No. 3-998 / 03-0560Court of Appeals of Iowa.
Filed March 10, 2004
Appeal from the Iowa District Court for Polk County, Eliza Ovrom, Judge.
Jessie Joe Hill appeals from the sentence imposed following his plea of guilty to identity theft. CONVICTION AFFIRMED; SENTENCEVACATED AND REMANDED FOR RESENTENCING.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, John Sarcone, County Attorney, and Jaki Livingston, Assistant County Attorney, for appellee.
Heard by Zimmer, P.J., and Miller and Hecht, JJ.
HECHT, J.
Jessie Joe Hill appeals from the sentence imposed following his plea of guilty to identity theft. We affirm his conviction, but vacate his sentence and remand to the district court for re-sentencing.
Background Facts and Proceedings.
On August 20, 2002, Jessie Joe Hill was charged with identity theft and forgery. Trial began on November 12, 2002, but a mistrial was declared the next day. On February 5, 2003, the trial information was amended to include a habitual offender sentencing enhancement. Subsequently, Hill pleaded guilty to identity theft, and the State dismissed the forgery and habitual offender charges pursuant to a plea agreement. The district court sentenced Hill to a serve a term not to exceed five years and to pay restitution in the amount of $2282.53. The ordered restitution included $773.78 in court costs and $1383.75 in court-appointed attorney fees. Hill appeals, contending the district court erred by ordering him to pay restitution for the court costs and attorney fees incurred from the mistrial.
Error Preservation.
If we were to conclude Hill did not preserve error on the restitution issue, Hill claims his trial counsel was ineffective for failing to sufficiently raise the issue before the district court. However, the State does not contest error preservation, and accordingly we will address the merits of Hill’s appeal.
Scope and Standard of Review.
We will review an order for restitution for errors at law State v. Jose, 636 N.W.2d 38, 43 (Iowa 2001). We will reverse only if the district court has abused its discretion. State v. Bradley, 637 N.W.2d 206, 210 (Iowa Ct.App. 2001). To the extent that this issue involves statutory interpretation, we will review for correction of errors at law. State v. Snyder, 634 N.W.2d 613, 615 (Iowa 2001).
Discussion.
Hill first argues that he should not be required to pay restitution for any court costs or attorney fees incurred from the mistrial. In the alternative, Hill argues he should pay restitution only for the court costs from the mistrial incurred by the defense, but not those incurred by the prosecution. The State contends the district court did not abuse its discretion by ordering Hill to pay restitution for all court costs and attorney fees incurred in his case pursuant to Iowa Code sections 910.2
and 815.9 (2003).
Iowa Code section 910.2 requires
[i]n all criminal cases in which there is a plea of guilty, verdict of guilty, or special verdict upon which a judgment of conviction is rendered, the sentencing court shall order that restitution be made by each offender . . . to the clerk of court for fines, penalties, surcharges, . . . court costs . . ., court-appointed attorney’s fees ordered pursuant to section 815.9 including the expense of a public defender when applicable. . . .
Hill argues that because his first trial ended in a mistrial and not an adjudication of guilty, section 910.2 does not authorize the assessment of costs and fees incurred from this proceeding. Although Hill contends State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991) supports his argument, we disagree. Petrie was initially charged with three separate crimes. Id. at 620. After a successful motion to suppress, Petrie pled guilty to one charge and the other two charges were dismissed. Id. The district court ordered Petrie to repay the entire costs of his prosecution and court-appointed attorney, including the expenses incurred for the suppression hearing. Id. Our supreme court reversed the district court, determining that section 910.2
requires that “only such fees and costs attributable to the charge on which a criminal defendant is convicted should be recoverable under a restitution plan.” Id. at 622. The case was remanded to the district court for a determination of which costs and fees were incurred for which charge, and any costs or fees which were not clearly associated with a particular charge were to be “assessed proportionally” against Petrie. Id. Because Hill pleaded guilty to one of the two charges prosecuted in the mistrial, we conclude Petrie does not absolve him from paying restitution for court costs and attorney fees related to the charge to which he ultimately pled guilty.
We do, however, conclude the district court abused its discretion when it ordered Hill to pay the total court costs from the mistrial. We conclude Petrie requires Hill pay restitution for only the court costs associated with the charge to which he ultimately pled guilty, identity theft. Accordingly, we remand to the district court to identify and assess the court costs related to the identity theft charge. Costs which are not clearly associated with a particular charge should be assessed against Hill at a rate of one-half. See id.
Although the Petrie would also require an assessment of only those attorney fees related to the identity theft charge, we conclude amendments made to sections 910.2 and 815.9 require Hill pay all attorney fees incurred in his case. Section 910.2 (1989) allowed a district court to order restitution for “court-appointed attorney’s fees or the expense of a public defender when applicable.” As amended, section 910.2 (2003) now directs a court to order restitution for “court-appointed attorney’s fees ordered pursuant to section 815.9 including the expense of a public defender when applicable” (emphasis added). Section 815.9(3) requires a person, if granted an appointed attorney, “to reimburse the state for the total cost of legal assistance provided to the person.” (emphasis added). Section 815.9 provides no exception to a defendant’s requirement to reimburse the State for attorney fees incurred in his defense. Given these statutory changes, we conclude the legislature, by its plain language, intended to require a defendant to reimburse the State for all attorney fees incurred, whether the case ends in a guilty adjudication or not. We therefore conclude the district court did not abuse its discretion when it ordered Hill to pay restitution for all attorney fees incurred in his case.
Conclusion.
We vacate Hill’s sentence and remand to the district court for a determination of the costs and fees which may be properly assessed against Hill as restitution. All attorney fees incurred by Hill shall be included in the amount of restitution, as shall court costs clearly attributable to the identity theft charge. Court costs not clearly attributable to a particular charge shall be assessed against Hill at a rate of one-half.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FORRESENTENCING.