IN THE SUPREME COURT OF IOWA No. 18–0594 Filed April 12, 2019 STATE OF IOWA, Appellee, vs. EVAN PAUL HEADLEY, Appellant. Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge. A defendant appeals his sentence on various grounds. SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED. Mark C. Smith, State Appellate Defender (until withdrawal), and Theresa R. Wilson, Assistant Appellate Defender, for appellant. Thomas J. Miller, Attorney General, Timothy M. Hau, Assistant Attorney General, John Sarcone, County Attorney, Jaki Livingston and Kevin Hathaway, Assistant County Attorneys, for appellee. 2 WIGGINS, Justice. A defendant appeals his sentence for domestic abuse assault and second-degree burglary. He argues the sentencing court violated his due process rights and abused its discretion by considering the risk assessment tools contained in the presentence investigation report (PSI). He also argues the court abused its discretion by considering the investigator’s recommendation in the PSI. If these claims were not preserved, he claims ineffective assistance of counsel in the alternative. The defendant also challenges the restitution imposed by the district court. He claims the court imposed an illegal sentence by ordering him to pay the court costs associated with the dismissed charges. He further claims the court erred by failing to determine his reasonable ability to pay prior to determining the amount of restitution owed. On appeal, we find the district court did not abuse its discretion in considering the risk assessment tools on their face as contained within the PSI. We further find the defendant failed to preserve error on his due process and abuse-of-discretion claims regarding the court’s consideration of the risk assessment tools contained in the PSI. We also find the record is insufficient to reach these due process and abuse-of-discretion claims on direct appeal. In regard to his claim that the district court abused its discretion when it considered the department of correctional services’ sentencing recommendation, we find it did not. We also find the court did not enter an illegal sentence by requiring the defendant to pay the court costs associated with dismissed charges. However, we find the district court erroneously ordered restitution without first conducting the applicable reasonable-ability-to-pay analysis. Therefore, we vacate the restitution portion of the defendant’s sentence and remand for resentencing in light 3 of this opinion and our opinion in State v. Albright, ___ N.W.2d ___ (Iowa 2019). I. Factual and Procedural Background. On July 28, 2017, Des Moines police officers responded to a domestic fight at the home of S.M. When officers arrived in the neighborhood, S.M. was several houses north of her address and waived the officers down. S.M. told officers her ex-boyfriend, Evan Headley, had shown up to her house uninvited and forced his way into her home. S.M. said she and Headley began arguing and Headley forced S.M. into her bedroom, onto her bed, and held her down with his body weight. Headley left swelling on S.M.’s shoulders before S.M. was able to escape Headley’s grasp. When officers entered S.M.’s home, ...
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