning, “Have you and your

client been able to review this, Mr. Webber?” Headley’s defense counsel

replied, “We have, Your Honor.” The court then asked, “Any additions,

corrections, deletions, or modifications on behalf of the defendant?”

Defense counsel replied, “No, Your Honor.”

      Headley’s counsel asked the court to place Headley at the Fort

Des Moines Residential Facility based on Headley’s substance abuse,

mental health issues, and his eligibility according to the PSI and a

substance abuse evaluation. The State recommended incarceration.

      The district court sentenced Headley to prison for a total term not to

exceed eighteen years for the burglary, domestic abuse assault, and four

probation violations.   The district court judge also ordered Headley to

make restitution, saying, “I’m not aware of the amount. If it’s brought to

my attention as to a specific amount, an order will be entered and you will

have an opportunity to contest it.” The court memorialized this in its

sentencing order.
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      On March 26, Headley appealed his sentence alleging ineffective

assistance of counsel.

      On June 8, the Polk County Sheriff’s Department filed an application

for reimbursement for $13,695. The reimbursement covered Headley’s

room and board for 238 days of incarceration. On June 12, the court

approved the sheriff’s application for reimbursement and assessed a total

of $14,228.80 to Headley for court costs and correctional fees.

      II. Issues Raised on Appeal.

      Headley raises five issues on appeal.     First, whether the district

court abused its discretion by considering the risk assessment tools in the

PSI at sentencing. Second, whether the district court violated Headley’s

due process rights by considering the risk assessment tools in the PSI

when it determined Headley’s sentence. Third, whether the district court

abused its discretion by considering an improper sentencing factor when

it considered the department of correctional services’ sentencing

recommendation. Fourth, whether the district court imposed an illegal

sentence by ordering Headley to pay court costs associated with the

dismissed charges.    Fifth, whether the district court erred in ordering
Headley to reimburse the State for court costs and correctional fees

without first considering Headley’s reasonable ability to pay.

     III. Whether the District Court Abused Its Discretion by
Considering the Risk Assessment Tools in the PSI at Sentencing.

      We apply an abuse of discretion standard when the sentence

challenged was within the statutory limits. State v. Seats, 865 N.W.2d

545, 552 (Iowa 2015).    We will find an abuse of discretion when “the

district court exercises its discretion on grounds or for reasons that were

clearly untenable or unreasonable.” State v. Thompson, 856 N.W.2d 915,
                                    6

918 (Iowa 2014). A ground or reason is clearly untenable when based on

an erroneous application of the law. In re J.A.L., 694 N.W.2d 748, 751

(Iowa 2005).

      The crux of Headley’s argument is that because the legislature has

not authorized the court to use risk assessment tools in sentencing, the

district court abused its discretion by considering these tools when it

sentenced Headley.    If we can determine whether a court abused its

discretion by using an improper factor without further evidence, a

defendant need not object to the use of an improper sentencing factor at

the time of sentencing. State v. Gordon, 921 N.W.2d. 19, 23–24 (Iowa

2018). However, if we need further evidence to determine if the sentencing

factor is improper, the defendant must object to the factor and ask to make

the appropriate record before sentencing. Id. If the defendant fails to do

so, we can only examine the claim under the rubric of ineffective

assistance of counsel. Id. at 24. Because there is no record before us on

the risk assessment tools themselves, we will only consider whether the

legislature authorizes a court to use risk assessment tools at sentencing

without examining the validity of the risk assessment tools.

      “In applying the abuse of discretion standard to sentencing

decisions, it is important to consider the societal goals of sentencing

criminal offenders, which focus on rehabilitation of the offender and the

protection of the community from further offenses.” State v. Formaro, 638

N.W.2d 720, 724 (Iowa 2002). Sentencing courts in Iowa generally have

broad discretion to rely on information presented to them at sentencing.

See State v. Pappas, 337 N.W.2d 490, 494 (Iowa 1983) (“[W]hatever Iowa

statutes leave to the courts in matters of sentencing should be the

responsibility of the sentencing judge.”); State v. Gartin, 271 N.W.2d 902,

910 (Iowa 1978) (“[T]he decisions of the trial court are cloaked with ‘a
                                     7

strong presumption in [their] favor,’ and ‘[u]ntil the contrary appears, the

presumption is that the discretion of the [trial] court was rightfully

exercised.’ ” (alterations in original) (quoting Kermit L. Dunahoo, The Scope

of Judicial Discretion in the Iowa Criminal Trial Process, 58 Iowa L. Rev.

1023, 1024 (1973))); State v. Delano, 161 N.W.2d 66, 71 (Iowa 1968)

(holding the sentencing court may rely on any information to which the

defendant did not object). A court “should weigh and consider all pertinent

matters in determining proper sentence, including the nature of the

offense, the attending circumstances, defendant’s age, character and

propensities[,] and chances of his reform.” State v. Cupples, 260 Iowa

1192, 1197, 152 N.W.2d 277, 280 (1967).

      Iowa Code section 901.5 describes the sentencing provisions for

Iowa judges:

             After receiving and examining all pertinent information,
      including the presentence investigation report and victim
      impact statements, if any, the court shall consider the
      following sentencing options. The court shall determine which
      of them is authorized by law for the offense, and of the
      authorized sentences, which of them or which combination of
      them, in the discretion of the court, will provide maximum
      opportunity for the rehabilitation of the defendant, and for the
      protection of the community from further offenses by the
      defendant and others.

Iowa Code § 901.5. The word “including” indicates that a PSI contains, or

is itself, “pertinent information.” See State v. Brown, 518 N.W.2d 351, 352

(Iowa 1994) (“The purpose of the presentence investigation ‘is to provide

the court pertinent information for purposes of sentencing and to include

suggestions for correctional planning for use by correctional authorities

subsequent to sentencing.’ ” (quoting Iowa Code § 901.2 (current with

2018 Code))).
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      Iowa Code section 901.3 clarifies what is to be included in a PSI.

The statute states the investigator must inquire into

            a. The defendant’s characteristics, family and financial
      circumstances, needs, and potentialities.

            b. The defendant’s criminal record and social history.

            c. The circumstances of the offense.

            d. The time the defendant has been in detention.

            e. The harm to the victim, the victim’s immediate
      family, and the community. . . .

            f. The defendant’s potential as a candidate for the
      community service sentence program established pursuant to
      section 907.13.

             g. Any mitigating circumstances relating to the offense
      and the defendant’s potential as a candidate for deferred
      judgement, deferred sentencing, a suspended sentence, or
      probation, if the defendant is charged with or convicted of
      assisting suicide . . . .

             h. Whether the defendant has a history of mental
      health or substance abuse problems. If so, the investigator
      shall inquire into the treatment options available in both the
      community of the defendant and the correctional system.

Iowa Code § 901.3(1).

      While the statute does not specifically address risk assessment

tools, such as the IRR and DRAOR, these risk assessment tools contain

pertinent information. The dictionary defines “pertinent” as having “some

connection or relation with . . . a matter under discussion.” Pertinent,

Webster’s Third New International Dictionary (unabr. ed. 2002).        The

dictionary defines “information” as “knowledge communicated by others

or obtained though investigation, study, or instruction.”      Information,

Webster’s Third New International Dictionary.      On their face, the tools

appear to predict future conduct, recidivism, and the success of the
                                      9

defendant in a community-based correctional setting.         These tools are

“pertinent information” to sentencing under section 901.5.

      When sentencing courts consider the risk a defendant poses to the

community, the court furthers the legislative intent of providing “for the

protection of the community from further offenses by the defendant.” Iowa

Code § 901.5. Risk assessment tools also further the penological goal of

rehabilitation by providing sentencing courts with more complete

information about a defendant’s mental state, lifestyle, and potential

situations facing the defendant depending on the sentence imposed. On

their face, the tools provide pertinent information that a sentencing judge

may consider.    Therefore, we find the district court did not abuse its

discretion in considering the risk assessment tools on their face as

contained within the PSI.

      Headley also argues the district court abused its discretion because

even if risk assessment tools are permissible at sentencing, the district

court did not know of the cautions and limitations associated with the

tools. There are two problems with this argument. First, a court needs

further evidence to determine the cautions and limitations of the tools.

Second, we held in State v. Guise, this argument “is in essence a due

process argument.” 921 N.W.2d 26, 29 (Iowa 2018). Headley failed to

object to the tools on these grounds. Accordingly, we cannot reach the

merits of this argument on direct appeal. Id. Therefore, Headley may raise

this issue in a postconviction-relief action if he so desires.

     IV. Whether the District Court Violated Headley’s Due Process
Rights by Considering the Risk Assessment Tools in the PSI When It
Determined Headley’s Sentence.

      Headley contends the district court violated his due process rights

by using the IRR and DRAOR at sentencing. Headley did not raise this
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issue at the time of sentencing. In Gordon, we held a defendant could not

raise this due process argument for the first time on appeal when the

defendant did not bring the issue to the attention of the district court at

the time of sentencing. 921 N.W.2d at 23–24. We further held we could

not address the due process issue under the rubric of ineffective

assistance of counsel on direct appeal because the record was insufficient

to reach this claim. Id. at 24. Therefore, we will not reach the merits of

this argument on direct appeal.           Headley may raise this issue in a

postconviction-relief action if he so desires.

     V.   Whether the District Court Abused Its Discretion by
Considering an Improper Sentencing Factor When It Considered the
Department of Correctional Services’ Sentencing Recommendation.

      Headley contends the district court considered an improper

sentencing   factor   by    considering     the   sentencing   recommendation

contained in the PSI. Although Headley did not object to the court’s use

of the sentencing recommendation at the time of sentencing, he was not

required to do so for us to consider it as an improper sentencing factor on
direct appeal. See id. at 23–24 (holding if we can determine whether a

court abused its discretion by using an improper factor without further

evidence, a defendant need not object to the use of an improper sentencing

factor at the time of sentencing).

      Section   901.5      contains   numerous      sentencing   options   from

incarceration to deferred judgment. When the department of correctional

services recommends a deferred judgment, deferred sentence, or a

suspended sentence, each of which is accompanied by probation, the

department is telling the court the defendant can be rehabilitated in the

community without incarceration, is a low risk for recidivism, and is not a

danger to the community. When the department of correctional services
                                    11

recommends incarceration, the department is telling the court that the

defendant cannot be rehabilitated in the community, is a high risk for

recidivism, or is a danger to the community. This information is “pertinent

information” for a court to consider when sentencing a defendant under

section 901.5.

      Moreover, we have previously held any sentencing recommendations

contained in the PSI are not binding on the court. State v. Grgurich, 253

N.W.2d 605, 606 (Iowa 1977).      Therefore, the court did not abuse its

discretion when it considered the department of correctional services’

sentencing recommendation. See State v. Nelson, 279 N.W.2d 1, 3–4 (Iowa

1979) (holding trial judge properly exercised discretion by selecting

sentence after weighing the options available, considering the statutory

provisions, and considering the PSI, despite PSI recommending “some kind

of punishment” rather than probation).

     VI. Whether the District Court Imposed an Illegal Sentence by
Ordering Headley to Pay Court Costs Associated with the Dismissed
Charges.

      In State v. McMurry, ____ N.W.2d ____ (Iowa 2019), we decided this

very issue. There we held requiring a defendant to pay the court costs

associated with dismissed charges did not constitute an illegal sentence

as long as the costs would have been incurred in prosecuting the charges

that were not dismissed. Id. at ____. Here the State would have incurred

the costs assessed against Headley even if it only brought the charges

against Headley for which he pled guilty. Therefore, requiring Headley to

pay the court costs associated with dismissed charges did not constitute

an illegal sentence.
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      VII. Whether the District Court Erred in Ordering Headley to
Reimburse the State for Court Costs and Correctional Fees Without
First Considering Headley’s Reasonable Ability to Pay.

      Headley argues the district court erred in ordering him to pay

restitution in the form of court costs and correctional fees without first

determining his reasonable ability to pay those items.

      In Albright, ___ N.W.2d at ___, we clarified that certain items of

restitution are subject to a reasonable-ability-to-pay determination. See

also Iowa Code § 910.2(1). We also clarified that a plan of restitution is

not complete until the sentencing court issues the final restitution order.

Albright, ___ N.W.2d at ___. Finally, we emphasized that a final restitution

order must take into account the offender’s reasonable ability to pay

certain items of restitution. Id.

      Here, the court failed to follow our statutory procedures as outlined

in Albright. Accordingly, we must vacate that part of the sentencing order

regarding restitution and remand the case back to the district court to

impose restitution consistent with our decision in Albright.

      VIII. Disposition.

      We find the district court did not abuse its discretion in considering

the risk assessment tools on their face as contained within the PSI. We

further find Headley failed to preserve error on his due process and abuse-

of-discretion claims regarding the court’s consideration of the risk
assessment tools contained in the PSI.        We also find the record is

insufficient to reach these due process and abuse-of-discretion claims on

direct appeal. In regard to his claim that the district court abused its

discretion when it considered the department of correctional services’

sentencing recommendation, we find it did not. We find the court did not

enter an illegal sentence by requiring Headley to pay the court costs
                                      13

associated with the dismissed charges. Finally, we find the district court

erroneously ordered restitution without first conducting the applicable

reasonable-ability-to-pay analysis.    Therefore, we vacate the restitution

portion of the defendant’s sentence and remand for resentencing in light

of this opinion and our opinion in Albright, ___ N.W.2d ___.

      SENTENCE AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.
