State v. Hawk

• Decision Date: 23 December 2020
• Docket Number: No. 19-1814,19-1814
• Citation: 952 N.W.2d 314
• Parties: STATE of Iowa, Appellee, v. Christopher Craig HAWK, Appellant.
• Court: Iowa Supreme Court

952 N.W.2d 314

STATE of Iowa, Appellee,

v.Christopher Craig HAWK, Appellant.

No. 19-1814

Supreme Court of Iowa.

Submitted November 18, 2020

Filed December 23, 2020

Martha J. Lucey, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, and Alan M. Wilson, County Attorney, for appellee.

OXLEY, Justice.

Criminal restitution—specifically the determination of a defendant's ability to pay criminal restitution—has been the topic of numerous appeals and recent legislation. The defendant seeks review of the amount of restitution ordered by the district court, while the State argues recent amendments to the restitution statutes preclude our review. We conclude we can consider the district court's order, which we affirm.

I. Background Facts and Proceedings.

Hawk was a passenger in his Jeep when his son ran a stop sign and was stopped by police officers on September 2, 2018. Officers arrested Hawk's son for driving without a valid license. The officers conducted a weapons pat down of Hawk as the passenger, discovered methamphetamine in Hawk's pocket, and arrested him too.

The State charged Hawk with possession of methamphetamine in an amount greater than five grams with intent to distribute, in violation of Iowa Code sections 124.401(1) and 124.401(b )(7) (2018), a Class "B" Felony, and failure to affix a drug tax stamp, in violation of Iowa Code sections 453B.1 and 453B.12, a Class "D" Felony. After a denied motion to suppress and plea negotiations, Hawk pled guilty to possession of methamphetamine in an amount less than five grams with intent to distribute, in violation of Iowa Code section 124.401(1)(c )(6), a Class "C" Felony. He does not appeal his guilty plea.

Hawk was sentenced on October 2, 2019, to the maximum sentence of ten years in prison and ordered to pay a $1000 fine plus a 35% surcharge. During sentencing, the district court considered Hawk's ability to pay court costs. According to the presentence investigation report, Hawk claimed earnings of $12,000 in 2018 from unemployment. He claimed debt from two vehicle loans totaling $18,000, both of which were in default, $600 in credit card debt, and $2400 owed for court fees. At sentencing, he testified he lost his Jeep to a $3400 towing bill following his arrest and that he had been close to starting his own business when he was arrested, although he did not elaborate on what type of business.

In considering whether to order Hawk to pay court costs and his court-appointed attorney fees, the court concluded Hawk was "not incapable" of working and would be able to repay some amount of restitution. The court ordered Hawk to pay the full court costs of $343.50 but capped repayment of his court-appointed attorney fees at the lesser of $250 or the actual amount of fees. Thus, the "second category" restitution¹ ordered, apart from the $1000 fine, totaled $593.50. Hawk appealed this restitution order on October 30, arguing the amount of restitution was excessive.

II. Legal Analysis.

A. Jurisdiction to Hear Hawk's Appeal. We initially retained this case to determine whether we could hear Hawk's appeal following a guilty plea in light of the changes to Iowa Code section 814.6, which went into effect on July 1, 2019. See Iowa Code § 814.6(1)(a )(3) (2020) (limiting direct appeals from a final judgment of sentence following a guilty plea to Class "A" felonies or a showing of "good cause"). The State "assumes without conceding" we have jurisdiction to hear Hawk's appeal under the good cause provision of section 814.6(1)(a )(3) where Hawk is appealing the restitution order included in his sentence and not his guilty plea.

Since the time that we retained Hawk's appeal, the legislature enacted Senate File 457 (SF 457), which made changes to the criminal restitution scheme. See 2020 Iowa Acts ch. 1074, §§ 65–83. In short, SF 457 changed the procedure by which a defendant's ability to pay Category "B" restitution is determined, including shifting presumptions, imposing statutory waivers, and requiring financial affidavits. See id. The statutory amendments at issue took effect on June 25, 2020. Id. § 83. The State argues that those changes apply retroactively to strip us of jurisdiction to hear Hawk's challenge to the restitution order.

Criminal defendants can be ordered to pay different types of restitution. Some types of restitution such as restitution for pecuniary damages incurred by victims of the defendant's crimes, are not limited in amount. See Iowa Code § 910.2(1) (2018). Regardless of a defendant's financial wherewithal, he must make restitution for the monetary damages caused by his criminal actions. See id. Other types of restitution, such as court costs and reimbursement of court-appointed attorney fees, are limited to an amount the defendant is reasonably able to pay. See id. It is not uncommon for the total amount of some of those items to not be available at the time of sentencing. When that happens, we have directed that district

[c]ourts 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.

State v. Albright , 925 N.W.2d 144, 162 (Iowa 2019) ; see also Iowa Code § 910.3(9) (providing for temporary and supplemental orders "[i]f the full amount of restitution cannot be determined at the time of sentencing").

Most recently, we reinforced that until a proper final restitution order had been entered—complete with a determination of the amount of second category restitution the defendant had the reasonable ability to pay—such restitution orders were not enforceable. See State v. Davis , 944 N.W.2d 641, 646 (Iowa 2020) ("[W]e reemphasize that ‘any temporary, permanent, or supplemental order regarding restitution is not ... enforceable until the court files its final order of restitution’ after determination of the defendant's reasonable ability to pay." (quoting Albright , 925 N.W.2d at 162 (second alteration in original))).

Within days of Davis , the legislature passed SF 457, changing the process for determining a defendant's reasonable ability to pay second category (now Category "B") restitution items. See 2020 Iowa Acts ch. 1074, § 69 (to be codified at Iowa Code § 910.1(001) (2021)). The legislature addressed pending Albright -type cases awaiting a final restitution order that included consideration of a defendant's reasonable ability to pay by enacting Iowa Code section 910.2B. See id. § 73 (to be codified at Iowa Code § 910.2B (2021)). Section 910.2B identified specific restitution orders that, "if entered by a district court prior to the effective date of this Act, shall be converted to permanent restitution orders," including "temporary restitution order[s]," "supplemental restitution order[s]" and "restitution order[s] that do[ ] not contain a determination of the defendant's reasonable ability to pay the restitution ordered." Id. (to be codified at Iowa Code § 910.2B(1)(c ) (2021)). Thus, under the legislation, orders we had previously concluded were unenforceable became enforceable on June 25, 2020, even absent a reasonable-ability-to-pay determination. See id. § 69 (to be codified at Iowa Code § 910.1.3A (2021)) (defining a "permanent restitution order").

Under the new statutory scheme, a defendant can challenge the conversion of one of those orders only through a petition for hearing in the district court under section 910.7. See id. § 73 (to be codified at Iowa Code § 910.2B(2) (2021)). Further, the new procedures outlined in section 910.2A are required to be applied in that section 910.7 proceeding. See id. (to be codified at Iowa Code § 910.2B(3) (2021)). The State relies on the conversion statute to support its argument that we now lack jurisdiction to hear Hawk's appeal, arguing he must bring his challenge first to the district court through a section 910.7 petition.

We reject the State's reliance on section 910.2B in this case because Hawk is not challenging the conversion of a restitution order to a permanent restitution order. Rather, he challenges only whether the district court ordered an excessive amount of restitution. The district court considered Hawk's ability to pay restitution and ordered him to pay the full $343.50 in court costs but capped restitution for his court-appointed attorney fees at $250 even though the district court did not yet know the full amount of those fees. The order did not purport to order temporary restitution to be supplemented later. Rather, it entered a final restitution order, complete with an ability-to-pay determination. Hawk's restitution order therefore is not a temporary order, a supplemental order, or an order lacking an ability-to-pay determination—the types of orders specifically identified in section 910.2B that were converted to permanent orders. Section 910.2B simply does not apply to the restitution order entered in Hawk's criminal case on October 1, 2019.

The State relies on another provision of newly enacted section 910.2B to argue the legislature intended the procedures in SF 457 to apply retroactively to sentencing orders entered prior to its enactment, including ones on appeal. See Iowa Acts ch. 1074, § 73 (to be codified at Iowa Code § 910.2B(3) (2021) ) ("The provisions of this chapter, including but not limited to the procedures in section 910.2A, shall apply to a challenge to the conversion of an existing restitution order in the district court and on appeal. " (emphasis added)). Construing the plain language of the statute, see State v. Wickes , 910 N.W.2d 554, 569 (Iowa 2018) ("[W]hen the terms and meaning of a statute are plain and clear, we enforce the statute as written."), this directive is expressly limited to "challenge[s] to the conversion of an existing restitution...