State of Iowa v. Stephon Travell Curry

• Court: Court of Appeals of Iowa
• Decided: November 21, 2018
• Docket: 17-1351
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-1351 Filed November 21, 2018

STATE OF IOWA, Plaintiff-Appellee,

vs.

STEPHON TRAVELL CURRY, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Paul D. Miller,

Judge.

The defendant challenges the sentence imposed upon his conviction for

robbery in the second degree. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Kevin R. Cmelik, Israel J. Kodiaga, and

Kelli A. Huser (until withdrawal), Assistant Attorneys General, for appellee.

Considered by Potterfield, P.J., and Bower and McDonald, JJ. 2

McDONALD, Judge.

Stephon Curry pleaded guilty to robbery in the second degree, in violation

of Iowa Code sections 711.1(1)(b) and 711.3 (2017). The district court sentenced

Curry to an indeterminate term of incarceration not to exceed ten years with a

mandatory minimum term of seven-tenths of the maximum sentence. The district

court also ordered Curry to pay victim restitution, court costs, and attorney’s fees.

With respect to court costs, the amount was not yet determined, and the district

court did not determine whether the defendant had the reasonable ability to pay

the court costs. With respect to the reimbursement of attorney’s fees, the district

court found Curry had the reasonable ability to pay $0; in other words, the district

court found Curry did not have the reasonable ability to pay attorney fees in any

amount. In this direct appeal, Curry challenges the district court’s exercise of

discretion in imposing sentence and the district court’s failure to determine whether

Curry was reasonably able to pay court costs.

We first address Curry’s challenge to the district court’s exercise of

discretion in imposing sentence. We review a sentence within the statutory limits

for an abuse of discretion. See State v. Seats, 865 N.W.2d 545, 552 (Iowa 2015).

We will find an abuse of discretion only when the grounds for a decision were

clearly unreasonable or clearly untenable. See State v. Formaro, 638 N.W.2d 720,

724 (Iowa 2002).

The district court did not abuse its discretion in imposing Curry’s sentence.

In imposing sentence, the district court should consider all information pertinent to

the sentencing decision, including, but not limited to, “the nature of the offense, the

attending circumstances, defendant’s age, character and propensities and 3

chances of his [or her] reform.” State v. August, 589 N.W.2d 740, 744 (Iowa 1999)

(quoting State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979)). The record

shows the district court considered pertinent information and no improper

information in imposing sentence on the defendant. Curry does not dispute this,

but he claims the court did not give “adequate consideration” to mitigating factors.

For example, Curry claims the district court should have placed greater weight on

the fact Curry had finished high school while incarcerated, had recently become a

father, and hoped to change. These facts were before the district court, but the

district court is allowed to operate “according to the dictates of [its] own

conscience.” Formaro, 638 N.W.2d at 725. The district court is not required to

acknowledge each claim of mitigation urged by the defendant. Ultimately, “[w]hile

the defendant may wish the district court would have reached a different result in

considering the relevant sentencing factors, mere disagreement with the court’s

sentencing decision is not a ground for relief.” State v. Worby, No. 17-1832, 2018

WL 4360995, at *1 (Iowa Ct. App. Sept. 12, 2018). Curry has failed to establish

the district court abused its discretion in imposing sentence.

Curry next challenges the district court’s failure to determine whether he

had the reasonable ability to pay court costs. In his brief, Curry argues the district

court “had an affirmative obligation to preemptively make a determination

regarding his reasonable ability to pay” court costs even though the amount of

courts costs was not yet determined. Review of restitution orders are for the

correction of errors of law. See State v. Jose, 636 N.W.2d 38, 43 (Iowa 2001).

The district court did not commit legal error. A reasonable-ability-to-pay

determination “is a constitutional prerequisite for a criminal restitution order such 4

as that provided by Iowa Code chapter 910.” State v. Van Hoff, 415 N.W.2d 647,

648 (Iowa 1987). Until the amount of restitution is set, however, “the [district] court

is not required to give consideration to the defendant’s ability to pay.” State v.

Jackson, 601 N.W.2d 354, 357 (Iowa 1999). State v. Brown, No. 16-1118, 2017

WL 2181568, at *4 (Iowa Ct. App. May 17, 2017) (holding appeal premature where

restitution order did not include a specific amount of pecuniary damages); State v.

Kemmerling, No. 16-0221, 2016 WL 5933408, at *1 (Iowa Ct. App. Oct. 12, 2016)

(“Because the total amount of restitution had not yet been determined by the time

the notice of appeal was filed any challenge to the restitution order in this case is

premature.”). Indeed, we have held it is an abuse of discretion to determine the

defendant’s reasonable ability to pay where there is insufficient record to determine

the amount of restitution owed. See State v. Campbell, No. 15-1181, 2016 WL

4543763, at *4 (Iowa Ct. App. Aug. 31, 2016) (“We believe a sentencing court

cannot determine a defendant’s ability to pay restitution without, at a minimum, an

estimate of the total amount of restitution, and we find the sentencing court’s

determination of Campbell’s ability to pay was premature and lacked evidentiary

support.”). The district court was correct in not determining Curry’s reasonable

ability to pay court costs when the costs were undetermined at the time of

sentencing.

For the above stated reasons, we affirm the defendant’s sentence.

AFFIRMED.