Summary
affirming the defendant's conviction of making a false report for making several bomb threats via telephone calls to the local principal and radio station
Summary of this case from State v. AbbottOpinion
No. 1-927 / 00-1078.
Filed May 15, 2002.
Appeal from the Iowa District Court for Fayette County, MARGARET LINGREEN (plea proceedings) and JAMES L. BEEGHLY (sentencing), Judges.
Defendant Rex Allen Miles, a/k/a Jason Baker, appeals following his guilty plea, judgment and sentence on the charge of making a false report in violation of Iowa Code section 712.7 (1999). AFFIRMED AND REMANDED WITH DIRECTIONS.
W. Patrick Wegman, of Elwood, O'Donohoe, Stochl, Braun Churbuck, Charles City, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, and W. Wayne Saur, County Attorney, for appellee.
Considered by HUITINK, P.J., and ZIMMER and VAITHESWARAN, JJ.
Defendant Rex Allen Miles, a/k/a Jason Baker, appeals following his guilty plea, judgment and sentence upon the charge of making a false report in violation of Iowa Code section 712.7 (1999). The district court sentenced Miles to a five-year term of incarceration and ordered him to pay $73,638.78 in restitution to the school districts affected by his bomb threat. Miles appeals, contending the district court erred in ordering restitution. He also claims he was denied effective assistance of counsel in several respects. We affirm Miles's conviction. We also affirm the court's restitution order subject to one modification.
I. BACKGROUND FACTS AND PROCEEDINGS .
Oelwein High School principal, Tim Gilson, received a phone call at his home around 7:15 a.m. on February 16, 1999. According to Gilson, a male caller made "some reference to a bomb or a bus" in a muffled voice. Gilson informed the Oelwein police about the call and reported the local phone number displayed on his caller ID. The police determined the call was placed from a pay phone at Kennedy's Super Value in Oelwein. The next morning, Gilson received another phone call after he arrived at school. The male caller said, "You didn't take me serious," and hung up.
On Friday, February 19, 1999, a Waterloo radio station received a call at 8:15 a.m. The male caller stated, "There is a bomb in a Fayette school and it's going to blow today!" A station employee checked the caller ID and found the call had been placed from 283-9807, the number of the pay phone at Kennedy's Super Value. The radio station contacted the Fayette County Sheriff's Department. As a result of the bomb threat, all schools in Fayette County were notified, evacuated, and searched for explosives. No bombs or incendiary devices were found.
Law officers immediately initiated an investigation to uncover the source of the bomb threat. Within a few days, Rex Miles was identified as a prime suspect. On March 4, 1999, Miles was arrested on an outstanding warrant for a probation violation. Officers questioned him regarding the bomb threat and asked if he would submit to a polygraph examination. Miles agreed. After failing the test, he admitted that he placed the threatening calls.
On March 6, 2000, Miles pled guilty to a charge of making false reports. A sentencing hearing was held on May 31, 2000. The court sentenced Miles to a term of imprisonment not to exceed five years. As part of its written judgment and sentence, the district court ordered Miles to pay $73,638.78 in victim restitution to the school districts affected by his bomb threat. The court also ordered him to make restitution for court-appointed attorney's fees and court costs.
Miles appeals. He claims the district court should not have ordered restitution to the school districts affected by his threats because they are "public agencies" and therefore not entitled to victim restitution. He also argues the district court should have imposed community service in lieu of a monetary award of restitution and asserts that if restitution is available under the facts of this case, the sentencing court erred in determining the amount he owed. Miles also asserts he was denied effective assistance of counsel.
A defendant challenging a restitution order entered as part of the original sentence has two options: to file a petition in district court under § 910.7, or to file a direct appeal. State v. Janz, 358 N.W.2d 547, 549 (Iowa 1984). In this case Miles chose to file a direct appeal.
II. RESTITUTION .
Restitution is a mandatory part of sentencing in Iowa. State v. Mai, 572 N.W.2d 168, 171 (Iowa Ct. App. 1997). In all criminal cases where there is a guilty verdict "the sentencing court shall order that restitution be made by each offender to the victims of the offender's criminal activities." Iowa Code § 915.100(2)(a). Restitution orders are not limited by the parameters of the offense committed, but may be extended to any damages sustained by the victim of a crime which, with some exceptions, would be recoverable against the offender in a civil action. Mai, 572 N.W.2d at 171. In each instance, it is the State's burden to prove by a preponderance of the evidence a causal connection between the criminal act and the victim's damages. Id. A trial court abuses its discretion and exceeds its statutory authority when it orders restitution for losses not causally related to the offenses. Id.
A defendant who seeks to upset an order for restitution of court costs and attorney fees has the burden to demonstrate a failure of the trial court to exercise its discretion or an abuse of the court's discretion. State v. Storrs, 351 N.W.2d 520, 522 (Iowa 1984). To the extent that one of the defendant's claims hinges on a matter of statutory interpretation, our review is for correction of errors at law. See State v. Blakley, 534 N.W.2d 645, 647 (Iowa 1995).
A. Restitution to a School District .
We first address Miles's argument that the trial court erred in ordering victim restitution be paid to the school districts affected by his bomb threat. He contends that the schools are "public agencies" and cannot be considered "victims" under Iowa Code chapter 910. We disagree.
To facilitate our analysis, we set out several definitions included in the victim restitution chapter:
910.1. 910.1. Definitions.
As used in this chapter, unless the context otherwise requires:
3. "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 fines, penalties, and surcharges, the contribution of funds to a local anticrime organization which provided assistance to law enforcement in an offender's case, the payment of crime victim compensation program reimbursements, payment of restitution to public agencies pursuant to section 321J.2, subsection 9, paragraph "b", court costs also including correction fees approved pursuant to section 356.7, court appointed attorney's fees, or the expense of a public defender, and the performance of a public service by an offender in an amount set by the court when the offender cannot reasonably pay all or part of the courts costs including correctional fees approved pursuant to section 356.7, court appointed attorney's fees, or the expense of a public defender.
5. "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. . . .
Under our statutory scheme, the trial court must identify any crime victims entitled to restitution. A "victim" is a person who has suffered pecuniary damages as a result of the offender's criminal activity. While "person" is not defined in chapter 910, section 4.1(20) defines "person" as an "individual, corporation, limited liability company, government or governmental subdivision or agency, business trust, estate, trust, partnership or association, or any other legal entity." Iowa Code § 4.1(20) (emphasis added). Our appellate courts have previously determined that the State, public assistance programs, and a county are "victims" entitled to restitution. See State v. Wagner, 484 N.W.2d 212, 220 (Iowa Ct. App. 1992) (awarding restitution to the State as victim where defendant caused damage during prison riot); State v. Tutor, 538 N.W.2d 894, 897 (Iowa Ct. App. 1995) (awarding restitution to public assistance programs for overpayments from ADC and Title XIX); State v. More, 500 N.W.2d 75, 76 (Iowa 1993) (awarding restitution to county for money lost during controlled drug purchases). Guided by these authorities, we believe school districts are also properly included within the definition of a "person" found in section 4.1(20) and are entitled to compensation under our restitution statute. In this case, there is no dispute that the victim schools incurred extensive costs when they had to evacuate, transport students, search for bombs, and in some cases, cancel classes entirely as a direct result of the defendant's criminal activity.
Defendant contends that under our restitution scheme, the only public agency restitution that Miles can be ordered to pay would be restitution claimed under section 321J.2(9)(b). We disagree. The public agency reimbursement in section 321J.2(9)(b) provides for reimbursement to those agencies that assist a defendant following an incident in which a defendant operates a motor vehicle while intoxicated. Victim compensation to "public agencies" provided by chapter 910 is not limited to cases of emergency response expenditures in drunk driving situations. As noted above, our courts have consistently found that various public entities are entitled to restitution as "victims" of a defendant's criminal conduct. The statute does not limit victim restitution only to public agencies responding in OWI situations, but brings these public agency expenditures specifically within the scope of the statute. We decline to follow the defendant's narrow interpretation of the victim restitution statute.
B. Community Service in Lieu of Restitution .
Miles next contends the district court abused its discretion by refusing to order community service in lieu of restitution. Section 910.2, which requires a court to impose restitution, does not provide that victim restitution can be paid by doing community service. Because we have concluded that the schools affected by Miles's bomb threat were "victims" under the terms of the restitution statute, community service was not an option to compensate them for their losses. The district court could have ordered community service to compensate for court costs or court-appointed attorney's fees, but did not do so. We find no abuse of discretion in this decision.
C. Amount of Restitution Ordered .
Finally, Miles questions the accuracy of the State's calculation of damages to be awarded each of the affected schools. He claims the district court's findings regarding an appropriate restitution amount were not within the reasonable range of the evidence.
In reviewing the amount of a restitution order fixed by a trial court, an appellate court needs to determine whether the trial court applied the correct law in fixing damages. See State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991). There must be substantial evidence to support the damages awarded. See Kaelin, 362 N.W.2d at 138. The restitution amount must be in accord with the damages caused by the crime. State v. Wagner, 484 N.W.2d 212, 216 (Iowa Ct. App. 1992). In order to show an abuse of discretion, the defendant must show 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).
With one minor exception, we find the State sufficiently established the restitution amount fixed by the court in this case. Each of the five school districts affected by the defendant's bomb threat separately calculated its pecuniary damages. Their statements were included in the presentence investigation. After reviewing these statements, the judge entered a final restitution judgment against the defendant.
The restitution award, based on the victim impact statements submitted by the school superintendents, calculated compensation as follows:
Wapsie Valley School: $11,855.00
Starmount Community School: 9,463.78
North Fayette School: 8,019.00
West Central School: 3,875.00
Oelwein Community School: 40,426.00
TOTAL: $73,638.78
In addressing the calculation of damages, the State concedes the restitution awarded to Wapsie Valley School should be reassessed. In figuring its damages, that school district included approximately $400 to compensate firefighters called to the scene, and $2000 to compensate students, concerned parents, and teachers for the anxiety they suffered as a result of the defendant's false bomb threat. Damages associated with pain, suffering and mental anguish are not recoverable under section 910.1(3). In addition, the record does not make clear whether the firefighters were volunteer or paid. We conclude that the restitution award should not include these damages. This would reduce the amount owed to Wapsie Valley School to $9375. We remand to the district court with directions to exclude these amounts.
In all other respects, we conclude the amount of restitution ordered by the trial court is supported by the record and within the bounds of reasonableness.
III. INEFFECTIVE ASSISTANCE OF COUNSEL .
Miles also claims he was denied effective assistance of trial counsel in six different respects: (1) failing to properly advise defendant about his Alford plea; (2) failing to move for a continuance; (3) failing to request an offset for insurance; (4) failing to request the district court make a determination that the defendant had the reasonable ability to pay the restitution order; (5) failing to assert that the victim schools suffered no pecuniary damages; and (6) failing to argue that restitution should only be imposed for schools in Fayette, Iowa.
We review claims of ineffective assistance of counsel de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998). To succeed with a claim of ineffective assistance of counsel, a claimant must prove two elements. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). First, he must show that counsel failed to perform an essential duty. Id. Second, he must prove he was prejudiced by counsel's error. Id. Ordinarily we preserve ineffective assistance claims raised on direct appeal for postconviction relief to allow full development of the facts surrounding counsel's conduct. State v. Atley, 564 N.W.2d 817, 833 (Iowa 1997). The ineffective assistance of counsel claims raised by Miles, however, must be addressed on direct appeal. We rely on the existing record to resolve the claims because Iowa Code section 822.2(7) prohibits raising a restitution challenge in a postconviction proceeding. Iowa Code § 822.7; see also Earnest v. State, 508 N.W.2d 630, 633 (Iowa 1993).
Miles first contends his trial counsel was ineffective for failing to properly advise him regarding his guilty plea. He claims that if his attorney had cautioned him about the requirement of restitution and the likely amount of the order, he would have reconsidered his guilty plea, and instead gone to trial. We believe the record supports a different conclusion. When Miles entered his plea, the court specifically asked him whether he understood that restitution was likely to be imposed as a result of his guilty plea. Miles indicated his understanding. The record shows Miles knew he would likely have to pay restitution in an amount that would be determined later.
The case against Miles was very strong. It appears his primary motivation for entering a guilty plea was his hope that a guilty plea would result in a more lenient sentence. Nothing in the record suggests that had Miles been aware of the specific amount of the restitution order he would have opted for trial. We reject this claim of ineffectiveness.
Miles next contends his trial counsel performed ineffectively by failing to move for a continuance after receiving information about the amount of restitution requested. He claims his trial counsel should have served subpoenas and obtained the presence of witnesses to verify the amount of restitution claimed. Miles is unable to show how he was prejudiced by his counsel's performance. He has exposed no significant miscalculations by the affected schools that would have been revealed if his trial counsel had mounted a full investigation into the restitution matter. He has failed to show how the outcome would have been different if his attorney had taken a different course of action. We reject this claim.
Miles also asserts his trial counsel was ineffective by failing to object that the victim impact statements did not include any offset for insurance. The record shows that two of the five affected schools sought, but were denied, insurance coverage for damages resulting from the defendant's bomb threat. It was reasonable for trial counsel to conclude that the remaining three schools would encounter similar responses regarding insurance coverage. Nothing in the record suggests otherwise. We find Miles has failed to demonstrate the breach of an essential duty; therefore, this claim must also fail.
Next, Miles complains the district court failed to determine he had the reasonable ability to pay court costs, attorney fees, and "public agency" restitution. He criticizes his trial counsel's failure to bring his limited financial resources to the court's attention. The determination of reasonable ability to pay is based on a defendant's ability to pay current installments, not an ability to pay the total amount due. State v. Van Hoff, 415 N.W.2d 647, 649 (Iowa 1987). Furthermore, as the State points out, a defendant's ability to pay is only a consideration in determining the reasonableness of an order to repay court costs and attorney's fees, not the victim restitution amount itself. See Iowa Code § 910.2. In addition to court-appointed attorney's fees, the defendant was ordered to pay $139.40 in court costs. We conclude this order was reasonable. Counsel's decision to forgo a reasonableness objection regarding court costs and attorney's fees was not the breach of an essential duty.
Miles next contends his trial counsel was ineffective for failing to argue that no "victim," as defined by the statute, suffered compensable damage. Miles claims that had his trial counsel effectively argued that the school districts were not "victims" under the terms of the statute, his restitution order would only pertain to court costs and attorney's fees. In that case, Miles argues, he could have been sentenced to community service in lieu of restitution. Based on our conclusion that the affected schools are compensable "victims" of Miles's bomb threat, this allegation of ineffectiveness is rendered moot.
In his final allegation of ineffectiveness Miles contends his trial counsel was ineffective for failing to argue he should only be responsible for compensating schools located in the town of Fayette, not all schools located in the county. He argues the phone call to the radio station specifically referred to a bomb exploding "in a Fayette school," not a Fayette County school. We find no merit in this contention. Because the defendant was not specific to his target, precautions were taken to ensure the safety of all Fayette County schools. Counsel breached no duty in refusing to make this argument to the district court. Moreover, the defendant cannot show the district court would have been persuaded by the argument if it had been made.
In summary, we affirm the defendant's conviction of making a false report. We remand with directions to the district court to enter a restitution order consistent with this opinion.
AFFIRMED AND REMANDED WITH DIRECTIONS.