Opinion
No. 4-463 / 03-1411.
August 26, 2004.
Appeal from the Iowa District Court for Scott County, Bobbi M. Alpers, Judge.
Richard Charles Mockmore appeals from the district court's ruling denying him appointed counsel to challenge two separate restitution orders levied against him. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Patricia Reynolds, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, William E. Davis, County Attorney, and Kelly G. Cunningham, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Hecht and Eisenhauer, JJ.
I. Background Facts and Proceedings.
On April 9, 1993, Richard Mockmore was sentenced for third-degree theft (FECR 161425), and as part of that sentence was ordered to pay restitution in the amount of $1,226.35 to various businesses. Mockmore, who was represented by private counsel, was ordered to pay court costs in the amount of $60 and was released on probation.
But Mockmore's troubles with the law were not over. He was subsequently charged with sexual abuse (FECR 175065). Mockmore, who was represented by appointed counsel, was convicted after jury trial of second and third-degree sexual assault. On August 11, 1995, he was sentenced to incarceration for consecutive terms of twenty-five and ten years, and was ordered to pay an unspecified amount of costs and attorney's fees. Mockmore's conviction for sexual assault caused the State to seek revocation of Mockmore's probation in FECR 161425. Mockmore was represented by court-appointed counsel at a probation revocation hearing on August 18, 1995. Probation was revoked and Mockmore was sentenced in FECR 161425 to a term of incarceration not to exceed two years on the theft charge.
Meanwhile, Mockmore appealed his conviction in FECR 175065. A supplemental order requiring Mockmore to pay court costs of $4,699.87 and attorney fees in the amount of $6,000.00 was filed on January 9, 1996. This court affirmed the sex abuse conviction on October 25, 1996. Mockmore's FECR 175065 restitution plan was thereafter modified to reflect the costs of appealing the sex abuse conviction.
Appellant's appeal challenged the conviction but did not directly attack the restitution plan in FECR 175065.
A supplemental restitution order was filed on June 6, 2002 in FECR 175065.
A supplemental order was filed on March 27, 2002 amending Mockmore's restitution order in FECR 161425. Mockmore challenged that order on April 5, 2002 in a letter to the district court. The court treated Mockmore's letter as a motion challenging the restitution order pursuant to Iowa Code section 910.7 (2003) and scheduled the matter for hearing.
A hearing on Mockmore's claims was held via the ICN network on June 25, 2003. At that hearing, Mockmore, again represented by appointed counsel, claimed his constitutional and statutory rights were violated when amendments were made to the restitution plans in both FECR 161425 and 175065 without notice and opportunity to be heard. In separate opinions addressing each order individually, the district court, relying on State v. Lessner, held that in both matters, Mockmore's 910.7 challenges were untimely because they were filed more than thirty days after the entry of the challenged orders. State v. Lessner, 626 N.W.2d 869, 871 (Iowa Ct.App. 2001). The court reasoned the challenges could not be presented as part of the criminal proceedings against Mockmore, but could be asserted in a civil action under Iowa Code chapter 610A which authorizes inmates in correctional facilities to litigate their claims. See State v. Alspach, 554 N.W.2d 882, 884 (Iowa 1996). The district court further concluded that because the challenges were not filed during a critical stage of the criminal proceedings, Mockmore had no right to proceed with court appointed counsel. Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 1205, 51 L. Ed. 2d 393, 402 (1977). Mockmore appeals, claiming his April 5, 2002 challenge to the supplemental order in FECR 161425 was presented to the district court within thirty days after the order was filed. Moreover, he asserts the district court erred in concluding his challenge cannot be adjudicated in criminal proceedings for which he is entitled to appointed counsel. Although he concedes his challenge to the supplemental restitution order filed in FECR 175065 was not filed within thirty days, he contends it should be adjudicated with his challenge in FECR 161425 because the sentences in the two cases are intertwined, and because the proceedings were adjudicated together in the district court.
The State contends Mockmore did not preserve error on his contention that the district court erred in holding that the challenge to the March 27, 2002 supplemental restitution order cannot be considered in FECR 161425 and must instead be prosecuted as a collateral civil action under Iowa Code Chapter 610A because the challenge was not filed until almost a decade after sentencing. We choose, however, to treat Mockmore's letter to the court as a general challenge to the FECR 161425 restitution order. Our decision in this regard is strongly influenced by the fact that the hearing on Mockmore's challenge included testimony and argument on other issues including Mockmore's due process claim. We also note that Mockmore was unrepresented when the April 5, 2002 challenge was reduced to writing. We conclude error was preserved and therefore proceed to a discussion of the merits.
II. Scope and Standard of Review.
Our review of a district court's restitution orders is for correction of errors at law. Iowa R. App. P. 6.4; State v. Petrie, 478 N.W.2d 620, 622 (Iowa 1991).
III. Discussion.
The amount of restitution owed by a defendant may be prescribed in the sentencing order or in subsequent permanent or supplemental orders. Iowa Code § 910.3 (2003). "The amount of restitution is part of the sentencing order and is therefore directly appealable, as are all orders incorporated in the sentence." State v. Jose, 636 N.W.2d. 38, 45 (Iowa 2001) (emphasis supplied). A defendant has two options when seeking to challenge the specific amounts charged in any restitution order: he can raise the issue in the district court via a motion pursuant to section 910.7, or directly appeal the sentencing order within thirty days of its entry. State v. Janz, 358 N.W.2d 547, 548 (Iowa 1984). When an inmate challenges a supplemental restitution order in the district court within thirty days of its entry, the dispute is properly adjudicated in the criminal action. Jose, 636 N.W.2d at 46. When an indigent defendant presents such a timely challenge in the district court he is entitled to appointed counsel because "the right to court-appointed counsel guaranteed at all critical stages of the criminal proceedings should not rest on the mere fortuity of whether restitution figures were available at sentencing." Id. If filed more than thirty days after the supplemental restitution order is entered, the challenge is considered civil in nature, and must comport with the strictures of chapter 610A (2003). Id.; see also Goodrich v. State, 608 N.W.2d 774, 776-77 (Iowa 2000).
Because the supplemental restitution orders challenged by Mockmore were filed in two separate cases, and because Mockmore filed separate challenges to those orders at different times, we conclude we must also separate our analysis of Mockmore's claims.
A. FECR 161425.
We note again that Mockmore's letter of April 5, 2002 to the court objected only to the supplemental restitution order filed in FECR 161425 on March 27, 2002. We conclude the April 5 pro se letter to the district court was sufficient to apprise the court and the State that Mockmore wished a hearing on the supplemental order. Indeed, the court considered the letter as a challenge to the supplemental order and scheduled the matter for hearing. Mockmore's swift action to challenge the supplemental order in FECR 161425 entitles him to pursue the matter within the criminal proceedings. Because sentencing is a critical stage of the criminal proceeding, Mockmore is entitled, if indigent, to court appointed counsel in the presentation of his challenge. Gardner, 430 U.S. at 358, 97 S. Ct. at 1205, 51 L. Ed. 2d at 402.
As the district court did not reach the question of whether Mockmore's challenge in FECR 161425 was meritorious, we similarly do not review that issue. We limit our holding to timeliness, and find that Mockmore's challenge to the March 27 FECR 161425 order was brought within thirty days, and he is entitled to a hearing in the criminal proceeding. As noted above, if he is indigent, Mockmore is entitled to appointment of counsel in connection with this matter.
B. FECR 175065.
As noted above, Mockmore's letter to the district court on April 5 did not challenge the substance of the restitution order in FECR 175065. The last supplemental order issued in connection with the sentence in this case was filed June 6, 2002. Mockmore first articulated a challenge to the substance of this order on April 16, 2003. This was over ten months after the issuance of the last supplemental order, and well beyond the 30-day window for challenging the order within the criminal proceeding. Mockmore's challenge to the order's validity could only be presented at that juncture in a civil proceeding brought without the benefit of appointed counsel under Iowa Code chapter 610A. Mockmore nonetheless contends his challenge to the restitution order in this case should be considered as part of the criminal proceedings pertaining to his challenge to the supplemental order in FECR 161425. Although he correctly notes that the district court captioned the matters together for hearing purposes, and that the concurrent nature of the sentences in the two cases causes the sentences in the two cases to be somewhat intertwined, we reject Mockmore's contention. The cases involve separate and distinct criminal offenses, separate restitution orders, and separate challenges to those orders. Mockmore cites no authority for the proposition that the challenges must or should be consolidated for adjudication. We therefore affirm that portion of the district court's ruling pertaining to Mockmore's challenge to the restitution order in FECR 175065. IV. Conclusion.
We reiterate that failure to bring a section 910.7 challenge within the thirty day window does not foreclose the ability to raise such a challenge. Rather, the consequence of the failure is that relief must be pursued in a civil action in which the applicant is not entitled to appointed counsel. State v. Blank, 570 N.W.2d. 924, 926 (Iowa 1997).
We reverse the district court's ruling in FECR 161425 and remand that matter to the district court for an adjudication on Mockmore's challenge to the supplemental restitution order filed on March 27, 2002. The proceedings on remand shall be conducted in the criminal proceeding and, if indigent, Mockmore shall be entitled to representation by appointed counsel. We affirm the district court's ruling in FECR 175065. If Mockmore desires to pursue his challenge to the supplemental restitution order in that case, he may do so in a civil proceeding without appointed counsel pursuant to Iowa Code chapter 610A.