State v. Gross
| Decision Date | 15 November 2019 |
| Docket Number | No. 18-0690,18-0690 |
| Citation | 935 N.W.2d 695 |
| Parties | STATE of Iowa, Appellee, v. Larry Leroy GROSS Jr., Appellant. |
| Court | Iowa Supreme Court |
After a defendant was convicted of arson in the second degree, the county sheriff sought recovery of fees under Iowa Code section 356.7 for the defendant’s pretrial detention. The sheriff did not, however, ask that the fees be included in restitution. See Iowa Code § 356.7(2)(i ) (2017). The district court ordered the defendant to pay the requested amount.
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 Iowa Code chapter 910. This means, however, that certain pathways available for collecting restitution are not available here.
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 to grab anything they cared about because he had just lit the house on fire.
On August 9, the State charged Gross with arson in the first degree. See Iowa Code § 712.2. Pending trial, Gross was held on a $25,000 cash or surety bond. Gross never posted bail. On October 19, under a plea agreement, Gross pled guilty to arson in the second degree. See id. §§ 712.1, .3.
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. § 902.9(1)(d ). The court also indicated there would be restitution, stating, to which the State responded, "Correct, Your Honor." The court later added, "You could be ordered to make restitution, which is financial compensation, for any monetary loss that may be suffered by the victim of the crime, if you're financially able to do so."
The court memorialized this open-ended determination in its sentencing order, which stated, 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.
(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 under chapter 626—not a restitution award under chapter 910—and therefore exempt from a reasonable-ability-to-pay analysis.
On May 7, Gross applied for further review, and we granted his application.
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) ).
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 order pursuant to Iowa Rule of Civil Procedure 1.904(2). This is consistent with the State’s position that the award was a civil judgment and that the rules of error preservation for civil matters apply.
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 Iowa Code section 910.7. See State v. Jose , 636 N.W.2d 38, 46–47 (Iowa 2001) ; State v. Janz , 358 N.W.2d 547, 549 (Iowa 1984).
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 Iowa Rule of Civil Procedure 1.904(2).1 If the award of jail fees is part of restitution, then Gross can raise the lack of a reasonable-ability-to-pay hearing for the first time in a timely direct appeal. We will therefore proceed to the merits.
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