                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1181
                              Filed August 31, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ANTONIO RICCARDO CAMPBELL,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       A defendant appeals his sentence for sexual abuse in the third degree and

assault causing bodily injury. SENTENCE VACATED AND REMANDED FOR

CORRECTION OF SENTENCE.



       Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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TABOR, Judge.

       Antonio Campbell appeals his sentence for sexual abuse in the third

degree, a class “C” felony in violation of Iowa Code section 709.4 (2013), and

assault causing bodily injury, a serious misdemeanor in violation of Iowa Code

sections 708.1(2) and 708.2(2).        Campbell argues the district court erred in

finding he had the reasonable ability to pay restitution and either abused its

discretion or abdicated its duty to exercise discretion in imposing his sentence.1

See Iowa Code § 910.2. He contends the court’s failure to address the facts

indicating his inability to pay violated his due process right to a meaningful

restitution hearing. Because the district court’s determination Campbell had the

reasonable ability to pay restitution was premature and unsupported by the

record, we vacate and remand for the entry of a corrected sentencing order.

I.     Background Facts and Proceedings

       On the day his case was set for trial, Antonio Campbell pleaded guilty to

third-degree sexual abuse and assault causing bodily injury under an agreement

with the State. He chose to proceed with sentencing immediately and waived his

right to a presentence investigation before sentencing.              The district court

imposed consecutive sentences of imprisonment for each count. The court also

ordered Campbell to pay fines totaling $1315 with a thirty-five percent surcharge,

court costs, a $250 civil assessment, and victim restitution.




1
  In the event we find the restitution issue has been waived, Campbell alternatively
raises this issue in an ineffective-assistance-of-counsel claim. Challenges to a
sentencing order “need not be first presented to the district court,” so we find no waiver
of the restitution issue. State v. Kurtz, 878 N.W.2d 469, 471 n.2 (Iowa Ct. App. 2016).
Accordingly, we decline to address Campbell’s ineffective-assistance claim.
                                           3


         A section entitled “Restitution” in the sentencing order stated: “Pursuant to

Iowa Code Section 910.2, and finding that the defendant is reasonably able to

pay, the defendant shall pay and judgment is imposed against the defendant as

follows: Pecuniary damages (determined at a later time) to the victim(s).”

         The sentencing order is notable in its omissions.       Although the court

verbally imposed court costs during the combined plea colloquy and sentencing

hearing, the written order does not mention court costs. It does not impose

payment for court-appointed attorney fees. At the time of Campbell’s appeal, the

court had not filed a temporary or supplemental order setting the amount of

restitution, known as the plan of restitution (see Iowa Code § 910.3), but several

parties had filed reimbursement claims, including attorney-fee claims totaling

$7553.78.

II.      Standard of Review

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

636 N.W.2d 38, 43 (Iowa 2001). We consider whether the district court’s fact-

findings lack substantial evidentiary support and whether the court correctly

applied the law.      State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001).

“Evidence is substantial when a reasonable mind would accept it as adequate to

reach a conclusion.” Id. (quoting Hasselman v. Hasselman, 596 N.W.2d 541,

545 (Iowa 1999)). To the extent Campbell raises a constitutional due process

challenge, our review is de novo. See State v. Love, 589 N.W.2d 49, 50 (Iowa

1998).
                                         4


III.   Analysis

A.     Justiciability

       The State argues we shouldn’t reach the merits of Campbell’s claim

because it is neither appealable nor ripe.       The State insists although “[t]he

amount of restitution is part of the sentencing order and is therefore directly

appealable,” a defendant’s “ability to pay is an issue apart from the amount of

restitution and is therefore not an ‘order[] incorporated in the sentence’” and not

directly appealable. See Jose, 636 N.W.2d at 45 (quoting State v. Janz, 358

N.W.2d 547, 549 (Iowa 1984)). The State also claims a defendant may not

challenge the court’s determination of his ability to pay until the court has issued

the plan of restitution, citing State v. Swartz, 601 N.W.2d 348, 354 (Iowa 1999).

We find neither Jose nor Swartz directly addresses the problem with the

sentencing order identified by Campbell.

       In Swartz, a defendant challenged a restitution order requiring him to pay

court costs and court-appointed attorney fees when the court did not first

determine his ability to pay. Id. The Swartz court held the defendant could not

make this challenge because (1) the plan of restitution was not complete at the

time of the appeal and (2) the proper remedy for the defendant was a petition to

the district court for a modification. Id. In a companion case to Swartz, the court

explained: “Until [the plan of restitution is complete], the court is not required to

give consideration to the defendant’s ability to pay.”      State v. Jackson, 601

N.W.2d 354, 357 (Iowa 1999) (citing Swartz, 601 N.W.2d. at 354).

       But here we face a different situation—the sentencing court determined

Campbell had a reasonable ability to pay in its sentencing order before the court
                                            5


entered an order constituting the plan of restitution. Campbell does not ask the

court to make a premature finding of his ability to pay as in Swartz. Rather, he

faults the court for making that finding before determining the total amount of

restitution owed.

       In light of Campbell’s particular challenge to the sentencing court’s finding,

we consider the statement from Jose that a defendant’s ability to pay is a distinct

issue from the amount of restitution and therefore not directly appealable. In

Jose, a defendant challenged the amount of restitution the court ordered him to

pay although the court did not finalize that amount until after the defendant had

filed his appeal. 636 N.W.2d at 43. The Jose court indicated the issue of the

amount of restitution was directly appealable and carefully distinguished Swartz,

quoting Swartz and Jackson at length and noting “[t]he defendant in Swartz

challenged the ‘reasonable ability to pay’ determination rather than the total

amount to be paid to victims.” Id. at 45. The not-directly-appealable statement

cited by the State follows this discussion.2 See id. Although the statement itself

is not supported by a citation, the location of the language and its content—

referring to an ability-to-pay issue—make the reference to Swartz unmistakable.

2
  One sentence—“[t]he amount of restitution is part of the sentencing order and is
therefore directly appealable, as are all orders incorporated in the sentence”—appears
between the Swartz discussion and the language at issue. See Jose, 636 N.W.2d at 45.
This proposition comes from Janz, 358 N.W.2d at 549, and is referenced in the not-
directly-appealable statement itself. See Jose, 636 N.W.2d at 45 (“The ability to pay is
an issue apart from the amount of restitution and is therefore not an ‘order[] incorporated
in the sentence’ and is therefore not directly appealable as such.” (emphasis added)).
But Janz did not address a defendant’s ability to pay; it involved a mistake in the amount
of restitution included by the sentencing court in the sentencing order. See Janz, 358
N.W.2d at 549. Accordingly, the not-directly-appealable statement cannot originate from
Janz alone. Instead, Jose applies the Janz rule—“all orders incorporated in the
sentence” are directly appealable—to the court’s failure to make a reasonable-ability-to-
pay determination in Swartz. Compare Janz, 358 N.W.2d at 549, and Swartz, 601
N.W.2d at 354, with Jose, 636 N.W.2d at 45.
                                             6

       Thus, Swartz contemplates a situation in which the court has ordered an

amount of restitution without determining the defendant’s reasonable ability to

pay, 601 N.W.2d at 354, and Jose considers a defendant’s challenge to the

actual amount of restitution, 636 N.W.2d at 45.             But neither addresses the

circumstances at hand.         Campbell does not challenge the amount of his

restitution, which is currently unknown. More importantly, the sentencing court in

this matter actually determined Campbell had the reasonable ability to pay

restitution. Because the court made that finding in the written sentencing order, it

is “incorporated in the sentence,” and we may review it on appeal. See Janz,

358 N.W.2d at 549 (stating appellate courts may correct errors in sentencing

orders entered by district courts concerning restitution).3              Accordingly, we

proceed to the merits of Campbell’s claim.

B.     Reasonable Ability to Pay

       Campbell asserts the court made an unsupported finding he had the

reasonable ability to pay restitution in the sentencing order.4 Rather than contest


3
  The instant case is somewhat the inverse of Kurtz, 878 N.W.2d at 472, where our court
relied on Janz and distinguished Jose, holding Kurtz could challenge the district court’s
failure to consider his reasonable ability to pay where the sentencing order contained
both a plan of restitution as well as a restitution payment plan. Here, where the
sentencing order included neither a plan of restitution nor a payment plan, Campbell can
still challenge on appeal the sentencing court’s affirmative finding in the sentencing order
that he had the reasonable ability to pay. See Janz, 358 N.W.2d at 549.
4
  Here, the sentencing order does not explicitly assess any restitution subject to the
ability-to-pay standard of Iowa Code section 910.2(1). But this does not bar the court
from assessing additional restitution in the future. Because the total amount of
restitution was unknown at the time of sentencing, the court may issue a supplemental
order, establishing the full amount of restitution—including court costs and court-
appointed attorney fees—at a later time. See Iowa Code § 910.3. Although the court
has not yet issued a supplemental order, several parties filed fee claims after Campbell’s
sentencing.
         We also note the county attorney has already filed a notice of full commitment to
collect delinquent obligations in this matter. We question the propriety of sending an
                                          7


this claim, the State acknowledges “[t]he present record does not indicate

Campbell’s state of health or whether he possesses any skills.” We agree the

sentencing court’s finding of Campbell’s ability to pay a yet-to-be determined

amount of restitution under a non-established payment plan is unsupported by

the record.

       Regardless of a defendant’s ability to pay, the sentencing court must order

restitution to crime victims and to the clerk of court for fines, penalties, and

surcharges. Iowa Code § 910.2(1); see also State v. Wagner, 484 N.W.2d 212,

215–16 (Iowa Ct. App. 1992).       But ordering court costs and court-appointed

attorney fees is subject to the defendant’s reasonable ability to pay. Iowa Code

§ 910.2(1); see also State v. Kaelin, 362 N.W.2d 526, 528 (Iowa 1985).              A

defendant’s reasonable ability to pay is a “constitutional prerequisite” for

restitution orders under section 910.2. State v. Van Hoff, 415 N.W.2d 647, 648

(Iowa 1987). “A determination of reasonableness, especially in 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.” Id. at

649.

       Our supreme court addressed a claim similar to Campbell’s in Kaelin, 362

N.W.2d at 527–28. Kaelin challenged a restitution order requiring him to pay

court costs and $3755 in court-appointed attorney fees. Id. He argued the court

either failed to exercise discretion or abused its discretion in ordering the


account to collections before the court has completed the plan of restitution and
determined the total amount due. Cf. Bader v. State, 559 N.W.2d 1, 3–4 (Iowa 1997)
(finding defendant’s probation could not be revoked for failure to make restitution
payments when court had not completed plan of restitution “against which [defendant’s]
conduct could be tested for compliance”).
                                            8


restitution because the record was silent on his ability to pay and the

presentence report showed he was indigent. Id. at 528. The Kaelin court upheld

the restitution order, reasoning the record showed Kaelin was indigent but had

“several skills that should enable him to earn income” and seemed to be “in good

health.” Id. Campbell contends Kaelin is distinguishable because this record

fails to demonstrate Campbell has any skills enabling him to earn income.

       We note during the plea colloquy, the court asked Campbell just four

questions that could speak to his ability to pay restitution:

              Q. How old are you? A. Fifty.
              Q. And the extent of your education? A. High school
       diploma.
              Q. Do you have any on-the-job training or any special
       training beyond high school? A. I worked at Rath’s.
              Q.    Do you have any difficulty reading, writing, or
       understanding the English language? A. No.

We agree the record is sparse. But more troubling is the fact the sentencing

court made an affirmative finding of Campbell’s ability to pay without knowing the

total amount—or even a reasonable estimate—of the restitution owed. Because

Campbell chose to waive presentence investigation, the clerk of court had not yet

compiled a statement of the court-appointed attorney fees and other costs.5 See

Iowa Code § 910.3.         We believe a sentencing court cannot determine a

defendant’s ability to pay restitution without, at a minimum, an estimate of the

total amount of restitution, and we find the sentencing court’s determination of

Campbell’s ability to pay was premature and lacked evidentiary support.


5
  Further, the State had not filed a statement of pecuniary damages (victim restitution) at
the time of sentencing. Although consideration of a defendant’s reasonable ability to pay
does not apply to victim restitution, logically, the amount of victim restitution ordered
could affect a defendant’s reasonable ability to pay attorney fees and court costs.
                                         9


C.     Remedy

       Finally, Campbell requests we reverse and remand to the district court “for

a thoughtful and studied determination of Campbell’s ability to pay the obligations

emanating from his convictions.” At the time of Campbell’s appeal, the district

court had not yet entered the order constituting the plan of restitution. The court

is not required to consider Campbell’s ability to pay until it has issued that order.

Swartz, 601 N.W.2d at 354; see also Jackson, 601 N.W.2d at 357. If Campbell

believes the forthcoming plan of restitution does not reflect his reasonable ability

to pay, he may petition the district court for modification under Iowa Code section

910.7. See Iowa Code § 910.7; see also Swartz, 601 N.W.2d at 354.

       Accordingly, we vacate and remand to the district court. On remand, the

judgment of sentence and conviction shall be corrected by striking the sentencing

court’s unsupported finding of Campbell’s ability to pay.

       SENTENCE VACATED AND REMANDED FOR CORRECTION OF

SENTENCE.
