                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1373
                             Filed January 23, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TRACI JONES BARKER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Louisa County, Wyatt Peterson,

Judge.



      Traci Barker appeals the sentence and restitution order imposed following

her guilty plea. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.



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

Reddy, Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney

General, for appellee.



      Considered by Tabor, P.J., Greer, J., and Potterfield, S.J.*
      *Senior   judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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GREER, Judge.

        Barker appeals the sentence and restitution order entered after her guilty

plea to one count of theft in the second degree.1 We reverse the restitution portion

of the sentencing order but otherwise affirm her sentence. We remand for entry of

a final restitution order considering her reasonable ability to pay court costs and

jail fees.

        I. Background Facts and Proceedings.

        In 2017, Barker was charged with one count of theft in the second degree

in violation of Iowa Code sections 714.1(1), .1(2), and .2(2) (2017), a class “D”

felony. At all times relevant here, court-appointed counsel represented her.

        To resolve the case, Barker pleaded guilty as charged in 2018. Under the

plea agreement, if Barker paid $400 in victim restitution before sentencing, the

State would not make a sentencing recommendation. If she failed to pay, the State

could recommend any sentence. The court accepted her guilty plea and ordered

a presentence investigation report (PSI).

        The court sentenced Barker on August 10. Before sentencing, Barker failed

to advance any amount of restitution. She requested a suspended sentence and

probation.    But in the PSI, the department of correctional services (DCS)

recommended incarceration. Stating its position, the State recommended five


1 Barker appeals from a guilty plea for a class “D” felony. See Iowa Code
§ 714.2(2) (2017). Because the relevant judgment and sentence was entered
before July 1, 2019, the amended Iowa Code section 814.6(1)(a)(3) (2019) is not
applicable here. See State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019) (“On our
review, we hold Iowa Code sections 814.6 and 814.7, as amended, do not apply
to a direct appeal from a judgment and sentence entered before July 1, 2019.”);
see also Iowa Code § 814.6(1)(a)(3) (limiting appeals from guilty pleas for crimes
other than class “A” felonies).
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years in prison, noting that Barker “has committed numerous felonies,” including

several theft-related crimes and that she “may have previously been sentenced to

prison . . . as many as six times from the information in the [PSI].” The State

continued, “The case that’s before the court today was apparently perpetrated

while the most recent cases in Marshall County against her were ongoing, and as

we stand here today, Your Honor, Ms. Barker owes over $23,000 in unpaid court

fines to the State of Iowa.”

       The court outlined its reasons before imposing the sentence,

       The court has specifically considered the following factors: Ma’am,
       I’ve considered your extensive criminal history, most of which
       involves theft, forgery, and things of that nature, as the county
       attorney pointed out. By my count, in the [PSI], it appears you’ve
       been to prison approximately 10 times; that you’ve been granted a
       suspended sentence for prison or jail and had that sentence imposed
       approximately four times. There’s a significant amount, over one full
       page and onto the second page, of previous intervention programs
       and services that have been involved to assist and rehabilitate you.
                Ma’am, I also take into account, and I do have sympathy for
       you being in a wheelchair for whatever reason and however long
       that’s been; however, ma’am, that does not give you the right to take
       from other people continually.
                You indicated that you want to become a better person and
       you just want a chance, and I think by the [PSI], it shows that you’ve
       had many, many, many chances to prove that when you got out of
       jail or when you got out of prison or when you were on probation that
       you could change and not do wrong as you had before, and, ma’am,
       you continued to do those things as is shown on the [PSI].
                I’ve also taken into consideration the recommended sentence
       of the State, your defense counsel, you, and the Department of
       Correctional Services.

       In the end, the court sentenced Barker to an indeterminate term of

incarceration not to exceed five years, with credit for time served, a $750 fine, and
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applicable surcharges. The court then suspended the fine and surcharges.2 The

court ordered Barker to pay $400 in restitution to the victim. Then the court

assessed $800 in court-appointed attorney fees but suspended these fees after

finding Barker lacked the ability to pay.

       The court filed a written sentencing order the same day, which stated, “The

defendant shall also pay court costs and shall reimburse the State of Iowa for court-

appointed attorney fees in the amount of $180. The court finds the Defendant is

not financially capable of paying court-appointed attorney fees.”

       Barker appeals. After Barker filed her notice of appeal, the Louisa County

Clerk submitted a “restitution plan” showing that Barker owed $702.75 in court

costs and requiring her to pay twenty percent of all credits to her inmate account

toward court costs. The Louisa County Sheriff also applied for restitution and

reimbursement seeking $320 in jail fees. The district court approved the jail fees

as restitution without considering Barker’s ability to pay. Barker challenges these

amounts of restitution.

       II. Standard of Review.

       We review the district court’s sentence for correction of errors at law. State

v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not disturb a sentence

unless the defendant shows an abuse of discretion or a defect in the sentencing

procedure. State v. Witham, 583 N.W.2d 677, 678 (Iowa 1998). An abuse of

discretion occurs when the “court acts on grounds clearly untenable or to an extent



2Later in the hearing, the court ordered Barker to pay a $125 law-enforcement
surcharge and did not explicitly suspend this surcharge. However, it appears this
surcharge would fall under the court’s general suspension of surcharges.
                                          5

clearly unreasonable.” State v. Oliver, 588 N.W.2d 412, 414 (Iowa 1998). We

review claims of ineffective assistance of counsel de novo. State v. Risdal, 404

N.W.2d 130, 131 (Iowa 1987).

       “We review restitution orders for correction of errors at law.”       State v.

Albright, 925 N.W.2d 144, 158 (Iowa 2019). “[W]e determine whether the court’s

findings lack substantial evidentiary support, or whether the court has not properly

applied the law.” Id. (alteration in original) (quoting State v. Klawonn, 688 N.W.2d

271, 274 (Iowa 2004)).

       III. Analysis.

       Barker raises three claims on appeal: (1) the PSI improperly included a

sentencing recommendation, (2) the district court considered improper factors

when imposing the sentence, and (3) the court erred when it ordered Barker to pay

attorney fees, court costs, and jail fees without considering her reasonable ability

to pay. We consider each claim in turn.

       A. PSI Sentencing Recommendation. First Barker argues that making a

sentencing recommendation in the PSI is a procedural defect that requires

resentencing. We disagree. These DCS sentencing recommendations are not

binding on the court. See State v. Headley, 926 N.W.2d 545, 552 (Iowa 2019).

Nor does the court abuse its discretion by considering a sentencing

recommendation. Id. For that reason, it was not a procedural defect for DCS to

include a sentencing recommendation in the PSI.

       B. Improper Sentencing Considerations. Barker next argues the court

abused its discretion at her sentencing.        Iowa Rule of Criminal Procedure

2.23(3)(d) requires the trial court to state on the record the reasons for a sentence.
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“‘[I]f a court in determining a sentence uses any improper consideration,

resentencing of the defendant is required,’ even if it was ‘merely a “secondary

consideration.”’” State v. Lovell, 857 N.W.2d 241, 243 (Iowa 2014) (quoting State

v. Grandberry, 619 N.W.2d 399, 401 (Iowa 2000)).

       “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.” Formaro, 638 N.W.2d at 724. “It is equally important to consider

the host of factors that weigh in on the often arduous task of sentencing a criminal

offender, including the nature of the offense, the attending circumstances, the age,

character and propensity of the offender, and the chances of reform.” Id. at 724–

25.

       Barker argues the district court erred in considering these factors during

sentencing: (1) Barker’s $23,000 in outstanding court debt and (2) an incorrect

number of her prior suspended sentences that were revoked.

       1. Outstanding court debt. Barker’s first argument is based on the district

court’s statement during sentencing that it had “also taken into consideration the

recommended sentence of the State.”           The State, during its sentencing

recommendation, noted that Barker still owed over $23,000 in unpaid court debt

for prior offenses. It is unclear why the State mentioned her unpaid court debt

other than to associate it with the ongoing criminal cases in a different county.

According to Barker, by considering the State’s sentencing recommendation, the

court was considering her unpaid court debt when it imposed the sentence.
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      We disagree. The court clearly stated on the record its reason for imposing

a prison sentence over probation: Barker’s long history of committing similar

offenses and her lack of rehabilitation despite the opportunities to change her

behavior. There is no indication that the sentencing court considered Barker’s

court debt when imposing the sentence. That the State made a passing comment

about the court debt while recommending its sentence, and then the court

generally considered the State’s recommendation, does not alone require

resentencing.

      2. Suspended sentences. Barker next argues the court erred when it

stated: “By my count, in the [PSI] it appears . . . that you’ve been granted a

suspended sentence for prison or jail and had that sentence imposed

approximately four times.” Barker argues that statement constituted consideration

of an impermissible factor because “although Barker was revoked from probation

in four case numbers, Barker was revoked from probation only a total of three

times” because sentencing and revocation occurred at the same time in two of the

case numbers. We fail to see how the court’s stating “approximately four times”

when it was in fact three times in four case numbers constitutes considering an

improper sentencing factor. We find Barker’s argument without merit and decline

to disturb her sentence.

      C. Reasonable Ability to Pay Restitution. Finally, Barker argues she

does not have the reasonable ability to pay attorney fees or court costs, including

jail fees. Along with victim restitution, Barker was assessed $702.75 in court costs

and $320 in jail fees. She also claims she must pay $180 in court-appointed

attorney fees.
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       The court may order fees and costs as restitution if the defendant is

reasonably able to pay.      Albright, 925 N.W.2d at 159; see also Iowa Code

§§ 815.9(5), 910.3. The court must set the amount of restitution at the time of

sentencing. Albright, 925 N.W.2d at 160. “If not all of the items of restitution are

available at the time of sentencing, the Code allows the sentencing court to file

temporary, supplemental, and permanent orders prior to the final plan of

restitution.” Id. “This constellation of orders is the plan of restitution.” Id. “Until

the court issues the final restitution order, the court is not required to consider the

offender’s reasonable ability to pay.” Id. at 160–61.

       At the sentencing hearing and again in the written sentencing order, the

district court found that Barker did not have the reasonable ability to pay her court-

appointed attorney fees. The jail fees and court costs were approved without a

consideration of whether Barker was reasonably able to pay. That said, the district

court has not yet entered a final restitution order. We remand to the district court

to consider Barker’s reasonable ability to pay court costs and jail fees and enter a

final restitution order. In this order, Barker’s responsibility for the court-appointed

attorney fees shall be waived as the district court determined she was not

reasonably able to pay these fees.

       IV. Disposition.

       For these reasons, we reverse the restitution portion of the sentencing order

but otherwise affirm Barker’s sentence. We remand for entry of a final restitution

order considering her reasonable ability to pay court costs and jail fees.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
