IN THE COURT OF APPEALS OF IOWA

No. 16-0221

Filed October 12, 2016

STATE OF IOWA,

Plaintiff-Appellee,

vs.

ROBERT W. KEMMERLING,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Marsha A. Bergan, 

Judge.

A defendant appeals the restitution portion of his sentence. SENTENCE 

VACATED IN PART AND REMANDED.

Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, 

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Kelli A. Huser, Assistant Attorney 

General, for appellee.

Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
2

VOGEL, Presiding Judge.

Robert Kemmerling pled guilty to assault causing serious injury. He was 

sentenced to five years in prison, given a suspended $750 fine and 35% 

surcharge, and ordered to pay court costs, correctional fees, and court-appointed 

attorney fees. The court went on to conclude Kemmerling did not have the ability 

to pay the total financial obligation in thirty days, so it ordered him to make 

monthly payments. The court also granted the State’s motion to dismiss a 

second count against Kemmerling “at defendant’s cost, pursuant to the plea 

agreement.” 

On appeal, Kemmerling claims the sentence is illegal because it assessed 

him with the costs associated with the dismissed count but the plea agreement 

did not provide for him to pay those costs. The State concedes this was an error 

of the district court, and we agree. A defendant may be assessed costs clearly 

attributable to the charge on which the defendant is convicted but may not be 

assessed costs clearly attributable to dismissed charges when the plea 

agreement is silent on the payment of fees and costs. See State v. Petrie, 478 

N.W.2d 620, 622 (Iowa 1991). Thus, we vacate that portion of the sentencing 

order assessing court costs against Kemmerling for costs associated only with 

the dismissed count and remand for the entry of a corrected sentencing order 

assessing Kemmerling with the appropriate court costs.1 

 

1 We note the mere fact that one of the pending counts against Kemmerling was 

dismissed does not automatically establish part of the court costs is attributable to the 

dismissed count. Many of the normal court costs would have been the same had there 

been one or twenty counts. On remand, the record needs to be analyzed to determine if 

any of the assessed costs were clearly attributable or discrete to the dismissed count,

and those costs only need to be removed from the assessment. See State v. Johnson, 

No. 15-2101, 2016 WL 4802916, at *2–3 (Iowa Ct. App. Sept. 14, 2016). 
3

Kemmerling also claims the court abused its discretion in ordering him to 

make payments of $50 per month when the record was clear he was insolvent 

and being sent to prison. There are two parts to a restitution order: the plan of 

restitution—the total amount of restitution to be paid—and the restitution plan of 

payment—the schedule of repayment. See State v. Kurtz, 878 N.W.2d 469, 471 

(Iowa 2016). The total amount of restitution was not yet determined at the time 

of sentencing. But the sentencing order appears to have a schedule of 

repayment—$50 per month. Until a plan of restitution is completed, “the 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). 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. In order to 

challenge the amount of restitution ordered, Kemmerling is required under Iowa 

Code section 910.7 (2015)2to file a petition to modify the supplemental 

restitution orders. See id.; Kurtz, 878 N.W.2d at 471–72.

However, upon our review of the sentencing order we note an additional 

issue. The court’s oral pronouncement of sentence provided the “other financial 

obligations can be paid at a rate of $50 per month or through community service 

 

2

Iowa Code section 910.7 provides, in part: 

1. At any time during the period of probation, parole, or 

incarceration, the offender or the office or individual who prepared the

offender’s restitution plan may petition the court on any matter related to 

the plan of restitution or restitution plan of payment and the court shall 

grant a hearing if on the face of the petition it appears that a hearing is 

warranted.

2. After a petition has been filed, the court, at any time prior to the 

expiration of the offender’s sentence, provided the required notice has been 

given pursuant to subsection 3, may modify the plan of restitution or the 

restitution plan of payment, or both, and may extend the period of time for the 

completion of restitution.
4

as well. Mr. Kemmerling, you are not going to be in prison long and so when you 

are out, I will allow you to do community service to take care of your financial 

obligations.” The written sentencing order did not provide for the financial 

obligations to be satisfied through community service or for the obligation to be 

delayed until Kemmerling is released from prison. The order only provided the 

obligation had to be met through monthly payments of not less than $50 per 

month with the first payment due thirty days from sentencing. “A rule of nearly 

universal application is that ‘where there is a discrepancy between the oral 

pronouncement of sentence and the written judgment and commitment, the oral 

pronouncement of sentence controls.’” State v. Hess, 533 N.W.2d 525, 528 

(Iowa 1995) (citation omitted). Thus, pursuant to the court’s statements at the 

sentencing hearing, Kemmerling’s financial obligations may be satisfied with 

community service at the time he is released from prison. As this case is being 

remanded for the entry of a corrected sentencing order on the cost issue, the 

sentencing order regarding restitution should also be corrected to reflect the oral 

pronouncement of sentence. 

SENTENCE VACATED IN PART AND REMANDED.