State v. Wagner, 91-235

• Decision Date: 25 February 1992
• Docket Number: No. 91-235,91-235
• Citation: 484 N.W.2d 212
• Parties: STATE of Iowa, Appellee, v. Everett Ray WAGNER, Appellant.
• Court: Iowa Court of Appeals

Page 212

484 N.W.2d 212

STATE of Iowa, Appellee, v. Everett Ray WAGNER, Appellant.

No. 91-235.

Court of Appeals of Iowa.

Feb. 25, 1992.

Douglas H. Napier of Napier, Wright & Wolf, Fort Madison, for appellant.

Bonnie J. Campbell, Atty. Gen., Ann E. Brenden, Asst. Atty. Gen., Michael P. Short, County Attorney; and Robert Glaser, Asst. Atty. Gen., for appellee.

Heard by DONIELSON, P.J., and HAYDEN and HABHAB, JJ.

HABHAB, Justice.

On September 2, 1981, a major riot and uprising occurred at the Iowa State Penitentiary in Fort Madison. Inmates seized prison employees as hostages and did a great deal of property damage.

Inmate Everett Wagner was identified as one of the leaders in the forced detention of prison employees. After the riot had been quelled, Wagner was charged with seven counts of kidnapping in the second degree and one count of insurrection. In January 1985, following a jury trial, Wagner was convicted of those charges. At the time of sentencing, the trial court directed the Director of Adult Corrections to prepare a restitution plan.

After Wagner was sentenced, the Director of Adult Corrections prepared a restitution plan ordering Wagner to pay victim restitution of $1,300,000.00 to the State. This figure represents the entire amount of damage caused to prison property during the riot. The restitution order also directed Wagner to pay attorney's fees of $42,200.00, expert witness fees of $4,300.00, and court costs of $1,941.06. The trial court approved this restitution plan without holding a hearing.

Wagner appealed from his convictions and sentences. In 1987 the Iowa Supreme Court affirmed the convictions and sentences but remanded for a restitution hearing. State v. Wagner, 410 N.W.2d 207, 215-16 (Iowa 1987). The supreme court held Wagner was entitled to an opportunity to contest the restitution plan. On remand, the trial court directed Wagner to pay $1,000,000.00 in victim restitution, $5,000.00 in attorney's fees, $37,706.58 in trial and appellate court costs, and $4,300.00 in witness fees.

Wagner has now appealed from the restitution order entered upon remand. He contends the trial court abused its discretion by directing him to pay restitution equal to the entire amount of prison property damage caused by all the participants in the riot. He argues there was no evidence Wagner's activity was the (presumably as opposed to "a") proximate cause of the entire amount of damage.

Wagner also contends the trial court erred by not making a finding about damages paid by an insurer. He claims the restitution statute allows an offset in the restitution by that amount.

Additionally, Wagner claims the trial court erred by ordering him to pay more restitution than the State originally sought. The trial court directed Wagner to pay victim restitution of $1,000,000.00. It did so even though the State during pretrial conference stated it would request restitution of only $109,000.00.

Finally, Wagner contends the district court abused its discretion by ordering restitution for court costs, witness' fees, and attorney's fees. Under Iowa Code section 910.2, restitution for those items is authorized "to the extent that the offender is reasonably able to do so." He argues due to his limited prison income and his extremely high victim restitution obligation, he is not reasonably able to pay restitution for any of the remaining items.

We review for an abuse of discretion. In order to show an abuse of discretion, one generally must show that the court exercised its discretion "on grounds or for reasons clearly untenable or to an extent clearly unreasonable." State v. Blackwell, 238 N.W.2d 131, 138 (Iowa 1976).

I. Definitions.

To facilitate our review, we set out the pertinent portions of definitions from the chapter dealing with victim restitution, Iowa Code chapter 910.

910.1. Definitions.

As used in this chapter, unless the context otherwise requires:

1. "Victim " means a person who has suffered pecuniary damages as a result of the offender's criminal activities. However, for purposes of this chapter, an insurer is not a victim and does not have a right of subrogation....

2. "Pecuniary damages " means all damages to the extent not paid by an insurer, which a victim could recover against the offender in a civil action arising out of the same facts or event, ...

* * * * * *

4. "Restitution " means payment of pecuniary damages to a victim in an amount and in the manner provided by the offender's plan of restitution. Restitution also includes the payment of crime victim assistance reimbursements, court costs, court-appointed attorney's fees or the expense of a public defender, and the performance of public service by an offender in an amount set by the court when the offender cannot reasonably pay all or part of the court costs, court-appointed attorney's fees or the expense of a public defender.

II. Restitution.

Before beginning our analysis, we first explore the rationale for restitution. Restitution in Iowa is a creature of statute. It serves two purposes.

The first is to "protect the public by compensating victims of criminal activities." State v. Kluesner, 389 N.W.2d 370, 372 (Iowa 1986). The rationale here is similar to that in tort. See State v. Mayberry, 415 N.W.2d 644, 645-46 (Iowa 1987). A wrong has been done. A person has been injured or property damaged. The victim deserves to be compensated for injury. The person liable for the injury, as in tort, is the actor who caused it. The victim is entitled to full compensation for the injury. Id.

The second purpose is rehabilitation. Kluesner, 389 N.W.2d at 372-73. The defendant has done wrong. A person has been injured. The defendant, in order to take full responsibility for his or her action, must compensate the victim for the damage caused by his or her crime. Id.

Restitution is different from other penal sanctions which may be accorded a defendant. In restitution, the criminal actor is forced to confront the effects of his or her wrongdoing. See Mayberry, 415 N.W.2d at 646-47. The restitution amount accords with the extent of damage caused by the crime. In other penal sanctions, the criminal generally deals only with the State. Id. He or she may spend time in a penal institution, be engaged in community service unrelated to the victim, or may have a fine or other levy imposed. Id. However, only in restitution is the criminal actor made to answer directly for the consequences of his or her action. See id., Kluesner, 389 N.W.2d at 72-73.

Iowa Code section 910.2 mandates trial courts in sentencing to order restitution. Further, the offender is also liable to pay the crime victim's assistance program, court costs, and any court-appointed attorney fees to the extent he or she is reasonably able to do so. Iowa Code § 910.2 (1991).

This section requires a sentencing court to order victim restitution in full. See State v. Haines, 360 N.W.2d 791, 797 (Iowa 1985) ("[t]he literal language of section 910.2 requires the court to first order restitution to the victim in full."); State v. Harrison, 351 N.W.2d 526, 528 (Iowa 1984) ("[t]his section thus unconditionally requires the sentencing court to order offenders to make restitution to their victims, and it makes full payment to the victim a condition precedent to payment to the county for court costs and attorney fees.").

The restitution ordered to the victim is made without regard to the defendant's ability to pay. The victim is entitled to full restitution to the extent of the damage caused by the crime. As restitution is part of the criminal penalty, it is not dischargeable in bankruptcy. Mayberry, 415 N.W.2d at 646. Problems with excessive fines and penalties under the eighth amendment of the United States Constitution are avoided by only requiring a portion of the offender's total income be paid towards the restitutionary order. See id. at 646-47; State v. Van Hoff, 415 N.W.2d 647, 649 (Iowa 1987). The sentencing court must ascertain the defendant retains enough income to subsist on.

The restitution order must rest on "a causal connection between the established criminal act and the injury to the victim." State v. Holmberg, 449 N.W.2d 376, 377 (Iowa 1989). This causal connection is essentially the tort element of proximate cause. Id.; State v. Starkey, 437 N.W.2d 573, 574 (1989). This connection must be shown under "some civil theory such as fraud or intentional tort." The damage must have been caused by the offender's criminal act to justify the restitution order. Holmberg, 449 N.W.2d at 377-78.

Once the causal connection is established by a preponderance of the evidence, "the statute allows recovery of 'all damages' ... which the state can show by a preponderance of the evidence." Id. at 377. A restitutionary order is not excessive "if it bears a real reasonable relationship to the damage caused." Mayberry, 415 N.W.2d at 647. The relationship between damage caused by the criminal act and the restitutionary order must be shown by a preponderance of the evidence.

The defendant may seek, on appeal, to have the trial court's restitution order overturned or modified. However, the defendant must show "a failure of the trial court to exercise discretion or abuse of discretion." State v. Kaelin, 362 N.W.2d 526, 528 (Iowa 1985). This standard is similar to that required to overturn any other sentencing order of the trial court. The court is required to exercise discretion only as to the defendant's reasonable ability to pay court costs and attorney fees or to impose community service in lieu of monetary payments. Id.

III. Comparative Fault.

Wagner complains the trial court erred by refusing to apply a comparative fault standard. Iowa's comparative fault statute provides:

As used in this chapter, "fault" means one or more acts or omissions that are in any measure negligent or reckless toward the person or property of the actor or others, or that subject a person to strict tort liability....