IN THE COURT OF APPEALS OF IOWA
No. 18-1089
Filed July 24, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAVID LEE LEVY JR.,
Defendant-Appellant.
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Appeal from the Iowa District Court for Scott County, Henry W. Latham II,
Judge.
David Levy Jr. appeals the sentence imposed following his conviction of
assault on a jailer causing bodily injury. SENTENCE AFFIRMED IN PART,
VACATED IN PART, AND REMANDED.
Mark C. Smith, State Appellate Defender, (until withdrawal), and Martha J.
Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Doyle and May, JJ.
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DOYLE, Judge.
David Levy Jr. appeals the sentence imposed following his conviction of
assault on a jailer causing bodily injury.
I. Consecutive Sentences.
Levy first challenges the court’s decision to run his sentence consecutive to
the sentence imposed in another case. We presume a sentence imposed within
the statutory limits is valid and will only overturn it if the sentencing court abuses
its discretion or relies on inappropriate factors. See State v. Wickes, 910 N.W.2d
554, 572 (Iowa 2018). An abuse of discretion occurs if the sentencing court bases
its decision on a legal error or if its decision is unsupported by substantial evidence.
See id. at 564.
The court is to select the sentence that “will provide [the] maximum
opportunity for the rehabilitation of the defendant, and for the protection of the
community from further offenses by the defendant and others.” Iowa Code § 901.5
(2017). The sentencing court must make this determination based on the
individual factors of each case, “including the nature of the offense, the attending
circumstances, the defendant’s age, character, and propensities or chances for
reform.” State v. Johnson, 513 N.W.2d 717, 719 (Iowa 1994). It must state its
reasons for selecting the sentence on the record. See Iowa R. Crim. P. 2.23(3)(d).
This statement may be concise as long as it allows the appellate courts to review
the exercise of its discretion. See State v. Hennings, 791 N.W.2d 828, 838 (Iowa
2010).
In imposing sentence on Levy’s assault conviction, the court stated its duty
to review the available “community resources and to determine what the
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appropriate rehabilitative plan would be, and to consider how the public and
specifically correctional officers can be protected from this type of criminal activity
in the future, and your willingness to accept change and treatment.” The court
noted it had reviewed the presentence investigation report but did not consider any
unproven offenses. The court then observed:
I find this type of charge a very serious charge when police
officers, or correctional officers in this case, are doing their job and
are assaulted unnecessarily. Your attorney is correct, I did not hear
the evidence in this case, but a jury found you guilty beyond a
reasonable doubt based on the evidence that was presented and any
defense that may have been presented. What’s very troubling to me
today with your comments is the fact that you still do not accept any
responsibility. It’s very troubling to me. And it shows a lack of
remorse. And it’s based on that and your criminal history that I do
find that it’s appropriate that a two-year prison sentence be imposed
in this case.
The court ordered the sentence to run consecutive with his sentence for second-
degree murder, stating: “The reasons for the consecutive sentencing is that you
committed this offense while the case was pending. It is a separate and distinct
act and victim from the other case, and based on your criminal history.”
Although Levy asks us to “require the district court to elaborate how the
selected factors or reasons achieve the legislatively mandated sentencing goals
of rehabilitation and protection of the community,” we find the reasons provided for
the court were sufficient to allow review. Finding no abuse of discretion, we affirm.
II. Reasonable Ability to Pay Restitution.
Levy next contends the district court erred in assessing him court costs as
part of his restitution without first determining his reasonable ability to pay
restitution. However, the court’s order was not a final restitution order. The court
is not required to consider the offender’s reasonable ability to pay restitution until
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the court issues the final restitution order. See State v. Albright, 925 N.W.2d 144,
160-61 (Iowa 2019). Until that time, the court’s order is not appealable or
enforceable. See id. at 162. Levy’s challenge is premature.
III. Appellate Attorney Fees.
Finally, Levy challenges the portion of the court’s sentencing order requiring
that he request a hearing on his reasonable ability to pay appellate attorney fees
within thirty days of the issuance of procedendo following an appeal or be
assessed the full amount. Our supreme court has noted the district court is
required to determine a defendant’s reasonable ability to pay any future attorney
fee it assesses without requiring the defendant to affirmatively request a hearing
concerning the ability to pay. See State v. Coleman, 907 N.W.2d 124, 149 (Iowa
2018). Accordingly, we vacate this portion of the sentencing order and remand for
entry of a corrected order.
SENTENCE AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.