                    IN THE COURT OF APPEALS OF IOWA

                                    No.15-1280
                                Filed June 7, 2017


ALF FREDDY CLARK,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Robert Blink, Judge.



       Alf Clark appeals from the denial of his motions challenging restitution.

AFFIRMED.




       Randall L. Jackson of the Law Office of Randall L. Jackson, Des Moines,

for appellant.

       Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee State.




       Considered by Danilson, C.J., and Bower, J., and Mahan, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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DANILSON, Chief Judge.

       Alf Clark appeals from the denial of his motion challenging restitution and

the denial of his identical motion filed in a preexisting postconviction-relief (PCR)

case. Clark contends the district court abused its discretion in finding he had a

reasonable ability to pay restitution, in failing to find excessive amounts of money

had been withheld under the standards applied to enforcement of civil judgments,

and in failing to invalidate the restitution order because it did not contain a finding

Clark had a reasonable ability to pay restitution. We affirm the ruling of the

district court.

       I. Background Facts & Proceedings.

       Following a May 2000 jury trial, Clark was convicted of attempt to commit

murder and terrorism with intent (now known as intimidation with a dangerous

weapon), and was sentenced to a twenty-five-year and a ten-year term of

imprisonment, to run concurrently. As part of the August 4, 2000 order imposing

imprisonment and fine, Clark was ordered to “reimburse the State for attorney’s

fees to the extent Defendant is reasonably able to do so.” A supplemental order

was entered on September 26, 2000, ordering Clark to pay restitution for fines,

penalties, surcharges, and court costs. The restitution plan was filed November

15, 2000, providing “[p]ayments will consist of [twenty] percent of all credits to

[Clark’s] institutional account.” On September 25, 2001, a supplemental order

was filed ordering Clark to pay an additional $3939.50 in attorney fees “in

accordance with the restitution plan and plan of repayment.” The corresponding

restitution plan was filed October 29, 2001, and again stated payments would

consist of twenty percent of all credits to Clark’s institutional account.         On
                                             3


July 24, 2002, a modified supplemental order was filed increasing the amount of

restitution owed for attorney fees to a total of $5028.50.                     Again, the

corresponding restitution plan ordered that the payments would consist of twenty

percent of Clark’s institutional account credits.

        Clark made the requisite restitution payments for approximately fifteen

years until December 19, 2014, when he filed motions challenging restitution and

requesting a restitution evidentiary hearing in both the underlying criminal case

and a preexisting PCR case.1 Clark filed amended motions on February 11,

2015.    A restitution hearing was held on April 27, 2015.             The district court

subsequently entered identical orders denying Clark’s motions on July 2, 2015

(PCR case), and May 12, 2016 (criminal case). Clark now appeals the district

court’s findings that he had a reasonable ability to pay restitution, the ordered

restitution was not excessive, and the restitution order was not invalid.

        II. Standard of Review.

        Our review is for correction of errors at law. State v. Hagen, 840 N.W.2d

140, 144 (Iowa 2013). “In 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)).




1
 We note the motion regarding restitution is not properly filed in the PCR action and is
appropriately raised and addressed on direct appeal or in a chapter 910 proceeding.
See Iowa Code § 822.2(1)(g) (2014); Earnest v. State, 508 N.W.2d 630, 633 (Iowa
1993) (“Any alleged errors relating to restitution must be resolved on direct appeal or in a
chapter 910 proceeding.”).
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       III. Analysis.

       The district court summarized Clark’s challenges to the restitution in its

order denying the motions:

                Mr. Clark requests that his restitution obligation be set aside
       or reduced because of the delay in the entry of the supplemental
       restitution orders and because of his imprisonment. There is no
       prior finding of Mr. Clark’s reasonable ability to pay the restitution in
       the record. . . . [h]e presently earns between $.40 and $.50 per
       hour for institutional labor. He works about twelve hours per month.
       In sum, his arguments are that he does not have a reasonable
       ability to pay the restitution and that the restitution orders should be
       set aside because of the timeliness of their entry in relation to his
       convictions.

       The court then held:

       [T]he timing of the restitution orders is not a basis for dismissing
       them. As long as the defendant is given notice and an opportunity
       to challenge the amounts and be heard as to his reasonable ability
       to pay the sums, fundamental fairness has been achieved.
       Secondly, the mere fact that the defendant is incarcerated and will
       be for an extended period does not absolve him of the ability to
       make the required restitution payments. . . . There is nothing in the
       record to indicate that an unfair or unreasonable percentage of his
       prison earnings are being used to pay the ordered restitution.

       On appeal, Clark asserts the district court abused its discretion in finding

he has a reasonable ability to pay and erred in failing to invalidate the restitution

order because there was no previous finding regarding Clark’s reasonable ability

to pay on the record.2

       “[R]estitution is ordered . . . for court costs including correctional fees [and]

for court-appointed attorney fees . . . only to the extent the defendant is

reasonably able to pay.” State v. Kurtz, 878 N.W.2d 469, 471 (Iowa Ct. App.

2
  Clark also contends the court erred in failing to find excessive amounts had been
withheld pursuant to the standards applied to enforcement of civil judgments. However,
this issue was not raised before or ruled upon by the district court and is therefore not
preserved for our review. See Lamasters v. State, 821 N.W.2d 856, 863 (Iowa 2012).
                                         5


2016) (citing Iowa Code § 910.2(1)). “A defendant’s reasonable ability to pay is a

constitutional prerequisite for a criminal restitution order such as that provided by

Iowa Code chapter 910.” State v. Van Hoff, 415 N.W.2d 647, 648 (Iowa 1987).

“A defendant bears the burden of proof when challenging a restitution order.”

State v. Blank, 570 N.W.2d 924, 927 (Iowa 1997). With respect to the court’s

finding regarding a reasonable ability to pay, Clark “has the burden to

demonstrate either the failure of the court to exercise discretion or an abuse of

that discretion.” Kurtz, 878 N.W.2d at 473 (citation omitted).

       First, Clark contends the district court abused its discretion in determining

he has a reasonable ability to pay. Clark argues he does not have a reasonable

ability to pay the restitution because he is incarcerated. Clark also asserts that

because the sentencing court suspended the assessed fines “due to the

defendant’s incarceration,” it made a finding that he did not have a reasonable

ability to pay.

       However, in the same sentencing order, the district court imposed a

requirement that Clark pay restitution “to the extent defendant is reasonably able

to do so.” This indicates the court correctly noted the requirement that Clark be

found reasonably able to pay restitution.       The subsequent orders regarding

restitution did not require Clark to pay an excessive amount of restitution and

only required restitution to be paid from twenty percent of Clark’s institutional

account credits. Clark paid the restitution as ordered without objection for nearly

fifteen years. We conclude Clark has not shown the district court abused its

discretion in determining he has a reasonable ability to pay the restitution. See

Van Hoff, 415 N.W.2d at 649 (“A determination of reasonableness, especially in
                                         6


a case of long-term incarceration, is more appropriately based on the inmate’s

ability to pay the current installments than his ability to ultimately pay the total

amount due.”).

       Clark also contends the district court erred in failing to invalidate the

restitution order because it did not include a specific finding of Clark’s reasonable

ability to pay. Clark maintains he is entitled to the return of all funds paid toward

restitution due to this error. However, Clark cites no support for this proposed

remedy. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support

of an issue may be deemed waiver of that issue.”). Rather, the cases cited by

Clark order remand for the district court’s consideration of the reasonable ability

to pay. See State v. Johnson, 887 N.W.2d 178, 184 (Iowa Ct. App. 2016); State

v. Tanner, No. 14-1963, 2016 WL 4384468, at *5 (Iowa Ct. App. Aug. 17, 2016);

Kurtz, 878 N.W.2d at 473.

       The State has succinctly explained the applicable law for prisoners and

their obligation to pay restitution:

       Separate statutory provisions require prisoners like Clark to pay
       restitution with deductions from their institutional accounts. “An
       offender committed to a penal or correctional facility of the state
       shall make restitution while placed in that facility.” Iowa Code
       § 910.5(1)(c).    The Department of Corrections enforces the
       prisoner’s obligation by deducting money from his or her
       institutional account. Id. § 904.702(1) (“The director shall deduct
       from the inmate account an amount established by the inmate’s
       restitution plan of payment.”). And the amount to be deducted
       under the restitution plan of payment circles back to the inmate’s
       reasonable ability to pay, which the inmate can challenge any time
       during the period of incarceration. See id. § 910.7(1). This
       statutory structure bypasses the general civil debtor rules in favor of
       allowing the district court to set an inmate’s payment plan in
       accordance with his or her reasonable ability to pay.
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       In this case, the district court granted Clark’s request for a restitution

hearing, considered or reconsidered Clark’s reasonable ability to pay, and held

Clark’s incarceration does not prevent him from having the ability to make the

required restitution payments. On this record, we cannot conclude the district

court has erred.3

       IV. Conclusion.

       We find Clark has not established the district court abused its discretion in

determining he has a reasonable ability to pay the restitution, and we conclude

the court did not err in denying Clark’s request to invalidate the restitution order

and return all funds paid toward restitution. We therefore affirm.

       AFFIRMED.




3
  We also note the conclusion section of the appellant’s brief includes a general
ineffective-assistance claim: “[Clark] asserts that he received ineffective assistance of
counsel and was prejudiced thereby for the reasons stated herein and within the
underlying action.” However, because no supporting argument or authority is included,
we will not address this issue on appeal. See Iowa R. App. P. 6.903(2)(g)(3). Clark also
raises a variety of other issues in the body of his brief such as an equal-protection claim,
but the issues were not preserved for our review because they were not addressed by
the district court. See Lamasters, 821 N.W.2d at 863.
