State of Iowa v. Justo Gonzalez

IN THE COURT OF APPEALS OF IOWA

No. 18-1876
Filed October 9, 2019

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JUSTO GONZALEZ,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Marshall County, Kim M. Riley,

District Associate Judge.

A defendant appeals his sentence following his guilty plea to lascivious acts

with a child. CONVICTION AFFIRMED, SENTENCE AFFIRMED IN PART AND

VACATED IN PART, AND REMANDED.

Mark C. Smith, State Appellate Defender, (until withdrawal) and Mary K.

Conroy, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee.

Considered by Tabor, P.J., and Mullins and May, JJ.
2

TABOR, Presiding Judge.

Justo Gonzalez pleaded guilty to lascivious acts with a child and received a

suspended five-year sentence with supervised probation. On appeal, he raises

two claims: (1) the district court abused its discretion by considering the sentencing

recommendation in the presentence investigation (PSI) report and (2) the court

erred in failing to determine his reasonable ability to pay court costs and

reimbursement for legal fees.1

Two recent rulings from our supreme court clinch Gonzalez’s claims—the

first to his detriment and the second in his favor.2

In his first claim, Gonzalez contends the court improperly considered the

detailed sentencing recommendations of the PSI preparer, who suggested many

conditions of probation adopted in the sentencing order. Gonzalez cannot prevail

on this claim after Headley, 926 N.W.2d at 552. That decision held the

recommendation of the department of correctional services is “pertinent

information” for a court to consider when sentencing a defendant under Iowa Code

section 901.5 (2018). Id.

In his second claim, Gonzalez argues the district court erred in ordering him

to pay court costs—“including correctional fees, as certified by the sheriff, and

court-appointed attorney fees, as certified by counsel”—without first determining

1
Before reaching the merits of Gonzalez’s claims, we address his ability to appeal his
sentence following a guilty plea. Our supreme court decided recent amendments to Iowa
Code section 814.6 (Supp. 2019) (limiting direct appeals from guilty pleas) apply only
prospectively and do not apply to cases, like this one, pending on July 1, 2019. See State
v. Macke, ___ N.W.2d___, ___, 2019 WL 4382985, at *7 (Iowa 2019).
2
We review his first claim for an abuse of discretion. See State v. Headley, 926 N.W.2d
545, 549 (Iowa 2019). We review his second claim for correction of errors at law. See
State v. Albright, 925 N.W.2d 144, 158 (Iowa 2019).
3

his reasonable ability to pay. The court also made payment of those costs a

condition of his probation.

Gonzalez’s restitution claim is governed by Albright, 925 N.W.2d at 159. In

that case, our supreme court emphasized a final restitution order must account for

the offender’s reasonable ability to pay certain items of restitution, including court

costs and jail fees. See id. at 160. Here, the sentencing order does not comply

with the statutory procedures outlined in Albright. We therefore vacate that part of

the sentence and remand for the district court to impose restitution consistent with

the Albright directives.

CONVICTION AFFIRMED, SENTENCE AFFIRMED IN PART AND

VACATED IN PART, AND REMANDED.