                    IN THE COURT OF APPEALS OF IOWA

                                      No. 19-0569
                                  Filed June 3, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

VADIM IGOREVICH SHULTSEV,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Warren County, Brendan Greiner,

District Associate Judge.

      Defendant appeals the sentence and the restitution order. SENTENCE

VACATED      IN   PART      AND     REMANDED       FOR   DETERMINATION    OF

RESTITUTION.



      Martha J. Lucey, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.



      Considered by Bower, C.J., and Greer and Ahlers, JJ.
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GREER, Judge.

       Vadim Shultsev appeals the sentence imposed after he pled guilty to the

charge of operating a motor vehicle while barred, in violation of Iowa Code sections

321.560 and 321.561 (2018).1 The district court ordered Shultsev to serve a

ninety-day sentence at the Warren County jail and ordered that sentence to run

concurrently with three Polk County sentences on other offenses.            Shultsev

contends that the district court abused its discretion by failing to delineate

adequate reasons for the sentence.

       Additionally, the court levied a $625 fine; a $218.75 surcharge; and court

costs to be determined or $200, whichever was less, against Shultsev. Then the

district court found Shultsev was reasonably able to pay $60 in attorney fees and

up to $3,600 in correctional fees as restitution. Shultsev argues the court erred by

determining he had a reasonable ability to pay the court costs, attorney fees, and

correctional fees. We address his concerns below.

       I. Standard of Review.

       Our review of the imposed sentence is for errors at law. State v. Thomas,

547 N.W.2d 223, 225 (Iowa 1996). When reviewing a district court’s sentencing

decision, we will not reverse absent either an abuse of discretion or a defect in the

sentencing procedure, such as the consideration of inappropriate matters. See

State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). A district court abuses its



1 Amended Iowa Code section 814.6(1)(a)(3) (2019) would not provide Shultsev a
right of appeal from his guilty plea. However this “provision[] appl[ies] only
prospectively and do[es] not apply to cases pending on July 1, 2019.” State v.
Macke, 933 N.W.2d 226, 235 (Iowa 2019). For that reason, the amendment does
not apply here to prevent Shultsev’s appeal.
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discretion when it “exercises its discretion on grounds clearly untenable or to an

extent clearly unreasonable.” State v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010).

       “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)).

       II. Sentencing.

       Although Shultsev pled guilty and agreed to the sentence imposed, with

buyer’s remorse, he seeks another shot at the sentence term. To get the second

shot, he argues the court failed to identify adequate reasons for a sentence

Shultsev believes is too harsh. First, we note that we give sentencing decisions

by a district court “a strong presumption in their favor.” State v. Loyd, 530 N.W.2d

708, 713 (Iowa 1995). Yet the district court must follow certain parameters in

sentencing. Iowa Rule of Criminal Procedure 2.23(3)(d) provides, in part, that

when a district court sentences a defendant, “[t]he court shall state on the record

its reason for selecting the particular sentence.” To satisfy this requirement, the

district court may state its reasons orally on the record or by including them in the

written sentencing order. State v. Thompson, 856 N.W.2d 915, 919 (Iowa 2014).

The most important purpose of the requirement is to afford appellate courts the

opportunity to review the sentencing court’s discretion. Id. Here we can easily

ascertain the district court’s rationale for the sentence imposed.

       During the sentencing proceedings, the district court learned that Shultsev

committed two other driving-while-barred offenses during the time between the
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plea and the sentencing. The State outlined Shultsev’s criminal record. The

history reflected eight convictions for driving while barred or revoked and two

convictions for operating while intoxicated. While the sentencing order contained

the traditional boilerplate considerations required under Iowa Code section 907.5,

it noted no specifics related to this case. But we have the benefit of the reported

colloquy between the court and Shultsev, during which the district court offered

specific frustrations related to Shultsev’s propensity to drive without a license. The

district judge observed:

       All right. Well, I am not sure how we are going to impress upon you
       that you can’t drive when you don’t have a license, and that is my
       primary concern right now. And I guess what I keep hearing is that
       you expect to keep driving without having any consequences
       because you don’t think that is a big deal. . . .
               ....
               . . . So I understand that it is a nonviolent offense. I
       understand that nobody was hurt, but, you know, there has got to be
       a consequence for you because you keep driving without a driver’s
       license. And you keep thinking that it is not that big of a deal, so I
       am not sure what the court can do to impress upon you that it is a
       big deal.
               Frankly, I think the State is absolutely justified in asking for
       two years in prison given your record and your disregard for the law.

“While the rule requires a statement of reasons on the record, a ‘terse and succinct’

statement may be sufficient, ‘so long as the brevity of the court’s statement does

not prevent review of the exercise of the trial court’s sentencing discretion.’” State

v. Thacker, 862 N.W.2d 402, 408 (Iowa 2015) (citation omitted). “A terse and

succinct statement is sufficient, however, only when the reasons for the exercise

of discretion are obvious in light of the statement and the record before the court.”

Id.; see also, e.g., State v. Victor, 310 N.W.2d 201, 205 (Iowa 1981) (noting it was

“clear from the trial court’s statement exactly what motivated and prompted the
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sentence” (emphasis added)).       Here the sentence reflected the goal to alert

Shultsev that driving while barred is a “big deal” and his cavalier disregard of the

laws must end.

       Likewise, Shultsev signed a written plea agreement that clearly set out the

sentence the district court imposed.2        During the plea proceeding, Shultsev

confirmed his understanding of the agreement.

               THE COURT: Mr. Shultsev, it is my understanding that you
       will either be—that the plea agreement is for 90 days in jail or two
       years in prison. Is that also your understanding?
               SHULTSEV: Yes, sir.
               THE COURT: You understand that I don’t have to go along
       with that agreement?
               SHULTSEV: Yes.

       In the end, a court is to make each sentencing decision on an individual

basis, seeking to fit the particular person affected. State v. McKeever, 276 N.W.2d

385, 387 (Iowa 1979). With careful consideration, the court noted it weighed all

options after Shultsev argued for probation rather than a term of incarceration.

Given the district court’s concerns, this sentence particularly satisfied the court’s

interest in rehabilitating Shultsev. See State v. Hopkins, 860 N.W.2d 550, 555

(Iowa 2015) (noting postconviction rehabilitation efforts are an appropriate

sentencing factor to consider). The district court listed relevant factors for its

reasonable sentencing decision. We find Shultsev failed to prove an abuse of

discretion.




2Shultsev waived counsel before the plea proceeding and represented himself
until his request for court-appointed counsel at sentencing.
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       III. Reasonable Ability to Pay Restitution.

       Shultsev maintains that the district court erred in ordering restitution for his

court-appointed attorney fees up to $60, court costs not to exceed $200, and not

more than $3,600 in correctional fees. There are two categories of restitution.

Albright, 925 N.W.2d at 159. The district court orders category-one restitution

(fines, penalties, and surcharges) without regard to a defendant’s ability to pay.

See id.; see also Iowa Code § 910.2(1). But the district court must determine a

defendant’s reasonable ability to pay any form of category-two restitution before

ordering a defendant to pay it. Albright, 925 N.W.2d at 159. Court costs, including

correctional fees approved under Iowa Code section 356.7, and court-appointed

attorney fees are considered items of category-two restitution, requiring the court

to determine the defendant’s reasonable ability to pay before ordering the

defendant to pay this form of restitution. Id.; see also Iowa Code § 910.2(1).

       Shultsev argues not that he cannot pay, but that the district court failed to

follow the appropriate exercise before ordering these payments. To start, the

district court benefited from a review of the financial affidavit filed by Shultsev. The

affidavit revealed no income, no assets, and debt of $1000. However, during the

sentencing, Shultsev presented a different picture of his financial prowess.

Shultsev responded to a question about his company, “It is SOS Auto Collision. I

do insurance work and I do customers’ cars. So I do pretty big clientele and stuff.

I do buy cars from car auctions. I fix them up and pretty much resell them too.”

Additionally, in seeking probation, Shultsev emphasized he had paid all previous

fines for his other offenses. The State argues this history supports Shultsev’s

ability to pay. But Shultsev notes the effort of paying mandatory fees cannot be
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determinative of the reasonable-ability-to-pay standard as it is not indicative of

whether additional fines will cause undue hardship.

       While Shultsev offered some initial detail about his earning ability, the

district court lacked the financial specifics necessary to determine whether

Shultsev had a reasonable ability to pay the court-appointed attorney fees, the

court costs, and the correctional fees over and above the other fines. Additionally,

with the conflicting financial information provided, a more detailed examination of

Shultsev’s actual earnings and livelihood is necessary to meet the Albright criteria.

We vacate the restitution order to allow the district court to solve this discrepancy

and fully analyze Shultsev’s reasonable ability to pay.

       IV. Conclusion.

       Because we find no abuse of discretion by the district court with the

sentencing term, we affirm the sentencing decision. We vacate the restitution

order and remand for further proceedings to determine Shultsev’s reasonable

ability to pay.

       SENTENCE        VACATED        IN       PART   AND     REMANDED         FOR

DETERMINATION OF RESTITUTION.
