State of Iowa v. Christopher Ryan Covel , 925 N.W.2d 183 ( 2019 )

IN THE SUPREME COURT OF IOWA
No. 18–0678
Filed March 22, 2019
STATE OF IOWA,
Appellee,
vs.
CHRISTOPHER RYAN COVEL,
Appellant.
Appeal from the Iowa District Court for Dickinson County, David A.
Lester, Judge.
A defendant challenges the district court’s revocation of his deferred
judgment and probation, and challenges the imposition of his prison
sentence and order to pay restitution. AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED.
Pamela Wingert of Wingert Law Office, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, Genevieve Reinkoester,
Assistant Attorney General, and Jon M. Martin, County Attorney, for
appellee.
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WIGGINS, Justice.
The district court revoked the defendant’s deferred judgment and
probation and sentenced him to serve a maximum of twenty-five years in
prison and pay restitution. On appeal, we find the district court did not
abuse its discretion in revoking the defendant’s deferred judgment and
probation or in ordering the defendant to serve the twenty-five-year
sentence he would have served had the court not granted a deferred
judgment. Therefore, we affirm those decisions. However, we find the
district court erred in ordering the defendant to pay restitution without
knowing the total amount of restitution owed, which we find is necessary
to know in order to determine the defendant’s reasonable ability to pay.
Therefore, we reverse the part of his sentence regarding restitution and
remand for resentencing regarding restitution consistent with this opinion
and our opinion in State v. Albright, ___ N.W.2d ___ (Iowa 2019).
I. Factual and Procedural Background.
On August 23, 2012, the defendant, Christopher Covel, babysat his
one-year-old sister B.C. Covel was fourteen-years-old at the time. That
evening, B.C. became very ill. On August 24, B.C. died. The autopsy
revealed peritonitis due to a rectal perforation caused B.C.’s death. Her
death was ruled a homicide.
In interviews with investigators, Covel admitted he stuck his finger
into B.C.’s anus the day she became ill. He later admitted he had done
this on multiple prior occasions as well. According to the state medical
examiner, Covel’s digital penetration of B.C. caused the rectal perforation,
which in turn triggered the peritonitis that led to B.C.’s death.
On March 25, 2013, Covel pled guilty to sexual abuse in the second
degree, a class “B” felony, in violation of Iowa Code sections 709.1(3) and
709.3(2) (2011). Covel was a youthful offender at the time, and therefore
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the district court deferred sentencing and transferred supervision back to
the juvenile court.
On September 28, 2015, just before Covel’s eighteenth birthday, the
district court sentenced Covel as an adult, pursuant to the youthful
offender provisions of the Iowa Code. See Iowa Code § 907.3A. The district
court deferred judgement and placed Covel on probation for five years. As
part of his probation, the court required Covel to continue with sexual
abuse and mental health treatment, maintain full-time employment or
status as a full-time student, and successfully complete the program of a
residential treatment facility when a bed became available.
On February 20, 2016, Covel entered the sex offender treatment
program at the residential treatment facility in Sioux City. On June 12,
2017, the residential treatment facility terminated Covel from the program
due to noncompliance with the facility’s rules and regulations.
During Covel’s 479 days in the program, he had one minor rule
violation, two medium violations, and seventeen major violations. The
residential treatment facility ultimately terminated Covel after residential
officers found twenty-one pornographic magazines in Covel’s possession.
Upon termination from the residential treatment facility, Covel had not yet
completed the sex offender treatment program. The residential treatment
facility staff recommended to Covel’s probation officer that the court
reevaluate Covel’s probationary status because, in their opinion, Covel was
unsuitable to return to the community at that time.
On June 14, the State filed an application for revocation of Covel’s
probation with the district court. The district court held two probation
revocation hearings. On January 9, 2018, the court held the first hearing.
Covel’s probation officer testified that neither she nor the supervisor at the
residential treatment facility recommended the court return Covel to the
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facility. The court inquired into other options outside the residential
treatment facility that could be appropriate for Covel. Covel’s probation
officer recommended the court revoke Covel’s deferred judgment and
sentence Covel to a term in prison.
Covel also testified at the hearing. He testified that since pleading
guilty as a juvenile, he successfully completed two sex offender treatment
programs and his high school education. He also successfully completed
a polygraph test as part of his treatment, and he was on the last packet of
his sex offender treatment programming. Covel further testified his
employers had terminated him because of illness, not poor performance.
At the close of the hearing, the judge said he wanted to take judicial notice
of Covel’s juvenile court files and review an updated presentence
investigation report (PSI) before sentencing Covel.
On April 9, the court held the second probation revocation hearing.
The State asked the court to revoke Covel’s probation and sentence him to
twenty-five years in prison. Defense asked the court to return Covel to the
residential treatment facility. After the district court reviewed all the
information, it gave a detailed and thoughtful explanation as to why it was
revoking Covel’s deferred sentence and probation and sentencing him to
twenty-five years in prison. Because Covel was a minor at the time of the
crime, the court did not impose a mandatory minimum as required by the
statute. Although the court was concerned about the length of time Covel
would spend in prison, the court saw an opportunity for Covel to earn an
early release by the parole board if Covel addressed his problems in prison.
The court then ordered Covel to pay restitution for fines, penalties,
surcharges, courts costs, correctional fees, and court-appointed attorney
fees. The court found Covel had a reasonable ability to pay restitution.
However, at the time of sentencing, the court did not know the amount of
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restitution Covel was to pay and set no amounts in the order. Covel
appealed his sentence.
II. Issues.
On appeal, Covel raises two issues. First, he claims the district
court erred in revoking his deferred judgment and probation and
sentencing him to twenty-five years in prison. Second, he argues the
district court erred in imposing restitution without determining his
reasonable ability to pay.
III. Standards of Review.
We will overturn a revocation of probation only if there has been an
abuse of discretion. State v. Rogers, 251 N.W.2d 239, 243 (Iowa 1977) (en
banc). An abuse of discretion occurs when the court exercises its
discretion on grounds or for reasons that are clearly untenable or
unreasonable. State v. Thompson, 856 N.W.2d 915, 918 (Iowa 2014). We
may find grounds untenable when based on an erroneous application of
the law. State v. Gordon, 921 N.W.2d 19, 24 (Iowa 2018).
On the issue of restitution, we review the order for correction of
errors at law. State v. Klawonn, 688 N.W.2d 271, 274 (Iowa 2004). We
will reverse if the court has not properly applied the law or the court’s
findings lack substantial evidentiary support. State v. Bonstetter, 637
N.W.2d 161, 165 (Iowa 2001).
IV. Revocation of Covel’s Deferred Judgment and Probation.
On appeal, Covel argues the district court abused its discretion by
revoking his deferred judgment and probation because the court failed to
recognize his capacity for reform.
A court may revoke probation if the person on probation violates the
terms of the probation. State v. Darrin, 325 N.W.2d 110, 112 (Iowa 1982).
The judge must base a revocation “on more than a simple reevaluation of
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the information known by the trial judge at the time of sentencing.” Id. at
113. A court may not revoke probation arbitrarily, capriciously, or without
adequate information. State v. Hughes, 200 N.W.2d 559, 562 (Iowa 1972).
The district court is to apply a straightforward two-step analysis for
revocation decisions. Patterson v. State, 294 N.W.2d 683, 684 (Iowa 1980).
The first step is determining whether the person has acted in violation of
one or more conditions of his or her probation. Id. If the court determines
the person violated his or her probation, the second step is determining
whether the person should be committed to prison or whether the court
should take other steps to protect society and improve chances of
rehabilitation. Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 479–80, 92
S. Ct. 2593, 2599 (1972)); 1 see also Iowa Code § 908.11(4) (2018).
In the present case, Covel stipulated that he violated the rules of the
residential treatment facility and thereby violated his probation. Thus, the
question before the district court was whether Covel should continue with
probation either in the community or at the residential treatment facility,
or whether Covel should serve the sentence he would have served if not for
the deferred judgment. See Iowa Code § 908.11(4).
The record shows the district court put a great deal of time and
thought into its decision to revoke Covel’s probation. The court held an
initial revocation hearing at which it heard testimony from Covel and
Covel’s probation officer. The court inquired into alternatives to revoking
probation or returning Covel to the residential treatment facility. The court
then ordered an additional and updated PSI be conducted and took three
months to review Covel’s record, including his juvenile record outlining the
State’s efforts to rehabilitate him.
1Although Morrissey was a parole revocation case, the same principles apply to
probation. See Patterson, 294 N.W.2d at 684.
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Covel’s juvenile record contained positive reports of his stable
behavior and progress in juvenile sexual abuse programs as well as his
completion of his high school education. However, Covel’s adult record
showed that once on adult probation at the residential treatment facility,
he had twenty rule violations by the time of his discharge from the sex
offender treatment program. The final violation that led to his discharge
was his possession of twenty-one pornographic magazines, which he
admitted to keeping for personal use and for selling to other residents in
the sex offender treatment program. The treatment facility staff and
Covel’s probation officer both expressed deep concern about Covel’s
possession of pornography. The residential treatment facility reported,
The level of secrecy and criminal thinking involved in
Mr. Covel’s most recent treatment violation is concerning. It
indicates severe deficits in his internalization of and
motivation to use [sex offender treatment program] skills to
work towards avoiding further deviant cycles which could in
turn result or progress to further victimization, especially
given the added incentive of a deferred judgment.
Covel’s probation officer stated in the PSI, “Please note that the sexual
component of the pornography is concerning because he was heavily into
pornography when this crime occurred, ultimately killing his sister
sexually.”
After reviewing Covel’s entire file, the district court held the second
revocation hearing. There, the district court judge explained at great
length his decision for revoking Covel’s probation, including the three
overarching principles he considered in reaching Covel’s sentence:
retribution, rehabilitation, and restitution. The court expressed concern
that Covel might reoffend. Ultimately, the judge concluded Covel’s actions
showed the efforts to rehabilitate Covel failed and Covel still showed
propensities toward being unable to control himself even in one of the most
structured environments available at the residential treatment facility.
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The district court has broad discretion in determining whether
probation should be continued or revoked. See Iowa Code § 908.11;
Darrin, 325 N.W.2d at 113 (“The legislature has given the judge hearing
the request for revocation wide discretion to practice wisdom and justice
in determining whether probation should be continued.”); see also
Patterson, 294 N.W.2d at 685 (holding trial court did not err in revoking
defendant’s parole when the only evidence it had to consider was the
violation report and no conflicting evidence was presented); Rheuport v.
State, 238 N.W.2d 770, 772–75 (Iowa 1976) (holding trial court did not err
in revoking defendant’s probation when defendant was charged with
another crime while on probation); Hughes, 200 N.W.2d at 563 (holding
trial court did not err in revoking probation when it found by a
preponderance of the evidence that defendant committed an armed
robbery).
Based on the updated PSI and two probation revocation hearings,
we find there was sufficient evidence in Covel’s record for the district court
to revoke Covel’s probation. See Hughes, 200 N.W.2d at 562. The district
court exercised its discretion with ample information beyond the original
file used in Covel’s initial proceedings. See Darrin, 325 N.W.2d at 113.
Further, the court did not err in the sentence it imposed because it
imposed the sentence that Covel would have served but for the deferred
judgment, pursuant to Iowa Code section 908.11(4). See Iowa Code
§ 908.11(4) (“If the violation is established . . . and, if the imposition of
sentence was deferred, [the court] may impose any sentence which might
originally have been imposed.”).
V. Order of Restitution.
The district court ordered Covel to make restitution for court costs,
correctional fees, and court-appointed attorney fees. The court also found
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that Covel had a reasonable ability to pay restitution when it did not have
the amount of restitution before it.
In Albright, we examined the Iowa Code provisions related to
restitution. We held,
Courts must wait to enter a final order of restitution until all
items of restitution are before the court. Once the court has
all the items of restitution before it, then and only then shall
the court make an assessment as to the offender’s reasonable
ability to pay. A court should make every effort to determine
an offender’s financial condition as early as possible. This
may require the offender filing an updated financial
statement, a colloquy with the offender, or both. A court
cannot impose restitution on an offender for the items subject
to the offender’s reasonable ability to pay if the offender does
not have a reasonable ability to pay those items. Finally, any
temporary, permanent, or supplemental order regarding
restitution is not appealable or enforceable until the court files
its final order of restitution.
Albright, ___ N.W.2d at ___.
Here, the district court did not have the total amount of restitution
owed when it entered its order finding Covel reasonably able to pay.
Therefore, the court erred, and we reverse the part of the sentence
regarding restitution and remand the case for resentencing consistent with
this opinion and our opinion in Albright. See id.VI. Disposition.
We affirm the district court’s decision to revoke Covel’s deferred
judgment and probation and sentence him to twenty-five years in prison
without a mandatory minimum. However, we vacate the restitution part
of the sentencing order and remand the case to the district court to order
restitution in a manner consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
All justices concur except McDonald, J., who takes no part.