IN THE SUPREME COURT OF IOWA
No. 17–1087
Filed April 26, 2019
STATE OF IOWA,
Appellee,
vs.
JERRY DARNELL MOSLEY,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Clay County, Carl J.
Petersen, Judge.
A defendant appeals the judgment and sentence imposed following
his first-degree burglary and assault causing bodily injury convictions.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; CONVICTION AFFIRMED, SENTENCE VACATED,
AND CASE REMANDED.
Mark C. Smith, State Appellate Defender (until withdrawal), and
Martha J. Lucey, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant
Attorney General, and Kristi Kuester, County Attorney, for appellee.
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PER CURIAM.
Jerry Mosley appeals his judgment and sentence for first-degree
burglary and assault causing bodily injury. He contends (1) the record
lacks sufficient evidence to support the jury’s finding of guilt on the first-
degree burglary charge, (2) his trial attorney was ineffective in failing to
object to certain testimony as being outside the scope of the minutes of
testimony, (3) the district court should have merged the assault causing
bodily injury conviction with the first-degree burglary conviction, and
(4) the district court failed to assess his reasonable ability to pay
restitution.
We transferred the case to the court of appeals. The court of appeals
affirmed Mosley’s conviction but remanded the case for resentencing
because it found the assault causing bodily injury conviction merged with
the first-degree burglary conviction. The court of appeals also affirmed the
district court order requiring Mosley to pay restitution for court costs and
attorney fees. Mosley asked for further review, which we granted.
On further review, we choose to let the court of appeals decision
stand as our final decision regarding his claims that (1) the record lacks
sufficient evidence to support the jury’s finding of guilt on the first-degree
burglary charge, (2) his trial attorney was ineffective in failing to object to
certain testimony as being outside the scope of the minutes of testimony,
and (3) the district court should have merged the assault causing bodily
injury conviction with the first-degree burglary conviction. See State v.
Baker, ___ N.W.2d ___, ___ (Iowa 2019) (“On further review, we have the
discretion to review all or some of the issues raised on appeal or in the
application for further review.” (quoting State v. Clay, 824 N.W.2d 488,
494 (Iowa 2012))). Therefore, we affirm Mosley’s conviction for first-degree
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burglary, and agree with the court of appeals that the assault causing
bodily injury conviction merged with the first-degree burglary conviction.
As to Mosley’s argument that the district court erred in ordering him
to pay restitution in the form of court costs and attorney fees without first
determining his reasonable ability to pay these items of restitution, we find
the restitution part of his sentence should be vacated. In State v. Albright,
___ N.W.2d ___, ___ (Iowa 2019), filed after the court of appeals decision in
this case, we held that certain items of restitution are subject to a
reasonable-ability-to-pay determination. See also Iowa Code § 910.2(1)
(2019). We also clarified that a plan of restitution is not complete until the
sentencing court issues the final restitution order. Albright, ___ N.W.2d at
___. Finally, we emphasized that a final restitution order must take into
account the offender’s reasonable ability to pay certain items of restitution.
Id.
Here, the district court did not have the benefit of the procedures
outlined in Albright when it entered its order regarding restitution of court
costs and attorney fees. Accordingly, we must vacate that part of the
sentencing order regarding restitution and remand the case back to the
district court.
On remand, the district court shall resentence Mosley after merging
the assault causing bodily injury conviction with the first-degree burglary
conviction. Additionally, the court shall resentence Mosley regarding his
restitution obligation and impose restitution consistent with our decision
in Albright.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; CONVICTION AFFIRMED, SENTENCE VACATED,
AND CASE REMANDED.
All justices concur except McDonald, J., who takes no part.
This opinion shall not be published.