IN THE COURT OF APPEALS OF IOWA
No. 19-0569 Filed June 3, 2020
STATE OF IOWA, Plaintiff-Appellee,
vs.
VADIM IGOREVICH SHULTSEV, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Warren County, Brendan Greiner,
District Associate Judge.
Defendant appeals the sentence and the restitution order. SENTENCE
VACATED IN PART AND REMANDED FOR DETERMINATION OF
RESTITUTION.
Martha J. Lucey, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Bower, C.J., and Greer and Ahlers, JJ. 2
GREER, Judge.
Vadim Shultsev appeals the sentence imposed after he pled guilty to the
charge of operating a motor vehicle while barred, in violation of Iowa Code sections
321.560 and 321.561 (2018).1 The district court ordered Shultsev to serve a
ninety-day sentence at the Warren County jail and ordered that sentence to run
concurrently with three Polk County sentences on other offenses. Shultsev
contends that the district court abused its discretion by failing to delineate
adequate reasons for the sentence.
Additionally, the court levied a $625 fine; a $218.75 surcharge; and court
costs to be determined or $200, whichever was less, against Shultsev. Then the
district court found Shultsev was reasonably able to pay $60 in attorney fees and
up to $3,600 in correctional fees as restitution. Shultsev argues the court erred by
determining he had a reasonable ability to pay the court costs, attorney fees, and
correctional fees. We address his concerns below.
I. Standard of Review.
Our review of the imposed sentence is for errors at law. State v. Thomas,
547 N.W.2d 223, 225 (Iowa 1996). When reviewing a district court’s sentencing
decision, we will not reverse absent either an abuse of discretion or a defect in the
sentencing procedure, such as the consideration of inappropriate matters. See
State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). A district court abuses its
1 Amended Iowa Code section 814.6(1)(a)(3) (2019) would not provide Shultsev a right of appeal from his guilty plea. However this “provision[] appl[ies] only prospectively and do[es] not apply to cases pending on July 1, 2019.” State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019). For that reason, the amendment does not apply here to prevent Shultsev’s appeal. 3
discretion when it “exercises its discretion on grounds clearly untenable or to an
extent clearly unreasonable.” State v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010).
“We review restitution orders for correction of errors at law.” State v.
Albright, 925 N.W.2d 144, 158 (Iowa 2019). “[W]e determine whether the court’s
findings lack substantial evidentiary support, or whether the court has not properly
applied the law.” Id. (alteration in original) (quoting State v. Klawonn, 688 N.W.2d
271, 274 (Iowa 2004)).
II. Sentencing.
Although Shultsev pled guilty and agreed to the sentence imposed, with
buyer’s remorse, he seeks another shot at the sentence term. To get the second
shot, he argues the court failed to identify adequate reasons for a sentence
Shultsev believes is too harsh. First, we note that we give sentencing decisions
by a district court “a strong presumption in their favor.” State v. Loyd, 530 N.W.2d
708, 713 (Iowa 1995). Yet the district court must follow certain parameters in
sentencing. Iowa Rule of Criminal Procedure 2.23(3)(d) provides, in part, that
when a district court sentences a defendant, “[t]he court shall state on the record
its reason for selecting the particular sentence.” To satisfy this requirement, the
district court may state its reasons orally on the record or by including them in the
written sentencing order. State v. Thompson, 856 N.W.2d 915, 919 (Iowa 2014).
The most important purpose of the requirement is to afford appellate courts the
opportunity to review the sentencing court’s discretion. Id. Here we can easily
ascertain the district court’s rationale for the sentence imposed.
During the sentencing proceedings, the district court learned that Shultsev
committed two other driving-while-barred offenses during the time between the 4
plea and the sentencing. The State outlined Shultsev’s criminal record. The
history reflected eight convictions for driving while barred or revoked and two
convictions for operating while intoxicated. While the sentencing order contained
the traditional boilerplate considerations required under Iowa Code section 907.5,
it noted no specifics related to this case. But we have the benefit of the reported
colloquy between the court and Shultsev, during which the district court offered
specific frustrations related to Shultsev’s propensity to drive without a license. The
district judge observed:
All right. Well, I am not sure how we are going to impress upon you that you can’t drive when you don’t have a license, and that is my primary concern right now. And I guess what I keep hearing is that you expect to keep driving without having any consequences because you don’t think that is a big deal. . . . .... . . . So I understand that it is a nonviolent offense. I understand that nobody was hurt, but, you know, there has got to be a consequence for you because you keep driving without a driver’s license. And you keep thinking that it is not that big of a deal, so I am not sure what the court can do to impress upon you that it is a big deal. Frankly, I think the State is absolutely justified in asking for two years in prison given your record and your disregard for the law.
“While the rule requires a statement of reasons on the record, a ‘terse and succinct’
statement may be sufficient, ‘so long as the brevity of the court’s statement does
not prevent review of the exercise of the trial court’s sentencing discretion.’” State
v. Thacker, 862 N.W.2d 402, 408 (Iowa 2015) (citation omitted). “A terse and
succinct statement is sufficient, however, only when the reasons for the exercise
of discretion are obvious in light of the statement and the record before the court.”
Id.; see also, e.g., State v. Victor, 310 N.W.2d 201, 205 (Iowa 1981) (noting it was
“clear from the trial court’s statement exactly what motivated and prompted the 5
sentence” (emphasis added)). Here the sentence reflected the goal to alert
Shultsev that driving while barred is a “big deal” and his cavalier disregard of the
laws must end.
Likewise, Shultsev signed a written plea agreement that clearly set out the
sentence the district court imposed.2 During the plea proceeding, Shultsev
confirmed his understanding of the agreement.
THE COURT: Mr. Shultsev, it is my understanding that you will either be—that the plea agreement is for 90 days in jail or two years in prison.
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IN THE COURT OF APPEALS OF IOWA
No. 19-0569 Filed June 3, 2020
STATE OF IOWA, Plaintiff-Appellee,
vs.
VADIM IGOREVICH SHULTSEV, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Warren County, Brendan Greiner,
District Associate Judge.
Defendant appeals the sentence and the restitution order. SENTENCE
VACATED IN PART AND REMANDED FOR DETERMINATION OF
RESTITUTION.
Martha J. Lucey, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Bower, C.J., and Greer and Ahlers, JJ. 2
GREER, Judge.
Vadim Shultsev appeals the sentence imposed after he pled guilty to the
charge of operating a motor vehicle while barred, in violation of Iowa Code sections
321.560 and 321.561 (2018).1 The district court ordered Shultsev to serve a
ninety-day sentence at the Warren County jail and ordered that sentence to run
concurrently with three Polk County sentences on other offenses. Shultsev
contends that the district court abused its discretion by failing to delineate
adequate reasons for the sentence.
Additionally, the court levied a $625 fine; a $218.75 surcharge; and court
costs to be determined or $200, whichever was less, against Shultsev. Then the
district court found Shultsev was reasonably able to pay $60 in attorney fees and
up to $3,600 in correctional fees as restitution. Shultsev argues the court erred by
determining he had a reasonable ability to pay the court costs, attorney fees, and
correctional fees. We address his concerns below.
I. Standard of Review.
Our review of the imposed sentence is for errors at law. State v. Thomas,
547 N.W.2d 223, 225 (Iowa 1996). When reviewing a district court’s sentencing
decision, we will not reverse absent either an abuse of discretion or a defect in the
sentencing procedure, such as the consideration of inappropriate matters. See
State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). A district court abuses its
1 Amended Iowa Code section 814.6(1)(a)(3) (2019) would not provide Shultsev a right of appeal from his guilty plea. However this “provision[] appl[ies] only prospectively and do[es] not apply to cases pending on July 1, 2019.” State v. Macke, 933 N.W.2d 226, 235 (Iowa 2019). For that reason, the amendment does not apply here to prevent Shultsev’s appeal. 3
discretion when it “exercises its discretion on grounds clearly untenable or to an
extent clearly unreasonable.” State v. Barnes, 791 N.W.2d 817, 827 (Iowa 2010).
“We review restitution orders for correction of errors at law.” State v.
Albright, 925 N.W.2d 144, 158 (Iowa 2019). “[W]e determine whether the court’s
findings lack substantial evidentiary support, or whether the court has not properly
applied the law.” Id. (alteration in original) (quoting State v. Klawonn, 688 N.W.2d
271, 274 (Iowa 2004)).
II. Sentencing.
Although Shultsev pled guilty and agreed to the sentence imposed, with
buyer’s remorse, he seeks another shot at the sentence term. To get the second
shot, he argues the court failed to identify adequate reasons for a sentence
Shultsev believes is too harsh. First, we note that we give sentencing decisions
by a district court “a strong presumption in their favor.” State v. Loyd, 530 N.W.2d
708, 713 (Iowa 1995). Yet the district court must follow certain parameters in
sentencing. Iowa Rule of Criminal Procedure 2.23(3)(d) provides, in part, that
when a district court sentences a defendant, “[t]he court shall state on the record
its reason for selecting the particular sentence.” To satisfy this requirement, the
district court may state its reasons orally on the record or by including them in the
written sentencing order. State v. Thompson, 856 N.W.2d 915, 919 (Iowa 2014).
The most important purpose of the requirement is to afford appellate courts the
opportunity to review the sentencing court’s discretion. Id. Here we can easily
ascertain the district court’s rationale for the sentence imposed.
During the sentencing proceedings, the district court learned that Shultsev
committed two other driving-while-barred offenses during the time between the 4
plea and the sentencing. The State outlined Shultsev’s criminal record. The
history reflected eight convictions for driving while barred or revoked and two
convictions for operating while intoxicated. While the sentencing order contained
the traditional boilerplate considerations required under Iowa Code section 907.5,
it noted no specifics related to this case. But we have the benefit of the reported
colloquy between the court and Shultsev, during which the district court offered
specific frustrations related to Shultsev’s propensity to drive without a license. The
district judge observed:
All right. Well, I am not sure how we are going to impress upon you that you can’t drive when you don’t have a license, and that is my primary concern right now. And I guess what I keep hearing is that you expect to keep driving without having any consequences because you don’t think that is a big deal. . . . .... . . . So I understand that it is a nonviolent offense. I understand that nobody was hurt, but, you know, there has got to be a consequence for you because you keep driving without a driver’s license. And you keep thinking that it is not that big of a deal, so I am not sure what the court can do to impress upon you that it is a big deal. Frankly, I think the State is absolutely justified in asking for two years in prison given your record and your disregard for the law.
“While the rule requires a statement of reasons on the record, a ‘terse and succinct’
statement may be sufficient, ‘so long as the brevity of the court’s statement does
not prevent review of the exercise of the trial court’s sentencing discretion.’” State
v. Thacker, 862 N.W.2d 402, 408 (Iowa 2015) (citation omitted). “A terse and
succinct statement is sufficient, however, only when the reasons for the exercise
of discretion are obvious in light of the statement and the record before the court.”
Id.; see also, e.g., State v. Victor, 310 N.W.2d 201, 205 (Iowa 1981) (noting it was
“clear from the trial court’s statement exactly what motivated and prompted the 5
sentence” (emphasis added)). Here the sentence reflected the goal to alert
Shultsev that driving while barred is a “big deal” and his cavalier disregard of the
laws must end.
Likewise, Shultsev signed a written plea agreement that clearly set out the
sentence the district court imposed.2 During the plea proceeding, Shultsev
confirmed his understanding of the agreement.
THE COURT: Mr. Shultsev, it is my understanding that you will either be—that the plea agreement is for 90 days in jail or two years in prison. Is that also your understanding? SHULTSEV: Yes, sir. THE COURT: You understand that I don’t have to go along with that agreement? SHULTSEV: Yes.
In the end, a court is to make each sentencing decision on an individual
basis, seeking to fit the particular person affected. State v. McKeever, 276 N.W.2d
385, 387 (Iowa 1979). With careful consideration, the court noted it weighed all
options after Shultsev argued for probation rather than a term of incarceration.
Given the district court’s concerns, this sentence particularly satisfied the court’s
interest in rehabilitating Shultsev. See State v. Hopkins, 860 N.W.2d 550, 555
(Iowa 2015) (noting postconviction rehabilitation efforts are an appropriate
sentencing factor to consider). The district court listed relevant factors for its
reasonable sentencing decision. We find Shultsev failed to prove an abuse of
discretion.
2Shultsev waived counsel before the plea proceeding and represented himself until his request for court-appointed counsel at sentencing. 6
III. Reasonable Ability to Pay Restitution.
Shultsev maintains that the district court erred in ordering restitution for his
court-appointed attorney fees up to $60, court costs not to exceed $200, and not
more than $3,600 in correctional fees. There are two categories of restitution.
Albright, 925 N.W.2d at 159. The district court orders category-one restitution
(fines, penalties, and surcharges) without regard to a defendant’s ability to pay.
See id.; see also Iowa Code § 910.2(1). But the district court must determine a
defendant’s reasonable ability to pay any form of category-two restitution before
ordering a defendant to pay it. Albright, 925 N.W.2d at 159. Court costs, including
correctional fees approved under Iowa Code section 356.7, and court-appointed
attorney fees are considered items of category-two restitution, requiring the court
to determine the defendant’s reasonable ability to pay before ordering the
defendant to pay this form of restitution. Id.; see also Iowa Code § 910.2(1).
Shultsev argues not that he cannot pay, but that the district court failed to
follow the appropriate exercise before ordering these payments. To start, the
district court benefited from a review of the financial affidavit filed by Shultsev. The
affidavit revealed no income, no assets, and debt of $1000. However, during the
sentencing, Shultsev presented a different picture of his financial prowess.
Shultsev responded to a question about his company, “It is SOS Auto Collision. I
do insurance work and I do customers’ cars. So I do pretty big clientele and stuff.
I do buy cars from car auctions. I fix them up and pretty much resell them too.”
Additionally, in seeking probation, Shultsev emphasized he had paid all previous
fines for his other offenses. The State argues this history supports Shultsev’s
ability to pay. But Shultsev notes the effort of paying mandatory fees cannot be 7
determinative of the reasonable-ability-to-pay standard as it is not indicative of
whether additional fines will cause undue hardship.
While Shultsev offered some initial detail about his earning ability, the
district court lacked the financial specifics necessary to determine whether
Shultsev had a reasonable ability to pay the court-appointed attorney fees, the
court costs, and the correctional fees over and above the other fines. Additionally,
with the conflicting financial information provided, a more detailed examination of
Shultsev’s actual earnings and livelihood is necessary to meet the Albright criteria.
We vacate the restitution order to allow the district court to solve this discrepancy
and fully analyze Shultsev’s reasonable ability to pay.
IV. Conclusion.
Because we find no abuse of discretion by the district court with the
sentencing term, we affirm the sentencing decision. We vacate the restitution
order and remand for further proceedings to determine Shultsev’s reasonable
ability to pay.
SENTENCE VACATED IN PART AND REMANDED FOR
DETERMINATION OF RESTITUTION.