                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0534
                               Filed May 13, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARK RAY SORTER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert J. Blink (first

restitution order) and Lawrence P. McLellan (second restitution order), Judges.



      A defendant appeals two district court orders requiring him to pay jail fees.

AFFIRMED.



      Karmen Anderson of Anderson & Taylor, P.L.L.C., Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.



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

       Mark Sorter appeals the district court orders approving the sheriff’s claims

for reimbursement of the cost of his detention. He argues the court should have

first determined his reasonable ability to pay. Because the sheriff did not request

jail fees as restitution, they were not subject to a reasonable-ability-to-pay

limitation. Thus, we affirm the orders.

       Sorter pleaded guilty to four crimes1 and appeared for sentencing in March

2019. The district court imposed an indeterminate twenty-year prison sentence

and suspended the fines because of Sorter’s impending incarceration. It ordered

Sorter to pay victim restitution (in an amount to be determined2) but decided he did

not have the reasonable ability to pay court costs or court-appointed attorney fees.

       Separate from the sentencing order, the Polk County Sheriff filed two

applications for reimbursement of jail room and board fees—one for $315 and one

for $1815. The court approved both claims and entered them as civil judgments

against Sorter. Sorter challenges those orders in this appeal.

       “We review restitution orders for correction of errors at law.” State v. Gross,

935 N.W.2d 695, 698 (Iowa 2019). “In doing so, ‘[w]e determine whether the

court’s findings lack substantial evidentiary support, or whether the court has not

properly applied the law.’” Id. (quoting State v. Albright, 925 N.W.2d 144, 158

(Iowa 2019)).



1 The offenses included possession of methamphetamine, third offense; third-
degree burglary as an habitual offender; operating a motor vehicle without the
owner’s consent; and third-degree theft.
2 The court ordered Sorter to participate in a Victim-Offender Reconciliation

Program, partially to determine the amount of loss to the crime victims.
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       Iowa courts must order restitution in all cases of criminal conviction. See

Iowa Code § 910.2 (2019). The code sets out two categories of restitution, the

second of which is limited by the court’s determination that the offender is

reasonably able to pay it. Id. § 910.2(1). These category-two items include court

costs, “correctional fees approved pursuant to section 356.7,” and court-appointed

attorney fees. Id. Under recent case law from our supreme court, “no 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).

       Sorter argues the court erred in ordering him to pay the jail fees without

determining he had a reasonable ability to pay. The State responds that Sorter

failed to preserve error by not challenging the imposition of those fees in the district

court.3 And even if he did preserve error, according to the State, the jail fees are

not subject to a reasonable-ability-to-pay determination because the sheriff never

specified the charges should be included in the restitution award.

       The Gross decision weighed an error-preservation claim under facts much

like Sorter’s case. On one hand, if the award is a civil judgment, “the rules of error



3 As the State notes, Sorter filed his notice of appeal in April 2019, but the district
court entered the supplemental orders approving the sheriff’s claims for
reimbursement in May 2019. Because Sorter did not file a separate notice of
appeal, the State contends we should summarily affirm. See Iowa State Bank &
Tr. Co. v. Michel, 683 N.W.2d 95, 110 (Iowa 2004) (“Because the defendant did
not file a separate notice of appeal from the court’s post-appeal ruling on the
collateral issue of bond, we held that issue was not before the court on appeal.”).
Because the March 2019 sentencing order included an order to pay restitution,
Sorter’s challenge is not to a collateral issue. See State v. Letscher, 888 N.W.2d
880, 884 (Iowa 2016) (finding, where the court made forfeiture a part of the
sentencing, it was not a collateral issue and could be addressed on appeal).
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preservation for civil matters apply.” Gross, 935 N.W.2d at 702. On the other

hand, restitution is part of a criminal sentence, and defendants may raise the failure

to consider their reasonable ability to pay for the first time on appeal. See State v.

Gordon, 921 N.W.2d 19, 22–23 (Iowa 2018). But “once the deadline for direct

appeal has run, the defendant is limited to filing a petition to modify

restitution . . . under Iowa Code section 910.7.” Gross, 935 N.W.2d at 699 (citing

State v. Jose, 636 N.W.2d 38, 46–47 (Iowa 2001)).           The court noted “error

preservation is intertwined with the merits” in such cases. Id. “If the award of jail

fees is part of restitution, then Gross can raise the lack of a reasonable-ability-to-

pay hearing for the first time in a timely direct appeal.” Id. Like the Gross court,

we proceed to the merits.

       Because category-two items include jail fees, it appears at first blush that a

sheriff’s claim is subject to a reasonable-ability-to-pay determination. Id. But the

code adds greater complexity to the jail-fee question. Only those fees approved

under section 356.7 may be assessed as category-two restitution. See Iowa Code

§ 910.2(1)(a)(3). “The sheriff, municipality, or the county attorney, on behalf of the

sheriff, or the attorney of the municipality, may file a reimbursement claim with the

clerk of district court” which includes all the relevant information. Id. § 356.7(2).

On that list of relevant information is “a request that the amount owed be included

within the order for payment of restitution by the person” if the sheriff wishes to go

that route. See id. § 356.7(2)(i).

       Once the sheriff submits a claim, the court must exercise its discretion in

deciding whether to approve it. Id. § 356.7(3); see State v. Abrahamson, 696

N.W.2d 589, 593 (Iowa 2005) (clarifying that statute’s “shall approve” language
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granted court authority to resolve merits of claim rather than mandating court sign

sheriff’s request as ministerial function). If the sheriff chooses to enforce the claim

under chapter 626, once approved by the court, “the claim for the amount owed by

the person shall have the force and effect of a judgment for purposes of

enforcement by the sheriff or municipality.” Iowa Code § 356.7(3). But if the sheriff

decides to collect under a restitution plan, the claim must say so. Abrahamson,

696 N.W.2d at 591. Here, the State emphasizes the sheriff did not elect to collect

the claim as restitution.

       Anticipating the State’s position, Sorter insists the court arbitrarily found the

sheriff sought the fees as a civil judgment rather than as part of restitution, though

the reimbursement application did not specify which route the sheriff was taking.

Sorter argues, “This is an abuse of discretion. The Court cannot decide to enforce

the matter under a plan more favorable to the sheriff without request or in an effort

to avoid the most recent appeals opinions determining that the Court must make

a determination on Sorter’s reasonable ability to pay.” 4

       Gross addressed a sheriff’s claim that did not include a specific request to

include jail fees within restitution. 935 N.W.2d at 703. The supreme court held

where the sheriff does not “opt . . . to have jail fees included in restitution,” there is

no reasonable-ability-to-pay limitation. Id. In other words, “an award of jail fees is

not subject to a reasonable-ability-to-pay limitation unless the fees are a

component of restitution” and the sheriff must include the request in their

application for reimbursement. Id.


4Sorter filed his brief before the supreme court issued its opinion in Gross. The
State filed its brief shortly after Gross came down, and Sorter filed no reply brief.
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       In Sorter’s case, the sheriff filed two applications for reimbursement, one for

$315 and one for $1815. In both applications, the sheriff only identified that the

claim was “pursuant to Iowa Code section 356.7.”            Responding to the first

application, the court approved the amount “pursuant to Iowa Code section 356.7

in an amount of $315.00.” Several days later, the court approved the second

application:

       IT IS HEREBY ORDERED that Sheriff’s Claim for Reimbursement is
       approved by the Court pursuant to Iowa Code 356.7(3) in an amount
       of $1,815.00. The Sheriff, in his/her application, did not request to
       have the amount of the claim for charges owed included within the
       amount of restitution, pursuant to Iowa Code section 356.7(2)(i).
       Accordingly, this judgment is not part of the plan of restitution and
       collection of this judgment shall be made pursuant to Iowa Code
       chapter 626 or any other remedy authorized by law to include
       collection pursuant to Iowa Code section 602.8107.

       The district court properly entered these claims as civil judgments under

chapter 626. In listing the information required under section 356.7(2)(i), the sheriff

did not elect to include the jail fees as an item of restitution. So when the court

approved the fees under section 356.7(3), it correctly inferred the sheriff was

choosing to enforce the claim under chapter 626. Under Gross and the relevant

statutes, the court did not need to perform a reasonable-ability-to-pay analysis.

       To recap, because the sheriff did not ask for the jail fees to be included in

the amount of restitution, the district court correctly treated the claim as a civil

judgment. And because the awards are civil judgments, two consequences follow.

First, Sorter did not preserve error by objecting in the district court. Second, even

if he had, the awards would not be subject to a reasonable-ability-to-pay

determination. Thus we affirm the awards.

       AFFIRMED.
