                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1847
                               Filed March 4, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DONOVAN MICHAEL LEE HELMS HOUGHMASTER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Union County, Patrick W.

Greenwood, Judge.



      Donovan Houghmaster appeals following his guilty pleas to theft of a motor

vehicle, criminal mischief in the second degree, and lascivious acts with a child.

AFFIRMED AND REMANDED.



      Martha J. Lucey, State Appellate Defender, and Melinda J. Nye, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.



      Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, Judge.

        The proceedings underlying this appeal began with two separate criminal

cases. In the first, Donovan Houghmaster pled guilty to theft of a motor vehicle

and second-degree criminal mischief.          The district court granted deferred

judgments on both counts and placed Houghmaster on probation. In the second,

the State charged Houghmaster with two counts of second-degree sexual abuse.

Houghmaster pled guilty to one count of lascivious acts with a child. Because the

second case arose while Houghmaster was on probation in the first, the judicial

district department of correctional services filed a report of a probation violation.

        The district court scheduled a combined probation revocation and

sentencing hearing. At the outset, Houghmaster agreed his plea to lascivious acts

with a child in the second case “would constitute a violation of the probation

contract” in the first case. He further agreed the court had “authority to enter

judgment on [the] two prior charges” in the first case.

        The district court found Houghmaster “in violation of the terms and

conditions of his probation,” revoked his deferred judgments, and entered

judgment of conviction for theft and second-degree criminal mischief.            After

considering a presentence investigation (PSI) report which made reference to

certain risk assessment tools, the court sentenced Houghmaster to two prison

terms not exceeding five years each on the theft and criminal mischief counts, to

be served concurrently. The court also entered judgment of conviction on the plea

of lascivious acts with a child and sentenced Houghmaster to a prison term not

exceeding ten years, to be served concurrently with the prison terms in the first

case.
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       On appeal, Houghmaster contends the district court: (1) should not have

relied on the risk assessment tools referenced in the PSI report; (2) improperly

relied on the sentencing recommendation in the PSI report; (3) entered conflicting

orders on reimbursement of attorney fees; and (4) erred in ordering him to make

restitution of “all counseling required for the victim” rather than counseling

associated with the crime.1

I.     Challenge to Use of Risk Assessment Tools

       Houghmaster raises a four-pronged challenge to the district court’s

consideration of risk assessment tools. First, he maintains his due process rights

were violated. Second, he contends the district court abused its discretion in using

the tools because they lacked a statutory basis. Third, he asserts the court did not

have a sufficient understanding of their purposes and limitations. Finally, he raises

the claim under an ineffective-assistance-of-counsel rubric.

       The supreme court addressed Houghmaster’s first and fourth issues in

State v. Guise, 921 N.W.2d 26, 29 (Iowa 2018), and State v. Gordon, 921 N.W.2d

19, 24 (Iowa 2018), filed after the briefs were submitted.        The court held a

defendant cannot “raise this due process argument for the first time on appeal

when the defendant did not bring the issue to the district court at the time of

sentencing.” Guise, 921 N.W.2d at 29; Gordon, 921 N.W.2d at 24. The court

further concluded a court cannot “address this due process issue under the rubric



1 The appeal was held in abeyance pending a decision on whether recent
legislation limiting direct appeals from guilty pleas and prohibiting resolution of
ineffective-assistance-of-counsel claims on direct appeal applied retroactively.
The supreme court concluded the statutory changes did not apply retroactively.
See State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019).
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of ineffective assistance of counsel because the record is insufficient to reach this

claim.” Id. Houghmaster did not object to the PSI report or otherwise preserve

error on his due process challenge to the use of risk assessment tools.

Accordingly, we cannot consider the merits of the issue, either directly or under an

ineffective-assistance-of-counsel rubric.

       The supreme court addressed the second prong of Houghmaster’s

challenge to use of the risk assessment tools in State v. Headley, 926 N.W.2d 545,

550 (Iowa 2019), also filed after briefing in this case.2 The court concluded the

tools were statutorily authorized as “pertinent information” to sentencing under

Iowa Code section 901.5 (2017) and, accordingly, “the district court did not abuse

its discretion in considering the risk assessment tools on their face as contained

within the PSI.” Id. at 551. Headley resolves the statutory-authorization question.

       Next, the court considered whether use of the tools was inconsistent with

its limitations. Id. The court concluded:

       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.” Headley failed to object to the
       tools on these grounds. Accordingly, we cannot reach the merits of
       this argument on direct appeal. Therefore, Headley may raise this
       issue in a postconviction-relief action if he so desires.

Id. (citations omitted). The same holds true here.




2 The court addressed the issue notwithstanding the defendant’s failure to object.
Headley, 926 N.W.2d at 550. The court stated, “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.” Id.
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       In sum, Houghmaster’s four challenges to the risk assessment tools have

been resolved against him in recent opinions.

II.    Sentencing Recommendation

       Houghmaster contends the district court “considered an improper factor

when it relied on the recommendation in the PSI [report] to determine the

appropriate sentence for [him].” He also asserts that, if the issue is not preserved,

counsel was ineffective in failing to raise it. Although Houghmaster did not object

to the court’s reliance on the sentencing recommendation at the time of

sentencing, we may consider the issue on direct appeal. See id. at 552.

       In Headley, the court held “any sentencing recommendations contained in

the PSI are not binding on the court. Therefore, the court did not abuse its

discretion when it considered the department of correctional services’ sentencing

recommendation.” Id. (citation omitted); accord State v. Grandberry, 619 N.W.2d

399, 402 (Iowa 2000) (“In determining a defendant’s sentence, a district court is

free to consider portions of a presentence investigation report that are not

challenged by the defendant.”). In light of Headley, we conclude the district court

did not consider an impermissible factor in relying on the recommendation in the

PSI report.

III.   Attorney Fees

       The district court orally found Houghmaster did not have a reasonable ability

to pay attorney fees. However, the court’s written sentencing orders required him

to make restitution for court-appointed attorney fees. Houghmaster asserts the

inconsistency must be corrected.
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       The State concedes “the written sentence in [the case involving the theft

and criminal mischief pleas] contradicts the oral pronouncement of sentence.” See

State v. Hess, 533 N.W.2d 525, 528 (Iowa 1995) (“[W]here there is a discrepancy

between the oral pronouncement of sentence and the written judgment and

commitment, the oral pronouncement of sentence controls.” (citation omitted)).

The State further agrees we “should remand for the entry of an order nunc pro tunc

removing the inconsistent language.” Specifically, the State concedes “the four

written sentencing orders should be modified to remove the assessment of

attorney’s fees.” See id. at 527 (“[T]he trial court holds the inherent power to

correct the judgment entry so that it will reflect the actual pronouncement of the

court”).

IV.    Victim Counseling Costs

       Houghmaster was ordered to make victim restitution.           See Iowa Code

§ 910.2(1)(a); State v. Gross, 935 N.W.2d 695, 701 (Iowa 2019) (“The first

category [of restitution], consisting of victim restitution and statutory fines,

penalties, and surcharges, must be ordered “regardless of the offender’s

reasonable ability to pay.” (citing State v. Albright, 925 N.W.2d 144, 159 (Iowa

2019))). At issue here is the following language: “IT IS FURTHER ORDERED that

the Defendant shall pay for all counseling required for the victim.”

       Houghmaster does not challenge “his restitution obligation to the extent the

victim’s counseling is limited to counseling needed as a result of his actions.” He

argues, “because the court’s order is so broadly worded, the court has exceeded

its authority in ordering [him] to pay ‘all counseling’ required by the victim.” The

State counters that the restitution for counseling ordered in this case is “statutorily
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constrained to those costs with a nexus to the crime, and thus need not be limited

through additional language.” We agree. See Iowa Code § 910.1(3) (“‘[P]ecuniary

damages’ includes damages for . . . expenses incurred for psychiatric or

psychological services or counseling or other counseling for the victim which

became necessary as a direct result of the criminal activity.” (emphasis added)),

(4) (defining “‘Restitution” as “payment of pecuniary damages to a victim in an

amount and in the manner provided by the offender’s plan of restitution”). As the

State points out, Houghmaster may request a hearing if he believes the counseling

expenses exceed those associated with the crimes. See id. § 910.7.

      We affirm the district court’s sentencing order. We “remand for the court to

correct the [attorney fee] error by issuance of an order nunc pro tunc.” Hess, 533

N.W.2d at 526.

      AFFIRMED AND REMANDED.
