Arnez Allen Harris v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
No. 20-1564
Filed December 7, 2022
ARNEZ ALLEN HARRIS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
Arnez Harris appeals the denial of his motion to correct illegal sentence.
AFFIRMED.
Beau A. Bergmann of Bergmann Law Firm, P.L.L.C., Mt. Pleasant, for
appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee State.
Considered by Bower, C.J., Schumacher, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
2
BOWER, Chief Judge.
In 2019, Arnez Harris filed a motion to waive assorted outstanding court
costs and fees related to four misdemeanor cases and a postconviction claim.
Counsel then amended the filing, captioning it a motion to correct illegal sentence,
alleging the court in imposing fines failed to consider Harris’s indigent status, and
adding an ineffective-assistance-of-counsel claim. No records of the fees
assessed or Harris’s outstanding balances were submitted, only a table of costs
created by Harris’s attorney. Trial counsel’s motion and amended application
noted two of the criminal cases were dismissed with court costs assessed.
Counsel claimed, without providing any evidence, costs in Harris’s postconviction
action had been assessed against him in spite of a September 8, 2000 order
vacating Harris’s underlying plea and sentencing and assessing “all court costs
and court appointed attorney fees” to the State.
The district court ruled Harris was not entitled to relief under either the
postconviction-relief statutes or a motion to correct illegal sentence.1 The court
ruled that Harris’s request to reconsider the costs and restitution was limited to a
petition to modify restitution under Iowa Code section 910.7 (2020).2 Our case law
is clear that any request for restitution modification after the appeal period has run
is limited to a section 910.7 hearing. See Iowa Code § 822.2(1)(g) (allowing a
1 The amended petition lists all five case numbers Harris included in his petition—
the two dismissed cases, two guilty plea cases from 2007 and 2009, and the
postconviction case. However, the district court’s ruling and the notice of appeal
only include the postconviction case number.
2 Although Harris raised a section 910.7 hearing in his motion to waive, his counsel
did not request a restitution hearing in the amended application. Our record
contains no evidence of Harris’s restitution plan.
3
person convicted to institute a proceeding for a conviction or sentence subject to
collateral attack “except alleged error relating to restitution, court costs, or fees
under section 904.702 or chapter 815 or 910”); State v. Gross, 935 N.W.2d 695,
699 (Iowa 2019).
On appeal, Harris asserts the district court erred by failing to sua sponte
consider the motion to correct an illegal sentence as a section 910.7 petition. First,
we agree with the State this issue was not preserved, as the issue was not raised
in or decided by the district court. See Gross, 935 N.W.2d at 698 (“Generally, error
is preserved on an issue if (1) a party raises the issue before the district court,
(2) the district court rules upon the issue, and (3) the party again raises the issue
on appeal.”).
Even if preserved, notice was not provided to the necessary parties under
section 910.7. Further, the record is inadequate for the remedy requested—the
court was not provided Harris’s current restitution plan, it is unclear if he is within
“the period of probation, parole, or incarceration” for any of the offenses, and the
record lacks any necessary information to determine if the fees and costs are in
fact criminal restitution under chapter 910. See Iowa Code § 910.7.
As to the postconviction case, the September 8, 2000 order assessed all
court costs and appointed attorney fees to the State, and Harris should contact the
clerk of court to correct any erroneous assessment.3
AFFIRMED.
3 This decision does not affect any fees assessed after Harris’s 2019 motion under
the same case number.