                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0089
                              Filed August 5, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JOSEPH SCOTT WAIGAND,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Union County, John D. Lloyd, Judge.



      Joseph Waigand appeals the order setting victim restitution following his

guilty plea to ongoing criminal conduct. AFFIRMED.



      Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Katie Krickbaum, Assistant

Attorney General, for appellee.



      Considered by Mullins, P.J., Ahlers, J., and Vogel, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
                                          2


VOGEL, Senior Judge.

       On July 8, 2018, Joseph Waigand pleaded guilty to ongoing criminal

conduct. See Iowa Code § 706A.2(1) (2016). The charge relates to his sale of

farming related assets that were secured by Iowa State Savings Bank in Creston

and his resulting failure to apply the proceeds to his indebtedness with the bank.

On September 5, the district court sentenced him to a term of incarceration not to

exceed twenty-five years, suspended, placed him on supervised probation for five

years, and ordered him to pay restitution. After a hearing on the State’s application

to set victim restitution, the court, on September 19, set the amount at

$988,636.25. Waigand now appeals, asserting the court erred in the amount the

court set, that he was entitled to a jury trial in determining the amount of victim

restitution, and the State is equitably estopped from imposing the full amount of

victim restitution.1

       “We review restitution orders 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.” State v. Bonstetter, 637 N.W.2d 161, 165

(Iowa 2001). We review constitutional claims, including ineffective assistance of

counsel, de novo. State v. Feregrino, 756 N.W.2d 700, 703 (Iowa 2008).




1 Waigand raises some of his claims under an ineffective-assistance-of-counsel
framework. His appeal was pending on July 1, 2019, so we may address his
ineffective-assistance claims on direct appeal. See State v. Macke, 933 N.W.2d
226, 227 (Iowa 2019) (“Iowa Code sections 814.6 and 814.7, as amended, do not
apply to a direct appeal from a judgment and sentence entered before July 1,
2019.”).
                                           3


       Waigand begins by claiming the amount of victim restitution is excessive.

He asserts he only pleaded guilty to improperly diverting the proceeds of secured

collateral in forty specific transactions, approximately totaling $270,000, and any

amount above the pled facts lacks evidentiary support.

       “In Iowa, restitution shall be ordered in all criminal cases in which the

defendant pleads guilty or is found guilty.” Bonstetter, 637 N.W.2d at 165. “Once

the victim is identified, the court must determine what losses may be considered

in calculating the amount of restitution.” Id. “Any damages that are causally related

to the criminal activities may be included in the restitution order.” Id. “A restitution

order is not excessive if it bears a reasonable relationship to the damage caused

by the offender’s criminal act.”     Id.   “The relationship must be shown by a

preponderance of the evidence.” Id. at 166. The district court ordered restitution

in the amount of $988,636.25, which is the amount of loss reported by the victim

bank. An officer for the bank testified the bank loaned money to Waigand, relying

on and securing his stated assets, and $988,636.25 was his outstanding debt to

the bank after foreclosure and liquidation of the remaining collateral. The bank

also prepared a statement, which the State submitted as an exhibit, showing

Waigand still owed $988,636.25 to the bank. The witness testimony and the

exhibit establish a causal relation between Waigand’s crime and the full amount of

the bank’s loss. Therefore, we find no error in the amount of restitution ordered.

       Waigand also asserts the court erred by failing to include an offset provision

in the restitution order as requested. In the foreclosure action, the bank obtained

a $988,636.25 civil judgment against Waigand. Waigand correctly notes the

criminal restitution he pays must be set off against this civil judgment. See Iowa
                                             4


Code § 910.8 (2018) (“[A]ny restitution payment by the offender to a victim shall

be set off against any judgment in favor of the victim in a civil action arising out of

the same facts or event.”); see also State v. Driscoll, 839 N.W.2d 188, 191 (Iowa

2013) (“[T]he purpose of [section 910.8] is to coordinate civil recoveries with

criminal restitution to avoid double recovery.”); State v. Klawonn, 688 N.W.2d 271,

(Iowa 2004) (“It appears the purpose of [section 910.8] is to coordinate restitution

with civil damage awards in order to prevent a victim from receiving a windfall of

[restitution] in addition to the collectible damages recoverable by a judgment

entered in the civil action.”). The State agrees with this law in its arguments to us.

While Waigand is entitled to an offset, he cites no law requiring the restitution order

explicitly recite his right to an offset. We find no error in the court’s failure to include

his request for an offset provision.

       Next, Waigand claims he is entitled to a jury trial to determine the amount

of victim restitution. See U.S. Const. amend. 6; Iowa Const. art. I, § 9. He asserts

his sentence is illegal without the opportunity for a jury trial on restitution. The

State argues this is not a proper challenge to an illegal sentence, and we agree.

See State v. Bruegger, 773 N.W.2d 862, 871 (Iowa 2009) (“[A] challenge to an

illegal sentence includes claims that the court lacked the power to impose the

sentence or that the sentence itself is somehow inherently legally flawed . . . . This

conclusion does not mean that any constitutional claim converts a sentence to an

illegal sentence.      For example, claims under the Fourth, Fifth and Sixth

Amendments ordinarily do not involve the inherent power of the court to impose a

particular sentence.”).
                                           5


       Alternatively, Waigand claims his counsel was ineffective for failing to assert

his right to a jury trial to determine the amount of restitution. Typically, “a defendant

claiming ineffective assistance of counsel must show both a breach of duty and

prejudice.” Feregrino, 756 N.W.2d at 705. Our supreme court has long held

criminal defendants have no “right to a jury trial at the time of sentencing.” State

v. Mayberry, 415 N.W.2d 644, 647 (Iowa 1987). Waigand points to a subsequent

United States Supreme Court case that found “any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466,

490 (2000); see also Blakely v. Washington, 542 U.S. 296, 303 (2004) (“[T]he

‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may

impose solely on the basis of the facts reflected in the jury verdict or admitted by

the defendant.”). Because the amount of victim restitution relies on additional facts

beyond those Waigand admitted to in his plea, he argues Apprendi and its progeny

entitle him to a jury trial on restitution. See 530 U.S. at 490. However, Waigand

only speculates on “[t]he possible application of the Sixth Amendment to criminal

restitution.” Our supreme court noted this ambiguity, stating legal commentators

have struggled with characterizing restitution as civil or criminal and subject to the

appropriate defenses and process. See State v. Shears, 920 N.W.2d 527, 531

(Iowa 2018).      Regardless of any ambiguity, Mayberry remains good law,

untouched by our supreme court. “We are not at liberty to overturn Iowa Supreme

Court precedent.” State v. Hastings, 466 N.W.2d 697, 700 (Iowa Ct. App. 1990).

Therefore, Waigand’s counsel was not ineffective for failing to argue a right to a

jury trial attached to the determination of the amount of restitution.
                                           6


       Finally, Waigand argues his counsel was ineffective for failing to argue the

State was equitably estopped from seeking $988,636.25 in restitution. He notes

that during the plea hearing, the State provided a restitution amount of

approximately $270,000 and said it intended “to request that amount or near that”

during sentencing.      He claims equitable estoppel prevents the State from

requesting significantly more restitution during sentencing.

       To succeed in a claim of equitable estoppel, Waigand must show by clear,

convincing, and satisfactory evidence: “(1) a false representation or concealment

of material fact by the [State], (2) a lack of knowledge of the true facts by

[Waigand], (3) the [State’s] intention the representation be acted upon, and (4)

reliance upon the representations by [Waigand] to [his] prejudice and injury.” City

of Marshalltown v. Ryerson, 535 N.W.2d 135, 137 (Iowa Ct. App. 1995). He must

also show “exceptional circumstances” to apply equitable estoppel against the

State. Id. The final restitution amount of $988,636.25 is based on the amount the

bank reported as the remaining liability on its loans to Waigand. He has not shown

the State falsely represented or concealed this amount, nor has he shown he

lacked knowledge of his remaining liability to the bank. See id. He has also not

shown exceptional circumstances to justify equitable estoppel against the State.

See id. Therefore, his counsel was not ineffective for failing to assert equitable

estoppel against the amount of victim restitution.

       Finding the district court did not err in setting the amount of victim restitution

and Waigand’s counsel was not ineffective for failing to assert a right to a jury trial

or equitable estoppel, we affirm.

       AFFIRMED.
