from the Iowa District Court for Johnson County, Paul D.
defendant challenges the sentence imposed upon his conviction
for robbery in the second degree. AFFIRMED.
C. Smith, State Appellate Defender, and Brenda J. Gohr,
Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, Kevin R. Cmelik, Israel J.
Kodiaga, and Kelli A. Huser (until withdrawal), Assistant
Attorneys General, for appellee.
Considered by Potterfield, P.J., and Bower and McDonald, JJ.
Curry pleaded guilty to robbery in the second degree, in
violation of Iowa Code sections 711.1(1)(b) and 711.3 (2017).
The district court sentenced Curry to an indeterminate term
of incarceration not to exceed ten years with a mandatory
minimum term of seven-tenths of the maximum sentence. The
district court also ordered Curry to pay victim restitution,
court costs, and attorney's fees. With respect to court
costs, the amount was not yet determined, and the district
court did not determine whether the defendant had the
reasonable ability to pay the court costs. With respect to
the reimbursement of attorney's fees, the district court
found Curry had the reasonable ability to pay $0; in other
words, the district court found Curry did not have the
reasonable ability to pay attorney fees in any amount. In
this direct appeal, Curry challenges the district court's
exercise of discretion in imposing sentence and the district
court's failure to determine whether Curry was reasonably
able to pay court costs.
first address Curry's challenge to the district
court's exercise of discretion in imposing sentence. We
review a sentence within the statutory limits for an abuse of
discretion. See State v. Seats, 865 N.W.2d 545, 552
(Iowa 2015). We will find an abuse of discretion only when
the grounds for a decision were clearly unreasonable or
clearly untenable. See State v. Formaro, 638 N.W.2d
720, 724 (Iowa 2002).
district court did not abuse its discretion in imposing
Curry's sentence. In imposing sentence, the district
court should consider all information pertinent to the
sentencing decision, including, but not limited to, "the
nature of the offense, the attending circumstances,
defendant's age, character and propensities and chances
of his [or her] reform." State v. August, 589
N.W.2d 740, 744 (Iowa 1999) (quoting State v.
Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979)). The record
shows the district court considered pertinent information and
no improper information in imposing sentence on the
defendant. Curry does not dispute this, but he claims the
court did not give "adequate consideration" to
mitigating factors. For example, Curry claims the district
court should have placed greater weight on the fact Curry had
finished high school while incarcerated, had recently become
a father, and hoped to change. These facts were before the
district court, but the district court is allowed to operate
"according to the dictates of [its] own
conscience." Formaro, 638 N.W.2d at 725. The
district court is not required to acknowledge each claim of
mitigation urged by the defendant. Ultimately, "[w]hile
the defendant may wish the district court would have reached
a different result in considering the relevant sentencing
factors, mere disagreement with the court's sentencing
decision is not a ground for relief." State v.
Worby, No. 17-1832, 2018 WL 4360995, at *1 (Iowa Ct.
App. Sept. 12, 2018). Curry has failed to establish the
district court abused its discretion in imposing sentence.
next challenges the district court's failure to determine
whether he had the reasonable ability to pay court costs. In
his brief, Curry argues the district court "had an
affirmative obligation to preemptively make a determination
regarding his reasonable ability to pay" court costs
even though the amount of courts costs was not yet
determined. Review of restitution orders are for the
correction of errors of law. See State v. Jose, 636
N.W.2d 38, 43 (Iowa 2001).
district court did not commit legal error. A
reasonable-ability-to-pay determination "is a
constitutional prerequisite for a criminal restitution order
such as that provided by Iowa Code chapter 910."
State v. Van Hoff, 415 N.W.2d 647, 648 (Iowa 1987).
Until the amount of restitution is set, however, "the
[district] court is not required to give consideration to the
defendant's ability to pay." State v.
Jackson, 601 N.W.2d 354, 357 (Iowa 1999). State v.
Brown, No. 16-1118, 2017 WL 2181568, at *4 (Iowa Ct.
App. May 17, 2017) (holding appeal premature where
restitution order did not include a specific amount of
pecuniary damages); State v. Kemmerling, No.
16-0221, 2016 WL 5933408, at *1 (Iowa Ct. App. Oct. 12, 2016)
("Because the total amount of restitution had not yet
been determined by the time the notice of appeal was filed
any challenge to the restitution order in this case is
premature."). Indeed, we have held it is an abuse of
discretion to determine the defendant's reasonable
ability to pay where there is insufficient record to
determine the amount of restitution owed. See State v.
Campbell, No. 15-1181, 2016 WL 4543763, at *4 (Iowa Ct.
App. Aug. 31, 2016) ("We believe a sentencing court
cannot determine a defendant's ability to pay restitution
without, at a minimum, an estimate of the total amount of
restitution, and we find the sentencing court's
determination of Campbell's ability to pay was premature
and lacked evidentiary support."). The district court
was correct in not determining Curry's reasonable ability
to pay court costs when the costs were undetermined at the
time of sentencing.
above stated reasons, we affirm the ...