                     IN THE COURT OF APPEALS OF IOWA

                                     No. 18-0397
                                  Filed April 3, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CAMERON D. SINGLETON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, Mark J. Smith,

Judge.



       Cameron Singleton appeals from judgment and sentence imposed upon

his convictions for first-degree burglary, stalking in violation of a protective order,

and eluding. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.



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

Conroy, Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee.



       Considered by Potterfield, P.J., and Tabor and Bower, JJ.
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POTTERFIELD, Presiding Judge.

       Cameron Singleton appeals from judgment and sentence imposed upon

his convictions for first-degree burglary, in violation of Iowa Code sections 713.1

and 713.3 (2017); stalking in violation of a protective order, in violation of section

708.11(3)(b)(1); and eluding, in violation of section 321.279(1). We affirm.

       On November 29, 2017, immediately following the jury verdicts on the

underlying offenses, Singleton stipulated he was the individual previously

convicted of obstructing justice and resisting a peace officer, both Illinois

convictions that were class “4” felonies; however, Singleton argued the offenses

did not qualify as felonies under Iowa law. The State offered certified copies of

the court records into evidence, and Singleton acknowledged he was

represented by counsel in each case. The court went through a colloquy with

Singleton regarding the prior offenses.

       The court advised Singleton, in part:

       And, finally, you understand if you wish to challenge the
       voluntariness or intelligence of the colloquy today—in other words,
       your stipulation—you must do so by filing a motion in arrest of
       judgment, which must be filed prior to five days before your date for
       sentencing. Do you understand that?
              THE DEFENDANT: Yes. We plan to appeal.

       The court ordered a presentence investigation (PSI) report which, was

filed on January 5, 2018.

       On January 10, the sentencing hearing was continued because the trial

judge had not yet ruled on whether the prior convictions constituted felonies for

the purpose of habitual-offender status.       The trial court did find the Illinois

offenses were felony convictions as a matter of law on January 12, 2018.
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      Singleton did not file a motion in arrest of judgment.

      On February 15, 2018, the sentencing hearing was held. Singleton did not

object to the PSI report, which included risk-assessment information. After the

hearing, the court imposed an indeterminate term of imprisonment not to exceed

twenty-five years on the burglary charge and fifteen years on the stalking charge,

with those the sentences to be served consecutively.           In addition, the court

imposed a one-year term on the eluding charge to be served concurrently with

the other two sentences.

      On appeal, Singleton contends his trial counsel was ineffective in failing to

challenge the habitual-offender-stipulation colloquy; the court violated his due

process rights and abused its discretion when it considered risk-assessment

information contained in the PSI report; and the court erred in stating he may be

assessed attorney fees on appeal.

      Habitual offender colloquy. Singleton asserts the trial court failed to

conduct a proper colloquy pertaining to his habitual offender status as required in

State v. Harrington, 893 N.W.2d 36, 45–46 (Iowa 2017). However, he did not file

a motion in arrest of judgment challenging the habitual offender stipulation

proceeding. “As in the guilty plea context, the offender challenging the habitual

offender stipulation proceeding must do so in a motion in arrest of judgment in

order to preserve error on that challenge.” State v. Smith, ___ N.W.2d ___, ___,

2019 WL 1086608, at *4 (Iowa 2019).          We apply a substantial compliance

standard to determine whether the trial court discharged its duty to ensure the

defendant understands the necessity of filing a motion to challenge the prior-

offenses stipulation and the consequence of failing to do so. Id.
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       In Smith, the supreme court excused the defendant’s failure to file a

motion in arrest of judgment because

       the court’s statement that Smith had a right to file a motion in arrest
       of judgment was insufficient to comply with its duty under
       Harrington. The court’s statement did not tie that right to the
       method of challenging the stipulation proceedings, nor did it ensure
       Smith understood that the failure to file such a motion would
       preclude him from challenging the proceedings on appeal.

Id. (emphasis added).      On the merits of the challenge to the stipulation

proceedings, the supreme court found that Smith’s stipulation was not knowingly

and voluntarily made because of the numerous errors by the trial court in the

colloquy. Id. at 6.

       Here, however, Singleton concedes:

       [T]he district court did inform Singleton of the nature of the charge,
       ensured Singleton knew the State would have to prove he had
       counsel only if he raised that defense, and confirmed Singleton did
       in fact have an attorney for the prior offenses. The district court
       also informed Singleton of the maximum penalties, including the
       mandatory minimum, and it established a factual basis existed to
       support Singleton’s admission to the prior convictions. The district
       court also explained to Singleton by admitting the requisite prior
       offenses that he would not have a jury trial on whether he had the
       convictions and the sentencing enhancement would apply.

See Harrington, 893 N.W.2d at 45–46.

       He asserts, however, “the court failed to inform Singleton that he had all

the same trial rights during the enhancement proceeding as he did on the

underlying offense” and did not enumerate those trial rights.

       As was the case in Smith, the district court did not tie the failure to file a

motion in arrest of judgment to the loss of chance to challenge the proceedings

on appeal. See 2019 WL 1086608, at *6. Thus, we excuse the failure to file the

motion in arrest of judgment.
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       Nonetheless, Singleton does not challenge that he was in fact the person

who was twice previously convicted and that he was represented by counsel on

each occasion.     The State asserts Singleton cannot prove any reasonable

probability that his stipulation decision would have been different if the court had

re-explained his trial rights during the stipulation colloquy. We agree.

       Risk assessment in PSI. Singleton next argues the trial court violated

his due process rights by considering the risk-assessment information contained

in the PSI at sentencing. Our supreme court has recently considered the same

issue in State v. Gordon, 921 N.W.2d 19 (Iowa 2018), and State v. Guise, 921

N.W.2d 26 (Iowa 2018). In Gordon, the court held a defendant could not raise a

due process argument relating to the Iowa Risk Revised risk-assessment tool for

the first time on appeal when the defendant did not bring the issue first to the

district court at the time of sentencing. 921 N.W.2d at 24. Further, the court held

the record was insufficient to reach the claim under the rubric of ineffective

assistance of counsel.      Id.; see also Guise, 921 N.W.2d at 29.           Because

Singleton did not raise the issue before the district court, we do not address it

here. But we preserve it for a potential future application for postconviction relief.

       “We review sentencing decisions for an abuse of discretion when the

sentence is within the statutory limits. 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.’”       Gordon, 921 N.W.2d at 24 (citations

omitted).

       Here, the district court explained its reasons for imposing sentence:
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                Mr. Singleton, I’ve looked at your [PSI] report. You’ve had
       [forty-five] convictions, many of them assaults and you’ve had five
       jail violations while you were in jail, one with assaultive conduct.
       The other thing since I did the jury trial is that you were under the
       victim’s bed with a knife in your hand. You indicated in your
       statement that you didn’t take that out of your pocket until you are
       crawling out but the court finds that not to be credible and also this
       stalking issue, you violated a protective order knowing that you had
       the protective order and you were prohibited from contacting the
       victim.
                The other thing that the court notes is that based on the
       testing analysis done by the pre-sentence investigator you pose an
       intensive risk for further violence and I don’t disagree with that
       given your history. You are [forty] years old and you have multiple
       pages of criminal record, which again a lot of it is assaultive in
       nature and a lot of them are domestic batteries. So the court finds
       that you are an intensive risk for future violence based on those
       factors as well as the facts and circumstances of this case and
       finds that a period of incarceration is warranted and also that
       Counts 1 and 2 should be served consecutively for those reasons.

We find no abuse of discretion here. The court could reasonably infer from

Singleton’s record that he posed a risk for future violence.

       Restitution. The sentencing court ordered:

               If the defendant qualifies for court appointed appellate
       counsel then the defendant can be assessed the cost of the court
       appointed appellate attorney when a claim for such fees is
       presented to the clerk of court following the appeal. The defendant
       is further advised that a request for a hearing on the defendant's
       reasonable ability to pay court appointed appellate attorney fees
       within thirty days of the issuance of the procedendo following the
       appeal. If the defendant does not file a request for a hearing on the
       issue of the defendant's reasonable ability to pay court appointed
       appellate attorney fees the fees approved by the State Public
       Defender will be assessed in full to the defendant.

(Emphasis added).

       The sentencing court may only assess restitution for court-appointed

attorney fees to the extent the defendant is reasonably able to pay. See Iowa

Code § 910.2(1) ("[T)he sentencing court shall order that restitution be made by
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each offender . . . and, to the extent that the offender is reasonably able to

pay, . . . court-appointed attorney fees ordered pursuant to section 815.9,

including the expense of a public defender, when applicable, . . .”).

       Singleton challenges the restitution order because it was entered without a

finding of reasonable ability to pay. We agree the sentencing order places an

affirmative duty on Singleton to request a reasonable-ability-to-pay hearing

before the court will determine his reasonable ability to pay. Although the order

is anticipatory, it is invalid. The district court erred in ordering the defendant to

pay restitution without knowing the total amount of restitution owed. We reverse

the part of his sentence regarding restitution and remand for resentencing

regarding restitution. State v. Albright, ___ N.W.2d ___, ___, 2019 WL 1302384,

at *14–15 (Iowa 2019); State v. Covel, ___ N.W.2d ___, ___, 2019 WL 1302388,

at *1 (Iowa 2019)

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
