IN THE COURT OF APPEALS OF IOWA
No. 13-1108
Filed May 11, 2016
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAVID BAHENA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Eliza Ovrom, Judge.
David Bahena appeals from the imposition of a fine upon the revocation of
a deferred judgment for possession of marijuana with intent to distribute.
VACATED IN PART AND REMANDED.
Lisa A. Allison of Allison Law Firm, L.L.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
2
DANILSON, Chief Judge.
David Bahena appeals from the imposition of a fine and other costs upon
the revocation of a deferred judgment for possession of marijuana with intent to
deliver, in violation of Iowa Code section 124.401(1)(d) (2011). Because the fine
was improperly assessed without reduction for the civil penalty previously
imposed, we vacate the order in part and remand for such reduction. Contrary to
Bahena’s claim, the court properly informed Bahena of the maximum and
minimum penalties, and this claim is rejected.
On April 30, 2012, Bahena pled guilty to the possession-with-intent-to-
deliver charge, and the State agreed to dismiss two other charges. At the plea
proceeding, the court informed Bahena that the charge “carries a fine ranging
from $750 to $7500 plus a 35 percent surcharge,” that he “would be required to
pay back any monetary damages” caused by his actions, and that he “would also
be required, to the degree you are reasonably able, to pay the State for any
court-appointed attorney fees and court costs. Those costs would include a
DARE surcharge and Law Enforcement Initiative surcharge.”
In accordance with the plea agreement, Bahena was granted a deferred
judgment with two years’ probation. The July 3, 2012 deferred judgment order
stated, in part:
The amounts of restitution are not available at this time. At
such time as the amounts are available, a supplemental order will
follow.
If the defendant was represented by court-appointed
counsel, the defendant must pay restitution for attorney fees, to the
extent defendant is reasonably able to do so, pursuant to section
815.9, and judgment is entered for same.
The clerk of court shall assess the DARE surcharge
pursuant to Iowa Code section 911.2 and the Law Enforcement
3
Initiative surcharge pursuant to Iowa Code section 911.3, to each
applicable offense.
....
The defendant will pay a civil penalty in the amount of
$750.00 by the 3rd day of July, 2012.
In 2013, Bahena stipulated to probation violations. On July 9, 2013, the
court entered an order revoking the deferred judgment and sentencing him to
imprisonment not to exceed five years, which sentence was suspended. Bahena
was placed on probation for two years to be served at Fort Des Moines
Correctional Facility. The court also ordered Bahena to make restitution, to
repay his court-appointed attorney’s fees, pay a $750 fine, a thirty-five percent
surcharge, a DARE surcharge, a law enforcement surcharge, and court costs.
Bahena appeals, contending the court erred in assessing the $750 fine and
surcharges when it revoked his deferred judgment.
Illegal sentences may be corrected at any time. Iowa R. Crim. P.
2.24(5)(a); State v. Lathrop, 781 N.W.2d 288, 293 (Iowa 2010). We review
sentencing decisions for a correction of errors at law. State v. Valin, 724 N.W.2d
440, 444 (Iowa 2006).
Iowa Code section 908.11(5) provides:
Notwithstanding any other provision of law to the contrary, if
the court revokes the probation of a defendant who received a
deferred judgment and imposes a fine, the court shall reduce the
amount of the fine by an amount equal to the amount of the civil
penalty previously assessed against the defendant pursuant to
section 907.14. However, the court shall assess any required
surcharge, court cost, or fee upon the total amount of the fine prior
to reduction pursuant to this subsection.
The district court erred in imposing a fine at the time it revoked Bahena’s
probation without reducing the fine by the amount of the civil penalty assessed
on deferral of judgment. We therefore vacate the court’s order to this extent.
4
Bahena also asserts that portions of the remaining fines, costs, and
surcharges levied on him were ordered in violation of Iowa Code section 909.61
because the court at the hearing in 2013 did not specifically inform him of the
DARE surcharge, court costs, and court-appointed attorney fees. We observe
the district court informed Bahena of these obligations on April 17, 2011, at the
time the court accepted Bahena’s plea. He was informed of the fine, the thirty-
five percent surcharge, court costs, court-appointed attorney fees, restitution, and
the DARE surcharge in the guilty plea proceeding. See State v. Jenkins, 788
N.W.2d 640, 644 (Iowa 2010) (“[J]udges have no discretion in Iowa to decline to
impose restitution.”). The court had no obligation to repeat this information at the
time of the hearing on the State’s application to revoke Bahena’s probation and
deferred judgment. Because the district court had no obligation to again inform
Bahena of the maximum and minimum sentences Bahena faced at the probation
revocation proceedings, we reject this claim. See Iowa R. Crim. P. 2.8(2)(b).
We vacate in part and remand for an order reducing the amount of the fine
“by an amount equal to the amount of the civil penalty previously assessed
against the defendant pursuant to section 907.14.”
VACATED IN PART AND REMANDED.
1
The second paragraph of section 909.6 provides:
At the time of imposing the sentence, the court shall inform the
offender of the amount of the fine and that the judgment includes the
imposition of a criminal surcharge, court costs, and applicable fees. The
court shall also inform the offender of the duty to pay the judgment in a
timely manner.