State v. Gilleland

• Decision Date: 24 April 2013
• Docket Number: No. 10–2042.,10–2042.
• Citation: 834 N.W.2d 82
• Parties: STATE of Iowa, Plaintiff–Appellee, v. Keith Ray GILLELAND, Defendant–Appellant. State of Iowa, Plaintiff–Appellee, v. Larry Alan Doty, Defendant–Appellant.
• Court: Iowa Court of Appeals

834 N.W.2d 82

STATE of Iowa, Plaintiff–Appellee,

v.Keith Ray GILLELAND, Defendant–Appellant.

State of Iowa, Plaintiff–Appellee,

v.Larry Alan Doty, Defendant–Appellant.

No. 10–2042.

Court of Appeals of Iowa.

April 24, 2013.

OPINION TEXT STARTS HEREAppeal from the Iowa District Court for Muscatine County, Gary D. McKenrick and Mark D. Cleve, Judges.

Defendants appeal the district court's decisions that it would not consider their requests for restitution hearings. REVERSED AND REMANDED.

Kent A. Simmons, Davenport, for appellants.

Thomas J. Miller, Attorney General, Kevin Cmelik and Martha E. Trout, Assistant Attorneys General, and Alan Ostergren, County Attorney, for appellee.

Considered by VAITHESWARAN, P.J., TABOR, J., and HUITINK, S.J. ^*

HUITINK, S.J.

I. Background Facts & Proceedings.

Keith Gilleland and Larry Doty were each convicted of criminal offenses and ordered to pay restitution. The defendants filed petitions for a hearing on restitution, pursuant to Iowa Code section 910.7 (2009), more than thirty days after the entry of judgment in their respective criminal cases.¹ They are challenging their restitution plans.

The district court issued similar orders in response to the requests for a restitution hearing, as follows:

Under Section 910.7, Iowa Code (2009), a petition filed concerning an Order for Restitution or a supplemental Order for restitution must be filed within 30 days after entry of the challenged order. When it is initiated after 30 days, the suit is a civil suit in nature. Because the defendant's request here for a restitution hearing was filed more than 30 days after the entry of the supplemental restitution order, his request constitutes the commencement of a collateral civil action to which Chapter 610A, Iowa Code (2009), is applicable. Therefore, no further action can be taken on the defendant's application until he has complied with the requirements of Chapter 610A, Iowa Code (2009).

IT IS THEREFORE ORDERED that the defendant's Request for Restitution Hearing filed [ ], shall remain unsubmitted pending compliance by the defendant with the requirements of Chapter 610A, Iowa Code (2009).

IT IS FURTHER ORDERED that this matter shall be submitted in a civil action case file with a new case number assigned by the clerk of this Court.

(Citations omitted.) The order also provided that the clerk would provide defendants with a copy of a supervisory order that had been issued by the Seventh Judicial District on November 30, 2006. The order concerned civil litigation by prisoners and was sent to the defendants.²

The defendants appealed the district court decisions, and those appeals were consolidated for our review. On appeal, the Iowa Supreme Court, on its own motion, directed the State to file a statement explaining why the district court's order should not be summarily reversed. The State submitted a statement outlining its appellate arguments. The supreme court then determined the case was not appropriate for summary disposition, noting the legal issues involved in the appeal were complex. The court also appointed legal counsel for the defendants. The case was then transferred to the Iowa Court of Appeals for disposition.

II. Standard of Review.

In restitution matters, our review is for the correction of errors at law. State v. Klawonn, 688 N.W.2d 271, 274 (Iowa 2004). We determine whether there is substantial evidence to support the court's factual findings, and whether the court has properly applied the law. Id.

III. Merits.

A. “Criminal restitution is a creature of statute.” State v. Watson, 795 N.W.2d 94, 95 (Iowa Ct.App.2011). At the time of sentencing, or a later time, “the court shall set out the amount of restitution including the amount of public service to be performed as restitution and the persons to whom restitution must be paid.” Iowa Code § 910.3. The restitution orders are known as the plan of restitution. Id. A restitution plan of payment is also prepared, which takes into consideration the offender's income, physical and mental health, age, education, employment and family circumstances. Id. §§ 910.4(2), 910.5(1)(d)(1).

Section 910.7(1) provides:

At any time during the period of probation, parole, or incarceration, the offender or the office or individual who prepared the offender's restitution plan may petition the court on any matter related to the plan of restitution or restitution plan of payment and the court shall grant a hearing if on the face of the petition it appears that a hearing is warranted.

After a petition for hearing has been filed, and before a defendant's sentence has expired, a court “may modify the plan of restitution or the restitution plan of payment, or both, and may extend the period of time for the completion of restitution.” Iowa Code § 910.7(2).

A defendant may challenge a restitution order by means of a timely appeal or through a petition pursuant to section 910.7. State v. Jenkins, 788 N.W.2d 640, 644 (Iowa 2010). A defendant seeking to modify restitution has the option of filing a petition pursuant to section 910.7 or by filing a direct appeal. State v. Janz, 358 N.W.2d 547, 549 (Iowa 1984). If the time for appeal has expired, however, then section 910.7 still provides a defendant with an avenue to challenge a restitution order. Ernest v. State, 508 N.W.2d 630, 633 (Iowa 1993). A petition filed pursuant to section 910.7 may be filed at any time during a defendant's period of probation, parole, or incarceration. Jenkins, 788 N.W.2d at 644.

Restitution is part of the criminal sentencing process. State v. Izzolena, 609 N.W.2d 541, 551 (Iowa 2000). In State v. Alspach, 554 N.W.2d 882, 883 (Iowa 1996), the Iowa Supreme Court considered whether a person who had requested a restitution hearing pursuant to section 910.7 was entitled to representation by court-appointed counsel. If a defendant challenges restitution imposed as part of the original sentencing order, or a supplemental order, then the defendant is entitled to court-appointed counsel. Alspach, 554 N.W.2d at 884. However, “[w]hen pursuant to Iowa Code section 910.7, a later action is initiated to modify the plan or extend its completion date, the suit is civil in nature and not part of the criminal proceedings. The offender would ordinarily have no right to appointed counsel under such circumstances.” Id.

The ruling in Alspach was further considered in State v. Blank, 570 N.W.2d 924, 926 (Iowa 1997), where the court stated, “Our decision [in Alspach ] was strictly limited, however, to challenges aimed at the original sentence, and supplements thereto; later modifications to the restitution plan, sought by offenders or corrections officials, are governed by the civil remedies afforded under section 910.7.” The court determined in order to be considered an extension of the criminal proceedings, a petition under section 910.7 would need to be filed within thirty days of the challenged order. Blank, 570 N.W.2d at 926;see also State v. Jose, 636 N.W.2d 38, 47 (Iowa 2001). Actions filed after that thirty-day period are considered civil, not criminal, in nature. Id.; see also State v. Dudley, 766 N.W.2d 606, 619 n. 5 (Iowa 2009) (noting that after the thirty-day period, a defendant may still file a challenge under section 910.7, but the case is considered to be civil in nature and a defendant is not entitled to court-appointed counsel); State v. Lessner, 626 N.W.2d 869, 871 (Iowa Ct.App.2001) (noting that when a later petition under section 910.7 is filed it should not be considered part of the criminal proceedings, but is civil in nature).

Case law thus makes clear that proceedings based on a petition filed pursuant to section 910.7 more than thirty days after a challenged restitution order are civil in nature. Under the district court's decision a request for a modification of a restitution plan filed more than thirty days after judgment was entered in a criminal case would need to be filed as a separate civil action under Iowa Code chapter 610A and follow the statutory procedures found in that chapter.

B. We first discuss whether there is any prior legal precedent for the district court's decision.³ In Goodrich v. State, 608 N.W.2d 774, 776 (Iowa 2000), the Iowa Supreme Court differentiated between restitution proceedings and proceedings pursuant to chapter 610A. The court stated:

The problem with Goodrich's contention is that the challenged order was not a criminal restitution order. Rather, it was merely an assessment of court costs and attorney's fees under Iowa Code section 610A.1. Iowa Code chapter 610A applies to postconviction relief proceedings because such proceedings are civil actions.

Goodrich, 608 N.W.2d at 776;see also Dudley, 766 N.W.2d at 614 (citing Goodrich for the proposition that the provisions of chapter 910 apply only to criminal restitution orders). While some proceedings pursuant to section 910.7 are civil in nature, we conclude there is no direct legal precedent in Iowa to support the district court's determination that chapter 610A applies to a petition for a restitution hearing filed more than thirty days after a challenged restitution order.

C. We turn next then to a consideration of section 910.7 and chapter 610A in an attempt to determine legislative intent. “The polestar of statutory interpretation is the intent of the legislature.” State v. Carpenter, 616 N.W.2d 540, 542 (Iowa 2000). Legislative intent may be derived from the language of a statute, the statute's subject matter, the object sought to be accomplished, the purpose of the statute, underlying policies, remedies provided, and the consequences from various interpretations of a statute. Postell v. Am. Family Mut. Ins. Co., 823 N.W.2d 35, 49 (Iowa 2012).

Often, the intent of the legislature may be gleaned from the language of a statute. State v. Adams, 810 N.W.2d 365, 377 (Iowa 2012). “To ascertain the meaning of the statutory language, we consider the context of the provision at issue and strive to interpret it in a...