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STATE of Iowa, Plaintiff-Appellee, v. Zedekiah Douglas KURTZ, Defendant-Appellant

Iowa Court of Appeals2016-02-24No. No. 15-0832
878 N.W.2d 469

Summary

Holding. The court vacated in part and remanded the sentencing order, finding that because the restitution plan and payment schedule were both part of the original sentencing order, Kurtz could directly appeal the court's failure to determine his reasonable ability to pay; however, remand was necessary because the sentencing order did not reflect that the court had exercised its required discretion to consider ability to pay before ordering payment for court-appointed attorney fees and court costs.

Zedekiah Kurtz pleaded guilty to fourth-degree theft and was sentenced to thirty days in jail plus fines, surcharges, and restitution orders totaling $400 to his brother and $66 in court-appointed attorney fees. Kurtz appealed, arguing the court failed to determine his reasonable ability to pay before ordering him to make monthly restitution payments of $50 for court costs and attorney fees. The State contended that challenges to a court's failure to consider ability to pay are not directly appealable, but the court disagreed because Kurtz's complete restitution plan—both the amount owed and the payment schedule—was established in the original sentencing order itself, making it reviewable on direct appeal.

The court held that while restitution to crime victims must be ordered without regard to ability to pay, court-appointed attorney fees and court costs may only be ordered to the extent the defendant is reasonably able to pay. Because the sentencing order contained no indication that the trial court had considered Kurtz's ability to pay when setting the monthly payment amount, the court could not determine whether the trial judge had exercised the discretion required by statute. The court therefore vacated the portion of the sentence imposing restitution for court costs and attorney fees and remanded for the trial court to determine Kurtz's reasonable ability to pay.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Appealability of failure to determine ability to pay in restitution orders
  • Distinction between plan of restitution and restitution plan of payment
  • Constitutional requirement to consider defendant's ability to pay for certain restitution categories
  • Exercise of discretion in setting restitution payment schedules

Procedural posture

Kurtz appealed from his sentencing order entered after his guilty plea to fourth-degree theft, challenging the court's imposition of restitution for court costs and court-appointed attorney fees without determining his ability to pay.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

MULLINS, Judge.

Zedekiah Kurtz filed a written guilty plea to fourth-degree theft on March 20, 2015. In the guilty plea, Kurtz acknowledged and waived his right to a fifteen-day delay between the plea and sentencing and asked to be sentenced without delay. He also waived reporting of the proceedings. The court entered a sentencing order on April 20, 2015, which ordered him to serve thirty days in jail, pay a fine of $315.00 plus a 35% surcharge, and pay a $125.00 law enforcement initiative surcharge. The court also ordered Kurtz to pay

not less than $50.00 monthly and the first payment shall be due within 30 days from the date, of this order, until ■the fine, surcharges, restitution, (if ordered) and court costs are paid in full. If payment is late, the Clerk will turn the matter over to the Central Collections Unit to begin collection efforts and a 10% penalty will be added .to, the unpaid balance.

The sentencing order further provided Kurtz was to pay $400.00 in victim restitution to his brother, it taxed costs to Kurtz, and it also ordered Kurtz to pay restitution for the attorney fees, pursuant to Iowa Code section 815.9 (2013), if he was represented by court-appointed counsel. In a separate filing the next day, Kurtz’s court-appointed attorney certified 1.1 hours were. spent on the case for a total cost of $66.00.

Kurtz filed a notice of appeal on May 13, 2015, claiming the court erred by requiring him to pay the court-appointed. attorney fees and to pay for “crime victim assistance reimbursement” without first making a determination as to his reasonable ability to pay.

The State challenges Kurtz’s right to appeal the court’s failure to consider his ability to pay. In support of its assertion, the State cites to State, v. Jose, where our supreme court stated:

The amount of restitution is part of the sentencing order and is. therefore directly appealable, as are all orders incorporated in the sentence. 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.

636 N.W.2d 38, 45 (Iowa 2001) (alteration in original) (quoting State v. Janz, 358 N.W.2d 547, 549 (Iowa 1984)). Because Kurtz challenges the court’s failure-to determine his ability to pay, the State claims he cannot raise the issue in a direct appeal. We disagree because we conclude this case is factually dissimilar from Jose. -

There are two distinct parts that make up a restitution order: the plan of restitution and the restitution plan of payment. State v. Harrison, 351 N.W.2d 526, 528 (Iowa 1984). The plan of restitution sets out the amounts and kind of restitution in accordance with the priorities established in section 910.2. Id: The restitution plan of payment is the next step that sets out the schedule for the offender to carry out the terms of the plan of restitution. Id. In Jose, a defendant challenged the total amount of restitution (i.e., the plan of restitution) ordered by the court, but the total amount of restitution was contained in supplemental orders filed after the defendant had filed the notice of appeal. 636 N.W.2d at 43. Because the amount of restitution had not been determined by the time the notice of appeal was filed, the defendant was required to file a petition to modify the supplemental restitution orders under Iowa Code section 910.7(1999). Id. at 45-46.-

The Jose court noted a challenge to the court’s failure to consider a defendant’s ability to pay is a challenge to the “restitution-plan of payment,” not the “plan of restitution.” Id. at 45 (citing State v. Swartz, 601 N.W.2d 348, 354 (Iowa 1999) and State v. Jackson, 601 N.W.2d 354, 357 (Iowa 1999)); see also State v. Van Hoff, 415 N.W.2d 647, 649 (Iowa 1987) (“A determination of reasonableness ... is more appropriately based on [a defendant’s] ability to pay the current installments than his ability to ultimately pay the. total amount due.”). In both Swartz, 601 N.W.2d at 354, and Jackson, 601 N.W.2d at 357, the defendants were not permitted to challenge the court’s failure to determine their reasonable ability to pay because the plan of restitution was not complete at the time the notice of appeal was filed and the remedy for a hearing under section 910.7 had not been exhausted.

In another case decided today, we 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 consideration to the defendant’s ability to pay. - [Swartz, 601 N.W.2d at 354]. 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.

Jackson, 601 N.W.2d at 357.

In this case, the sentencing order contained the plan of restitution — the total amount of restitution owed by Kurtz, as supplemented by the court-appointed attorney’s certification of her fees — as well as the restitution plan of payment — the monthly payments Kurtz is required to make. We conclude Kurtz is able to appeal the restitution order, including the court’s failure to consider his ability to pay, because the plan of restitution and the restitution plan of payment Were part of the sentencing order from which Kurtz had a right of appeal. See Janz, 358 N.W.2d at 549.

Under Iowa Code section 910.2(1), the court is required to order restitution to the victims of the crime and to the clerk of court for fines, penalties, and surcharges. See State v. Wagner, 484 N.W.2d 212, 215-16 (Iowa Ct.App.1992) (“The restitution ordered to the victim is made without regard to the defendant’s ability to pay.”). However, restitution is ordered for crime victim assistance reimbursement, for public agencies, for court costs including correctional fees, for court-appointed attorney fees, for contribution to a local anticrime organization, and for the medical assistance program only to the extent the defendant is reasonably able to pay. Iowa Code § 910.2(1). “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.” Van Hoff, 415 N.W.2d at 648; 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 pa/ requirement enables section 910.2 to withstand constitutional attack”). If the defendant is not able to pay all or part of these expenses, the court may. require community, service in lieu of payment. Iowa Code § 910.2(2).

Thus, before ordering payment for court-appointed attorney fees and court costs, the court must consider the defendant’s ability to pay. “A defendant who seeks to upset a restitution ordér, however, has the burden to demonstrate either the failure of the court to exercise discretion or an abuse of that discretion.” Van Hoff, 415 N.W.2d at 648. In this case, there is no indication in the districtcourt’s sentencing order that it considered Kurtz’s ability to pay when it ordered him to pay $50.00 per month in restitution for. the court costs and the court-appointed attorney fees. State v. Ayers, 590 N.W.2d, 25, 27 (Iowa 1999) (“When a sentencing court has discretion, it must exercise that discretion. Failure to exercise that discretion calls for a vacation of the sentence and a remand for resentencing.” (citation omitted)). Because , we cannot determine whether the court exercised its discretion when it ordered restitution for the court costs and the court-appointed attorney fees, we vacate that portion of the sentencing order arid remand for a determination of Kurtz’s reasonable ability to pay.

SENTENCE VACATED IN PART AND REMANDED.

. We cannot find any order from the court requiring Kurtz to pay crime victim assistance reimbursement. We thus disregard this assertion in Kurtzs brief.

. Kurtz also raises this claim through the channel of ineffective assistance of counsel in the event we find the issue not preserved. Because claims challenging a sentencing order need not be first presented to the district court, we discern no error preservation issue and need not address Kurtzs ineffective-assistance claim. State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998) (noting ordinary error preservation principles do not apply when challenging a sentencing error).

. The State claims Kurtz waived his right to appeal the sentencing order because he waived reporting of the sentencing hearing and failed to provide us with a record on appeal through either a bill of exceptions under Iowa Rule of Criminal Procedure 2.25 or a statement of proceedings under Iowa Rule of Appellate Procedure 6.806. The State clpims the court may have,considered Kurtz ⅛ ability to pay at the sentencing hearing, and because we have no record of whát occurred at the hearing, we cannot determine whether the court abused its discretion. .In light of our supreme court’s holding in State v. Thompson, 856 N.W.2d 915, 921 (Iowa 2014), we conclude where the sentencing hearing was not reported and the defendant waived reporting, it is incumbenton the district court to ensure its sentencing order shows it exercised its. discretion as required under section 910.2 if the district court sets the restitution plan of payment in the sentencing order. If the sentencing order contains the restitution plan of payment but does not contain the information required under section 901,2, we will vacate that portion of the sentence and remand for a new hearing. The circumstances identified in ,the case of State v. Thacker, 862 N,W.2d 402, 410 (Iowa 2015), are not applicable here.