IN THE COURT OF APPEALS OF IOWA

No. 19-0230

Filed January 9, 2020

STATE OF IOWA,

Plaintiff-Appellee,

vs.

DEREK THOMPSON,

Defendant-Appellant.

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Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.

Derek Thompson appeals the sentences imposed upon his convictions of 

possession of a controlled substance with intent to deliver and failure to affix a 

drug-tax stamp. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

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

Japuntich, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant 

Attorney General, for appellee.

Considered by Doyle, P.J., Schumacher, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2020).
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SCOTT, Senior Judge.

Derek Thompson appeals the sentences imposed upon his convictions of 

possession of a controlled substance with intent to deliver and failure to affix a 

drug-tax stamp. He argues the court improperly ordered him to pay court costs on 

a dismissed count and a drug abuse resistance education (DARE) surcharge 

without first determining his reasonable ability to pay the same. He also argues 

the imposition of law enforcement initiative (LEI) surcharges violates his right to 

equal protection under the state and federal constitutions. 

The State “agrees that Thompson cannot be ordered to pay costs 

associated with the dismissed count.” The State correctly points out that 

Thompson is still liable for costs not attributable to any single count. See State v. 

McMurry, 925 N.W.2d 592, 600–01 (Iowa 2019). Finally, the State agrees the 

imposition of court costs was premature. See State v. Albright, 925 N.W.2d 144, 

158–61 (Iowa 2019). Under Albright, the imposition of court costs “must await the 

filing of a final restitution plan and a determination of [Thompson]’s reasonable 

ability to pay.” State v. Smeltser, No. 18-0998, 2019 WL 2144683, at *1 (Iowa Ct. 

App. May 15, 2019). Thus, we vacate the sentencing order’s assessment of court 

costs and remand the matter to the district court for the receipt of a final restitution 

plan and subsequent assessment of Thompson’s reasonable ability to pay. 

We next turn to the court’s imposition of the DARE surcharge. Thompson 

argues the surcharge amounts to a contribution to a local anticrime organization 

and is therefore classified as category two restitution, which may only be ordered 

subject to his reasonable ability to pay. See Iowa Code § 910.2(1)(a)(5) (2018); 

Albright, 925 N.W.2d at 159. The State counters that imposition of the surcharge 
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is mandatory and not subject to Thompson’s reasonable ability to pay. We agree 

with the State. “In all criminal cases in which . . . a judgment of conviction is 

rendered, the sentencing court shall order that restitution be made . . . for . . . 

surcharges . . . .” Iowa Code § 910.2(1)(a) (emphasis added). And, “[i]n addition 

to any other surcharge, the court or clerk of the district court shall assess a [DARE] 

surcharge of ten dollars if a violation arises out of a violation of an offense provided 

for in . . . chapter 124, subchapter IV.” Iowa Code § 911.2(1) (emphasis added). 

Neither statute qualifies the imposition of the surcharge by a defendant’s 

reasonable ability to pay; both mandate imposition of the surcharge. See id.

§ 4.1(30); Yohn v. Bd. of Dirs./Clear Lake Sanitary Dist., 672 N.W.2d 716, 717 

(Iowa 2003). 

Finally, Thompson argues the imposition of LEI surcharges violates equal 

protection. Both the federal and state constitutions provide all citizens equal 

protection under the law. U.S. Const. amend. XIV; Iowa Const. art. I, § 6; Nguyen 

v. State, 878 N.W.2d 744, 757 (Iowa 2016). Equal protection “requires that 

‘similarly situated persons be treated alike under the law’” and “that laws treat all 

those who are similarly situated with respect to the purposes of the law alike.” 

Nguyen, 878 N.W.2d at 757 (citations omitted). In assessing a claimed equalprotection violation, we first “determine whether there is a distinction made 

between similarly situated individuals.” Id. at 758. If a party cannot make such a 

showing, “courts do not further consider whether their different treatment under 

[law] is permitted under the equal protection clause.” Id. (quoting Varnum v. Brien, 

763 N.W.2d 862, 882 (Iowa 2009)). 
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Iowa Code section 911.3 mandates the imposition of a $125 surcharge 

following judgment of conviction of certain offenses.1 Thompson argues “he is 

similarly situated with other criminal defendants who are treated differently by 

virtue of the fact that they are not assessed the LEI surcharge.” In other words, he 

argues all individuals convicted of crimes are similarly situated but treated 

disparately. He ignores the fact the crimes necessarily have categorical and 

elementary differences. “[T]he legislature is free to impose disparate punishments 

for different crimes so long as the offenses are distinguishable on their elements.” 

State v. Ceaser, 585 N.W.2d 192, 196 (Iowa 1998), overruled on other grounds by 

State v. Bruegger, 773 N.W.2d 862, 870–72 (Iowa 2009). “In other words, if the 

elements of the offenses are not the same, persons committing the crimes are not 

similarly situated and, therefore, may be treated differently for purposes of” equal 

protection. Id. That is what we have here. We reject the constitutional challenge. 

We vacate the sentencing order’s assessment of court costs and remand 

the matter to the district court for the receipt of a final restitution plan and 

subsequent assessment of Thompson’s reasonable ability to pay. We affirm the 

remainder of the sentence imposed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

 

1 They include controlled-substance offenses under chapter 124; pharmacyrelated offenses under chapter 155A; excise-tax violations under chapter 453B; 

burglary offenses under chapter 713; theft, fraud, and related offenses under 

chapter 714; forgery and related crimes under chapter 715A; damage and trespass 

to property under chapter 716; possessing contraband under section 719.7; 

furnishing a controlled substance or intoxicating beverage to an inmate under 

section 719.8; and prostitution, pimping, and pandering, in violation of sections

725.1 through 725.3.