In re D.T.
| Decision Date | 26 April 2023 |
| Docket Number | 22-0088 |
| Parties | IN THE INTEREST OF D.T., Minor Child, D.T., Minor Child, Appellant. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Scott County, Michael E Motto, District Associate Judge.
After being granted discretionary review, a child challenges a juvenile court order granting restitution for his delinquent act. AFFIRMED.
Gregory F. Greiner, West Des Moines, for appellant.
Brenna Bird, Attorney General, and Mary A. Triick, Assistant Attorney General, for appellee State.
Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
After being granted discretionary review, a child challenges a juvenile court order granting restitution for his delinquent act of reckless use of fire in violation of Iowa Code section 712.5 (2021) following entry of a consent decree. Through the lens of an ineffective-assistance-of-counsel claim, the child asserts there was no causal connection between his act and the money that was ordered to be paid to the victim as restitution. We affirm.
On a summer evening in June 2021, twelve-year-old D.T. was spending the night at a friend's house. They went to a nearby building with some of their other friends. D.T. had "some paper and a lighter, and [he] lit a fire" by the foot of a wooden door to the building. He watched the paper burn until his friend stomped the fire out. D.T. kept lighting papers on fire until he "got bored," then he and his friends stomped it out again and left. D.T. said the fire was extinguished when they left, but later on that night, he saw a fire truck at the building.
The State filed a delinquency petition alleging D.T. committed the delinquent act of second-degree arson. The child pleaded guilty to the lesser-included delinquent act of reckless use of fire, admitting the facts set out above. The juvenile court accepted the plea but withheld adjudication pending consideration of a pre-dispositional report. Once the report was filed, the court held a hearing and approved the parties' request for a consent decree under Iowa Code section 232.46(1)(a). At that hearing, the court also considered the victim's request for restitution. See Iowa Code § 232.46(1)(a)(4) (); id. § 915.100(1), (2)(b) (giving a victim a right to recover pecuniary damages under chapter 910 and stating that such right includes having a judge "require a juvenile who has been found to have committed a delinquent act to compensate the victim of that act for losses due to the act"); see also In re D.R., No. 21-0276, 2022 WL 2826008, at *1 (Iowa Ct. App. July 20, 2022) ().
The director of operations estimated the losses from the fire totaled more than $100,000.00, although the owner of the building would only be responsible for paying its insurance deductible of $25,000.00. After hearing that testimony, the child's attorney stated $25,000.00 was "acceptable to [his] client." In view of that concession, the juvenile court's restitution order stated, "The parties ultimately agreed that the $25,000.00 deductible equaled the amount of [r]estitution due," and the court assessed that amount against D.T.
D.T. filed a notice of appeal, which the State sought to dismiss because a "consent decree, like a deferred judgment, is not an appealable final order." See In re J.J.A., 580 N.W.2d 731,734-36 (Iowa 1998). The child resisted, claiming his attorney was ineffective for "failing to obtain and review relevant evidence" and not challenging "how D.T.'s admission of reckless use of fire is causally connected to the damage inside" the building. See State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001) (). He asked the court to either grant a limited remand under Iowa Rule of Appellate Procedure 6.1004[1] or discretionary review of the restitution order. Without ruling on D.T.'s motion for limited remand, the supreme court granted his alternative request for discretionary review.
In his appellate brief, the child argued the juvenile court erred in ordering him to compensate the victim because the record "provides no causal connection between the fire that started outside of the building, and the fire that damaged the structure inside the building." Yet D.T. acknowledged "it is clear from the record that [his] attorney acquiesced to the restitution amount." So, in a one-line statement, he asked:
If this Court concludes that error was not properly preserved for any reason, the appellant respectfully requests that this issue be preserved as an ineffective assistance of counsel claim pursuant to the Sixth and Fourteenth Amendments of the United States Constitution and Article 1, section 10 of the Iowa Constitution.
We ordered a limited remand under rule 6.1004 for the "court to take additional evidence as to D.T.'s claim that his counsel was ineffective for failing to challenge the causal connection between his delinquent act and the restitution that was ordered." On remand, the juvenile court held a hearing, at which the child's former attorney, the official who investigated the fire, and the child's mother testified. After hearing their testimony, the court ruled the child did not meet his burden to prove that his attorney failed to perform an essential duty or that any prejudice resulted from that failure. The court accordingly reaffirmed its prior restitution order.
While juvenile delinquency restitution orders are ordinarily reviewed for correction of errors at law, see D.R., 2022 WL 2826008, at *1, we review ineffective-assistance-of-counsel claims de novo, In re D.L., No. 14-1302, 2015 WL 5285658, at *2 (Iowa Ct. App. Sept. 10, 2015).
The procedural path this case has taken is full of twists and turns. As mentioned above, D.T. recognized that he may not have preserved error on his restitution challenge because his attorney agreed to the amount that was ordered-though we think the issue is really more a question of waiver rather than preservation of error. Compare State v. Von Stein, No. 02-0127, 2002 WL 31883038, at *1 (Iowa Ct. App. Dec. 30, 2002) (), with State v. Mischke, No. 19-1510, 2022 WL 246244, at *6 (Iowa Ct. App. Jan. 27, 2022) (); see also Lajeunesse v. State, No. 21-0817, 2022 WL 1654831, at *3 ("[F]ailure to preserve error on a claim and waiver thereof are two different things.").
To get past that problem, D.T. asked that the restitution "issue be preserved as an ineffective assistance of counsel claim." But unlike criminal cases, "postconviction relief is not available following delinquency adjudications because the child was neither convicted of nor sentenced for a public offense." D.L., 2015 WL 5285658, at *4 n.3. In past unpublished delinquency appeals with ineffectiveassistance claims, a limited remand has been ordered to develop a record and make an initial determination on the claim where the record was not adequate to decide it on direct appeal.[2] See id. at *3; see also In re C.W., No. 16-1677, 2017 WL 5185433, at *9 (Iowa Ct. App. Nov. 8, 2017) (McDonald, J., dissenting) (); In re T.R., No. 07-1777, at *1 (Iowa Ct. App. Oct. 15, 2008) ( that a limited remand is an available outcome if the record is not sufficient to resolve the ineffective-assistance claim on direct appeal); In re G.G., No. 04-0933, 2005 WL 2989681, at *1-2 (Iowa Ct. App. Nov. 9, 2005) ().
We concluded that was the appropriate path to follow in this case because, by only challenging and then conceding the amount of damages sought by the State at the restitution hearing, the child's attorney waived the child's challenge to the causal connection between his delinquent act and those damages. See State v. Schmitt, No 20-0701, 2021 WL 374530, at *2 (Iowa Ct. App. Feb. 3, 2021) ( a defendant "cannot now 'complain of error which he has invited or to which he has assented'" (citation omitted)); see also Mischke, 2022 WL 246244, at *6. And, in our order for limited remand, we found the record was not adequate to determine the ineffective-assistance claim on direct appeal.[3] With this procedural background in our rearview mirror, we turn...
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