State of Iowa v. Quinten Brice McMurry

IN THE SUPREME COURT OF IOWA
No. 16–1722

Filed March 29, 2019

STATE OF IOWA,

Appellee,

vs.

QUINTEN BRICE McMURRY,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Warren County, Kevin A.

Parker, District Associate Judge.

Defendant appeals from the judgment and sentence for the crime of

making a false report and from revocation of probation. DECISION OF

COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AND

SENTENCE AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.

Mark C. Smith, State Appellate Defender (until withdrawal), and

Melinda J. Nye, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Louis S. Sloven, Assistant

Attorney General, Doug Eichholz, County Attorney, and Bobbier A.

Cranston, Assistant County Attorney, for appellee.
 2

CADY, Chief Justice.

In this appeal, we primarily consider whether the district court

properly assessed court costs and court-appointed attorney fees in the

prosecution of a multicount trial information when one of the counts

resulted in a conviction based on a plea of guilty and the other counts were

dismissed. On our review, we explain and modify our rule relating to the

equitable apportionment of fees and court costs in criminal cases and

conclude the district court properly assessed all of the court costs in the

case against the defendant. We also hold that the amount of court-

appointed attorney fees assessed against the defendant must be

determined before the sentencing court determines the reasonable amount

the defendant is able to pay. Accordingly, we vacate the decision of the

court of appeals, affirm the judgment and sentence of the district court in

part, reverse in part, and remand for resentencing on restitution for court-

appointed attorney fees.

I. Background Facts and Proceedings.

Quinten McMurry was charged by a trial information filed on

June 24, 2016, with the crimes of false report of an incendiary explosive

device in violation of Iowa Code section 712.7 (2016), threats to place an

incendiary or explosive device in violation of section 712.8, and

harassment in violation of section 708.7(1) and (2). The charges stemmed

from an incident on June 14, 2016, while McMurry was serving a term of

probation imposed by a deferred judgment for the crimes of child

endangerment and interference with official acts. On August 24, 2016,

the State dismissed the harassment charge, and the case subsequently

proceeded to trial on the false report and threats crimes.

On the day of trial, McMurry reached a plea agreement with the

State. The agreement required McMurry to enter into an Alford plea of
 3

guilty to the false report charge, and the State would dismiss the threats

charge. The plea agreement did not cover payment of court costs. The

district court subsequently accepted the guilty plea. McMurry also

stipulated to the violation of his probation.

McMurry appeared in court on October 3, 2016, for sentencing on

the crime of making a false report and for a hearing on the revocation of

probation. The district court sentenced him to a five-year indeterminate

term of incarceration for the crime of false report and imposed a two-year

indeterminate term of incarceration for the crimes of child endangerment

and interference after revoking the deferred judgment. It ordered the two

sentences to run consecutively. The district court then suspended the

terms of incarceration and placed him on probation. One term of

probation required McMurry to reside at the Fort Des Moines Residential

Facility. The court also ordered McMurry to pay restitution, including

court costs and court-appointed attorney fees. The provision in the

sentencing order relating to restitution provided for the payment of “court

costs in the amount” to be determined “(clerk to assess).” The provision

relating to attorney fees included a finding by the sentencing court that

McMurry had “the reasonable ability to pay” the fees and costs, but the

amount of fees was left open for a later determination.

Ten days following sentencing, the clerk of court issued a docket

report. The report assessed court costs totaling $220, consisting of the

trial information filing and docketing fee of $100 and three separate court

reporter fees of $40 for the arraignment and bond review hearing, guilty

plea hearing, and sentencing hearing.

McMurry appealed from the judgment and sentence, and raised four

claims of error. First, he claimed his trial counsel was ineffective for

allowing him to enter a plea of guilty to child endangerment without a
 4

factual basis. Second, he claimed the district court erred in ordering him

to complete the Fort Des Moines Residential Facility program as a term of

probation. Third, he claimed the district court imposed an illegal sentence

by ordering him to pay costs associated with counts of the trial information

that were dismissed by the State. Finally, he claimed the district court

erred in assessing court-appointed attorney fees before the amount of the

fees was known.

We transferred the case to the court of appeals. The court of appeals

affirmed the judgment and sentence of the district court. It held that a

factual basis supported the plea of guilty to child endangerment and that

the district court did not abuse its discretion when imposing the terms of

probation. It also held that the court costs assessed to McMurry were

attributed to the count of conviction and declined to address the attorney-

fee claim without a final determination of the total fees. McMurry sought,

and we granted, further review.

On further review, we vacate the decision of the court of appeals,

but consider only two of the issues raised. We consider whether the

district court imposed an illegal sentence by failing to assess court costs

proportionately between the count that resulted in the conviction and the

two counts dismissed. We also consider whether the district court erred

in assessing attorney fees before the amount had been determined. We

otherwise agree with the court of appeals decision and summarily hold

that the district court did not err in finding a factual basis to support

McMurry’s plea of guilty to the crime of child endangerment and did not

abuse its discretion in ordering placement at the Fort Des Moines

Residential Facility as a term of probation.

As to the issues considered on further review, we conclude the

district court did not err in ordering McMurry to pay court costs, but erred
 5

in finding he had the ability to pay attorney fees before the amount had

been determined. Therefore, we vacate the decision of the court of appeals,

reverse the sentence of the district court relating to the ability to pay, and

remand the case for resentencing.

II. Standard of Review.

“We review the district court’s restitution order for errors of law.”

State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991) (per curiam); see also

State v. Jose, 636 N.W.2d 38, 43 (Iowa 2001). Through our review, we

seek to “determine whether the court’s findings lack substantial

evidentiary support, or whether the court has not properly applied the

law.” State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001); see also State

v. Driscoll, 839 N.W.2d 188, 190–91 (Iowa 2013).

III. Court Costs.

We first address the claim by McMurry that the district court

imposed an illegal sentence by ordering him to pay the full amount of the

court costs in the case. He claims the district court could only order him

to pay one-third of the total costs of the three-count prosecution because

the State dismissed two of the counts against him. He asserts the district

court was required to apportion the total costs between the counts of

conviction and the counts dismissed.

We acknowledge that a sentencing order that imposes an obligation

on a defendant to pay court costs not authorized by law would be illegal.

See City of Cedar Rapids v. Linn County, 267 N.W.2d 673, 673 (Iowa 1978).

However, the sentencing order in this case only ordered “court costs” to be

paid by McMurry in an amount to be determined and assessed by the clerk

of court. The order did not specifically direct McMurry to pay all court

costs. Thus, the sentencing order is not illegal on its face because

McMurry was convicted and our law authorizes sentencing courts to order
 6

court costs be paid by the offender. See Iowa Code § 910.2. Moreover, the

sentencing court in this case never addressed or decided which court costs

McMurry was required to pay. Instead, we presume the sentencing order

only intended McMurry to pay those court costs authorized by law. Thus,

the question in this case is whether the amount subsequently set forth in

the docket report and assessed by the clerk of court complied with the law.

Thus, we review the sentencing order together with the docket report from

the clerk of court to determine if McMurry has been assessed court costs

not authorized by law.

A. Apportionment of Court Costs. Historically, the rule in Iowa

that permits apportionment of court costs in civil cases has not been

applied to criminal cases. State v. Basinger, 721 N.W.2d 783, 786 (Iowa

2006). The rationale for this distinction is a judgment for the plaintiff in

a civil case may not necessarily be an unsuccessful outcome for a

defendant who was successful on part of the demand. This general

reasoning has supported equitable apportionment of costs between the

parties. In a criminal case, however, a successful outcome traditionally

has been viewed differently. State v. Belle, 92 Iowa 258, 260–61, 60 N.W.

525, 526 (1894). A criminal prosecution has been viewed as having two

distinct outcomes—guilty or not guilty—and success has been defined for

a defendant as not guilty. Id.

Notwithstanding, twenty-eight years ago in Petrie, we recognized a

place for equitable apportionment of costs in criminal prosecutions

involving multicount indictments or trial informations when some counts

resulted in a conviction and others were dismissed. 478 N.W.2d at 622.

In Petrie, the defendant was charged by a three-count trial information

with the crimes of driving while barred, possession of a controlled

substance with intent to deliver, and being a habitual offender. Id. at 621.
 7

The State brought the charges after the defendant was stopped for

violating a rule of the road while driving a vehicle. Id. Police subsequently

discovered marijuana in his vehicle. Id. The defendant moved to suppress

the marijuana as evidence at trial. The district court found the search of

the vehicle was illegal and suppressed the evidence. Id. A plea bargain

subsequently led to a conviction for the charge of driving while barred and

a dismissal of the other two counts. Id.

Based on those circumstances, we held the restitution order entered

at sentencing in the case could only direct the defendant to pay those fees

and costs attributable to the charge that resulted in the conviction. Id. at

622. To apply this rule, we said (1) restitution for costs was limited to

costs attributed to the count or counts of conviction, (2) restitution could

not be ordered for costs attributed to dismissed counts, and (3) restitution

for court costs not associated with any single count should be assessed

proportionally between dismissed counts and the counts of conviction. Id.

Thus, we said the attorney fees associated with the suppression hearing

could not be assessed against the defendant and the defendant should

only be required to pay one-third of the costs. Id. Court costs were

apportioned in the same manner because they were not discrete to any

single charge, and the defendant was convicted of one of the three counts.

Id. McMurry relies on the rule in Petrie to support his claim in this case

that he should only be responsible for one-third of the court costs.

Since Petrie, we have not extended its holding beyond the

prosecution of multicount cases resulting in a conviction for some counts

and the dismissal of other counts. See State v. Klindt, 542 N.W.2d 553,

555–56 (Iowa 1996) (refusing to apply apportionment based on a

conviction to a lesser included offense). Additionally, we refused to apply

the rule to restitution other than fees and costs in the prosecution of a
 8

multicount case resulting in a conviction for some counts and the

dismissal of others in the absence of equitable circumstances supporting

apportionment. State v. Moore, 500 N.W.2d 75, 76 (Iowa 1993) (refusing

to apply the apportionment rule to restitution for money provided by the

state to a cooperating witness to make three controlled drug purchases

due to defendant’s failure to contest the criminal activity); see also Belle,

92 Iowa at 261, 60 N.W. at 526 (refusing to apply the apportionment rule

to court cost when the defendant was charged with murder but was

ultimately convicted of a lesser offense).

In applying the holding in Petrie in other cases, however, our court

of appeals has observed a flaw in the application of the rule as it pertains

to the apportionment of court costs not associated with any one charge.

See, e.g., State v. Johnson, 887 N.W.2d 178, 182 (Iowa Ct. App. 2016). In

Johnson, it observed that the dismissal of some counts in a multicount

trial information does not automatically establish that a portion of the total

court costs in the case is attributable to the dismissed counts. Id. Instead,

it observed that court costs are often the same in multicount prosecutions

as in a single count prosecution. Id. Johnson, for example, involved a six-

count prosecution that resulted in a conviction based on a plea of guilty

to two of the counts and a dismissal of the remaining counts. Id. at 180.

The court costs in the case consisted of a filing fee, two service fees, and

two court reporter fees for the plea hearing and sentencing. Id. at 182 &

n.3. The total costs in the case were $210. Id. at 182.

While the Petrie rule would support apportionment of the total costs

between the counts dismissed and the counts resulting in a conviction,

the counts dismissed under the plea agreement in Johnson had no impact

on the total costs in the case. See Iowa Code § 331.655(1)(a) (providing

that the sheriff shall collect $15 for service and return of service); id.
 9

§ 602.8106(1)(a) (establishing a fixed $100 fee for “filing and docketing a

criminal case” regardless of the number of charges within the case); id.

§ 625.8(2) (setting a flat $40 fee for court reporter services per case no

matter how many charges are included). In other words, the four

dismissed counts did not affect the amount of the filing and service fees

that were a part of the court costs. Those costs would have been the same

if the four dismissed counts had never been prosecuted. Additionally, the

reporter fees for the guilty plea hearing and sentencing hearing that made

up the remainder of the total court costs were attributed to the counts of

conviction. Thus, the State uses Johnson to argue there is no justification

to apportion court costs between the dismissed counts and the counts of

conviction that would have been the same if the defendant had never been

charged with the counts that were later dismissed. Other decisions by the

court of appeals have made similar observations, which the State seizes

upon to support its claim that costs in this case should not be apportioned.

See, e.g., State v. Haywood, No. 17–1187, 2018 WL 3650328, at *2 (Iowa

Ct. App. Aug. 1, 2018); State v. Smith, No. 15–2194, 2017 WL 108309, at

*5 (Iowa Ct. App. Jan. 11, 2017); State v. Kemmerling, No. 16–0221, 2016

WL 5933408, at *1 n.1 (Iowa Ct. App. Oct. 12, 2016).

We turn to address the issue presented by first looking to the

primary statute governing restitution in criminal cases. We do this

because costs are generally taxable only when provided by statute. See

City of Cedar Rapids, 267 N.W.2d at 673. This restitution statute, Iowa

Code section 910.2, requires “the sentencing court,” in all criminal cases

following the entry of guilt or a special verdict upon which a judgment of

conviction is entered, to order the offender to pay various forms of
 10

restitution, including “court costs” and “court-appointed attorney fees.” 1

For many of the enumerated forms of restitution, including court costs

and court-appointed attorney fees, the statute requires the sentencing

court to set the amount only “to the extent that the offender is reasonably

able to pay.” Id. The statute clearly provides for the taxation of court costs

and fees to the offender, and the question turns on the manner in which

the fees and costs are taxed.

The State argues the statute only establishes restitution within the

context of a criminal case, not counts within each case, which makes the

defendant responsible for all fees and costs if any count results in a

conviction. It asserts no apportionment should occur because a conviction

in a case is what makes an offender responsible for all restitution under

the statute, including fees and costs, and points to Basinger, 721 N.W.2d

1Iowa Code section 910.2(1) provides,
In all criminal cases in which there is a plea of guilty, verdict of guilty, or
special verdict upon which a judgment of conviction is rendered, the
sentencing court shall order that restitution be made by each offender to
the victims of the offender’s criminal activities, to the clerk of court for
fines, penalties, surcharges, and, to the extent that the offender is
reasonably able to pay, for crime victim assistance reimbursement,
restitution to public agencies pursuant to section 321J.2, subsection 13,
paragraph “b”, court costs including correctional fees approved pursuant
to section 356.7, court-appointed attorney fees ordered pursuant to
section 815.9, including the expense of a public defender, when applicable,
contribution to a local anticrime organization, or restitution to the medical
assistance program pursuant to chapter 249A. However, victims shall be
paid in full before fines, penalties, and surcharges, crime victim
compensation program reimbursement, public agencies, court costs
including correctional fees approved pursuant to section 356.7, court-
appointed attorney fees ordered pursuant to section 815.9, including the
expenses of a public defender, contributions to a local anticrime
organization, or the medical assistance program are paid. In structuring
a plan of restitution, the court shall provide for payments in the following
order of priority: victim, fines, penalties, and surcharges, crime victim
compensation program reimbursement, public agencies, court costs
including correctional fees approved pursuant to section 356.7, court-
appointed attorney fees ordered pursuant to section 815.9, including the
expense of a public defender, contribution to a local anticrime
organization, and the medical assistance program.
 11

at 786, and State v. McFarland, 721 N.W.2d 793, 794 (Iowa 2006), as

examples in which we have applied the statute consistent with this

approach.

In Basinger, we rejected the apportionment of statutory jury and

reporter fees among thirteen jointly tried defendants. 721 N.W.2d at 786.

Instead, we held such costs were taxed separately to each individual case

because the prosecution was required to present evidence specific to each

case, and the court reporter was required to record testimony specific to

each case. Id. Similarly, in McFarland, we applied the same one-fee-for-

each-case approach involving a defendant convicted of eight counts arising

from a trial involving three separate cases. 721 N.W.2d at 794–95. We

rejected the defendant’s claim that the fees and costs should have been

apportioned among the three cases for the same reasons we expressed in

Basinger. Id. In both cases, we found restitution was based on the

outcome of each case, but each holding was a response to claims by the

defendants that the total costs should be apportioned among each case

consolidated for trial instead of fully assessed separately to each case. See

McFarland, 721 N.W.2d at 794–95; Basinger, 721 N.W.2d at 786. Thus,

these cases are not a rejection of apportionment among counts, but a

rejection of apportionment of costs among separate cases tried together.

While the governing statute relies on a “conviction” as the trigger for

the sentencing court to impose the requirement on “each offender” to pay

restitution “[i]n all criminal cases,” Iowa Code § 910.2, it is far from clear

that the statute expresses the further legislative intent to exclude any

equitable apportionment among counts within a case under any

circumstances. Instead, it is fair to say that the statute is silent on the

issue of apportionment of restitution in multicount prosecutions when one

or more counts result in a conviction and other counts are dismissed. In
 12

Petrie, we did not view this silence in the statute to foreclose the

apportionment of costs and fees between counts that resulted in a

conviction and those that were dismissed. See 478 N.W.2d at 622.

Instead, we supplemented the silence in the statute with a rule that

permitted the court to apportion costs and fees or to direct the costs to be

paid based on an agreement between the parties for the payment of fees

and costs associated with the dismissed counts. See State v. Mootz, 808

N.W.2d 207, 221 (Iowa 2012) (indicating when a statute is silent on a

matter and the gap was not intended by the legislature, we can carry out

the legislative intent with a rule based on the purposes and policies of the

statute and the consequences of competing interpretations).

Consequently, the statute, supplemented by our caselaw, permits the

apportionment of costs and fees in criminal cases.

The State also launches a frontal attack on the holding in Petrie by

asserting it is contrary to the traditional rule that does not recognize

apportionment of costs in any criminal cases. Yet, this traditional rule did

not develop in the context of a multicount criminal case we faced in Petrie

but, instead, arose in the context of criminal cases in which costs followed

the judgment without the need to consider apportionment because

success under the judgment came down to either guilt or innocence. Belle,

92 Iowa at 260–61, 60 N.W. at 526. The principle case, Belle, involved a

verdict on a lesser included offense that did not support apportionment of

costs based on an acquittal on the greater offense since the case still

resulted in a verdict of guilt. Id. In creating the bright-line rule in Belle,

a potential distinction for cases involving multiple offenses was recognized

but not used to frame a narrower rule. Id.; see also City of Cedar Rapids,

267 N.W.2d at 674 (indicating Belle recognized the distinction between

single and multiple charges but declined to use the distinction to decide
 13

the case on the narrow ground that it did not involve multiple counts).

Yet, no equitable circumstances were present in Belle to drive a narrower

rule. Petrie, of course, reversed this broad approach sub silentio and now

sits alongside the restitution statute to govern the narrow application of

equitable apportionment. See 478 N.W.2d at 622.

This background helps to explain the approach we took in Petrie, as

well as the equitable exception we carved from the general rule that fees

and costs are not apportioned in criminal cases. It reveals that success

for defendants to criminal cases can include more than a complete

acquittal when some counts of a multicount case are dismissed. It reveals

that the particular circumstances of the case can make it equitable to

apportion the costs and fees between those that are clearly attributed to

the counts of conviction and those that are clearly attributed to the

dismissed counts. For example, in Petrie, all of the attorney fees in

defending the case were not generally connected to the prosecution of the

case. Id. Instead, a portion of those fees connected to the suppression

issues were clearly attributed to the dismissed drug count. Id. Finally,

the background also helps to reveal that equitable apportionment should

not apply to costs and fees not specifically connected to a count that is

dismissed or to one that results in a conviction. Instead, these costs and

fees should be taxable to the offender.

We conclude Petrie took a misstep when it apportioned fees and

costs not clearly attributed to any single count. If costs and fees would

have been incurred in the prosecution of a count of conviction even if the

dismissed counts had not been prosecuted, equity does not support

apportionment. In Petrie, the filing fee for the trial information was the

same regardless of the number of counts or the fact that some of the
 14

counts were dismissed. Thus, no equitable basis existed to order the

defendant to pay only one-third of these costs.

Accordingly, the problem with Petrie is not the exception created to

the general rule against apportionment in a criminal case, but the way the

rule was articulated to permit apportionment of fees and costs not

attributed to any single count. Apportionment must be based on equitable

circumstances, and the portion of the fees and costs attributed to the

dismissed count must relate to those circumstances.

In this case, McMurry’s claim of error only relates to the assessment

of the total court costs of $220. Yet, all these costs fall within the category

of fees that would have been the same even if the dismissed counts would

not have been prosecuted. The filing fee and the three court reporter fees

were court costs associated with the charge that resulted in the conviction

and were assessed properly against McMurry under Petrie, as modified by

this case. As a result, we affirm the restitution order entered by the district

court as assessed by the clerk of court on the ground that the costs were

attributed to the count of conviction.

B. Modification of Petrie. We continue to recognize the limited

role of equitable apportionment of restitution in criminal cases involving

multicount prosecutions. It remains as important today as when

recognized in Petrie in 1991. The taxation of court costs has a broad and

significant impact on criminal offenders, and it is important that our rules

relating to the assessment of these costs operate fairly and equitably.2

2[T]hose with lower socioeconomic status and in predominately
minority communities are more likely to bear the burden of these direct
and collateral costs. This creates a contradictory effect that
disproportionately penalizes citizens for their poverty or the community
they live in, adding to their cumulative disadvantage, perpetuating a cycle
of criminal justice involvement.
 15

However, fees and costs should not be apportioned in multicount cases

that result in both a conviction and a dismissal when the fees and costs

would have been the same without the dismissed counts. We, accordingly,

modify our rule in Petrie and disavow the language that fees and costs not

associated with any one charge should be assessed proportionally between

the counts dismissed and the counts of conviction. These fees and costs

were properly assessed to McMurry.

We emphasize that the role of the sentencing court in utilizing

equitable apportionment of fees and costs under the restitution statute is

predicated on equity. The rule is not hard and fast, nor time-consuming

in its application. It rests within the sound discretion of the sentencing

court and is applied to achieve justice, not precision. It is more easily

applied to court costs than expenses like attorney fees, but its application

to attorney fees can be examined in conjunction with the determination of

the ability of an offender to pay such fees. Finally, we reiterate the

observation in Petrie that the parties are free to agree to the apportionment

of fees and costs in a plea agreement. See 478 N.W.2d at 622. Since

apportionment of fees and costs is recognized in Iowa, the parties to a case

may properly agree on the meaning of the equitable apportionment of those

fees and costs in a case. Without an agreement, the sentencing court

needs to identify the court costs at the sentencing hearing or a

supplemental hearing so that the clerk of court can properly assess them.

IV. Attorney Fees.

Finally, we address the claim by McMurry that the district court

erred by determining his reasonable ability to pay court-appointed

Lily Gleicher & Caitlin DeLong, Ill. Crim. Justice Info. Auth., The Cost of Justice: The
Impact of Criminal Justice Financial Obligations on Individuals and Families 2 (2018)
(footnotes omitted).
 16

attorney fees before the total amount of the fees was determined. We

recently addressed this issue in State v. Albright, ___ N.W.2d ___, ___ (Iowa

2019), State v. Petty, ___ N.W.2d ___, ___ (Iowa 2019), and State v. Covel,

___ N.W.2d ___, ___ (Iowa 2019). In those cases, we held that a court shall

not enter a final order of restitution until all items of restitution are before

it and it has assessed the offender’s reasonable ability to pay certain items

of restitution. 3 In the present case, the district court failed to determine

whether McMurry had the reasonable ability to pay court-appointed

attorney fees before entering a restitution amount on this item. In

summary, it did not follow the statutory procedures as outlined in our

recent case law. Accordingly, we reverse the sentencing order pertaining

to the assessment of court-appointed attorney fees and remand the case

for resentencing on restitution for court-appointed attorney fees.

V. Conclusion.

We affirm the district court on all issues raised on appeal except to

remand the case for resentencing on restitution for court-appointed

attorney fees.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT

JUDGMENT AND SENTENCE AFFIRMED IN PART, REVERSED IN

PART, AND REMANDED.

All justices concur except McDonald, J., who takes no part.

3Restitution items requiring an “ability to pay” determination include
crime victim assistance reimbursement, restitution to public agencies
pursuant to section 321J.2, subsection 13, paragraph “b”, court costs
including correctional fees approved pursuant to section 356.7, court-
appointed attorney fees ordered pursuant to section 815.9, including the
expense of a public defender, when applicable, contribution to a local
anticrime organization, or restitution to the medical assistance program
pursuant to chapter 249A.
Iowa Code § 910.2.