               IN THE SUPREME COURT OF IOWA
                                  No. 18–0690

                          Filed November 15, 2019


STATE OF IOWA,

      Appellee,

vs.

LARRY LEROY GROSS JR.,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal      from   the    Iowa      District   Court   for   Polk   County,

Scott D. Rosenberg, Judge.



      A defendant convicted of a criminal offense challenges an order that

he pay jail fees for pretrial detention. AFFIRMED.



      Mark C. Smith, State Appellate Defender (until withdrawal), and
Maria Ruhtenberg, Assistant Appellate Defender, for appellant.



      Thomas J. Miller,        Attorney     General,   and    Thomas J. Ogden,

Assistant Attorney General.
                                     2

MANSFIELD, Justice.

      I. Introduction.

      After a defendant was convicted of arson in the second degree, the

county sheriff sought recovery of fees under Iowa Code section 356.7 for

the defendant’s pretrial detention. The sheriff did not, however, ask that

the fees be included in restitution. See Iowa Code § 356.7(2)(i) (2017). The

district court ordered the defendant to pay the requested amount.

      On appeal, the defendant claims the court should have determined

his reasonable ability to pay those jail fees before awarding them. The

State counters that because the fees were not awarded as part of

restitution, the district court was not required take into account the

defendant’s reasonable ability to pay.

      On our review, we affirm the order of the district court and the

decision of the court of appeals. Based on our reading of the statutes, we

find that because the sheriff did not ask for the fees to be included in

restitution, the amount is not subject to the reasonable-ability-to-pay

limitations on restitution set forth in Iowa Code chapter 910. This means,

however, that certain pathways available for collecting restitution are not

available here.

      II. Facts and Procedural History.

      On June 29, 2017, Des Moines police officers responded to a house

fire at the home of Larry Gross. Four others resided in the house and were

also present when the fire started: (1) Megan Gross, Larry’s wife; (2) Geoff

Hansen, a lifelong friend of Larry’s who was renting a room from Larry;

(3) Chris Hope, who lived in the basement with Nicole Pote; and (4) Nicole

Pote. Based upon their investigation, the police determined that Larry

Gross had knowingly set fire to his home with the intent to destroy or

damage his home. According to police reports, Gross told Megan and Geoff
                                      3

to grab anything they cared about because he had just lit the house on

fire.

        On August 9, the State charged Gross with arson in the first degree.

See Iowa Code § 712.2. Pending trial, Gross was held on a $25,000 cash

or surety bond. Gross never posted bail. On October 19, under a plea

agreement, Gross pled guilty to arson in the second degree.            See id.

§§ 712.1, .3.

        On January 5, 2018, the district court sentenced Gross to prison for

a term not to exceed ten years with credit for time served.            See id.

§ 902.9(1)(d). The court also indicated there would be restitution, stating,

“There will be restitution. If there is restitution, I assume there will be a

supplemental order?” to which the State responded, “Correct, Your

Honor.” The court later added, “You could be ordered to make restitution,

which is financial compensation, for any monetary loss that may be

suffered by the victim of the crime, if you’re financially able to do so.”

        The court memorialized this open-ended determination in its

sentencing order, which stated, “Defendant is ordered to make restitution

in the amount of $TBD. . . . If the amounts of restitution are not available

at the time of sentencing, a supplemental order will follow.”                The
sentencing order also suspended fines because of Gross’s incarceration

and waived attorney fees “based on the circumstances and Mr. Gross’s

present situation, that he cannot afford [to] pay the fees and costs of the

state public defender.”

        On January 8, Gross appealed his conviction. On November 21, the

court of appeals affirmed Gross’s conviction, finding that his plea was

supported by a factual basis.      Pending appeal, Gross was held on a

$20,000 cash appeal bond. Gross did not post this bond either.
                                     4

        Meanwhile, on April 6, the Polk County Sheriff’s Department filed

an application for reimbursement for $11,415, consisting of Gross’s room

and board for 197 days of incarceration at the Polk County Jail from

June 29, 2017, through January 11, 2018.        See id. § 356.7(2)(i).   On

April 9, the district court entered an order in the criminal case approving

the sheriff’s claim for $11,415 in correctional fees. The order stated, in

part,

              IF YOU DISPUTE THE AMOUNT OWED, PLEASE
        CONTACT THE POLK COUNTY JAIL AT 515-323-5411 OR
        VISIT THEIR WEBSITE AT https://wvw.polkcountyiowa.gov
        /sheriff/divisions/detention/inmate-room-board/.

             ANY DEFENDANT AGGRIEVED BY THE ABOVE
        ORDER MAY FILE AN APPLICATION WITH THE COURT TO
        HAVE THE COURT REEXAMINE THIS DECISION. THE
        APPLICATION MUST BE FILED WITHIN 15 DAYS AFTER THE
        FILING OF THE COURT’S ORDER[.]

             Payments may be mailed or made in person:
             Attn: Accounting Clerk
             Polk County Jail
             1985 NE 51st Place
             Des Moines, Iowa 50313

(Citation omitted.)   The order was mailed to Gross’s home address in

Des Moines and not to the Mt. Pleasant Correctional Facility where he was
then confined.

        On April 16, Gross initiated an appeal of the order approving the

sheriff’s claim for reimbursement of jail room and board. His pro se notice

of appeal also included a financial affidavit claiming indigence and

requesting appointment of counsel.

        Gross was appointed appellate counsel, and later, his appeal was

transferred to the court of appeals.        Just over a year later, on

April 17, 2019, the court of appeals affirmed the district court’s

reimbursement order, finding that it was a civil judgment executable
                                       5

under chapter 626—not a restitution award under chapter 910—and

therefore exempt from a reasonable-ability-to-pay analysis.

      On May 7, Gross applied for further review, and we granted his

application.

      III. Standard of Review.

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

Jenkins, 788 N.W.2d 640, 642 (Iowa 2010). 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.” State v. Albright, 925

N.W.2d 144, 158 (Iowa 2019) (quoting State v. Klawonn, 688 N.W.2d 271,

274 (Iowa 2004)).       “We review rulings on questions of statutory

interpretation for correction of errors at law.” State v. Iowa Dist. Ct., 889

N.W.2d 467, 470 (Iowa 2017) (quoting State v. Olutunde, 878 N.W.2d 264,

266 (Iowa 2016)).

     IV. Did the District Court Err in Ordering Gross to Pay for Room
and Board for His Time Spent in Jail Without Finding that He Had the
Reasonable Ability to Pay?

      A. Error Preservation. Generally, error is preserved on an issue if

(1) a party raises the issue before the district court, (2) the district court

rules upon the issue, and (3) the party again raises the issue on appeal.

State v. Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002). However,

the rule of error preservation “is not ordinarily applicable to void, illegal or

procedurally defective sentences.” State v. Richardson, 890 N.W.2d 609,

615 (Iowa 2017) (quoting State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct.

App. 1994)).

      The State argues that Gross failed to preserve error at the district

court level by not seeking reconsideration as suggested in the district

court’s April 9, 2018 order or, alternatively, seeking enlargement of that
                                      6

order pursuant to Iowa Rule of Civil Procedure 1.904(2). This is consistent

with the State’s position that the award was a civil judgment and that the

rules of error preservation for civil matters apply.

      Gross counters that because he was not served the order for room-

and-board fees which was mailed to his former home address in

Des Moines rather than his location of confinement, he could not have

sought reconsideration or enlargement. Furthermore, Gross asserts that

when the court entered an order for room-and-board reimbursement

without a consideration of his reasonable ability to pay the $11,415 bill,

he did not have to object because this was the type of sentencing objection

that could be raised for the first time on appeal.

      Neither side’s position is entirely persuasive.    On the one hand,

although the district court order was apparently mailed to Gross’s home

address, he received a copy in prison and was able to mail a pro se notice

of appeal from prison by April 16. Gross’s pro se notice of appeal arrived

at the district court on April 18. This was only nine days after the entry

of the district court order and would have been within the fifteen-day

deadline had Gross sought reconsideration. Whatever the service issue

was, it did not cause Gross to miss the reconsideration deadline.

      On the other hand, restitution is part of a sentence, and when a

party appeals a sentence, some issues may be raised for the first time on

appeal even though they were not raised in the district court. See State v.

Gordon, 921 N.W.2d 19, 22–23 (Iowa 2018). One such issue is whether

the sentencing court determined the defendant’s reasonable ability to pay

before imposing restitution. In none of our recent reasonable-ability-to-

pay decisions is there any indication that the defendant raised the absence

of a reasonable-ability-to-pay hearing until taking his or her direct appeal.

See State v. Headley, 926 N.W.2d 545, 549, 553 (Iowa 2019); State v. Petty,
                                             7

925 N.W.2d 190, 194, 197 (Iowa 2019); State v. Covel, 925 N.W.2d 183,

187, 189 (Iowa 2019); Albright, 925 N.W.2d at 149, 158–62. This does not

mean that such an award of restitution is illegal and may be challenged at

any time by filing a motion to correct an illegal sentence. Instead, as we

have previously held, once the deadline for direct appeal has run, the

defendant is limited to filing a petition to modify restitution (or the plan of

restitution) under Iowa Code section 910.7. See State v. Jose, 636 N.W.2d

38, 46–47 (Iowa 2001); State v. Janz, 358 N.W.2d 547, 549 (Iowa 1984).

       Thus, error preservation is intertwined with the merits. If the award

of jail fees is the equivalent of a civil judgment, then the State may have a

point that Gross should have sought reconsideration under Iowa Rule of

Civil Procedure 1.904(2). 1 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. We will therefore proceed to the merits.

       B. Statutory Framework. We begin with a discussion of the

statutory framework. Jail fees are governed by Iowa Code section 356.7,

entitled “Charges for administrative costs and room and board—

enforcement procedures.” Section 356.7(1) provides,


       1We do not decide today whether Iowa Code section 356.7 authorizes immediate
court approval of the sheriff’s claim in the criminal case subject to the defendant’s
opportunity to file a motion for reconsideration within fifteen days. In its brief, the State
observes,
               A reimbursement claim under section 356.7 could be filed as a
       separate civil action, even where the sheriff elects to enforce the claim as
       restitution. Experience suggests that these claims are commonly filed in
       the criminal case, as was the instant claim. The State believes that the
       best practice—and one that would lead to significantly less confusion
       about the district court’s duty—would be to file reimbursement claims as
       separate civil actions regardless whether the sheriff elects to enforce the
       judgment under chapter 626 or as restitution.
Appellee’s Br. 11 n.1.
       As discussed below, we also do not decide whether the procedure followed in this
case complies with due process. Those matters are not before the court.
                                      8
      The county sheriff, or a municipality operating a temporary
      municipal holding facility or jail, may charge a prisoner who
      is eighteen years of age or older and who has been convicted
      of a criminal offense or sentenced for contempt of court for
      violation of a domestic abuse order for the actual
      administrative costs relating to the arrest and booking of that
      prisoner, for room and board provided to the prisoner while in
      the custody of the county sheriff or municipality, and for any
      medical aid provided to the prisoner under section 356.5. . . .
      The county attorney may file the reimbursement claim on
      behalf of the sheriff and the county or the municipality. The
      attorney for the municipality may also file a reimbursement
      claim on behalf of the municipality.

Iowa Code § 356.7(1).

      Iowa Code section 356.7(2) provides,

      The sheriff, municipality, or the county attorney, on behalf of
      the sheriff, or the attorney for the municipality, may file a
      reimbursement claim with the clerk of the district court which
      shall include all of the following information, if known . . . .

This is followed by a list of eight items that must be included (if known) in

the claim:

             a. The name, date of birth, and social security number
      of the person who is the subject of the claim.

            b. The present address of the residence and principal
      place of business of the person named in the claim.

              c. The criminal proceeding pursuant to which the claim
      is filed, including the name of the court, the title of the action,
      and the court’s file number.

              d. The name and office address of the person who is
      filing the claim.

             e. A statement that the notice is being filed pursuant
      to this section.

              f. The amount of room and board charges the person
      owes.

              g. The amount of administrative costs the person owes.

              h. The amount of medical aid the person owes.

Id. § 356.7(2)(a)–(h). Further, this section provides,
                                       9
             i. If the sheriff or municipality wishes to have the
       amount of the claim for charges owed included within the
       amount of restitution determined to be owed by the person, a
       request that the amount owed [shall] be included within the
       order for payment of restitution by the person.

Id. § 356.7(2)(i).

       In short, there are eight mandatory items, plus the option of

requesting that the jail fees be included in the restitution order.

       Section 356.7(3) continues,

       Upon receipt of a claim for reimbursement, the court shall
       approve the claim in favor of the sheriff or the county, or the
       municipality, for the amount owed by the prisoner as
       identified in the claim and any fees or charges associated with
       the filing or processing of the claim with the court. The sheriff
       or municipality may choose to enforce the claim in the manner
       provided in 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.

Id. § 356.7(3).

       Notable is the language allowing the sheriff to “choose to enforce the

claim in the manner provided in chapter 626.” Id.; see also id. ch. 626.

Chapter 626 prescribes the various procedures for collecting on money

judgments. See, e.g., id. § 626.1 (“Judgments or orders requiring payment

of money, or the delivery of the possession of property, are to be enforced

by execution. Obedience to those requiring the performance of any other

act is to be coerced by attachment as for contempt.”).

       Originally,   Iowa   Code     section 356.7   contemplated     only   a

reimbursement lien.      See 1996 Iowa Acts ch. 1081, § 1 (codified as

amended at Iowa Code § 356.7 (1997)); id. ch. 1219, § 71 (codified as

amended at Iowa Code § 356.7 (1997)). This perhaps explains why even

today it entails only a filing with the district court clerk. See Iowa Code

§ 356.7(2) (2017).    The following year, though, the general assembly

broadened the scope and significance of the statute. See 1997 Iowa Acts
                                       10

ch. 140, §§ 1–2 (codified as amended at Iowa Code § 356.7 (Supp. 1997)).

It changed “lien” to “claim,” created the option described above for the

sheriff to have the award of jail fees included in restitution, and also got

the court involved for the first time. See id. Thus, section 356.7(3), which

had read, “The filing of a room and board reimbursement lien in

accordance with this section creates a lien in favor of the sheriff in any

personal or real property identified in the lien to the extent of the interest

held in that property by the person named in the lien,” Iowa Code

§ 356.7(3) (1997), was considerably modified and expanded to take on

essentially its present form, see id. § 356.7(3) (2017). Seemingly, the 1997

amendments transformed a prior lien statute into a choice of pursuing

either (1) incorporation of jail fees within the restitution order or (2) a civil

judgment alone for those fees.

      Restitution is governed by Iowa Code chapter 910.            The chapter

makes several cross-references to section 356.7.               Section 910.1(4)

provides, in part, “ ‘Restitution’ also includes . . . court costs including

correctional fees approved pursuant to section 356.7 . . . .”        Iowa Code

§ 910.1(4). Section 910.2(1)(a) states, in part,

      In all criminal cases in which there is a plea of guilty, verdict
      of guilty, or special verdict upon which a judgment of
      conviction is rendered, the sentencing court shall order that
      restitution be made by each offender to the victims of the
      offender’s criminal activities, to the clerk of court for fines,
      penalties, surcharges, and, to the extent that the offender is
      reasonably able to pay, . . . [c]ourt costs including correctional
      fees approved pursuant to section 356.7 . . . .

Id. § 910.2(1). Section 910.3 provides, in part,

      The clerk of court shall prepare a statement of . . . court costs
      including correctional fees claimed by a sheriff or municipality
      pursuant to section 356.7, which shall be provided to the
      presentence investigator or submitted to the court at the time
      of sentencing.
                                     11

Id. § 910.3.

      Section 910.3 also indicates that

      [i]f the full amount of restitution cannot be determined at the
      time of sentencing, the court shall issue a temporary order
      determining a reasonable amount for restitution identified up
      to that time. At a later date as determined by the court, the
      court shall issue a permanent, supplemental order, setting
      the full amount of restitution.

Id.

      C. Relevant Caselaw. We will now turn to the relevant judicial

precedents.    Iowa Code chapter 910 has generated a cornucopia of

caselaw, but this case centers on a single, recent decision. In Albright, we

addressed the suitable procedure for ordering restitution and for

considering a defendant’s reasonable ability to pay restitution.         925

N.W.2d at 158–62. We noted the restitution statute “creates two categories

of restitution.” Id. at 159 (citing Iowa Code § 910.2(1)). The first category,

consisting of victim restitution and statutory fines, penalties, and

surcharges, must be ordered “regardless of the offender’s reasonable

ability to pay.” Id. (citing Iowa Code § 910.2(1)). The second category,

consisting of crime victim assistance reimbursement, restitution to public

agencies, court-appointed attorney fees, and court costs including

correctional fees, can be ordered only “to the extent the offender has the

reasonable ability to pay.” Id.

      In Albright, the court had made an advance determination that the

defendant had a reasonable ability to pay before certain second-category

restitution amounts were actually known. Id. at 149. We held this was

“contrary to the statutory scheme”; accordingly, we reversed and

remanded. Id. at 162–63.

      Thus, in Albright, we summarized the required restitution procedure

as follows:
                                     12
      [W]e urge courts to do everything possible to have all items of
      restitution before the court at the time of sentencing. Courts
      must wait to enter a final order of restitution until all items of
      restitution are before the court. Once the court has all the
      items of restitution before it, then and only then shall the
      court make an assessment as to the offender’s reasonable
      ability to pay. A court should make every effort to determine
      an offender’s financial condition as early as possible. This
      may require the offender filing an updated financial
      statement, a colloquy with the offender, or both. A court
      cannot impose restitution on an offender for the items subject
      to the offender’s reasonable ability to pay if the offender does
      not have a reasonable ability to pay those items. Finally, any
      temporary, permanent, or supplemental order regarding
      restitution is not appealable or enforceable until the court files
      its final order of restitution.

Id. at 162. Hence, Albright makes clear that with respect to restitution, 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. Id.

      We have since applied Albright in a number of other cases. See, e.g.,

Headley, 926 N.W.2d at 553 (reversing and remanding in light of Albright);

State v. McMurry, 925 N.W.2d 592, 601–02 (Iowa 2019) (same); Petty, 925

N.W.2d at 197–98 (same); Covel, 925 N.W.2d at 189–90 (same).

      In contrast to Iowa Code chapter 910, section 356.7 has received

relatively little attention from this court. The statute received detailed

scrutiny for the first and perhaps only time in State v. Abrahamson, 696

N.W.2d 589, 591–93 (Iowa 2005). There, six convicted criminal defendants

challenged the inclusion of Lucas County jail room and board in their

restitution orders. Id. at 590. We confirmed that Iowa Code section 356.7

established two options:

      Under section 356.7(3), a court-approved claim for room and
      board may be enforced in two ways: as a judgment in the
      traditional sense, under Iowa Code chapter 626, or as part of
      a    restitution   plan    under   chapter 910.          Under
      section 356.7(2)(g) [now section 356.7(2)(i)], a sheriff, if he
                                     13
      decides to collect the claim under the restitution plan, must
      so state in the original claim.

Id. at 591. We noted that the sheriff in Abrahamson had chosen the latter

option, “specifically stating in his claims that he elected to collect the

amounts under the restitution alternative.” Id. However, we affirmed the

restitution orders because the defendants “got exactly what they requested

[in their resistance in the district court]—a hearing that considered all of

the factors under section 910.3 (necessity and reasonableness of the

charges and the defendants’ ability to pay).” Id. at 592.
      We then went on,

             Because the sheriff did not elect to collect the claim for
      room and board under the chapter 626 alternative, but rather
      treated them as claims for restitution under chapter 910 and
      the defendants received a full hearing on the restitution claim,
      it is not necessary for us to consider the argument that the
      “shall approve” language of the statute renders it invalid.
      Nevertheless, we do so to provide guidance in those cases in
      which a sheriff requests court approval of a claim as a
      condition precedent to collection of it under the regular
      judgment collection provisions of chapter 626, rather than
      through restitution.

Id. We held that the “shall approve” language was “a grant of authority to

the court to resolve the merits of the claim—not a mandate that it simply

sign the order as a ministerial function.” Id. at 593.

      This leads us now to the crux of the matter today.           We must

determine, in an instance when the sheriff does not include a request to

include the jail fees claim within restitution, whether the district court is

required to consider the defendant’s reasonable ability to pay in assessing

correctional fees pursuant to Iowa Code section 356.7.          In short, is

recovery of jail fees under section 356.7 always subject to a reasonable-

ability-to-pay screen or only when such fees are intentionally included in

a restitution order?
                                     14

      D. Answering the Question. We begin by reviewing the statutes

themselves. “If the language is unambiguous, our inquiry stops there.”

Richardson, 890 N.W.2d at 616. Nothing in Iowa Code section 356.7 itself

makes the recovery of jail room and board subject to a reasonable-ability-

to-pay limitation. The limitation appears only in chapter 910 governing

restitution, and section 356.7(2)(i) allows but does not require the sheriff

to include the amount of the claim in restitution.        We confirmed in

Abrahamson that a “claim for room and board may be enforced in two

ways: as a judgment in the traditional sense, under Iowa Code

chapter 626, or as part of a restitution plan under chapter 910.”        696

N.W.2d at 591. Thus, where the sheriff does not opt for the second route—

i.e., to have jail fees included in restitution—a restitution-only limit

seemingly should not apply.

      When we consider other tools of statutory interpretation, we find

additional support for the view that an award of jail fees is not subject to

a reasonable-ability-to-pay limitation unless the fees are a component of

restitution. One such tool is legislative history. See Iowa Code § 4.6(3);

State v. Doe, 903 N.W.2d 347, 352 (Iowa 2017). The original version of the

1997 amendment did not contain a restitution option, only a civil

judgment option. See S.S.B. 95, 77th G.A., 1st Sess. § 1 (Iowa 1997). The

bill explanation for that version stated,

             This bill provides that claims for reimbursement for
      room and board provided while a prisoner is in the custody of
      a county sheriff may be filed by the sheriff or the county
      attorney with the district court as part of the criminal
      proceeding. Upon receipt of a claim for reimbursement, the
      court is to enter judgment against the prisoner in an amount
      equal to the value of the room and board provided to the
      prisoner while the prisoner was in the county sheriff’s custody.
      The sheriff may enforce the judgment through a writ of
      execution under chapter 626.
                                      15

Id. explanation (emphasis added). Although the restitution option was

added later to the 1997 amendment, it does not appear the legislature

added any language altering the effect of the judgment option. Indeed, the

fiscal note for the final version of the bill states, “The Court is to enter the

judgment against the prisoner in an amount equal to the value of the room

and board provided to the prisoner, plus any associated court fees or

charges.” S.F. 184, 77th G.A., 1st Sess. fiscal note.

      Another tool of statutory interpretation is to examine the

consequences of a particular interpretation and see whether that

interpretation makes practical sense. See Iowa Code § 4.4(3); Doe, 903

N.W.2d at 353. Does the State’s position simply give the sheriff an easy

way to circumvent Albright and the reasonable-ability-to-pay limitation on

restitution in chapter 910?

      We think not. There is a tradeoff when the sheriff pursues only a

civil judgment instead of a restitution award. A restitution award may be

enforced like a civil judgment, see Iowa Code § 910.7A(2), but it is more

powerful in several ways. “[R]estitution shall be a condition of probation.”

Id. § 910.4(1). If the offender fails to comply with the restitution plan,

probation may be revoked. Id. § 910.4(1)(b). Likewise, “restitution shall
be a condition of work release.” Id. § 910.5(2). If the offender fails to pay

the restitution, work release may be revoked.           Id. § 910.5(2)(b).   And

“restitution shall be a condition of parole.” Id. § 910.5(4). Furthermore,

jail fees that are included in restitution are not generally dischargeable in

bankruptcy. See 11 U.S.C. § 1328(a)(3) (2012) (exempting from discharge

in a Chapter 13 bankruptcy any debt “for restitution, or a criminal fine,

included in a sentence on the debtor’s conviction of a crime”); Kelly v.

Robinson, 479 U.S. 36, 50, 107 S. Ct. 353, 361 (1986) (holding that

restitution   obligations   imposed     in   criminal    judgments     are   not
                                     16

dischargeable in a Chapter 7 bankruptcy); see also State v. Mayberry, 415

N.W.2d 644, 646 (Iowa 1987).         When an inmate engages in private

employment, restitution may be deducted from his or her wages under a

priority scheme. See Iowa Code § 904.809(5)(c)(2); State v. Morris, 858

N.W.2d 11, 15 (Iowa 2015). Thus, when the sheriff elects not to include

jail fees in restitution, she or he is giving up some advantages. Restitution

is a condition of probation, parole, and work release, and can’t be

discharged in bankruptcy.

      Gross argues that the sheriff’s effort to collect jail fees must be

subject   to   the   reasonable-ability-to-pay   limitation   in   Iowa   Code

chapter 910 because the sheriff here did not file a separate civil action. As

he puts it, “[B]ecause the room and board reimbursement claim was filed

in the criminal case, it is a restitution order and not a civil judgment.”

Appellant’s Reply Br. 7. As noted above, the State concedes that filing a

separate civil action would be the “best practice.” Appellee’s Br. 11 n.1.

But echoing the days when section 356.7 was only a lien provision,

section 356.7 simply requires the sheriff to “file a reimbursement claim

with the clerk of the district court” setting forth certain information. Iowa

Code § 356.7(2). It does not require “filing a petition with the court,” which

is the only way to commence a civil action. Iowa R. Civ. P. 1.301(1) (“For

all purposes, a civil action is commenced by filing a petition with the

court.”). Note also that section 356.7 allows the sheriff herself or himself

to file the claim with the clerk, even though the sheriff may not be an

attorney and the funds belong to the county (although sixty percent are to

be used for law enforcement and detention facility purposes). See Iowa

Code § 356.7(1), (2), (5)(a).

      It is true, of course, that defendants are entitled to due process

before judgments for jail fees are entered against them. “As a general
                                      17

matter, due process requires, at a minimum, notice and an opportunity to

be heard.” Bonilla v. Iowa Bd. of Parole, 930 N.W.2d 751, 778 (Iowa 2019).

Gross does not claim that the assessment of room-and-board fees in this

case denied him due process, and we leave those issues to another case

and another day.

       In the past, we have recognized that “reasonable ability to pay is a

constitutional prerequisite for a criminal restitution order such as that

provided by Iowa Code chapter 910.” State v. Van Hoff, 415 N.W.2d 647,

648 (Iowa 1987). This case, as we have held, involves an order with the

effect of a civil judgment and not a criminal restitution order. Gross does

not contend that a civil judgment is subject to the same constitutional

constraints. We leave those issues as well to another case and another

day.

       We also do not resolve additional issues that may be presented when

the sheriff seeks recovery of jail fees without bringing a separate civil action

and without including those fees in restitution. Must the defendant be

served “in any mode provided in this Code other than by publication”?

Iowa Code § 624.22. How is the entry of the award recorded in the court

docket? See id. § 602.8104(2)(b) (discussing the judgment docket). Under

section 602.8107(1)(a), it appears that fees “charged under section 356.7”

would be considered “court debt” whether imposed as part of restitution

or otherwise. Id. § 602.8107(1)(a). If so, this means they would be “owed

and payable to the clerk of the district court.” Id. § 602.8107(2). But in

that event, how is restitution court debt tracked separately from

nonrestitution court debt?
                                             18

          Finally, as the judicial branch of government, and not the legislative

or executive, we leave to others to determine the appropriate policy in this

area. 2



          2It
            appears that a number of other states—as a matter of legislative policy—
consider an offender’s reasonable ability to pay when assessing jail fees whether or not
those fees fall under restitution. See 730 Ill. Comp. Stat. Ann. 125/20(a) (West, Westlaw
through P.A. 101-412, 2019 Reg. Sess.) (“The county board may require convicted
persons confined in its jail to reimburse the county for the expenses incurred by their
incarceration to the extent of their ability to pay for such expenses. . . . The State’s
Attorney of the county in which such jail is located may, if requested by the County Board,
institute civil actions in the circuit court of the county in which the jail is located to
recover from such convicted confined persons the expenses incurred by their
confinement.”); Ky. Rev. Stat. Ann. § 441.265(1), (2)(b) (West, Westlaw through 2019 Reg.
Sess.) (authorizing reimbursement of county jail fees and the filing of civil actions for their
recovery, but providing a “good cause” exception to their award and also stating that
“[r]ates charged may be adjusted in accordance with the fee and expense reimbursement
policy based upon the ability of the prisoner confined to the jail to pay, giving
consideration to any legal obligation of the prisoner to support a spouse, minor children,
or other dependents”); Minn. Stat. Ann. § 641.12(1), (3)(b) (West, Westlaw through 2019
Reg. & 1st Spec. Sess.) (authorizing the collection of jail fees as an item separate from
restitution but stating that “[t]he chief executive officer of the local correctional agency or
sheriff shall waive payment of the costs under this subdivision if the officer or sheriff
determines that the person does not have the ability to pay the costs, payment of the
costs would create undue hardship for the person or the person’s immediate family, the
prospects for payment are poor, or there are extenuating circumstances justifying waiver
of the costs”); Mo. Ann. Stat. § 217.831(3) (West, Westlaw through 2019 1st Reg. & 1st
Extraordinary Sess.) (“If the attorney general upon completing the investigation [into an
offender’s assets and estimated total cost of care while confined] has good cause to believe
that an offender or former offender has sufficient assets to recover not less than ten
percent of the estimated cost of care of the offender or ten percent of the estimated cost
of care of the offender for two years, whichever is less, or has a stream of income sufficient
to pay such amounts within a five-year period, the attorney general may seek to secure
reimbursement for the expense of the state of Missouri for the cost of care of such offender
or former offender.”); Mont. Code Ann. § 7-32-2245(1) (West, Westlaw through 2019
Sess.) (entirely separate from its restitution statute, stating that “[a]n inmate found by
the sentencing court to have the ability to pay is liable for costs, including actual medical
costs, of the inmate’s confinement in a detention center”); Ohio Rev. Code Ann.
§ 2929.18(A) (West, Westlaw through files 1–15 & 18 of 133d Gen. Assemb.) (authorizing
“[r]eimbursement by the offender of any or all of the costs of sanctions incurred by the
government, including . . . [a]ll or part of the costs of confinement . . . provided that the
amount of reimbursement ordered under this division shall not exceed the total amount
of reimbursement the offender is able to pay as determined at a hearing and shall not
exceed the actual cost of confinement”); Tex. Code Crim. Proc. Ann. art. 42.038(c)–(d)
(West, Westlaw through 2019 Reg. Sess.) (permitting a court to consider any special
circumstances that may affect the defendant’s ability to pay when deciding whether to
order reimbursement for costs of confinement separate from restitution).
                                    19

      V. Conclusion.

      For the foregoing reasons, we affirm the district court’s judgment

and the decision of the court of appeals.

      AFFIRMED.

      All justices concur except Wiggins, J., who concurs specially.
                                     20

                                                  #18–0690, State v. Gross

WIGGINS, Justice (concurring specially).

      I agree with the result reached by the majority, and I further agree

that the judgment under Iowa Code section 356.7 (2017) is a civil

judgment. I feel compelled to write in order to point out the hazards of a

county or city using this section to collect jail room and board and medical

aid from a convicted inmate.

      The majority states Gross did not raise a due process claim. The

majority correctly states, “As a general matter, due process requires, at a

minimum, notice and an opportunity to be heard.” Bonilla v. Iowa Bd. of

Parole, 930 N.W.2d 751, 778 (Iowa 2019). My concern is—and the concern

of every county and city should be—whether the judgment is collectable

without providing a defendant due process. The United States Supreme

Court has held property taken from a defendant who did not receive

adequate notice and opportunity to be heard must be returned to the

defendant. See Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306,

313, 320, 70 S. Ct. 652, 656–57, 660 (1950). Is a county or city subject

to a wrongful execution, attachment, or garnishment suit if notice and

opportunity to be heard was inadequate under the Constitution?

      My next concern is whether counties or cities are seizing assets from

prisoners in violation of Iowa’s garnishment restrictions.       Iowa Code

section 642.21 limits the amount of a person’s wages that a judgment

creditor can garnish under federal and state law. Most likely, any amount

garnished from a prisoner’s wages violates this Code section. Is a county

or city subject to a wrongful execution, attachment, or garnishment suit if

it violates section 642.21?

      Thirdly, how many counties and cities are trying to collect on a

section 356.7 judgment after the expiration of the statute of limitations for
                                     21

collecting the judgment? Section 614.1(6) limits the time period in which

to bring an action to collect on a judgment to twenty years. And section

614.17A(1) prohibits an action to establish an interest in real estate if the

action is based on a claim existing for more than ten years. Additionally,

section 614.17A(2) limits the lien created by a civil judgment to ten years.

Is a county or city subject to a wrongful execution, attachment, or

garnishment suit if it collects after the expiration of the statute of

limitations?

      Another unanswered question is whether the collection of jail room

and board and medical aid from a convicted inmate is subject to the Iowa

Debt Collection Practices Act, Iowa Code sections 537.7101 to 537.7103.

I do not know the answer to this question.

      Finally, I think a question exists as to whether a judgment for jail

room and board and medical aid against a convicted inmate is voidable. If

the county or city obtained the judgment without notice to the inmate and

an opportunity to be heard, does the court have personal jurisdiction over

the inmate to enter a valid judgment?

      As demonstrated by the majority opinion and this opinion, counties

and cities can collect jail room and board and medical aid from a convicted

inmate and avoid the reasonable-ability-to-pay requirement when a court

assesses those items as a civil judgment. However, when a county or city

makes that choice, it may be subject to the civil laws regarding collection

of debts. In the end, using section 356.7 to collect jail room and board

and medical aid from a convicted inmate may contain many more pitfalls

than using Iowa’s restitution statutes. Only further litigation will answer

these questions.
