State of Iowa v. Evan Paul Headley , 926 N.W.2d 545 ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 18–0594
Filed April 12, 2019
STATE OF IOWA,
Appellee,
vs.
EVAN PAUL HEADLEY,
Appellant.
Appeal from the Iowa District Court for Polk County, Robert J. Blink,
Judge.
A defendant appeals his sentence on various grounds. SENTENCE
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Mark C. Smith, State Appellate Defender (until withdrawal), and
Theresa R. Wilson, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Timothy M. Hau, Assistant
Attorney General, John Sarcone, County Attorney, Jaki Livingston and
Kevin Hathaway, Assistant County Attorneys, for appellee.
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WIGGINS, Justice.
A defendant appeals his sentence for domestic abuse assault and
second-degree burglary. He argues the sentencing court violated his due
process rights and abused its discretion by considering the risk
assessment tools contained in the presentence investigation report (PSI).
He also argues the court abused its discretion by considering the
investigator’s recommendation in the PSI. If these claims were not
preserved, he claims ineffective assistance of counsel in the alternative.
The defendant also challenges the restitution imposed by the district
court. He claims the court imposed an illegal sentence by ordering him to
pay the court costs associated with the dismissed charges. He further
claims the court erred by failing to determine his reasonable ability to pay
prior to determining the amount of restitution owed.
On appeal, we find the district court did not abuse its discretion in
considering the risk assessment tools on their face as contained within the
PSI. We further find the defendant failed to preserve error on his due
process and abuse-of-discretion claims regarding the court’s consideration
of the risk assessment tools contained in the PSI. We also find the record
is insufficient to reach these due process and abuse-of-discretion claims
on direct appeal.
In regard to his claim that the district court abused its discretion
when it considered the department of correctional services’ sentencing
recommendation, we find it did not. We also find the court did not enter
an illegal sentence by requiring the defendant to pay the court costs
associated with dismissed charges. However, we find the district court
erroneously ordered restitution without first conducting the applicable
reasonable-ability-to-pay analysis. Therefore, we vacate the restitution
portion of the defendant’s sentence and remand for resentencing in light
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of this opinion and our opinion in State v. Albright, ___ N.W.2d ___ (Iowa
2019).
I. Factual and Procedural Background.
On July 28, 2017, Des Moines police officers responded to a
domestic fight at the home of S.M. When officers arrived in the
neighborhood, S.M. was several houses north of her address and waived
the officers down. S.M. told officers her ex-boyfriend, Evan Headley, had
shown up to her house uninvited and forced his way into her home. S.M.
said she and Headley began arguing and Headley forced S.M. into her
bedroom, onto her bed, and held her down with his body weight. Headley
left swelling on S.M.’s shoulders before S.M. was able to escape Headley’s
grasp.
When officers entered S.M.’s home, they made contact with Headley
as he was attempting to jump out of a window of the residence. Officers
took Headley into custody and transported him to the Polk County Jail.
At the time of this incident, Headley was on supervised probation for
domestic abuse assault, and a nonexpiring protection order was in place
between S.M. and Headley, with S.M. being the protected party. 1
On September 11, the State charged Headley with burglary in the
second degree, assault with intent to commit a sexual abuse, domestic
abuse assault enhanced, and stalking in violation of a protective order.
On December 26, pursuant to a plea deal, Headley pled guilty to burglary
in the second degree in violation of Iowa Code sections 713.1 and 713.5
(2018), and domestic abuse assault, enhanced second offense, in violation
of sections 708.1(2)(a) and 708.2A(3)(b).
1S.M. has two protective orders against Headley. The court filed one order on
December 12, 2016, with an expiration date of February 7, 2022. The court filed a
second, the nonexpiring order, on July 29, 2017.
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On January 25, 2018, the department of correctional services filed
a PSI. The PSI included evaluations of Headley using both the Iowa Risk
Revised (IRR) and the Dynamic Risk Assessment for Offender Re-Entry
(DRAOR) risk assessment tools. Headley’s IRR score was “in the high
category for future violence and the high category for future victimization.”
His DRAOR score “placed him in the moderate/high category to
recidivate,” or in other words, indicated he would fail on community-based
supervision. Based on the personal interview with Headley, the Iowa
Mental Health Screen, the IRR, the DRAOR, and Headley’s criminal
history, education, employment, and family history, the presentence
investigator recommended incarceration.
On March 13, at the sentencing hearing, the district court judge
asked Headley’s counsel about the PSI, questioning, “Have you and your
client been able to review this, Mr. Webber?” Headley’s defense counsel
replied, “We have, Your Honor.” The court then asked, “Any additions,
corrections, deletions, or modifications on behalf of the defendant?”
Defense counsel replied, “No, Your Honor.”
Headley’s counsel asked the court to place Headley at the Fort
Des Moines Residential Facility based on Headley’s substance abuse,
mental health issues, and his eligibility according to the PSI and a
substance abuse evaluation. The State recommended incarceration.
The district court sentenced Headley to prison for a total term not to
exceed eighteen years for the burglary, domestic abuse assault, and four
probation violations. The district court judge also ordered Headley to
make restitution, saying, “I’m not aware of the amount. If it’s brought to
my attention as to a specific amount, an order will be entered and you will
have an opportunity to contest it.” The court memorialized this in its
sentencing order.
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On March 26, Headley appealed his sentence alleging ineffective
assistance of counsel.
On June 8, the Polk County Sheriff’s Department filed an application
for reimbursement for $13,695. The reimbursement covered Headley’s
room and board for 238 days of incarceration. On June 12, the court
approved the sheriff’s application for reimbursement and assessed a total
of $14,228.80 to Headley for court costs and correctional fees.
II. Issues Raised on Appeal.
Headley raises five issues on appeal. First, whether the district
court abused its discretion by considering the risk assessment tools in the
PSI at sentencing. Second, whether the district court violated Headley’s
due process rights by considering the risk assessment tools in the PSI
when it determined Headley’s sentence. Third, whether the district court
abused its discretion by considering an improper sentencing factor when
it considered the department of correctional services’ sentencing
recommendation. Fourth, whether the district court imposed an illegal
sentence by ordering Headley to pay court costs associated with the
dismissed charges. Fifth, whether the district court erred in ordering
Headley to reimburse the State for court costs and correctional fees
without first considering Headley’s reasonable ability to pay.
III. Whether the District Court Abused Its Discretion by
Considering the Risk Assessment Tools in the PSI at Sentencing.
We apply an abuse of discretion standard when the sentence
challenged was within the statutory limits. State v. Seats, 865 N.W.2d
545, 552 (Iowa 2015). We will find an abuse of discretion when “the
district court exercises its discretion on grounds or for reasons that were
clearly untenable or unreasonable.” State v. Thompson, 856 N.W.2d 915,
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918 (Iowa 2014). A ground or reason is clearly untenable when based on
an erroneous application of the law. In re J.A.L., 694 N.W.2d 748, 751
(Iowa 2005).
The crux of Headley’s argument is that because the legislature has
not authorized the court to use risk assessment tools in sentencing, the
district court abused its discretion by considering these tools when it
sentenced Headley. 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. State v. Gordon, 921 N.W.2d. 19, 23–24 (Iowa
2018). 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. Id. If the defendant fails to do
so, we can only examine the claim under the rubric of ineffective
assistance of counsel. Id. at 24. Because there is no record before us on
the risk assessment tools themselves, we will only consider whether the
legislature authorizes a court to use risk assessment tools at sentencing
without examining the validity of the risk assessment tools.
“In applying the abuse of discretion standard to sentencing
decisions, it is important to consider the societal goals of sentencing
criminal offenders, which focus on rehabilitation of the offender and the
protection of the community from further offenses.” State v. Formaro, 638
N.W.2d 720, 724 (Iowa 2002). Sentencing courts in Iowa generally have
broad discretion to rely on information presented to them at sentencing.
See State v. Pappas, 337 N.W.2d 490, 494 (Iowa 1983) (“[W]hatever Iowa
statutes leave to the courts in matters of sentencing should be the
responsibility of the sentencing judge.”); State v. Gartin, 271 N.W.2d 902,
910 (Iowa 1978) (“[T]he decisions of the trial court are cloaked with ‘a
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strong presumption in [their] favor,’ and ‘[u]ntil the contrary appears, the
presumption is that the discretion of the [trial] court was rightfully
exercised.’ ” (alterations in original) (quoting Kermit L. Dunahoo, The Scope
of Judicial Discretion in the Iowa Criminal Trial Process, 58 Iowa L. Rev.
1023, 1024 (1973))); State v. Delano, 161 N.W.2d 66, 71 (Iowa 1968)
(holding the sentencing court may rely on any information to which the
defendant did not object). A court “should weigh and consider all pertinent
matters in determining proper sentence, including the nature of the
offense, the attending circumstances, defendant’s age, character and
propensities[,] and chances of his reform.” State v. Cupples, 260 Iowa
1192, 1197, 152 N.W.2d 277, 280 (1967).
Iowa Code section 901.5 describes the sentencing provisions for
Iowa judges:
After receiving and examining all pertinent information,
including the presentence investigation report and victim
impact statements, if any, the court shall consider the
following sentencing options. The court shall determine which
of them is authorized by law for the offense, and of the
authorized sentences, which of them or which combination of
them, in the discretion of the court, will provide 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. The word “including” indicates that a PSI contains, or
is itself, “pertinent information.” See State v. Brown, 518 N.W.2d 351, 352
(Iowa 1994) (“The purpose of the presentence investigation ‘is to provide
the court pertinent information for purposes of sentencing and to include
suggestions for correctional planning for use by correctional authorities
subsequent to sentencing.’ ” (quoting Iowa Code § 901.2 (current with
2018 Code))).
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Iowa Code section 901.3 clarifies what is to be included in a PSI.
The statute states the investigator must inquire into
a. The defendant’s characteristics, family and financial
circumstances, needs, and potentialities.
b. The defendant’s criminal record and social history.
c. The circumstances of the offense.
d. The time the defendant has been in detention.
e. The harm to the victim, the victim’s immediate
family, and the community. . . .
f. The defendant’s potential as a candidate for the
community service sentence program established pursuant to
section 907.13.
g. Any mitigating circumstances relating to the offense
and the defendant’s potential as a candidate for deferred
judgement, deferred sentencing, a suspended sentence, or
probation, if the defendant is charged with or convicted of
assisting suicide . . . .
h. Whether the defendant has a history of mental
health or substance abuse problems. If so, the investigator
shall inquire into the treatment options available in both the
community of the defendant and the correctional system.
Iowa Code § 901.3(1).
While the statute does not specifically address risk assessment
tools, such as the IRR and DRAOR, these risk assessment tools contain
pertinent information. The dictionary defines “pertinent” as having “some
connection or relation with . . . a matter under discussion.” Pertinent,
Webster’s Third New International Dictionary (unabr. ed. 2002). The
dictionary defines “information” as “knowledge communicated by others
or obtained though investigation, study, or instruction.” Information,
Webster’s Third New International Dictionary. On their face, the tools
appear to predict future conduct, recidivism, and the success of the
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defendant in a community-based correctional setting. These tools are
“pertinent information” to sentencing under section 901.5.
When sentencing courts consider the risk a defendant poses to the
community, the court furthers the legislative intent of providing “for the
protection of the community from further offenses by the defendant.” Iowa
Code § 901.5. Risk assessment tools also further the penological goal of
rehabilitation by providing sentencing courts with more complete
information about a defendant’s mental state, lifestyle, and potential
situations facing the defendant depending on the sentence imposed. On
their face, the tools provide pertinent information that a sentencing judge
may consider. Therefore, we find the district court did not abuse its
discretion in considering the risk assessment tools on their face as
contained within the PSI.
Headley also argues the district court abused its discretion because
even if risk assessment tools are permissible at sentencing, the district
court did not know of the cautions and limitations associated with the
tools. There are two problems with this argument. First, a court needs
further evidence to determine the cautions and limitations of the tools.
Second, we held in State v. Guise, this argument “is in essence a due
process argument.” 921 N.W.2d 26, 29 (Iowa 2018). Headley failed to
object to the tools on these grounds. Accordingly, we cannot reach the
merits of this argument on direct appeal. Id. Therefore, Headley may raise
this issue in a postconviction-relief action if he so desires.
IV. Whether the District Court Violated Headley’s Due Process
Rights by Considering the Risk Assessment Tools in the PSI When It
Determined Headley’s Sentence.
Headley contends the district court violated his due process rights
by using the IRR and DRAOR at sentencing. Headley did not raise this
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issue at the time of sentencing. In Gordon, we held a defendant could not
raise this due process argument for the first time on appeal when the
defendant did not bring the issue to the attention of the district court at
the time of sentencing. 921 N.W.2d at 23–24. We further held we could
not address the due process issue under the rubric of ineffective
assistance of counsel on direct appeal because the record was insufficient
to reach this claim. Id. at 24. Therefore, we will not reach the merits of
this argument on direct appeal. Headley may raise this issue in a
postconviction-relief action if he so desires.
V. Whether the District Court Abused Its Discretion by
Considering an Improper Sentencing Factor When It Considered the
Department of Correctional Services’ Sentencing Recommendation.
Headley contends the district court considered an improper
sentencing factor by considering the sentencing recommendation
contained in the PSI. Although Headley did not object to the court’s use
of the sentencing recommendation at the time of sentencing, he was not
required to do so for us to consider it as an improper sentencing factor on
direct appeal. See id. at 23–24 (holding 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).
Section 901.5 contains numerous sentencing options from
incarceration to deferred judgment. When the department of correctional
services recommends a deferred judgment, deferred sentence, or a
suspended sentence, each of which is accompanied by probation, the
department is telling the court the defendant can be rehabilitated in the
community without incarceration, is a low risk for recidivism, and is not a
danger to the community. When the department of correctional services
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recommends incarceration, the department is telling the court that the
defendant cannot be rehabilitated in the community, is a high risk for
recidivism, or is a danger to the community. This information is “pertinent
information” for a court to consider when sentencing a defendant under
section 901.5.
Moreover, we have previously held any sentencing recommendations
contained in the PSI are not binding on the court. State v. Grgurich, 253
N.W.2d 605, 606 (Iowa 1977). Therefore, the court did not abuse its
discretion when it considered the department of correctional services’
sentencing recommendation. See State v. Nelson, 279 N.W.2d 1, 3–4 (Iowa
1979) (holding trial judge properly exercised discretion by selecting
sentence after weighing the options available, considering the statutory
provisions, and considering the PSI, despite PSI recommending “some kind
of punishment” rather than probation).
VI. Whether the District Court Imposed an Illegal Sentence by
Ordering Headley to Pay Court Costs Associated with the Dismissed
Charges.
In State v. McMurry, ____ N.W.2d ____ (Iowa 2019), we decided this
very issue. There we held requiring a defendant to pay the court costs
associated with dismissed charges did not constitute an illegal sentence
as long as the costs would have been incurred in prosecuting the charges
that were not dismissed. Id. at ____. Here the State would have incurred
the costs assessed against Headley even if it only brought the charges
against Headley for which he pled guilty. Therefore, requiring Headley to
pay the court costs associated with dismissed charges did not constitute
an illegal sentence.
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VII. Whether the District Court Erred in Ordering Headley to
Reimburse the State for Court Costs and Correctional Fees Without
First Considering Headley’s Reasonable Ability to Pay.
Headley argues the district court erred in ordering him to pay
restitution in the form of court costs and correctional fees without first
determining his reasonable ability to pay those items.
In Albright, ___ N.W.2d at ___, we clarified that certain items of
restitution are subject to a reasonable-ability-to-pay determination. See
also Iowa Code § 910.2(1). We also clarified that a plan of restitution is
not complete until the sentencing court issues the final restitution order.
Albright, ___ N.W.2d at ___. Finally, we emphasized that a final restitution
order must take into account the offender’s reasonable ability to pay
certain items of restitution. Id.
Here, the court failed to follow our statutory procedures as outlined
in Albright. Accordingly, we must vacate that part of the sentencing order
regarding restitution and remand the case back to the district court to
impose restitution consistent with our decision in Albright.
VIII. Disposition.
We find the district court did not abuse its discretion in considering
the risk assessment tools on their face as contained within the PSI. We
further find Headley failed to preserve error on his due process and abuse-
of-discretion claims regarding the court’s consideration of the risk
assessment tools contained in the PSI. We also find the record is
insufficient to reach these due process and abuse-of-discretion claims on
direct appeal. In regard to his claim that the district court abused its
discretion when it considered the department of correctional services’
sentencing recommendation, we find it did not. We find the court did not
enter an illegal sentence by requiring Headley to pay the court costs
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associated with the dismissed charges. Finally, we find the district court
erroneously ordered restitution without first conducting the applicable
reasonable-ability-to-pay analysis. Therefore, we vacate the restitution
portion of the defendant’s sentence and remand for resentencing in light
of this opinion and our opinion in Albright, ___ N.W.2d ___.
SENTENCE AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.