State of Iowa v. Dennis Earl Estabrook, Jr. ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1713
Filed September 13, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DENNIS EARL ESTABROOK JR.,
Defendant-Appellant.
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Appeal from the Iowa District Court for Scott County, John Telleen, Judge.
Defendant appeals the portion of his sentence relating to his reasonable
ability to pay category “B” restitution. AFFIRMED.
Brian S. Munnelly, Omaha, Nebraska, for appellant.
Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant
Attorney General, for appellee.
Considered by Greer, P.J., and Schumacher and Badding, JJ.
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SCHUMACHER, Judge.
Dennis Estabrook Jr. appeals the portion of his sentence relating to his
reasonable ability to pay category “B” restitution, arguing that the district court’s
determination that he had the ability to pay this restitution lacked evidentiary
support or that the district court misapplied the law. We affirm.
I. Relevant Facts and Proceedings
In July 2022, Estabrook, pursuant to a plea agreement, entered a guilty plea
to one count of theft in the first degree, in violation of Iowa Code section 714.2(1)
(2022), a class “C” felony. The plea agreement read in part relevant to this appeal:
a) The defendant will be responsible for payment of all pecuniary
damages as defined in section 910.1(6).
b) The defendant will be responsible for payment of all category “A”
restitution as defined in section 910.1(1).
c) The defendant will be presumed responsible for payment of all
category “B” restitution as defined in section 910.1(2), unless a
finding is made by the court upon request of the defendant to find
him/her reasonably unable to make payments regarding some or
all of category “B” restitution. Any such request to the court would
be subject to the rules and requirements of section 910.2A. The
defendant is additionally noticed that failure to request reduction
or waiver of category “B” restitution within 30 days of the entry of
judgment constitutes a permanent waiver of the right to request a
finding of reasonable ability to pay under section 910.2A(3).
The district court accepted Estabrook’s plea and set a sentencing hearing
for September 2022. Prior to the hearing, Estabrook filed a financial affidavit,
which reflected he was not employed and requested that the court make a
determination regarding his ability to pay category “B” restitution. A notice was
also filed indicating total category “B” restitution to date of $300.1 At the sentencing
1 An additional $40 was assessed as a court reporting fee for the sentencing
hearing. And we note that while Estabrook claims the court was not permitted to
make a reasonable-ability-to-pay determination in that the only item submitted was
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hearing, the court entered the conviction, suspended the ten-year prison sentence
and fine, placed Estabrook on formal probation, and provided for the defendant’s
completion of the 180 Program as part of his probation.2 As to Estabrook’s
reasonable ability to pay category B restitution, the following exchange took place:
Court: I’ve reviewed the financial affidavit. Certainly, I will tell
you while it indicates he has no income, I am inclined—a gentleman
that is a skilled machinist, I am inclined he has the reasonable ability
to repay all category “B” costs. I will certainly hear anything you wish
me to consider before I make that determination, but that is where I
am thinking.
Defense counsel: No, Judge.
Court: Okay. The defendant—the court concludes the
defendant has the ability to repay category “B” costs in full based on
his lengthy history of gainful employment.
At the end of the sentencing hearing, defense counsel stated that the
defendant would not be employed for the first seven months of the 180 Program.
The court confirmed that the decision remained unchanged with respect to
category “B” restitution.
II. Standard of Review
“We review restitution orders for correction of errors at law.” State v.
Waigand, 953 N.W.2d 689, 694 (Iowa 2021) (quoting State v. Jenkins, 788 N.W.2d
640, 642 (Iowa 2010)).
court costs, citing State v. Davis, 944 N.W.2d 641, 646 (Iowa 2020), Iowa Code
section 910.3(9) now requires a district court to enter a permanent restitution order
on the amount of restitution identified up to that point, with Iowa Code
section 910.3(10) permitting a permanent restitution order to be superseded if
additional or different restitution is ordered.
2 The 180 Program is a residential, substance-abuse treatment program.
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III. Analysis
We start our analysis with a review of the relevant statute. Effective
June 20, 2020, the process for determining whether a criminal defendant has the
reasonable ability to pay category “B” items of restitution, including repayment of
court-appointed attorney fees, was modified. See 2020 Iowa Acts ch. 1074, § 72
(codified at Iowa Code § 910.2A (2020)).
We highlight that the statute carries a presumption that a criminal defendant
has “the reasonable ability to make restitution payments for the full amount of
category ‘B’ restitution.” Iowa Code § 910.2A(1). The statute permits the
defendant to request a determination by the court, either at or within thirty days
after sentencing, and requires the district court to hold a hearing if that request is
made. Id. § 910.2A(2), (3)(a).
The defendant can overcome the rebuttable presumption, and satisfy the
burden of showing by a preponderance of the evidence that the defendant lacks
the reasonable ability to make payment toward the full amount of category “B”
items, by filing the required financial affidavit and submitting to questioning at the
hearing. See id. § 910.2A(2)(a)–(c). The district court has broad discretion in
making its determination. Id. § 910.2A(5) (“A court that makes a determination
under this section is presumed to have properly exercised its discretion. A court
is not required to state its reasons for making a determination.”); State v. W.
Vangen, 975 N.W.2d 344, 351–52 (Iowa 2022).
Before determining Estabrook had the reasonable ability to pay category
“B” restitution, the district court considered Estabrook’s financial affidavit, his skills
as a machinist, and his lengthy history of gainful employment. The court also
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considered that Estabrook would be unable to work for a period at the start of his
probation. Giving deference to the district court’s broad discretion, we agree that
Estabrook failed to rebut the statutory presumption of his reasonable ability to pay.
IV. Conclusion
We conclude that the defendant failed to rebut the statutory presumption that
he had the reasonable ability to make restitution payments for category “B”
restitution. Accordingly, we affirm.
AFFIRMED.