                    IN THE COURT OF APPEALS OF IOWA

                                 No. 17-1994
                            Filed February 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LANG DONALD LEONARD,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, James C. Ellefson,

Judge.



      The defendant appeals his sentence imposing court costs and other

restitution without a determination of his reasonable ability to pay. SENTENCE

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.



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

appellant.

      Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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TABOR, Judge.

       Lang Leonard appeals the restitution ordered as part of his sentence in

three consolidated criminal proceedings. He argues the district court erred in

ordering him to pay court costs, correctional fees, and “the costs of investigation

and other matters that were paid at public expense” without knowing the extent of

those costs and without determining his reasonable ability to pay. Leonard’s

argument is correct under State v. Albright, 925 N.W.2d 144 (Iowa 2019). Thus

we vacate the restitution portion of his sentence and remand for resentencing

consistent with Albright.

       In 2017, Leonard pleaded guilty to several crimes, including second-degree

burglary, illegal possession of a firearm, displaying a dangerous weapon,

prohibited acts, and possession of methamphetamine.              In a consolidated

sentencing order, the district court imposed prison terms, fines, surcharges, and

victim restitution. The court also ordered Leonard to pay other restitution1 without

having the total amounts available and not having assessed his reasonable ability

to pay. Leonard appeals.2




1 Iowa Code section 910.2 (2017) creates two restitution categories. Sentencing
courts must order offenders to pay amounts in the first category—comprised of
victim restitution, as well as statutory fines, penalties, and surcharges—regardless
of their reasonable ability to pay. State v. Gross, 935 N.W.2d 695, 701 (Iowa
2019). But courts may only order offenders to reimburse amounts in the second
category—consisting of crime victim assistance fund outlays, restitution to public
agencies, court-appointed attorney fees, and court costs including correctional
fees—to the extent the offender is reasonably able to pay. Id.
2 Shortly after appointment in fall 2018, appellate counsel filed a motion to withdraw

alleging the appeal was frivolous under Iowa Rule of Appellate Procedure 6.1005.
The supreme court denied that motion in January 2019. The supreme court
transferred the case to our court in October 2019.
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       In his appellant’s brief, Leonard contends neither the sentencing transcript

nor the sentencing order show the district court “engaged in the prerequisite inquiry

relative to determining [his] reasonable ability to pay.”3     Without that inquiry,

Leonard suggests the restitution order was an illegal sentence that may be

corrected at any time, citing Iowa Rule of Criminal Procedure 2.24(5)(a). But in

Gross, our supreme court rejected the notion that an award of restitution made

without a reasonable-ability-to-pay hearing was an illegal sentence. 935 N.W.2d

at 698. Instead, Gross clarified that “whether the sentencing court determined the

defendant’s reasonable ability to pay before imposing restitution” is an issue that

may be raised for the first time on appeal even though it was not raised in the

district court. Id.

       We review Leonard’s contention for the correction of errors at law. See

Albright, 925 N.W.2d at 158.

       Still, the State argues Leonard’s ability-to-pay challenge is not properly

before us. According to its appellee’s brief, “Because the district court ordered

Leonard to pay the restitution costs but did not set up a plan of payment or issue

a final restitution order, the matter is not complete and therefore Leonard’s ability

to pay challenge is not directly appealable.”

       It is true that Albright stated:

       Restitution orders entered by the court prior to the final order are not
       appealable as final orders or enforceable against the offender. The

3 Leonard’s brief also cites the requirement that a court state reasons for selecting
a particular sentence under Iowa Rule of Criminal Procedure 2.23(3)(d). He has
not sufficiently developed that argument to merit our consideration. See State v.
Louwrens, 792 N.W.2d 649, 650 (Iowa 2010) (noting passing reference to an issue
is insufficient to raise it for appeal). And besides, the court provided ample reasons
for selecting the particular terms of incarceration.
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       reason for these orders being nonappealable or enforceable is that
       the final order of restitution must take into account the offender’s
       reasonable ability to pay. Iowa Code § 910.3.

925 N.W.2d at 161.

       But what actually happened in Albright is the supreme court “vacate[d] the

restitution part of the sentencing order” and remanded for the district court to set

restitution in a manner consistent with that opinion. Id. at 162. The Albright court

decided, at least implicitly, that the question of the district court’s compliance with

the reasonable-ability-to-pay provision in section 910.2 was properly before it. Id.

After Albright, the supreme court has repeatedly considered restitution orders that

would not be final under the State’s reasoning. See State v. Headley, 926 N.W.2d

545, 553 (Iowa 2019) (finding district court erred in ordering Headley to pay

restitution in the form of court costs and correctional fees without first determining

his reasonable ability to pay those items); State v. Petty, 925 N.W.2d 190, 197

(Iowa 2019) (vacating order where district court directed Petty to pay restitution in

the form of court costs and attorney fees, “due immediately,” without first

determining his reasonable ability to pay those items); State v. Covel, 925 N.W.2d

183, 189 (Iowa 2019) (reversing where district court did not have the total amount

of restitution owed when entering its order finding Covel reasonably able to pay).

We follow that same path here.

       As discussed, the district court can only order restitution for court costs,

including correctional fees and court-appointed attorney fees, to the extent the

offender is reasonably able to pay. See Iowa Code § 910.2. At the time of

sentencing, the district court did not have the amounts for any of those items before

it. The court made no reasonable-ability-to-pay determination.
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         Because this sentencing predated the decision in Albright, the district court

did not have guidance available on filing temporary, supplemental, and permanent

orders. See 925 N.W.2d at 160–62. So the court did not clarify that the restitution

order was temporary. “[N]o award of reasonable-ability-to-pay items such as jail

fees may occur until all such items are before the court and the court has then

made a reasonable-ability-to-pay determination.” Gross, 935 N.W.2d at 702 (citing

Albright, 925 N.W.2d at 162). Here, the amounts of court costs, correctional fees,

investigation costs, and “other matters” were not before the court at the time of

sentencing. So, we vacate the restitution portion of the sentencing order and

remand to the district court to determine restitution consistent with Albright.

         The State points out the sheriff submitted a claim for jail fees, in the amount

of $2520, after sentencing. The claim form stated it was “[p]ursuant to Iowa Code,

Section 910, and/or 356.” Iowa Code section 356.7 allows the sheriff to elect

whether to enforce the claim as restitution under chapter 910 or as a civil money

judgment under chapter 626. When the sheriff does not include a request to

include jail fees within restitution, the district court is not required to consider the

defendant’s reasonable ability to pay in assessing those costs. Gross, 935 N.W.2d

at 702–03. On remand, the district court should clarify the nature of the sheriff’s

claim.

         SENTENCE       AFFIRMED       IN   PART,     VACATED       IN   PART,    AND

REMANDED.
