STATE OF IOWA, Appellee, vs. LARRY LEROY GROSS JR., Appellant.
No. 18–0690
IN THE SUPREME COURT OF IOWA
Filed November 15, 2019
Scott D. Rosenberg, Judge.
On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Polk County.
Mark C. Smith, State Appellate Defender (until withdrawal), and Maria Ruhtenberg, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant Attorney General.
I. Introduction.
After a defendant was convicted of arson in the second degree, the county sheriff sought recovery of fees under
On appeal, the defendant claims the court should have determined his reasonable ability to pay those jail fees before awarding them. The State counters that because the fees were not awarded as part of restitution, the district court was not required take into account the defendant‘s reasonable ability to pay.
On our review, we affirm the order of the district court and the decision of the court of appeals. Based on our reading of the statutes, we find that because the sheriff did not ask for the fees to be included in restitution, the amount is not subject to the reasonable-ability-to-pay limitations on restitution set forth in
II. Facts and Procedural History.
On June 29, 2017, Des Moines police officers responded to a house fire at the home of Larry Gross. Four others resided in the house and were also present when the fire started: (1) Megan Gross, Larry‘s wife; (2) Geoff Hansen, a lifelong friend of Larry‘s who was renting a room from Larry; (3) Chris Hope, who lived in the basement with Nicole Pote; and (4) Nicole Pote. Based upon their investigation, the police determined that Larry Gross had knowingly set fire to his home with the intent to destroy or damage his home. According to police reports, Gross told Megan and Geoff
On August 9, the State charged Gross with arson in the first degree. See
On January 5, 2018, the district court sentenced Gross to prison for a term not to exceed ten years with credit for time served. See id.
The court memorialized this open-ended determination in its sentencing order, which stated, “Defendant is ordered to make restitution in the amount of $TBD. . . . If the amounts of restitution are not available at the time of sentencing, a supplemental order will follow.” The sentencing order also suspended fines because of Gross‘s incarceration and waived attorney fees “based on the circumstances and Mr. Gross‘s present situation, that he cannot afford [to] pay the fees and costs of the state public defender.”
On January 8, Gross appealed his conviction. On November 21, the court of appeals affirmed Gross‘s conviction, finding that his plea was supported by a factual basis. Pending appeal, Gross was held on a $20,000 cash appeal bond. Gross did not post this bond either.
Meanwhile, on April 6, the Polk County Sheriff‘s Department filed an application for reimbursement for $11,415, consisting of Gross‘s room and board for 197 days of incarceration at the Polk County Jail from June 29, 2017, through January 11, 2018. See id.
IF YOU DISPUTE THE AMOUNT OWED, PLEASE CONTACT THE POLK COUNTY JAIL AT 515-323-5411 OR VISIT THEIR WEBSITE AT https://wvw.polkcountyiowa.gov/sheriff/divisions/detention/inmate-room-board/.
ANY DEFENDANT AGGRIEVED BY THE ABOVE ORDER MAY FILE AN APPLICATION WITH THE COURT TO HAVE THE COURT REEXAMINE THIS DECISION. THE APPLICATION MUST BE FILED WITHIN 15 DAYS AFTER THE FILING OF THE COURT‘S ORDER[.]
Payments may be mailed or made in person:
Attn: Accounting Clerk
Polk County Jail
1985 NE 51st Place
Des Moines, Iowa 50313
(Citation omitted.) The order was mailed to Gross‘s home address in Des Moines and not to the Mt. Pleasant Correctional Facility where he was then confined.
On April 16, Gross initiated an appeal of the order approving the sheriff‘s claim for reimbursement of jail room and board. His pro se notice of appeal also included a financial affidavit claiming indigence and requesting appointment of counsel.
Gross was appointed appellate counsel, and later, his appeal was transferred to the court of appeals. Just over a year later, on April 17, 2019, the court of appeals affirmed the district court‘s reimbursement order, finding that it was a civil judgment executable
On May 7, Gross applied for further review, and we granted his application.
III. Standard of Review.
We review restitution orders for correction of errors at law. State v. Jenkins, 788 N.W.2d 640, 642 (Iowa 2010). In doing so, “[w]e determine whether the court‘s findings lack substantial evidentiary support, or whether the court has not properly applied the law.” State v. Albright, 925 N.W.2d 144, 158 (Iowa 2019) (quoting State v. Klawonn, 688 N.W.2d 271, 274 (Iowa 2004)). “We review rulings on questions of statutory interpretation for correction of errors at law.” State v. Iowa Dist. Ct., 889 N.W.2d 467, 470 (Iowa 2017) (quoting State v. Olutunde, 878 N.W.2d 264, 266 (Iowa 2016)).
IV. Did the District Court Err in Ordering Gross to Pay for Room and Board for His Time Spent in Jail Without Finding that He Had the Reasonable Ability to Pay?
A. Error Preservation.
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. State v. Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002). However, the rule of error preservation “is not ordinarily applicable to void, illegal or procedurally defective sentences.” State v. Richardson, 890 N.W.2d 609, 615 (Iowa 2017) (quoting State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994)).
The State argues that Gross failed to preserve error at the district court level by not seeking reconsideration as suggested in the district court‘s April 9, 2018 order or, alternatively, seeking enlargement of that
Gross counters that because he was not served the order for room-and-board fees which was mailed to his former home address in Des Moines rather than his location of confinement, he could not have sought reconsideration or enlargement. Furthermore, Gross asserts that when the court entered an order for room-and-board reimbursement without a consideration of his reasonable ability to pay the $11,415 bill, he did not have to object because this was the type of sentencing objection that could be raised for the first time on appeal.
Neither side‘s position is entirely persuasive. On the one hand, although the district court order was apparently mailed to Gross‘s home address, he received a copy in prison and was able to mail a pro se notice of appeal from prison by April 16. Gross‘s pro se notice of appeal arrived at the district court on April 18. This was only nine days after the entry of the district court order and would have been within the fifteen-day deadline had Gross sought reconsideration. Whatever the service issue was, it did not cause Gross to miss the reconsideration deadline.
On the other hand, restitution is part of a sentence, and when a party appeals a sentence, some issues may be raised for the first time on appeal even though they were not raised in the district court. See State v. Gordon, 921 N.W.2d 19, 22–23 (Iowa 2018). One such issue is whether the sentencing court determined the defendant‘s reasonable ability to pay before imposing restitution. In none of our recent reasonable-ability-to-pay decisions is there any indication that the defendant raised the absence of a reasonable-ability-to-pay hearing until taking his or her direct appeal. See State v. Headley, 926 N.W.2d 545, 549, 553 (Iowa 2019); State v. Petty, 925 N.W.2d 190, 194, 197 (Iowa 2019); State v. Covel, 925 N.W.2d 183, 187, 189 (Iowa 2019); Albright, 925 N.W.2d at 149, 158–62. This does not mean that such an award of restitution is illegal and may be challenged at any time by filing a motion to correct an illegal sentence. Instead, as we have previously held, once the deadline for direct appeal has run, the defendant is limited to filing a petition to modify restitution (or the plan of restitution) under
Thus, error preservation is intertwined with the merits. If the award of jail fees is the equivalent of a civil judgment, then the State may have a point that Gross should have sought reconsideration under
B. Statutory Framework.
We begin with a discussion of the statutory framework. Jail fees are governed by
The county sheriff, or a municipality operating a temporary municipal holding facility or jail, may charge a prisoner who is eighteen years of age or older and who has been convicted of a criminal offense or sentenced for contempt of court for violation of a domestic abuse order for the actual administrative costs relating to the arrest and booking of that prisoner, for room and board provided to the prisoner while in the custody of the county sheriff or municipality, and for any medical aid provided to the prisoner under section 356.5. . . . The county attorney may file the reimbursement claim on behalf of the sheriff and the county or the municipality. The attorney for the municipality may also file a reimbursement claim on behalf of the municipality.
The sheriff, municipality, or the county attorney, on behalf of the sheriff, or the attorney for the municipality, may file a reimbursement claim with the clerk of the district court which shall include all of the following information, if known . . . .
This is followed by a list of eight items that must be included (if known) in the claim:
a. The name, date of birth, and social security number of the person who is the subject of the claim.
b. The present address of the residence and principal place of business of the person named in the claim.
c. The criminal proceeding pursuant to which the claim is filed, including the name of the court, the title of the action, and the court‘s file number.
d. The name and office address of the person who is filing the claim.
e. A statement that the notice is being filed pursuant to this section.
f. The amount of room and board charges the person owes.
g. The amount of administrative costs the person owes.
h. The amount of medical aid the person owes.
i. If the sheriff or municipality wishes to have the amount of the claim for charges owed included within the amount of restitution determined to be owed by the person, a request that the amount owed [shall] be included within the order for payment of restitution by the person.
In short, there are eight mandatory items, plus the option of requesting that the jail fees be included in the restitution order.
Section 356.7(3) continues,
Upon receipt of a claim for reimbursement, the court shall approve the claim in favor of the sheriff or the county, or the municipality, for the amount owed by the prisoner as identified in the claim and any fees or charges associated with the filing or processing of the claim with the court. The sheriff or municipality may choose to enforce the claim in the manner provided in chapter 626. Once approved by the court, the claim for the amount owed by the person shall have the force and effect of a judgment for purposes of enforcement by the sheriff or municipality.
Notable is the language allowing the sheriff to “choose to enforce the claim in the manner provided in chapter 626.”
Originally,
Restitution is governed by
In all criminal cases in which there is a plea of guilty, verdict of guilty, or special verdict upon which a judgment of conviction is rendered, the sentencing court shall order that restitution be made by each offender to the victims of the offender‘s criminal activities, to the clerk of court for fines, penalties, surcharges, and, to the extent that the offender is reasonably able to pay, . . . [c]ourt costs including correctional fees approved pursuant to section 356.7 . . . .
The clerk of court shall prepare a statement of . . . court costs including correctional fees claimed by a sheriff or municipality pursuant to section 356.7, which shall be provided to the presentence investigator or submitted to the court at the time of sentencing.
Section 910.3 also indicates that
[i]f the full amount of restitution cannot be determined at the time of sentencing, the court shall issue a temporary order determining a reasonable amount for restitution identified up to that time. At a later date as determined by the court, the court shall issue a permanent, supplemental order, setting the full amount of restitution.
C. Relevant Caselaw.
We will now turn to the relevant judicial precedents.
In Albright, the court had made an advance determination that the defendant had a reasonable ability to pay before certain second-category restitution amounts were actually known. Id. at 149. We held this was “contrary to the statutory scheme“; accordingly, we reversed and remanded. Id. at 162–63.
Thus, in Albright, we summarized the required restitution procedure as follows:
[W]e urge courts to do everything possible to have all items of restitution before the court at the time of sentencing. Courts must wait to enter a final order of restitution until all items of restitution are before the court. Once the court has all the items of restitution before it, then and only then shall the court make an assessment as to the offender‘s reasonable ability to pay. A court should make every effort to determine an offender‘s financial condition as early as possible. This may require the offender filing an updated financial statement, a colloquy with the offender, or both. A court cannot impose restitution on an offender for the items subject to the offender‘s reasonable ability to pay if the offender does not have a reasonable ability to pay those items. Finally, any temporary, permanent, or supplemental order regarding restitution is not appealable or enforceable until the court files its final order of restitution.
Id. at 162. Hence, Albright makes clear that with respect to restitution, no award of reasonable-ability-to-pay items such as jail fees may occur until all such items are before the court and the court has then made a reasonable-ability-to-pay determination. Id.
We have since applied Albright in a number of other cases. See, e.g., Headley, 926 N.W.2d at 553 (reversing and remanding in light of Albright); State v. McMurry, 925 N.W.2d 592, 601–02 (Iowa 2019) (same); Petty, 925 N.W.2d at 197–98 (same); Covel, 925 N.W.2d at 189–90 (same).
In contrast to
Under section 356.7(3), a court-approved claim for room and board may be enforced in two ways: as a judgment in the traditional sense, under Iowa Code chapter 626, or as part of a restitution plan under chapter 910. Under section 356.7(2)(g) [now section 356.7(2)(i)], a sheriff, if he
decides to collect the claim under the restitution plan, must so state in the original claim.
Id. at 591. We noted that the sheriff in Abrahamson had chosen the latter option, “specifically stating in his claims that he elected to collect the amounts under the restitution alternative.” Id. However, we affirmed the restitution orders because the defendants “got exactly what they requested [in their resistance in the district court]—a hearing that considered all of the factors under section 910.3 (necessity and reasonableness of the charges and the defendants’ ability to pay).” Id. at 592.
We then went on,
Because the sheriff did not elect to collect the claim for room and board under the chapter 626 alternative, but rather treated them as claims for restitution under chapter 910 and the defendants received a full hearing on the restitution claim, it is not necessary for us to consider the argument that the “shall approve” language of the statute renders it invalid. Nevertheless, we do so to provide guidance in those cases in which a sheriff requests court approval of a claim as a condition precedent to collection of it under the regular judgment collection provisions of chapter 626, rather than through restitution.
Id. We held that the “shall approve” language was “a grant of authority to the court to resolve the merits of the claim—not a mandate that it simply sign the order as a ministerial function.” Id. at 593.
This leads us now to the crux of the matter today. We must determine, in an instance when the sheriff does not include a request to include the jail fees claim within restitution, whether the district court is required to consider the defendant‘s reasonable ability to pay in assessing correctional fees pursuant to
D. Answering the Question.
We begin by reviewing the statutes themselves. “If the language is unambiguous, our inquiry stops there.” Richardson, 890 N.W.2d at 616. Nothing in
When we consider other tools of statutory interpretation, we find additional support for the view that an award of jail fees is not subject to a reasonable-ability-to-pay limitation unless the fees are a component of restitution. One such tool is legislative history. See
This bill provides that claims for reimbursement for room and board provided while a prisoner is in the custody of a county sheriff may be filed by the sheriff or the county attorney with the district court as part of the criminal proceeding. Upon receipt of a claim for reimbursement, the court is to enter judgment against the prisoner in an amount equal to the value of the room and board provided to the prisoner while the prisoner was in the county sheriff‘s custody. The sheriff may enforce the judgment through a writ of execution under chapter 626.
Another tool of statutory interpretation is to examine the consequences of a particular interpretation and see whether that interpretation makes practical sense. See
We think not. There is a tradeoff when the sheriff pursues only a civil judgment instead of a restitution award. A restitution award may be enforced like a civil judgment, see
Gross argues that the sheriff‘s effort to collect jail fees must be subject to the reasonable-ability-to-pay limitation in
It is true, of course, that defendants are entitled to due process before judgments for jail fees are entered against them. “As a general
In the past, we have recognized that “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). This case, as we have held, involves an order with the effect of a civil judgment and not a criminal restitution order. Gross does not contend that a civil judgment is subject to the same constitutional constraints. We leave those issues as well to another case and another day.
We also do not resolve additional issues that may be presented when the sheriff seeks recovery of jail fees without bringing a separate civil action and without including those fees in restitution. Must the defendant be served “in any mode provided in this Code other than by publication“?
Finally, as the judicial branch of government, and not the legislative or executive, we leave to others to determine the appropriate policy in this area.2
For the foregoing reasons, we affirm the district court‘s judgment and the decision of the court of appeals.
AFFIRMED.
All justices concur except Wiggins, J., who concurs specially.
WIGGINS, Justice (concurring specially).
I agree with the result reached by the majority, and I further agree that the judgment under
The majority states Gross did not raise a due process claim. The majority correctly states, “As a general matter, due process requires, at a minimum, notice and an opportunity to be heard.” Bonilla v. Iowa Bd. of Parole, 930 N.W.2d 751, 778 (Iowa 2019). My concern is—and the concern of every county and city should be—whether the judgment is collectable without providing a defendant due process. The United States Supreme Court has held property taken from a defendant who did not receive adequate notice and opportunity to be heard must be returned to the defendant. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313, 320, 70 S. Ct. 652, 656–57, 660 (1950). Is a county or city subject to a wrongful execution, attachment, or garnishment suit if notice and opportunity to be heard was inadequate under the Constitution?
My next concern is whether counties or cities are seizing assets from prisoners in violation of Iowa‘s garnishment restrictions.
Thirdly, how many counties and cities are trying to collect on a section 356.7 judgment after the expiration of the statute of limitations for
Another unanswered question is whether the collection of jail room and board and medical aid from a convicted inmate is subject to the Iowa Debt Collection Practices Act,
Finally, I think a question exists as to whether a judgment for jail room and board and medical aid against a convicted inmate is voidable. If the county or city obtained the judgment without notice to the inmate and an opportunity to be heard, does the court have personal jurisdiction over the inmate to enter a valid judgment?
As demonstrated by the majority opinion and this opinion, counties and cities can collect jail room and board and medical aid from a convicted inmate and avoid the reasonable-ability-to-pay requirement when a court assesses those items as a civil judgment. However, when a county or city makes that choice, it may be subject to the civil laws regarding collection of debts. In the end, using section 356.7 to collect jail room and board and medical aid from a convicted inmate may contain many more pitfalls than using Iowa‘s restitution statutes. Only further litigation will answer these questions.
Notes
Appellee‘s Br. 11 n.1. As discussed below, we also do not decide whether the procedure followed in this case complies with due process. Those matters are not before the court.A reimbursement claim under section 356.7 could be filed as a separate civil action, even where the sheriff elects to enforce the claim as restitution. Experience suggests that these claims are commonly filed in the criminal case, as was the instant claim. The State believes that the best practice—and one that would lead to significantly less confusion about the district court‘s duty—would be to file reimbursement claims as separate civil actions regardless whether the sheriff elects to enforce the judgment under chapter 626 or as restitution.