State of Iowa v. Michael J. Alexander, Jr. ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0669
Filed February 8, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL J. ALEXANDER, JR.,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bradley J.
Harris, Judge.
The defendant appeals from a restitution order entered after he pled guilty
to willful injury and possession of a firearm by a felon. APPEAL DISMISSED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
2
POTTERFIELD, Judge.
Michael Alexander appeals from a restitution order after he pled guilty to
willful injury and possession of a firearm by a felon. Alexander argues that the
district court erred in finding he was reasonably able to pay restitution. We
dismiss the appeal.
I. Background Facts and Proceedings
On December 15, 2015, Alexander was charged by trial information with
one count of willful injury and one count of possession of a firearm by a felon.
On February 29, 2016, Alexander pled guilty to both charges, and waived use of
a presentence investigation, time for sentencing, and the right to file a motion in
arrest of judgment. During the proceedings, Alexander submitted a financial
affidavit indicating that he earned approximately $2400 per month and listing
monthly obligations as $550 in rent.1 The court accepted the guilty pleas and
sentenced Alexander on the same day.
The sentence included a prison term not to exceed five years, a
suspended fine of $750, plus a thirty-five percent surcharge. The court also
waived court-appointed attorney fees. In the restitution order, the court ordered
Alexander to pay pecuniary damages to the victims for an amount to be
“determined at a later time” and court costs. The record indicates the court costs
are approximately $441.58. In the alternative, the court provided for community
service to pay restitution. Alexander appeals the restitution order.
1
We note that Alexander wrote “child support” in the monthly obligation section but failed
to include an amount. It is unclear whether the “$550” monthly obligation is for rent,
child support, or a combination of both.
3
II. Standard of Review and Error Preservation
We review restitution orders for correction of errors at law. State v. Jose,
636 N.W.2d 38, 43 (Iowa 2001). We consider whether the district court’s fact-
findings lack substantial evidentiary support and whether the court correctly
applied the law. State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001).
“Evidence is substantial when a reasonable mind would accept it as adequate to
reach a conclusion.” Id. (quoting Hasselman v. Hasselman, 596 N.W.2d 541,
545 (Iowa 1999)).
III. Discussion
Alexander argues the district court abused its discretion when it found he
had a reasonable ability to pay restitution. He also asserts the court violated his
due process rights.2 The State argues that the district court’s restitution order is
not complete and, therefore, not appealable. Alternatively, the State asserts the
court did not abuse its discretion because the record was sufficient to support the
order. We agree the restitution order was incomplete, and Alexander must either
wait for a complete order to appeal the court’s findings or wait until the trial court
has considered a modification to appeal the total amount of restitution.
Under Iowa Code section 910.2(1) (2015), the court is required to order
restitution for victims and to the clerk of court for fines, penalties, and surcharges
without determining the defendant’s ability to pay. See State v. Kurtz, 878
N.W.2d 469, 472 (Iowa Ct. App. 2016); State v. Wagner, 484 N.W.2d 212, 215–
2
Alexander argues “he has suffered a due process violation of notice and the right to be
heard.” However, Alexander failed to elaborate beyond this assertion. The record does
not indicate a due process violation, and we decline to address Alexander’s due process
argument further.
4
16 (Iowa Ct. App. 1992). Restitution for crime-victim-assistance reimbursement,
public agencies, court costs, court-appointed attorney fees, contributions to local
anticrime organizations, and contributions to medical-assistance programs are
limited to the defendant’s reasonable ability to pay. Iowa Code § 910.2(1); See
also Kurtz, 878 N.W.2d at 472. Alternatively, the court may require community
service in lieu of payment. Iowa Code § 910.2(2).
A restitution order contains two separate parts: the plan of restitution, and
the plan of payment. State v. Harrison, 351 N.W.2d 526, 528 (Iowa 1984); State
v. Johnson, 887 N.W.2d 178, 183 (Iowa Ct. App. 2016); Kurtz, 878 N.W.2d at
471. The plan of restitution outlines the category and amounts of the restitution
to be paid. Johnson, 887 N.W.2d at 183. The plan of payment outlines the
payment schedule to complete the terms of the plan of restitution. Id.
Generally, a restitution order is only appealable when the amount of
restitution has been determined completely. In State v. Jackson, for example,
the court issued an incomplete restitution order after the defendant pled guilty to
attempted burglary. 601 N.W.2d 354, 357 (Iowa 1999). The restitution order
required the defendant to pay court costs, court-appointed attorney fees, and
damages in an amount to be determined later. Id. The defendant argued that
the restitution order was an abuse of discretion because the court failed to
consider the defendant’s ability to pay. Id. The court upheld the district court’s
order, explaining:
[W]e have established two principles that preclude us from granting
relief to defendant in this regard. First, it does not appear in the
present case that the plan of restitution contemplated by Iowa Code
section 910.3 was complete at the time the notice of appeal was
filed. Until this is done, the court is not required to give
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consideration to the defendant’s ability to pay. Second, Iowa Code
section 910.7 permits an offender who is dissatisfied with the
amount of restitution required by the plan to petition the district
court for a modification. Unless that remedy has been exhausted,
we have no basis for reviewing the issue in this court.
Id. (citations omitted); see Jose, 636 N.W.2d at 45 (“The ability to pay is an issue
apart from the amount of restitution and is therefore not an ‘order[] incorporated
in the sentence’ and is therefore not directly appealable as such.”); see also
State v. Swartz, 601 N.W.2d 348, 354 (Iowa 1999). Thus, Jackson and Swartz
require a complete restitution order before a defendant may raise the ability-to-
pay issue on appeal.
In Kurtz, the defendant filed a written guilty plea to fourth-degree theft.
878 N.W.2d at 470. The sentencing order required the defendant to pay victim
restitution, costs, and attorney fees, specifying the total amounts. Id. at 471.
Without considering the defendant’s ability to pay, the sentencing order also
directed the defendant to pay fifty dollars per month to satisfy the restitution
requirement. Id. at 472. A panel of our court held that the restitution order was
complete—and appealable—because the complete plan of restitution and the
plan of payment were included in the sentencing order, unlike the orders
discussed in Jackson and Swartz. Id. at 473. The case was remanded so the
district court could determine the defendant’s ability to pay. Id.
Our rule regarding the ability to appeal a restitution order can be
summarized as follows: A restitution order is not appealable until it is complete;
the restitution order is complete when it incorporates both the total amounts of
the plan of restitution and the plan of payment. A defendant must also petition
the court for a modification before they challenge the amount of restitution. If the
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above requirements are met, our Constitution requires the court to make a
finding of the defendant’s reasonable ability to pay.3
With the above in mind, we turn to the merits of Alexander’s appeal. On
February 29, 2016, the district court issued a sentencing order following
Alexander’s guilty plea. In the sentencing order, the court made a “finding that
the defendant is reasonably able to pay.” The restitution section stated
Alexander shall pay court costs and pecuniary damages. The pecuniary
damages were for an amount to be “determined at a later time.” The court
suspended fines and surcharges, waived court-appointed attorney’s fees, and
included a statement within the restitution section of the sentencing order:
Per the restitution plan of payment as a condition of
probation arranged by Department of Corrections consistent with
Chapter 26, Iowa Court Rules, including community service if
deemed appropriate. If the Department of Corrections is unable to
set up a plan of payment prior to the expiration of 30 days, it is
expected that the Defendant will pay a minimum of $50.00 per
month with the first payment beginning on the 30th day after the
entry of the judgment and continuing every 30 days thereafter until
the Department of Corrections is able to set up an alternative plan
with the Defendant.
The Court finds upon inquiry, opportunity to be heard and a review
of the case file, that the Defendant’s reasonable ability to pay
attorney fees shall be the amount actually submitted by court
appointed counsel or $0.00, whichever is less.
After reviewing the record, we believe the restitution order was incomplete.
Here, as in Jackson and Swartz, the court expressly reserved the amounts to be
3
“A defendant’s reasonable ability to pay is a constitutional prerequisite for a criminal
restitution order such as that provided by Iowa Code chapter 910.” State v. Van Hoff,
415 N.W.2d 647, 648 (Iowa 1987); see also Goodrich v. State, 608 N.W.2d 774, 776
(Iowa 2000) (“Constitutionally, a court must determine a criminal defendant’s ability to
pay before entering an order requiring such defendant to pay criminal restitution
pursuant to Iowa Code section 910.2. . . . The ‘reasonably able to pay’ requirement
enables section 910.2 to withstand constitutional attack.”).
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included in the plan of restitution for a later determination. Although the payment
plan was specified, the court is not required to determine Alexander’s ability to
pay until the plan of restitution is final. The order is incomplete and not directly
appealable.
APPEAL DISMISSED.