IN THE COURT OF APPEALS OF IOWA
No. 16-1930
Filed July 6, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEFFREY ALLAN KIRK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, DeDra L. Schroeder,
Judge, (plea) and Peter B. Newell, District Associate Judge (sentencing).
The defendant challenges his sentence after pleading guilty to sexual
exploitation of a minor, in violation of Iowa Code sections 728.12(3) and 903B.2
(2012). SENTENCE VACATED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Bradley M. Bender,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
2
MCDONALD, Judge.
Jeffery Kirk pled guilty to sexual exploitation of a minor, in violation of Iowa
Code sections 728.12(3) and 903B.2 (2011). He was sentenced to an
indeterminate prison term not to exceed two years. Kirk challenges his sentence.
Our review is for the correction of legal error. See Iowa R. App. P. 6.907;
State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We will not disturb the
sentence imposed by the district court absent an abuse of discretion or defect in
the sentencing procedure. See Formaro, 638 N.W.2d at 724–25.
Kirk raises two challenges to his sentence. He first argues the district
court abused its discretion in relying on just a single factor in imposing
sentence—the nature of the offense. He contends the district court employed a
fixed sentencing policy rather than making an individualized sentencing
determination. At sentencing, the district court gave the following reasons for the
sentence:
THE COURT: . . . Mr. Kirk, I’ve had a chance to review the
Presentence Investigation; again, that’s a very exclusive review of
your life. I have had a chance to review the Psychosexual
Evaluation. I have had a chance to consider the recommendations
of the Department of Correctional Services. Mr. Kirk, I think that
there are some crimes that are so serious that it’s not appropriate
even for someone that doesn’t have a prior criminal history to
receive a Deferred Judgment. I think that this is one of those
crimes. The crime is the exploitation—sexual exploitation of a
minor. I think that in the Presentence Investigation they make their
recommendation to insure community safety and, again, I think it is
important sometimes that we as a community express how serious
an offense is by the imposition of a prison sentence. I think that
this is an appropriate case for that sanction.
I am going to follow the recommendations of the State and
the Department of Correctional Services. I think those are
appropriate, well-thought-out sanctions. . . .
3
In imposing a sentence, the district court must actually exercise discretion.
State v. Jackson, 204 N.W.2d 915, 917 (Iowa 1973). “In applying its discretion
the court should weigh and consider all pertinent matters in determining a proper
sentence, including the nature of the offense, the attending circumstances,
defendant’s age, character, and propensity and chances for reform.” State v.
Lachman, No. 09-0630, 2010 WL 200819, at *1 (Iowa Ct. App. Jan. 22, 2010)
(citing State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999)). “The court must exercise
its discretion without application of a personal, inflexible policy relating only to
one consideration.” Id. (citing State v. Hildebrand, 280 N.W.2d 393, 397 (Iowa
1979) and State v. Kelley, 357 N.W.2d 638, 640 (Iowa Ct. App. 1984)).
The application of a fixed sentencing policy constitutes the failure to
exercise discretion, which we treat as an abuse of discretion for the purposes of
appellate review. For example, in Hildebrand, the defendant pleaded guilty to
operating under the influence. 280 N.W.2d at 394. The district court denied the
defendant’s request for a deferred sentence, stating, “I have the policy that when
there is an accident involved, I do not and will not grant a deferred sentence.” Id.
at 395. On appeal, the supreme court held the fixed policy precluded the
exercise of the sentencing court’s discretion and remanded the matter for
resentencing. See id. at 397. Similarly, in Lachman the district court explained it
would not grant the defendant’s request for a deferred judgment because
deferred judgments were appropriate for “people who maybe are young and have
made a mistake or who might lose permanently some job or some benefits if they
have judgment entered against them and who have otherwise clean records.”
2010 WL 200819, at *2. This court held the district court’s statements evidenced
4
a policy regarding deferred judgments, vacated the sentence, and remanded for
resentencing. See id.
We conclude the district court failed to exercise its discretion in applying a
fixed policy regarding the nature of the offense. The district court stated, “[T]here
are some crimes that are so serious that it’s not appropriate even for someone
that doesn’t have a prior criminal history to receive a deferred judgment.” The
district court then identified the offense by name without identifying any of the
specific underlying facts and circumstances of the offense. In short, the district
court made a categorical determination those convicted of sexual exploitation of
a minor should not receive a deferred judgment. A categorical determination a
defendant should not be eligible to receive a deferred judgment is a legislative
determination. See Iowa Code § 907.3(1)(a) (identifying circumstances in which
the sentencing court may not defer judgment); Jackson, 204 N.W.2d at 916–17.
The offense at issue in this case is not one of the offenses the legislature has
identified as deferred-ineligible. The defendant was eligible to receive a deferred
judgment. As in Hildebrand and Lachmann, it was error to categorically exclude
the possibility without making an individualized sentencing determination.
Kirk also argues the district court erred in assessing court costs against
him for the charges dismissed as part of the plea agreement. The plea
agreement was silent on the assessment of costs for the dismissed charges.
Absent an agreement, a defendant cannot be required to pay court costs for
dismissed charges. See State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991). But
see State v. Smith, No. 15-2194, 2017 WL 108309, at *4–5 (Iowa Ct. App. Jan.
11, 2017) (noting the relevant statutes allow the assessment of costs for
5
dismissed charges in a multi-count trial information). The State concedes the
error.
For the above-stated reasons, we vacate the defendant’s sentence and
remand this matter for resentencing.
SENTENCE VACATED AND REMANDED.
Vogel, P.J., concurs; Doyle, J., concurs specially.
6
DOYLE, Judge. (concurring specially)
I concur with the majority’s vacation of Kirk’s sentence and remand for
resentencing, but I am compelled to comment on the court costs issue. This
case is similar to State v. Johnson, 887 N.W.2d 178 (Iowa Ct. App. 2016).
There, Johnson contended the court entered an illegal sentence by requiring him
to pay court costs associated with the dismissed counts, and requested that
portion of the sentencing order be vacated and the case be remanded for a
corrected sentencing order. Johnson, 887 N.W.2d at 180. Like here, the State
agreed the court committed error in taxing court costs associated with the
dismissed counts to Johnson and agreed a remand was necessary for correction
of the sentencing order. Id. at 181.
In cases such as this—where a defendant has been charged
in one trial information with multiple criminal violations, pled guilty to
some charges, and had others dismissed—there are three
categories of costs: (1) those clearly attributable to the charges on
which the defendant is convicted, (2) those clearly attributable to
dismissed charges, and (3) those not clearly associated with any
single charge. See [State v. Petrie, 478 N.W.2d 620, 622 (Iowa
1991)]. A defendant may be assessed costs clearly attributable to
the charges on which the defendant is convicted but may not be
assessed costs clearly attributable to dismissed charges. See id.
“Fees and costs not clearly associated with any single charge
should be assessed proportionally against the defendant.” Id.
Johnson, 887 N.W.2d at 181-82. In Johnson, we observed, “The fact that some
counts were dismissed does not automatically establish that a part of the
assessed court costs are attributable to the dismissed counts.” Id. at 182. We
have also observed that,
allowing for the assessment of costs for dismissed charges in a
multicount trial information would improve the administration of
justice without material detriment to the criminal defendant. Petrie
has proved to be an administrative burden without material benefit.
7
In many cases, it is well-nigh impossible to determine which costs
are associated with any particular count. See, e.g., Commonwealth
v. Soudani, 165 A.2d 709, 711 (“We fail to perceive how the costs
of prosecution in the instant case may be divided or apportioned
between the first and second counts of the indictment.”). In
addition, in many (perhaps most) cases, the costs are indivisible.
State v. Smith, No. 15-2194, 2017 WL 108309, at *5 (Iowa Ct. App. Jan. 11,
2017).
The combined general docket report prepared by the district clerk of court
on November 16, 2016, six days after Kirk filed his notice of appeal, shows a
total of $754 in court costs accrued as of that date. The court costs Kirk accrued
through the date of his sentencing were: a filing fee of $100, court reporting fees
of $40 each for the guilty plea hearing and sentencing hearing, a sheriff’s
transportation fee of $224, a $250 civil penalty for a sex offense, and a $100
sexual abuse victim surcharge. These costs would have been the same even
had the State not charged Kirk with the counts later dismissed. Moreover, the
record shows none of the assessed charges are clearly attributable or discrete to
the dismissed counts. Additionally, it is telling that Kirk makes no attempt to
demonstrate that any of the taxed court costs in this case are not clearly
attributable to the count to which he pled guilty; in fact, Kirk does not even claim
he was over-assessed court costs. In this illegal sentence claim, it is up to Kirk
to establish an over-assessment of court costs. See Johnson, 887 N.W.2d at
182. He has failed to do so. I conclude the total taxed court costs are clearly
attributable to the count to which Kirk pled guilty and, therefore, are fully
assessable to him.
8
To the extent Kirk suggests a Petrie apportionment is indicated, I
disagree. See Petrie, 478 N.W.2d at 622 (“Fees and costs not clearly associated
with any single charge should be assessed proportionally against the defendant.
Since the defendant was only convicted on one of three counts he should be
required to pay only one-third of these costs.”). Petrie is distinguishable from the
case at hand. In Petrie, it is clear fees and costs were incurred relative to the
dismissed charges. Id. And apparently, although it is not clear from the opinion,
there were fees and costs incurred that were not clearly associated with any
particular charge, and it was those fees and costs that were to be assessed
proportionally, i.e., at one-third, since Petrie pled guilty to one of three charges.
Id. The Petrie court makes no suggestion that the court costs clearly attributable
to the charge to which Petrie pled guilty should be automatically apportioned.
See also Smith, 2017 WL 108309, at *4-5 (suggesting a Petrie apportionment is
contrary to relevant statutes). As stated above, I find all the taxed court costs
clearly attributable to the count to which Kirk pled guilty, so no apportionment is
required on remand.
The judgment and sentencing order provides: “Companion Charges.
Counts II—VII are dismissed with costs assessed to the defendant on motion of
the State.” On remand, striking the words “with costs assessed to the defendant”
from the provision should be sufficient.1
1
Citing Iowa Code section 814.20 (2013) (“The appellate court may . . . reduce the
punishment, but shall not increase it.”), the State suggests this court should exercise its
authority to affirm the sentence as modified by striking the cost provision for all costs not
solely attributable to Count I. For various administrative reasons, it is better that the
modification be done at the trial court level.