from the Iowa District Court for Marshall County, Kim M.
Riley, District Associate Judge.
Hansen appeals the sentences imposed on his convictions after
pleading guilty to third-degree burglary and third-degree
C. Smith, State Appellate Defender, (until withdrawal) and
Martha J. Lucey, Assistant Appellate Defender, for appellant.
J. Miller, Attorney General, and Sharon K. Hall, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
State filed criminal charges against Jacob Hansen stemming
from two separate incidents in August 2017. After negotiating
a plea agreement, Hansen entered Alford
pleas to one charge of third-degree burglary and
one charge of third-degree attempted burglary. After
accepting the pleas, the district court sentenced Hansen to
indeterminate terms of incarceration for each offense and
ordered Hansen to serve them consecutively. It also ordered
Hansen to pay restitution for fees and costs. Hansen
challenges his sentences on appeal.
contends the district court violated his due process rights
by considering his risk assessment score in the presentence
investigation report (PSI). But Hansen never raised this
objection at sentencing. He cannot raise this due process
claim for the first time on appeal. See State v.
Headley, 926 N.W.2d 545, 551-52 (Iowa 2019).
first time on appeal, Hanson also contends the district court
abused its discretion by considering the risk assessment
score and sentencing recommendation in the PSI.
If we can determine whether a court abused its discretion by
using an improper factor without further evidence, a
defendant need not object to the use of an improper
sentencing factor at the time of sentencing. However, if we
need further evidence to determine if the sentencing factor
is improper, the defendant must object to the factor and ask
to make the appropriate record before sentencing. If the
defendant fails to do so, we can only examine the claim under
the rubric of ineffective assistance of counsel.
Id. at 550 (internal citations omitted). Our supreme
court recently determined that, because risk assessment tools
and sentencing recommendations provide information pertinent
to sentencing, considering these factors is not inherently
improper. See id. at 551, 552. Because his counsel
did not object to the use of these factors before sentencing,
Hansen claims his counsel was ineffective.There is
insufficient evidence in the record to allow us to address
this claim on direct appeal, so Hansen must raise the
challenge in a postconviction-relief action. See
id.; State v. Gordon, 921 N.W.2d 19, 24 (Iowa
2018) (stating that if the record is insufficient to allow
for review of an ineffective-assistance claim on direct
appeal, we allow the defendant to raise the claim in a
separate postconviction-relief action).
Hansen contends the court erred in ordering him to reimburse
the State for his attorney fees, correctional fees, and court
costs without first determining his reasonable ability to pay
the same. Under Iowa Code section 910.2(1), the
sentencing court must order an offender to pay these fees and
costs as restitution "to the extent that the offender is
reasonably able to pay." See also Albright, 925
N.W.2d at 159. The district court made no determination of
Hansen's reasonable ability to pay before assessing these
fees and costs. Because imposition of both "must await
the filing of a final restitution plan and a determination of
[Hansen]'s ability to pay," State v.
Smeltser, No. 18-0098, 2019 WL 2144683, at *1 (Iowa Ct.
App. May 15, 2019), we vacate the court's orders for
restitution and remand the matter to the district court for
receipt of a final restitution plan and a determination of
Hansen's reasonable ability to pay.
AFFIRMED IN PART, VACATED ...