from the Iowa District Court for Lee (South) County, John M.
Wright and Mary Ann Brown (correctional-fee order), Judges.
a guilty plea, Timothy Smeltser appeals his sentence.
SENTENCE AFFIRMED IN PART, VACATED IN PART, AND
C. Smith, State Appellate Defender, (until withdrawal) and
Martha J. Lucey, Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Israel Kodiaga, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.
VAITHESWARAN, PRESIDING JUDGE
Smeltser pled guilty to aiding and abetting second-degree
burglary, in violation of Iowa Code sections 713.1,
713.5(1)(b), and 703.1 (2017). The district court sentenced
Smeltser to a prison term not exceeding ten years and ordered
him to pay victim restitution, a law-enforcement surcharge,
and a fine, which was suspended. The court waived
reimbursement for attorney fees in light of the prison
sentence. Finally, the court ordered, "Court costs in an
amount to be assessed by the Clerk of
Court." In a post-sentencing order, the court
required Smeltser to pay correctional (jail) fees of $1680
but acknowledged Smeltser had a right to seek a modification
of the restitution plan once it was complete. The court
stated his ability to pay would only be considered "when
the plan of restitution is completed."
appeal, Smeltzer argues (1) "the district court erred in
ordering [him] to reimburse the State for court costs and
correctional fees without first considering his reasonable
ability to pay such restitution" and (2) "the
sentencing court abused its discretion" in considering
facts that were "unsupported by the record."
Court Costs and Correctional Fees
supreme court recently addressed the proper procedure for
ordering restitution and for considering a defendant's
reasonable ability to pay restitution. See State v.
Albright, 925 N.W.2d 144, 158-61 (Iowa 2019). We
summarized the opinion in State v. Northern, No.
18-1634, filed on this date. In short, the court stated,
"Until the court issues the final restitution order, the
court is not required to consider the offender's
reasonable ability to pay." Albright, 925
N.W.2d at 160- 61. The court held, "Once the court has
all the items of restitution before it, then and only then
shall the court make an assessment as to the offender's
reasonable ability to pay." Id. at 162.
Smeltser's case predated Albright, the
post-sentencing "jail-fee order" correctly recited
precedent reaffirmed in Albright. At the same time,
the court ordered Smeltser to pay the jail fees. Under
Albright, imposition of the fees must await the
filing of a final restitution plan and a determination of
Smeltser's ability to pay. See id. The same
holds true for the court's imposition of court costs.
See id. Applying Albright, we vacate the
sentencing court's assessment of correctional fees and
court costs against Smeltser pending completion of a final
restitution order and a subsequent assessment of his
reasonable ability to pay.
Consideration of Facts Outside the Record
served as caretaker for his disabled wife. He received public
funds to compensate him for the service. At sentencing, the
prosecutor informed the court that Smeltser's wife also
was convicted of second-degree burglary. In light of this
information, the district court asked Smeltser, "Can you
explain to me, then, why, if your wife is on disability and
receives disability payments from the government, that you
and she were burglarizing a home?" Smeltser responded
that he could not, other than to excuse their conduct based
on heavy drug use. In imposing sentence, the court made
reference to the involvement of Smeltser's wife as
I also, if my questions to you weren't indicative of my
opinion, take into consideration that it is really hard to
believe that you were your wife's caregiver and that she
was disabled at the time the two of you committed this
offense. It's a factor I do take into consideration as to
you aiding and ...