                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0234
                              Filed May 16, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

PETER KELLY LONG,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Webster County, Thomas J. Bice,

Judge.



      An inmate appeals the denial of his petition for a restitution hearing.

REVERSED AND REMANDED.



      Andrew J. Boettger of Hastings, Gartin & Boettger, LLP, Ames, for

appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
                                           2


TABOR, Judge.

       Peter Long appeals the dismissal of his request for a restitution hearing.

The district court ruled Long’s June 2016 motion was untimely because the State

submitted a restitution plan in January 2012. Because Iowa Code section 910.7

permits an offender to petition for a hearing “[a]t any time during the period of

probation, parole, or incarceration,” and Long is incarcerated, his motion was

timely and the district court should have assessed its merits. We reverse and

remand for such an assessment.

I.     Facts and Prior Proceedings

       In 2010, a jury found Long guilty of sexual abuse in the third degree. Based

on prior convictions, Long qualified for a sentencing enhancement under Iowa

Code section 902.14(1)(c) (2010). Long was convicted of a class “A” felony and

sentenced to life in prison.

       In January 2012, the State, through the Iowa Department of Corrections,

filed a restitution plan stating Long was ordered to pay $12,530.20 in court costs

associated with his jury trial and subsequent bench trial to decide the enhancement

allegation.1 The plan required Long to pay twenty percent of all credits to his

institutional account to cover the outstanding balance. A notation at the bottom of

the plan showed a copy was sent to Long.

       More than four years later, in June 2016, Long filed a motion, as a self-

represented litigant, requesting a restitution hearing under section 910.7 (2016).

In his motion he challenges the $12,530 in restitution, contending: (1) the two


1
 Certified accounts of various court costs and attorney fees were filed between February
4, 2011 and February 8, 2011, totaling $12,492.60 dollars.
                                           3


attorneys, who represented him in district court, were employed by the State Public

Defender’s Office and already paid by the State; (2) he should not be required to

reimburse the cost of two attorneys because his underlying sexual abuse offense

was a class “C” felony, only requiring the appointment of one attorney; (3) the

restitution plan failed to consider all of his individual circumstances; and (4) he

already paid more than one-thousand dollars in restitution. Without considering

whether any of Long’s claims warranted a hearing, the district court denied Long’s

request as “untimely.”

       Six months later, in January 2017, Long renewed his request for a restitution

hearing under section 910.7 (2017). Again filing as a self-represented litigant,

Long alleged: (1) he was already paying restitution; (2) “[t]here was never a

restitution plan served by the public defender’s office”; (3) “[t]he restitution amount

just appeared on this banking statement without notice[ m]ore than a year after

incarceration, way past the time limit”; (4) the restitution plan was prepared without

consideration of his individual circumstances; (5) procedural deficiencies; (6) the

amount of restitution created a financial hardship for him as an inmate; and (7) he

should not be required to pay for two attorneys. Long asked that his motion be

considered by a different district court judge than the judge who denied his June

2016 request. A different district court judge ruled on the January 2017 motion

stating: “It is ordered, for the same reasons set out in the Order of June 8, 2016,

that the aforesaid motion is overruled.”
                                            4


       Long now appeals arguing that the district court erred in dismissing his

request for a restitution hearing as untimely.2

II.    Analysis

       We review the district court’s denial of a restitution hearing for an abuse of

discretion.3 See State v. Blank, 570 N.W.2d 924, 925 (Iowa 1997). To the extent

statutory interpretation is at play, we review for legal error. Id. We first go to

section 910.7, which states:

              At 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 and the
       court shall grant a hearing if on the face of the petition it appears that
       a hearing is warranted.

Under this provision, an incarcerated offender may petition the court for a

restitution hearing at any time, even after the period for an appeal expires. See

Ernest v. State, 508 N.W.2d 630, 633 (Iowa 1993). Although Long’s direct appeal

and postconviction-relief (PCR) appeal4 both have been decided, he remains

incarcerated. Accordingly, his petitions are timely under section 910.7. The district

court wrongly dismissed based on Long’s delay in seeking a restitution hearing.

See State v. Hering, No. 17-0724, 2018 WL 1865226, at *3 (Iowa Ct. App. Apr. 18,



2
  Long’s questions about his inmate account may be administrative matters beyond the
scope of the restitution order. See Iowa Code § 904.702. But the district court denied
the petition on the basis that it was untimely.
3
  Both parties claim our review should be for legal error, citing to State v. Jenkins, 788
N.W.2d 640, 642 (Iowa 2010), and State v. Klawonn, 688 N.W.2d 271, 275 (Iowa 2004).
But both Jenkins and Klawonn address challenges to restitution orders rather than a
challenge to a district court’s refusal to grant a restitution hearing under section 910.7.
Jenkins, 788 N.W.2d at 641; Klawonn, 688 N.W.2d at 273.
4
  Our supreme court upheld Long’s conviction and sentence. See State v. Long, 814
N.W.2d 572 (Iowa 2012). Our court affirmed the denial of Long’s PCR application that
alleged his sentence was cruel and unusual. Long v. State, No. 15-1231, 2017 WL
514400, at *1 (Iowa Ct. App. Feb. 8 2017).
                                          5


2018) (finding district court erred in dismissing inmate’s petition for restitution

hearing as untimely).

       The State concedes the district court erred by dismissing the petition as

untimely but asks us to affirm on different grounds. It contends Long’s petition was

deficient on its face because it failed to raise any meritorious claims to compel a

hearing. The State argues “[t]he district court could reasonably find that a hearing

was not warranted in this case because Long’s challenge finds no support in the

record” and asks this court to affirm on that basis.

       But the State’s argument highlights that the district court never reached the

substance of the petition. And the State did not object to Long’s claims on their

merits in the district court. On appeal, our review is not de novo and we have no

substantive conclusions to review. We are unable to evaluate if the district court

properly exercised its discretion when no discretion was exercised. “We are a

court of review, not a nisi prius court. We cannot ‘review’ an issue unless it was

raised in the trial court.” State v. Holbrook, 261 N.W.2d 480, 482 (Iowa 1978). It

is beyond our purview to serve as the first court to consider the merits of Long’s

petition because “the legislature has determined the district court should serve as

[the] gatekeeper with the discretion to grant a hearing.” See Blank, 570 N.W.2d at

927. Accordingly, we remand for the district court to fill its role as gatekeeper and

consider the petition’s substance.       See Hering, 2018 WL 1865226, at *3

(remanding to district court rather than assess viability of restitution hearing

petition); State v. Losee, 895 N.W.2d 482, 484 (Iowa Ct. App. 2017) (determining
                                         6


district court dismissed section 910.7 petition based on statutory misinterpretation

and remanding for district court to consider substance of petition).

       REVERSED AND REMANDED.
