State of Iowa v. David Lee Levy Jr.

• Court: Court of Appeals of Iowa
• Decided: July 24, 2019
• Docket: 18-1089
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-1089 Filed July 24, 2019

STATE OF IOWA, Plaintiff-Appellee,

vs.

DAVID LEE LEVY JR., Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Henry W. Latham II,

Judge.

David Levy Jr. appeals the sentence imposed following his conviction of

assault on a jailer causing bodily injury. SENTENCE AFFIRMED IN PART,

VACATED IN PART, AND REMANDED.

Mark C. Smith, State Appellate Defender, (until withdrawal), and Martha J.

Lucey, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee.

Considered by Potterfield, P.J., and Doyle and May, JJ. 2

DOYLE, Judge.

David Levy Jr. appeals the sentence imposed following his conviction of

assault on a jailer causing bodily injury.

I. Consecutive Sentences.

Levy first challenges the court’s decision to run his sentence consecutive to

the sentence imposed in another case. We presume a sentence imposed within

the statutory limits is valid and will only overturn it if the sentencing court abuses

its discretion or relies on inappropriate factors. See State v. Wickes, 910 N.W.2d

554, 572 (Iowa 2018). An abuse of discretion occurs if the sentencing court bases

its decision on a legal error or if its decision is unsupported by substantial evidence.

See id. at 564.

The court is to select the sentence that “will provide [the] 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

(2017). The sentencing court must make this determination based on the

individual factors of each case, “including the nature of the offense, the attending

circumstances, the defendant’s age, character, and propensities or chances for

reform.” State v. Johnson, 513 N.W.2d 717, 719 (Iowa 1994). It must state its

reasons for selecting the sentence on the record. See Iowa R. Crim. P. 2.23(3)(d).

This statement may be concise as long as it allows the appellate courts to review

the exercise of its discretion. See State v. Hennings, 791 N.W.2d 828, 838 (Iowa

2010).

In imposing sentence on Levy’s assault conviction, the court stated its duty

to review the available “community resources and to determine what the 3

appropriate rehabilitative plan would be, and to consider how the public and

specifically correctional officers can be protected from this type of criminal activity

in the future, and your willingness to accept change and treatment.” The court

noted it had reviewed the presentence investigation report but did not consider any

unproven offenses. The court then observed:

I find this type of charge a very serious charge when police officers, or correctional officers in this case, are doing their job and are assaulted unnecessarily. Your attorney is correct, I did not hear the evidence in this case, but a jury found you guilty beyond a reasonable doubt based on the evidence that was presented and any defense that may have been presented. What’s very troubling to me today with your comments is the fact that you still do not accept any responsibility. It’s very troubling to me. And it shows a lack of remorse. And it’s based on that and your criminal history that I do find that it’s appropriate that a two-year prison sentence be imposed in this case.

The court ordered the sentence to run consecutive with his sentence for second-

degree murder, stating: “The reasons for the consecutive sentencing is that you

committed this offense while the case was pending. It is a separate and distinct

act and victim from the other case, and based on your criminal history.”

Although Levy asks us to “require the district court to elaborate how the

selected factors or reasons achieve the legislatively mandated sentencing goals

of rehabilitation and protection of the community,” we find the reasons provided for

the court were sufficient to allow review. Finding no abuse of discretion, we affirm.

II. Reasonable Ability to Pay Restitution.

Levy next contends the district court erred in assessing him court costs as

part of his restitution without first determining his reasonable ability to pay

restitution. However, the court’s order was not a final restitution order. The court

is not required to consider the offender’s reasonable ability to pay restitution until 4

the court issues the final restitution order. See State v. Albright, 925 N.W.2d 144,

160-61 (Iowa 2019). Until that time, the court’s order is not appealable or

enforceable. See id. at 162. Levy’s challenge is premature.

III. Appellate Attorney Fees.

Finally, Levy challenges the portion of the court’s sentencing order requiring

that he request a hearing on his reasonable ability to pay appellate attorney fees

within thirty days of the issuance of procedendo following an appeal or be

assessed the full amount. Our supreme court has noted the district court is

required to determine a defendant’s reasonable ability to pay any future attorney

fee it assesses without requiring the defendant to affirmatively request a hearing

concerning the ability to pay. See State v. Coleman, 907 N.W.2d 124, 149 (Iowa

2018). Accordingly, we vacate this portion of the sentencing order and remand for

entry of a corrected order.

SENTENCE AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.