Opinion
No. 2-862 / 02-0127.
Filed December 30, 2002.
Appeal from the Iowa District Court for Dallas County, DALE B. HAGEN and PAUL R. HUSCHER, Judges.
Todd Michael Von Stein appeals from his conviction and sentence for theft in the first degree. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Stephan Japuntich, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, Wayne Reisetter, County Attorney, and Jeanine Gilmore, Assistant County Attorney, for appellee.
Considered by VOGEL, P.J., and ZIMMER and HECHT, JJ.
Todd Michael Von Stein appeals from his conviction and sentence for theft in the first degree. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Von Stein worked as the general business manager of Morrell Heating and Cooling from August 1997 until July 1998. During that time, he diverted customer payments, wrote unauthorized checks, and charged personal purchases to company accounts. Von Stein pled guilty to theft in the first degree. At sentencing, the district court ordered restitution in the amount of $140,422.84. Von Stein's trial counsel made no objection to the amount of damages and did not inquire whether the victim's losses were offset by insurance. Von Stein appeals, alleging the district court abused its discretion by ordering restitution without sufficient evidence of the amount of damages suffered by the victim. In the alternative, Von Stein claims his trial counsel was ineffective for failing to preserve error on the issue.
II. STANDARD OF REVIEW.
We review orders for restitution for a failure to exercise discretion or an abuse of discretion by the trial court. State v. Storrs, 351 N.W.2d 520, 522 (Iowa 1984). Appellate review of a claim of ineffective assistance of counsel is de novo. State v. Allison, 576 N.W.2d 371, 373 (Iowa 1998).
III. SUFFICIENCY OF THE EVIDENCE SUPPORTING RESTITUTION ORDER.
Although trial counsel did not object to the amount of restitution during the sentencing hearing, error was preserved on this issue because no objection is necessary to preserve the issue of sentencing irregularity for appeal. State v. Mai, 572 N.W.2d 168, 171 (Iowa Ct.App. 1997). A restitution award must be based upon a causal connection between the criminal act and the injury suffered by the victim. State v. Holmes, 449 N.W.2d 376, 377 (Iowa 1989). Von Stein claims the district court's restitution order must be reversed because the record contains insufficient evidence of the actual amount misappropriated and the causal connection between his acts and his employer's claimed loss of $140,422.84. We disagree. When Von Stein pled guilty to theft, he admitted writing unauthorized checks to himself and obtaining corporate property for personal use. Von Stein's employer, Steve Morrell, provided a detailed victim impact statement and an itemized list of the unauthorized checks and charges used to accomplish the crime. There is sufficient evidence of the amount of the defendant's defalcation and the causal connection between Von Stein's acts and the victim's injury to support the amount of restitution ordered, and the district court did not abuse its discretion by ordering restitution in the amount of $140,422.84.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL.
Von Stein contends if his challenge to the sufficiency of the evidence to support the restitution order was waived because his trial counsel failed to raise the issue in the district court, he should be granted a new trial because counsel was ineffective. To succeed on a claim of ineffective assistance of counsel, Von Stein must prove both that his trial counsel breached an essential duty and that prejudice resulted. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996). We note that Iowa Code section 910.7 (2001) permits an offender to petition the court on any matter related to the plan of restitution or restitution plan of payment at any time during the period of probation, parole, or incarceration. This statute permits challenges to the amount of restitution ordered by the district court. State v. Janz, 358 N.W.2d 547, 548 (Iowa 1984). Thus, Von Stein's trial counsel's failure to object to the amount of restitution ordered by the district court did not prejudice Von Stein's right to raise the issue in a future hearing. Because Von Stein has clearly suffered no prejudice, his trial counsel was not ineffective. Our determination in division III of this opinion that the district court did not abuse its discretion in ordering restitution is not intended, and shall not be construed, to be preclusive of Von Stein's claim that the amount of restitution ordered by the district court is excessive. If he chooses to request a hearing under section 910.7 he shall be permitted to present evidence and argument on his claim.