No. 5-499 / 04-1999Court of Appeals of Iowa.
Filed August 31, 2005
Appeal from the Iowa District Court for Dickinson County, Patrick M. Carr, Judge.
Craig Papenfuhs appeals from the sentence imposed following his guilty plea to first-degree theft. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and James Tomka, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sharon Hall and Charles N. Thoman, Assistant Attorneys General, for appellee.
Considered by Mahan, P.J., and Zimmer and Miller, JJ.
MILLER, J.
Craig Papenfuhs appeals from the sentence imposed by the district court following his guilty plea to first-degree theft. He contends the court erred in sentencing him to prison. He further contends the court erred in entering the amount of restitution he was ordered to pay. We affirm.
I. Background Facts and Proceedings.
Papenfuhs was employed by Brooks LTD., LLC where he worked as a bookkeeper and accountant from March 1998 until June 2003. During his employment, Papenfuhs stole cash and he wrote company checks to pay personal credit card debts.
On August 26, 2003, Papenfuhs was charged with two counts of first-degree theft. On November 22, 2004, the charge was amended to one count of first-degree theft. The amended trial information and minutes of evidence alleged the total amount of Papenfuhs’s misappropriation was $537,379.02, consisting of cash thefts of $419,272.82 and thefts by check of $118,106.20. Papenfuhs pled guilty to the amended trial information. In a written plea agreement Papenfuhs agreed that his “restitution liability shall include the total value of the Theft as alleged in the Amended Trial Information.” He was sentenced to ten years imprisonment and ordered to pay $537,379.02 in restitution. On December 13, 2004, Papenfuhs appealed.
II. Prison Sentence.
Papenfuhs first contends the district court erred in sentencing him to a term of ten years imprisonment. He argues that when the necessary sentencing factors are considered the prison sentence imposed by the district court should have been suspended, as imprisonment is unwarranted.
Our review is for correction of errors at law. Iowa R. App. P. 6.4; State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). “[T]he decision of the district court to impose a particular sentence within the statutory limits is cloaked with a strong presumption in its favor, and will only be overturned for an abuse of discretion or the consideration of improper matters.” Formaro, 638 N.W.2d at 724. Because the challenged sentence does not fall outside statutory limits, we review the court’s sentencing decision for an abuse of discretion. State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998). “In applying the abuse of discretion standard to sentencing decisions, it is important to consider the societal goals of sentencing criminal offenders, which focus on rehabilitation of the offender and the protection of the community from further offenses.” Formaro, 638 N.W.2d at 724. An abuse of sentencing discretion is found only if the sentencing court’s discretion has been exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable. State v. Laffey, 600 N.W.2d 57, 62 (Iowa 1999).
The record shows that in sentencing Papenfuhs, the court considered the nature of the offense and the surrounding circumstances, including the large amount of money taken, the fact the criminal acts continued over a period of several years, and the fact the crime involved dishonesty and a breach of trust; the contents of the presentence investigation report; Papenfuhs’s age; and victim impact statements. The court heard and considered the testimony of Papenfuhs’s counselor, Papenfuhs’s allocution statements, and the recommendations of counsel for the parties. The court expressly considered its “duties to [Papenfuhs]” as well as its “duties to the public.” We conclude the entire sentencing colloquy forms an adequate basis for us to review the sentencing court’s exercise of discretion. We conclude the district court did not abuse its discretion in sentencing Papenfuhs to imprisonment.
III. Restitution.
Papenfuhs next contends the district court erred in determining the amount of restitution ordered.
Our review of a restitution order is for correction of errors of law. Statev. Paxton, 674 N.W.2d 106, 108 (Iowa 2004). When reviewing a restitution order, we are bound by the district court’s findings of fact so long as they are supported by substantial evidence. Id. “Evidence is substantial when a reasonable mind would accept it as adequate to reach a conclusion.” State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001).
In Iowa, restitution is mandatory in all criminal cases in which the defendant pleads guilty or is found guilty. Id.
Restitution is defined as the payment of pecuniary damages, which encompasses all damages not paid by an insurer, to a victim of the offender’s criminal activities. Iowa Code §§ 910.1(3)-(5) (2003). A restitution order is not excessive if it bears a reasonable relationship to the damages caused by the offender’s acts, as demonstrated by a preponderance of the evidence. See Bonstetter, 637 N.W.2d at 165-66.
The district court ordered Papenfuhs to pay $537,379.02 in restitution. This figure represents the amount the amended trial information alleged Papenfuhs stole from his employer in both cash and checks, and the amount Papenfuhs agreed to pay as restitution. The victim impact statements reflect the same amount, but one also notes an insurance payment of $25,000.00 to Brooks LTD., LLC. Although the court’s order does not reflect an offset for the $25,000.00 paid by the insurance company, the record indicates professional fees paid to investigate the financial records amounted to $21,692.14, and an additional $7,000.00 in professional fees would be incurred “to analyze the effect of the embezzlement, adjust the books and records of the Company, and to potentially amend the federal and state partnership income tax returns for the years 1999 through 2002.” This court has previously held the reasonable and necessary expenses incurred in recovering the property, including the costs of an audit, are a proper element of damage. State v. Hollinrake, 608 N.W.2d 806, 809 (Iowa Ct.App. 2000).
We conclude the record does not demonstrate that the district court erred in ordering the amount of Papenfuhs’s restitution. Assuming, without so deciding, that Brooks LTD., LLC is responsible for the $21,692.14 and $7,000.00 of professional fees, then the record indicates the loss to Brooks LTD., LLC is greater than the amount ordered. Furthermore, the amount of restitution ordered is the total value of the theft alleged in the amended trial information, which the plea agreement stated would be the amount of Papenfuhs’s restitution liability. Finally, Papenfuhs may seek a hearing in the district court on any matter related to the plan of restitution.[1] See
Iowa Code § 910.7(1). Any issues related to the amount of his total obligation, the $25,000.00 insurance payment, and the $21,692.14 and $7,000.00 may be raised, addressed, and resolved in such a proceeding. Id. § 910.7(2). Accordingly, we affirm.
AFFIRMED.