When Anthony Knudsen was charged with second-degree sexual abuse, a guardian ad litem was appointed to represent the child victim. 1 Later, Knudsen pled guilty to the reduced charge of lascivious acts with a child in violation of Iowa Code section 709.8 (2005). As part of Knudsen’s sentence, he was ordered to pay restitution, which included the fee for the guardian ad litem appointed to represent his victim. On appeal, Knudsen argues the district court exceeded its authority in requiring him to pay the guardian ad litem fee. We agree, vacate this portion of his sentence, and remand.
We review a district court’s restitution order for errors of law.
State v. Paxton,
Iowa criminal defendants who plead guilty or who are found guilty are required to make restitution “to the victims of the offender’s criminal activities [and] to the clerk of court.” Iowa Code § 910.2. Restitution is statutorily defined to not only include payment to a victim for the victim’s pecuniary damages, but also payment to the clerk of court for
fines, penalties, and surcharges, the contribution of funds to a local antierime organization which provided assistance to law enforcement in an offender’s case, the payment of crime victim compensation program reimbursements, payment of restitution to public agencies pursuant to section 321J.2, subsection 9, paragraph “b,” court costs including correctional fees approved pursuant to section 356.7, court-appointed attorney fees ordered pursuant to section 815.9, including the expense of a public defender.
Iowa Code § 910.1(4). Because both parties agree 2 that the guardian ad litem fee does not fall within the “payment to the clerk of court” provision of this code section, the guardian ad litem fee must fall within the “payment to a victim” section in order for the restitution order to be a legal sentencing provision. Iowa Code § 910.1(4). In this case, because it was required to provide a guardian ad litem for the child victim under section 915.37, the State asserts it was a victim entitled to restitution by the defendant.
To determine if restitution is required in any given case, the district court must first identify the victim(s) of the defendant’s criminal conduct.
Bonstetter,
The State points to several cases where the State (or another governmental subdivision) was found to be a victim and entitled to restitution. We note, however, in these cases the State suffered a direct economic loss as a result of the crime.
See, e.g., State v. Tesch,
The State next cites to the statutory definition of “pecuniary damages,” which includes “expenses incurred for psychiatric or psychological services or counseling or
other counseling
for the victim which became necessary as a direct result of the criminal activity.” Iowa Code § 910.1(3) (emphasis added). It attempts to tie the “other counseling” phrase to guardian ad litem fees, asserting that Knudsen should “bear the cost of protecting his victim from further injury during his prosecution.” While that sentiment may be a logical extension of the statute had the victim incurred the costs, the prosecution of this type of case is clearly not so designed. Under Iowa Code section 915.37, the child witness “is entitled to have the witness’s interests represented.” It is a cost of prosecution borne by the State, which cost could not be shifted to a child victim.
See State Public Defender v. Iowa District Court,
Nonetheless, the State argues that the restitution statute broadly defines criminal restitution and we should therefore allow for non-enumerated examples of restitution.
See State v. Izzolena,
We conclude that the State in this case is not the victim within the purview of Iowa Code § 910.2. Because the restitution statute does not explicitly provide for the repayment of guardian ad litem fees for a child victim, we find no authority to require Knudsen to pay the fee he was ordered to pay.
See
Iowa Code § 910.1(4) (defining restitution as a victim’s pecuniary damages and other enumerated costs that do not include guardian ad litem fees);
Bonstetter,
Accordingly, we vacate the part of the sentencing order requiring payment of the guardian ad litem fee and remand for the district court to enter an order consistent with this opinion.
SENTENCE VACATED IN PART AND REMANDED.