               IN THE SUPREME COURT OF IOWA
                                No. 09–0063

                          Filed September 17, 2010


STATE OF IOWA,

      Appellee,

vs.

JEREMY FRANK JENKINS,

      Appellant.


      Appeal from the Iowa District Court for Webster County, Gary L.

McMinimee, Judge.



      Defendant appeals district court restitution order asserting there is

no causal connection between the offense and the victim’s injuries.

REVERSED AND REMANDED.



      Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant Appellate Defender, for appellant.


      Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,

Assistant Attorney General, and Ricki Osborn, Assistant County

Attorney, for appellee.
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APPEL, Justice.

         In this case we must determine the extent of the district court’s

discretion in ordering defendants to pay restitution to the Crime Victim

Compensation Program. Citing precedent from the court of appeals, the

district court concluded that it had no discretion in ordering restitution

to the program.      The court ordered the defendant to compensate the

program for all monies previously distributed to the victim.          The

defendant appeals alleging that the instant criminal offenses were not the

proximate cause of the compensated injuries.

         I. Factual and Procedural Background.

         A Webster County jury convicted the defendant, Jeremy Frank

Jenkins, of kidnapping in the third degree and assault with intent to

commit sexual abuse. On March 19, 2008, the district court sentenced

Jenkins as a habitual offender to an indeterminate term of imprisonment

not to exceed fifteen years, with a minimum sentence of three years, for

the kidnapping conviction and to an indeterminate term of imprisonment

not to exceed two years on the sexual abuse conviction.         The court

ordered the sentences to run consecutively.     The district court further

ordered Jenkins to pay restitution to the victim if applicable. Because

the amount of restitution was then unknown, the court ordered, “Any

claim for restitution shall be filed with the Court within 30 days. If the

parties cannot agree upon the amount of restitution, a hearing will be

held.”

         Following sentencing, the Crime Victim Compensation Program

(CVCP) of the Iowa Department of Justice submitted a claim in the

amount of $946.60 to the Webster County Attorney’s Office for payments

it previously made to the victim. The claim included two payments for
                                      3

lost wages totaling $899.60 and one payment of $47 for clothing and

bedding replacement. The State moved for a restitution hearing.

      The only witness called at the hearing was Ruth Walker, the

restitution subrogation coordinator for the Crime Victim Assistance

Division. Walker testified that the CVCP reimbursed the victim $659.20

for two weeks of lost wages following the criminal offense. The CVCP also

reimbursed the victim $240.40 for one week of lost wages for preparation

and attendance at Jenkins’ trial.           On cross-examination, Walker

admitted that she was unaware that the victim was on unpaid leave from

her job at the time the offense occurred. The victim had taken unpaid

leave after Jenkins threatened her, but prior to the commission of the

instant offenses. Walker testified that the CVCP reviews lost wage claims

for “reasonableness” and accepts the employer’s statement that the

victim was “absent due to crime injuries.”

      After Walker’s testimony, the State moved that Jenkins be ordered

to pay restitution to the CVCP in the full amount requested—$946.60.

Jenkins   countered     that   the   CVCP    is   only   entitled   to   partial

reimbursement.       According to Jenkins, the program can reimburse

victims in any manner it chooses, but can only receive restitution from

offenders where the criminal offense is the proximate cause of the

victim’s injuries.   Jenkins argued that some of the victim’s lost wages

were not causally connected to the instance offenses. He noted that prior

to the commission of the offense, the victim took unpaid leave.             The

victim’s absence from work, therefore, was not caused by the instant

offenses. Finally, Jenkins asserted the victim’s attendance at trial only

caused her to miss fifteen hours of work and not an entire week. During

the week of trial, the victim was scheduled to work from 3 p.m. to
                                     4

11 p.m. According to Jenkins, the victim could have attended trial each

day and then worked from 6 p.m. to 11 p.m.

      The district court ordered Jenkins to pay restitution to the CVCP

in the full amount of $946.60. Citing State v. Bradley, 637 N.W.2d 206

(Iowa Ct. App. 2001), the court held that it had no discretion to review a

restitution order to the CVCP and that it was required to order restitution

to the CVCP for all payments remitted to the victim, regardless of

whether a “causal connection” existed between the criminal offense and

the victim’s injuries. Jenkins appealed.

      II. Standard of Review.

      We review restitution orders for correction of errors at law. State v.

Klawonn, 688 N.W.2d 271, 274 (Iowa 2004).             “When reviewing a

restitution order, ‘we determine whether the court’s findings lack

substantial evidentiary support, or whether the court has not properly

applied the law.’ ” Id. (quoting State v. Bonstetter, 637 N.W.2d 161, 165

(Iowa 2001)).

      III. Discussion.

      A. History of Criminal Restitution. A proper interpretation of

the Iowa statute requires an understanding of the context within which

this statute was enacted. See Iowa Code § 4.6(2) (2007) (instructing the

court to consider “[t]he circumstances under which the statute was

enacted” in determining legislative intent); 2B Norman J. Singer, Statutes

and Statutory Construction § 49:1, at 7 (7th ed. 2008) (suggesting court

“tak[e] into consideration the historical framework” of a statute when

interpreting it). Because the historical framework of this law informs our

search for legislative intent, we begin our discussion with a review of the

historical development of criminal restitution.
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      Prior to the 1970s, restitution in criminal matters was generally

imposed only as a condition of probation or parole. Matthew Dickman,

Should Crime Pay?:         A Critical Assessment of the Mandatory Victims

Restitution Act of 1996, 97 Cal. L. Rev. 1687, 1688 (2009) [hereinafter

Dickman].     Over recent decades, however, both federal and state

governments, including Iowa’s, have enacted statutes designed to

increase the level of restitution to crime victims in response to a growing

victims’ rights movement.       See 6 Wayne R. LaFave, et al., Criminal

Procedure § 26.6(c), at 824 (3d ed. 2007) [hereinafter LaFave].

      On the federal level, congressional activity in criminal restitution

began with the enactment of the Victim and Witness Protection Act

(VWPA) in 1982. Dickman, 97 Cal. L. Rev. at 1688. The VWPA expanded

the discretion of federal judges to impose restitution obligations on

criminal defendants. Id. In 1996, Congress strengthened restitution by

passing the Mandatory Victims Restitution Act (MVRA). Id. In place of

the discretionary VWPA regime, the MVRA made restitution mandatory in

nearly all cases. Id.

      Numerous states also enacted legislation related to restitution in

state criminal proceedings. By the early 1980s, approximately two-thirds

of the states had enacted some kind of statutory regime providing for

victim compensation.        Alan T. Harland, Monetary Remedies for the

Victims of Crime: Assessing the Role of the Criminal Courts, 30 UCLA L.

Rev. 52, 59 (1982) [hereinafter Harland].

      Several constitutional issues have arisen as a result of the

restitution legislation.    For example, arguments have been made that

under either the Sixth or Seventh Amendment, a criminal defendant is

entitled to a jury trial on all factual issues before restitution is imposed.

See generally Melanie D. Wilson, In Booker’s Shadow: Restitution Forces
                                    6

a Second Debate on Honesty in Sentencing, 39 Ind. L. Rev. 379 (2006)

[hereinafter Wilson] (asserting Sixth Amendment guaranties of right to

jury trial and proof of guilt beyond a reasonable doubt apply in

sentencing); Bonnie Arnett Von Roeder, Note, The Right to a Jury Trial to

Determine Restitution Under the Victim and Witness Protection Act of 1982,

63 Tex. L. Rev. 671 (1984) (asserting right to jury trial under Seventh

Amendment).

      Most federal authorities reject the requirement of a jury trial for

criminal restitution.   See Wilson, 39 Ind. L. Rev. at 402.   Even where

procedural due process applies to the offender’s loss of property resulting

from restitution orders, the process that is required is ordinarily less

than a full blown, trial-type evidentiary hearing before a jury. LaFave,

§ 26.6(c), at 825–26; see also United States v. Sunrhodes, 831 F.2d 1537,

1541–43 (10th Cir. 1987); United States v. Palma, 760 F.2d 475, 477–79

(3d Cir. 1985); United States v. Satterfield, 743 F.2d 827, 839–40 (11th

Cir. 1984); Franco v. State, 918 A.2d 1158, 1162 (Del. 2007); State in re

D.G.W., 361 A.2d 513, 521 (N.J. 1976); State v. Lack, 650 P.2d 22, 29

(N.M. Ct. App. 1982); State v. Tuttle, 460 N.W.2d 157, 159–60 (S.D.

1990); State v. Pope, 321 N.W.2d 359, 361 (Wis. Ct. App. 1982); Note,

Victim Restitution in the Criminal Process:    A Procedural Analysis, 97

Harv. L. Rev. 931, 943 (1984) (arguing due process protections in regard

to restitution are limited to notice and an informal process); Lorraine

Slavin & David L. Sorin, Congress Opens a Pandora’s Box—The

Restitution Provisions of the Victim and Witness Protection Act of 1982, 52

Fordham L. Rev. 507, 544–63 (1984) (same).

      In this case, Jenkins does not object to the nature of the hearing

provided by the district court.    The sole issue raised by Jenkins is

whether, after hearing the evidence presented, the district court erred by
                                       7

determining that it was foreclosed by law from making a judicial

determination of the “causal connection” between the amounts paid to

the victim by the CVCP and the defendant’s criminal activity.

      For the reasons expressed below, we conclude that the district

court erred in failing to make a determination regarding the amount of

damages caused by the criminal activity in this case.         As a result, we

remand the case to the district court for further proceedings.

      B. Iowa Statutory Framework. Iowa Code chapter 910 generally

provides the framework for imposition of the criminal sanction of

restitution.   Iowa Code section 910.1(4) defines the term “restitution.”

Restitution means the “payment of pecuniary damages to a victim in an

amount and in the manner provided by the offender’s plan of restitution.”

Iowa Code § 910.1(4). “Restitution” also means “the payment of crime

victim compensation program reimbursements” and other governmental

expenses. Id.

      Regardless of whether the restitution is made to the victim or to

the government, imposition of restitution is mandatory under Iowa law.

Iowa Code section 910.2 states, in relevant part, “In all criminal cases in

which there is a . . . verdict of guilty, . . . the sentencing court shall order

that restitution be made by each offender . . . .”        Iowa Code § 910.2

(emphasis added).       Thus, like the federal MVPA, judges have no

discretion in Iowa to decline to impose restitution. Where the offender is

not reasonably able to pay all or part of a CVCP reimbursement,

however, the district court may allow the offender to perform community

service. Id.

      An offender is provided with notice of a potential restitution claim

under the statute. Iowa Code section 910.3 requires the county attorney

to “prepare a statement of pecuniary damages to victims of the defendant
                                    8

and, if applicable, any award by the [CVCP],” and provide it to the

presentence investigator or submit it to the court at the time of

sentencing. Id. § 910.3. The court is then to enter an order setting “out

the amount of restitution” and the persons to whom restitution is to be

paid. Id.

      In connection with restitution orders, a criminal defendant may

challenge restitution at the time of sentencing and may file a timely

appeal in the criminal case of any restitution order. State v. Blank, 570

N.W.2d 924, 925–26 (Iowa 1997). In addition, “[a]t any time during the

period of probation, parole, or incarceration, the offender . . . may

petition the court on any matter related to the plan of restitution or

restitution plan of payment.” Iowa Code § 910.7(1). A petitioner seeking

to challenge a restitution award outside of a criminal appeal, however, is

not automatically entitled to a hearing, but is granted a hearing only if

the district court determines, based on the petition, that a hearing is

warranted. Blank, 570 N.W.2d at 927; State v. Alspach, 554 N.W.2d 882,

883–84 (Iowa 1996).     If the district court determines that a hearing

should be held, the court has authority to modify the plan of restitution,

the plan of payment, or both. Iowa Code § 910.7(2).

      Iowa Code chapter 915 provides the framework for operation of

what has been known as the CVCP. Under this statutory provision, the

department of justice is authorized to award compensation for “economic

losses incurred as a direct result of an injury to or death of the victim.”

Id. § 915.86. Included in compensable economic loss is “[l]oss of income

from work the victim would have performed and for which the victim

would have received remuneration if the victim had not been injured, not

to exceed six thousand dollars.” Id. § 915.86(2). Compensable economic

loss also includes “[l]oss of income from work that the victim . . . would
                                     9

have performed . . . where the loss of income is a direct result of . . .

attendance at criminal justice proceedings including the trial . . . .” Id.

§ 915.86(4).

      C. Iowa Case Law Regarding Challenges to Restitution. This

court has not had occasion to consider the ability of an offender to

challenge the factual determination by the CVCP that certain losses were

caused by the crime and thus subject to payment to the victim and

restitution from the offender. In Bradley, 637 N.W.2d at 210, however,

our court of appeals considered whether a restitution order by the

district court should include amounts paid by the CVCP for the funeral

expenses of an out-of-state victim.      In Bradley, there was no factual

question that the funeral expenses paid by the CVCP were caused by the

crime. Id. at 214 n.5. The issues presented on appeal were purely legal,

namely, whether the district court’s restitution order was timely, whether

the requirement for restitution had been waived by the failure to include

a restitution provision in a plea agreement, and whether restitution could

be ordered for expenses arising out of a crime for which the defendant

was charged in Missouri. Id. at 212–15.

      The Bradley court rejected the offender’s arguments. Id. While the

court held that the restitution order was not timely filed under Iowa Code

section 910.3, it also concluded that the timeliness requirement was

directory, not mandatory.     Id. at 212.   The court further found that

silence in a plea agreement did not in and of itself override the

mandatory imposition of restitution and that the district court had

jurisdiction to impose the order of restitution. Id. at 213–15.

      As noted previously Bradley did not involve a factual challenge to

causation with respect to payments made by the CVCP. Id. at 214 n.5.

Nonetheless, the Bradley court, in dicta, declared that while the district
                                    10

court is charged with finding proximate cause between the offender’s

activities and the victim’s damages when ordering restitution to be paid

directly to the victim, the district court is without authority to determine

causation when funds are paid by the CVCP.          Id. at 215.   The court

stated that no “discretion exists in regard to crime victim assistance

payments” and that “[t]he district court is not only authorized but

mandated to order restitution for these amounts, subject only to the

offender’s reasonable ability to pay.”      Id.    This Bradley dicta was

transformed into black letter law in subsequent unpublished cases. See

State v. Mott, No. 08–1656, 2009 WL 1676974, *2 n.1 (Iowa Ct. App.

June 17, 2009); State v. Bertch, No. 07–0492, 2008 WL 4725159, *3

(Iowa Ct. App. Oct. 29, 2008); State v. Hoaglund, No. 05–1104, 2006 WL

1897134, *1 (Iowa Ct. App. July 12, 2006).          In two of these cases,

however, the court of appeals, perhaps recognizing weakness in

Bradley’s dicta, held in the alternative that causation was in fact

established in the record. Mott, No. 08–1656, 2009 WL 1676974 at *2;

Hoaglund, No. 05–1104, 2006 WL 1897134 at *1 n.1.

      The    unpublished    post-Bradley    case    law   received   further

elaboration in State v. Goyette, No. 07–0300, 2008 WL 4308213 (Iowa Ct.

App. Sept. 17, 2008).      In Goyette, the court of appeals rejected a

procedural due process challenge to the Bradley dicta. Goyette, No. 07–

0300, 2008 WL 4308213 at *1–*2.          The Goyette court noted that an

offender could challenge such causation in the administrative process

before the CVCP or in separate civil proceedings under Iowa Code section

910.7.   Id. at *2.   Therefore, the court did not find a constitutional

infirmity. Id.

      As a result of the above cases, under the current case law of our

court of appeals, the factual question of causation of payments made by
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the CVCP may not be challenged by an offender in a sentencing

proceeding for purposes of determining the proper amount of restitution.

      D.   Analysis.    While Bradley has been affirmed in unpublished

court of appeals decisions in the past decade, this case presents a matter

of first impression for this court. Based on our review of the statute and

the applicable law, we conclude that while the district court has a

mandatory duty to impose restitution under Iowa Code chapter 910, it

may review CVCP payments to determine whether there is a causal

connection with the underlying crime as required by Iowa Code section

915.86 in order to determine the proper amount of a restitution order.

Our interpretation is consistent with ordinary sentencing procedures, is

not inconsistent with the provisions of Iowa Code chapters 910 and 915,

and provides defendants with a meaningful predeprivation remedy to

challenge erroneous CVCP payments.

      Under   section   910.2,   ordering   restitution   to   the   CVCP   is

mandatory, mitigated only by the defendant’s reasonable ability to pay.

The fact that restitution is mandatory, however, does not necessarily

mean that the court is without authority to determine the amount of

restitution. Indeed, the federal MVRA eliminates judicial discretion on

the decision to impose restitution, but does not deprive courts of

jurisdiction to determine the amount. See 18 U.S.C. § 3663(a)(1)(B)(i)(I)

(2006) (authorizing court to determine the amount of the loss sustained

by each victim as a result of the offense); see also United States v.

Reichow, 416 F.3d 802, 805 (8th Cir. 2005) (causal link of mandatory

restitution must be established).

      As noted above, section 910.3 establishes a procedure to ensure

that an offender receives notice in the presentencing process of the

amounts that could be imposed as restitution, including payments made
                                          12

by the CVCP. Section 910.3 then authorizes the court to “set the amount

of restitution.” There is nothing in the language of section 910.3 that

suggests that the district court lacks the power to determine whether

reimbursements made by the CVCP were, in fact, “caused” by the

underlying criminal offense as required by Iowa Code section 915.86.

       Further, denying Jenkins an opportunity to challenge the amount

of the restitution order before the district court implicates his right to

procedural due process. The overwhelming weight of federal and state

authorities agree that procedural due process in the context of criminal

restitution orders requires some kind of notice and an opportunity to be

heard. 1   In addition, giving preclusive effect to determinations of the

CVCP would give rise to a substantial issue regarding improper

delegation of judicial authority. See Harland, 30 UCLA L. Rev. at 94–96;

see also Morgan v. Wofford, 472 F.2d 822, 827 (5th Cir. 1973) (delegation

of power to set amount of restitution to probation officer without notice

and opportunity to be heard held invalid); State v. Summers, 375 P.2d

143, 146 (Wash. 1962) (“It is an unlawful delegation of judicial authority

to authorize the probation officer to fix the amount of the payments.”).

Although Jenkins has not raised due process or delegation of judicial
authority challenges, when interpreting a statute we construe the

language so as to avoid a constitutional infirmity where possible. In re

Young, 780 N.W.2d 726, 729 (Iowa 2010).

       1Our   analysis is not inconsistent with State v. Izzolena, 609 N.W.2d 541 (Iowa
2000). In Izzolena, we determined that procedural due process was not offended by the
failure to provide a hearing concerning the imposition of restitution in the amount of
$150,000 in connection with a murder. Izzolena, 609 N.W.2d at 552–53. There was
virtually no risk of error since the amount of restitution was liquidated and not subject
to any factual determination other than the commission of the crime of murder, which
was established beyond a reasonable doubt in the criminal trial. Id. at 553. Here, the
amount to be awarded by the CVCP is not liquidated and is fact dependent, thereby
triggering materially more substantial due process concerns than were present in
Izzolena.
                                      13

         Recognizing the potential difficulty with procedural due process,

the State suggests that Jenkins has an adequate avenue for contesting

the amount of restitution, namely, an administrative challenge to the

CVCP payment.        The offender, however, is not a party to the CVCP

proceeding.     Further, under the applicable administrative rule, only a

victim can appeal the amount of a CVCP payment. Iowa Admin. Code r.

61—9.36(1).      Such an illusory remedy does not avoid the due process

problem present in this case.

         Although the State does not press the argument in this appeal, the

Goyette court’s suggestion—that any potential due process problem is

avoided because the offender may file a postsentencing petition under

Iowa Code section 910.7—is misplaced. While the offender may bring a

claim under Iowa Code section 910.7, this is a postdeprivation remedy

where a hearing is a discretionary matter, not a matter of right.         In

addition, an offender is not entitled to appointed counsel as a matter of

right.    Alspach, 554 N.W.2d at 883–84.       A contingent postdeprivation

remedy where the offender may be unrepresented does not give this court

comfort in the context of procedural due process.

         In any event, as a matter of statutory interpretation, it would make

no sense to prevent an offender from directly challenging the causal

connection of payments made by the CVCP in a sentencing proceeding

under Iowa Code section 910.3, only to allow the offender to later make

such a challenge in a petition under section 910.7.

         In sum, while an order for restitution under Iowa Code section

910.2 to the CVCP is mandatory, we hold that the district court is not

precluded from reviewing CVCP payments to determine whether the

statutory causation requirements of Iowa Code section 915.86 have been

met.     Specifically, the district court may review whether there was a
                                    14

sufficient causal link as a matter of fact between the loss of income paid

by the CVCP and Jenkins’ criminal activity as required by Iowa Code

section 915.86(2) and (4). In light of our ruling, this case is remanded to

the district court for a determination of whether the instant criminal

offenses were the cause of injuries which were compensated by the

CVCP.

      IV. Conclusion.

      The decision of the district court is reversed and the case is

remanded for further proceedings.

      REVERSED AND REMANDED.
