State of Iowa v. Thomas Patrick Olofson

IN THE COURT OF APPEALS OF IOWA
No. 17-0737
Filed February 21, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
THOMAS PATRICK OLOFSON,
Defendant-Appellant.
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Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan
(stay of execution), District Associate Judge, and Donna L. Paulsen (sentencing,
appeal bond), Judge.
Thomas Patrick Olofson appeals the district court’s sentence, the amount
of his appeal bond, and the district court’s denial of his motion for stay of
execution. SENTENCE AFFIRMED AND APPEAL DISMISSED IN PART.
Seth J. Harrington of Harrington Law L.C., Clive, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Bower, JJ.
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BOWER, Judge.
Thomas Patrick Olofson appeals the district court’s sentence, the amount
of his appeal bond, and the district court’s denial of his motion for stay of
execution. We find the district court did not err in assessing court costs and the
amount of the appeal bond was appropriate. We also find Olofson did not
properly preserve the issue regarding his motion for stay of execution.
Therefore, we affirm the district court, and dismiss the stay of execution claim.
I. Background Facts and Proceedings
In November 2016, Olofson was charged with possession of a controlled
substance, third offense, in violation of Iowa Code section 124.401(5) (2016),
and assault while participating in a felony, in violation of Iowa Code section
708.3. On May 2, 2017, Olofson pleaded guilty to possession of a controlled
substance, second offense, and count two was dismissed. Olofson was
sentenced to 180 days in jail, given credit for time served, fined $625 plus
surcharges, and ordered to provide a DNA sample, and his driver’s license was
suspended for 180 days. The court also assessed court costs on the dismissed
count and set an appeal bond at $2000.
On May 22, Olofson timely appealed the district court’s sentence. On
May 27, he filed a motion for stay of execution of the fine and suspension. On
May 30, the district court denied Olofson’s motion.
II. Standard of Review
We review challenges to the legality of a sentence for errors at law. Kurtz
v. State, 854 N.W.2d 474, 478 (Iowa Ct. App. 2014). We review the amount of
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an appeal bond for an abuse of discretion. See State v. Kellogg, 534 N.W.2d
431, 433 (Iowa 1995).
III. Court Costs
Iowa Code section 910.2(1) requires a defendant who pleads guilty to
make restitution, including court costs. However, our supreme court has held a
defendant cannot be held liable for court costs on dismissed charges unless, as
part of the plea agreement, the defendant has agreed to do so. See State v.
Petrie, 478 N.W.2d 620, 622 (Iowa 1991). Olofson claims the only record made
regarding the plea agreement read, “Plead to Count I; second offense—credit for
time served, dismissed of Count II.” This is not accurate. The document Olofson
cites—the petition to plead guilty—also states, “I understand and agree to pay full
restitution for all charged offenses including any counts of cases dismissed.”
Both Olofson and his trial attorney signed the petition and acknowledged they
“read and understood the above petition to plead guilty.” We find the district
court properly assessed court costs on the dismissed count.
IV. Appeal Bond
Olofson also claims the appeal bond set by the district court was
excessive.
If the judgment or order appealed from is for money, such bond
shall be 110 percent of the amount of the money judgment . . . . In
all other cases, the bond shall be an amount sufficient to save the
appellee harmless from the consequences of the appeal, but in no
event less than $1000.
Iowa R. App. P. 6.601(2). Olofson claims the judgment from which he appealed
was for money, and therefore could not be in excess of 110% of the monetary
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judgment. The district court established the bond at $2000 and made no
additional findings justifying the amount of the bond.
However, the judgment was not simply a monetary judgment. It also
suspended Olofson’s driver’s license and imposed a jail sentence. Olofson
claims such a reading of the rule is “compulsively narrow” and if read narrowly
any non-monetary punishment allows the district court to impose an appeal bond
far in excess of any fine. We find that is exactly what the rule provides. The limit
of 110% applies when the only punishment is monetary damages. We find the
district court did not abuse its discretion in establishing the amount of the appeal
bond.
V. Motion for Stay of Execution
Olofson finally claims the district erred in denying his motion for a stay of
execution. The State claims this issue is not preserved as Olofson filed his
appeal before his motion for stay of execution. The district court losses
jurisdiction over the merits of a case when an appeal is perfected. Gutierrez v.
Wal-Mart Stores, Inc., 638 N.W.2d 702, 706 (Iowa 2002). However, the district
court may still consider collateral matters not affecting the subject of the appeal.
State v. Jose, 636 N.W.2d 38, 46 (Iowa 2001). The grant or denial of a stay of
execution does not affect the ultimate issues of Olofson’s appeals. Therefore,
we find the district court retained jurisdiction.
The next issue before us is to determine whether the collateral issue was
subject to Olofson’s notice of appeal, filed eight days before the district court
denied his motion for stay of execution. Our supreme court has previously held:
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[W]e recognize that rulings on collateral or independent issues after
final judgment are separately appealable as final judgments . . . .
[Therefore], any appeal from a ruling on the issue must be
separately appealed. A defendant cannot rely upon the notice of
appeal from the judgment and sentence of the district court.
We conclude the district court had jurisdiction to rule on the
application to review the appeal bond after [the defendant] filed his
notice of appeal from the final judgment and sentence of the district
court. However, [the defendant] never filed a separate notice of
appeal from the ruling on the application to review bond.
Accordingly, the issue of the additional terms imposed on the bail is
not properly before us on this appeal.
State v. Formaro, 638 N.W.2d 720, 727 (Iowa 2002) (citations omitted).
In order to contest the denial of his motion for stay of execution Olofson
was required to file a separate notice of appeal. He did not. As a result, the
issue is not properly before us and is, therefore, dismissed.
SENTENCE AFFIRMED AND APPEAL DISMISSED IN PART.