IN THE COURT OF APPEALS OF IOWA
No. 14-1582
Filed August 19, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
RONALD LAM JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Marlita A. Greve
(plea) and John D. Telleen (sentencing), Judges.
Ronald Lam appeals his sentence following a guilty plea to five counts of
burglary in the second degree and one count of credit card fraud. SENTENCE
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney
General, Michael J. Walton, County Attorney, and Amy Devine and Dion
Trowers, Assistant County Attorneys, for appellee.
Considered by Vogel, P.J., Potterfield, J., and Sackett, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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VOGEL, P.J.
Ronald Lam appeals his sentence, following a guilty plea, for five counts
of burglary in the second degree, in violation of Iowa Code sections 713.5(2) and
703.1 (2013), and one count of credit card fraud, in violation of Iowa Code
section 715A.6(2). Lam asserts the court abused its discretion when it noted that
one of Lam’s statements during allocution—that his wife did not know the crimes
occurred—was, in the court’s opinion, false. Lam also argues the court
improperly assessed him court costs incurred for three dismissed counts.
Because we conclude the district court did not consider an improper sentencing
factor, we affirm this portion of the sentence. However, Iowa Code section
815.13 provides that court costs incurred for dismissed counts be assessed to
the State, and here, court costs were not specifically contemplated in the plea
agreement. Therefore, we vacate the portion of the sentence assessing court
costs to Lam on the three dismissed charges and remand for entry of a corrected
sentencing order.
I. Background Facts and Proceedings.
Over the course of three dates—July 29, August 6, and August 13, 2013—
Ronald Lam committed a number of crimes. He provided a ride to and from six
homes knowing the person to whom he gave a ride was going to break into or
enter the homes with the specific intent to steal something inside. Lam sat
outside and acted as a lookout while his companion was in the house. Id. Lam
also took a person’s American Express card and attempted to withdraw money
from an ATM without the owner’s permission.
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The State charged Lam by two trial informations with a total of nine
counts, including: six counts of burglary in the second degree, a class “C” felony,
in violation of Iowa Code sections 713.5(2) and 703.1; one count of conspiracy to
commit a felony, a class “D” felony, in violation of Iowa Code section 706.3; one
count of credit card fraud, an aggravated misdemeanor, in violation of Iowa Code
section 715A.6(2); and one count of theft in the second degree, a class “D”
felony, in violation of Iowa Code section 714.2(2).
On August 4, 2014, Lam pled guilty to five counts of burglary in the
second degree and one count of credit card fraud. The State agreed to dismiss
the other three counts. The plea agreement stated in part: “The [S]tate’s
recommendation is conditioned on the defendant making restitution, an amount
to be determined on all charged cases.”1 No further explanation of what would
constitution restitution was contained in the plea.
During the sentencing hearing held on September 18, 2014, Lam was
afforded his right of allocution and asserted he was “willing to pay every penny
back to society and any other surcharges and fees.” Additionally, Lam stated:
“My wife was unaware of a lot of things that I was doing, she did not know where
I was at night and that’s, I don’t know, I wish [I] had the opportunity to make
things up to her as well.”
During the sentencing hearing, the district court stated:
And by the by, I’m not buying your statements that your wife didn’t
know what you were doing. I did read the minutes of testimony,
and at least according to the minutes of testimony, they show that
you were texting your wife during the process of these events
telling her what you had gotten from various homes and so, it’s not
1
This section was also read aloud by the court during the plea colloquy.
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really relevant to my decision on sentencing at all, as a matter of
fact it’s not really relevant, I’m pointing out that I’m not necessarily
buying that your wife didn’t know, but that’s frankly neither here nor
there to my sentence because I find for deterrence, the interest of
deterrence, and punishment separating you from the community is
appropriate.
With regard to the six guilty convictions, the district court sentenced Lam
to a term of incarceration not to exceed twenty years, ordering two of the burglary
sentences to run consecutively, with the remaining sentences to run
concurrently. Three counts—two counts of burglary in the second degree and
one count of theft in the second degree—were then dismissed upon the State’s
motion. As part of its sentencing order, the district court assessed to Lam the
court costs incurred for those dismissed counts. Lam appeals.
II. Scope and Standard of Review.
We review the imposition of a sentence for an abuse of discretion. State
v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010). “The decision of the district court
to impose a particular sentence within the statutory limits is cloaked with a strong
presumption in its favor,” and we will not reverse on appellate review unless the
defendant demonstrates an abuse of trial court discretion or the consideration of
inappropriate matters. State v. Formaro, 638 N.W.2d 720 (Iowa 2002) (citing
State v. Pappas, 337 N.W.2d 490, 494 (Iowa 1983)).
We review challenges to the legality of a sentence for correction of errors
at law. State v. Sisk, 577 N.W.2d 414, 416 (Iowa 1998). The amount of
restitution is part of the sentencing order and may be directly appealed. State v.
Janz, 358 N.W.2d 547, 549 (Iowa 1984).
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III. Sentencing Factors.
A sentence will be set aside when the district court “relied upon”
unprosecuted or uncharged offenses that were “neither admitted to by the
defendant nor otherwise proved.” State v. Sailer, 587 N.W.2d 756, 762 (Iowa
1998). “In order to overcome the presumption the district court properly
exercised its discretion, there must be an affirmative showing the court relied on
the improper evidence.” State v. Dake, 545 N.W.2d 895, 897 (Iowa Ct. App.
1996).
Upon review of the record, we conclude the district court did not abuse its
discretion by relying on an improper factor. With regard to Lam’s statement that
his wife did not know, the court explicitly stated:
[I]t’s not really relevant to my decision on sentencing at all, as a
matter of fact it’s not really relevant, I’m pointing out that I’m not
necessarily buying that your wife didn’t know, but that’s frankly
neither here nor there to my sentence because I find for deterrence,
the interest of deterrence, and punishment separating you from the
community is appropriate.
The court then imposed its sentence based on the protection of the
community, the seriousness of the crimes, the number of crimes of which Lam
had been convicted, the interest of deterrence, and punishment. See Iowa Code
§ 901.5; Formaro, 638 N.W.2d at 725 (asserting that at sentencing it is important
for the court to consider: the nature of the offense; the attending circumstances;
the age, character, and propensity of the offender; and the chances of reform).
The court also considered mitigating factors, including Lam’s willingness to
accept change and treatment, community resources, Lam’s own statements to
the court, and his wife’s comments.
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The court noted it did not believe one of Lam’s statements; however, it
explicitly stated this was not a factor in its sentencing decision. In State v. Bragg,
388 N.W.2d 187, 191 (Iowa Ct. App. 1986), our court held that, although the
sentencing court stated “in unequivocal and accusatory language” that it believed
part of the defendant’s testimony was a “bald faced lie,” it was not an abuse of
discretion for the court to consider the truth and veracity of the defendant’s
statements in determining the defendant’s character. Here, there is no evidence
the court even considered the truth of Lam’s statements in determining his
character. The court merely opined the statement was false and then
affirmatively stated that opinion was not a factor in its sentencing decision.
Consequently, the district court’s decision fell within the range of
sentences authorized by statute, was supported by a thorough analysis of the
relevant sentencing factors, and did not rely on any improper sentencing factors.
See Iowa Code § 902.9(1)(e). Accordingly, we find no abuse of discretion and
affirm that portion of Lam’s sentence.
IV. Illegal Sentence.
Lam also argues the court improperly assessed him court costs incurred
for three counts dismissed by the State. Lam claims because he did not
expressly agree to pay court costs for dismissed counts in his plea agreement,
his sentence was illegal. The State, in turn, argues court costs for dismissed
counts was contemplated in the plea agreement by the statement: “The [S]tate’s
recommendation is conditioned on the defendant making restitution, an amount
to be determined on all charged cases.”
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“Criminal restitution is a creature of statute.” State v. Watson, 795 N.W.2d
94, 95 (Iowa Ct. App. 2011) (citing Woodbury County v. Anderson, 164 N.W.2d
129, 133 (Iowa 1969) and State v. Tutor, 538 N.W.2d 894, 896 (Iowa Ct. App.
1995)). A defendant is responsible for court costs associated with the particular
charge to which he pleads or is found guilty. Iowa Code § 910.2. Additionally,
Iowa Code section 910.1(4) identifies court costs as a form of restitution.
However, this section only applies to “criminal cases in which there is a plea of
guilty, verdict of guilty, or special verdict upon which a judgment of conviction is
rendered.” Id. § 910.2(1).
In State v. Petrie, 478 N.W.2d 620, 621–22 (Iowa 1991), our supreme
court determined:
The provisions of Iowa Code section 815.13 and section 910.2
clearly require, where the plea agreement is silent regarding the
payment of fees and costs, that only such fees and costs
attributable to the charge on which a criminal defendant is
convicted should be recoverable under a restitution plan . . . .
Expenses clearly attributed to other charges such as attorney fees
connected with the suppression issues should not be assessed
against the defendant. Fees and costs not clearly associated with
any single charge should be assessed proportionally against the
defendant. Since the defendant [in Petrie] was only convicted on
one of three counts he should be required to pay only one-third of
these costs.
Thus, Iowa Code section 815.13 authorizes the collection of costs of a
criminal prosecution from a defendant “unless the defendant is found not guilty or
the action is dismissed.” Iowa Code § 815.13 (emphasis added); see also Petrie,
478 N.W.2d at 622. The imposition of court costs for dismissed counts is without
statutory authorization. However, a lack of statutory authorization does not
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preclude “the parties to a plea agreement from making a provision covering the
payment of costs and fees.” Petrie, 478 N.W.2d at 622.
Lam claims his plea agreement does not have a provision covering the
payment of court costs for dismissed counts. The plea’s restitution provision
states: “The [S]tate’s recommendation is conditioned on the defendant making
restitution, an amount to be determined on all charges.” It did not affirmatively
state he was responsible for court costs for the dismissed counts. Thus, it was
error for the district court to assess court costs to Lam for the three dismissed
counts. We therefore vacate that portion of the sentence to eliminate the court
costs for the dismissed counts.
V. Conclusion.
Because the court did not consider improper factors in its sentencing
decision, we find no abuse of discretion with respect to the imposition of Lam’s
sentence. However, the assessment of court costs to Lam for the dismissed
counts was neither authorized by statute nor expressly agreed to in Lam’s plea
agreement; therefore, we vacate this portion of the sentence. Accordingly, we
remand for entry of a corrected sentencing order consistent with this ruling.
SENTENCE AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.