                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1184
                               Filed June 3, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

EDDIE DELONG,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Cherokee County, Nancy L.

Whittenburg, Judge.



      An offender appeals the award of restitution. AFFIRMED.



      Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Tabor, P.J., Mullins, J., and Gamble, S.J.*

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

(2020).
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TABOR, Presiding Judge.

       Eddie DeLong appeals the restitution order imposed after his convictions

for third-degree sexual abuse as a habitual offender and providing alcohol to a

minor. He contends the district court mistakenly found he had the reasonable

ability to pay $10,136.45 in restitution under Iowa Code section 910.2(1) (2019).

Because the record supports his ability to pay those amounts without undue

hardship, we affirm.

       I.     Prior Proceedings

       This is DeLong’s third time before our court. In his first appeal, we affirmed

his convictions but reversed the sentences based on a deficiency in his habitual-

offender stipulation. See State v. DeLong, No. 18-0588, 2019 WL 2144638, at *4–

5 (Iowa Ct. App. May 15, 2019). After resentencing, DeLong challenged the causal

connection between the offenses and the $2740.95 in restitution ordered for the

crime victim compensation program (CVCP). See State v. DeLong, No. 18-1763,

2019 WL 5792670, at *1 (Iowa Ct. App. Nov. 6, 2019). We found substantial

support for the restitution order and affirmed. Id. at *2. But the supreme court

vacated our decision and remanded the case to the district court to enter restitution

for the CVCP in the reduced amount of $285.50. See State v. DeLong, ____

N.W.2d ____, ____, 2020 WL 2600966, at *7_(Iowa 2020).

       In this new appeal, DeLong contends the sentencing court failed to

determine his ability to pay restitution amounts “without hardship” under State v.

Albright, 925 N.W.2d 144, 161 (Iowa 2019) (explaining section 910.2(1) sets out

two categories of restitution, the second category being subject to a reasonable-

ability-to-pay analysis). The sentencing court considered reimbursement claims
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from the CVCP for $2740.95 and for court-appointed attorney fees in the amount

of $7395.50—both category-two restitution items.1 The court found DeLong had

the reasonable ability to pay $11,242.35 in restitution and entered judgment.2 After

the supreme court’s remand in DeLong, ___ N.W.2d at ___, 2020 WL 2600966, at

*7, the total amount will now be $7681.

       DeLong argues the district court failed to consider his limited financial

resources—particularly that he is indigent and incarcerated without income. He

also complains the court did not factor in his future financial obligations.

       II.    Scope and Standards of Review

       Generally, we review restitution orders for correction of legal error. State v.

Klawonn, 688 N.W.2d 271, 274 (Iowa 2004). That review involves determining

whether the district court has properly applied the law or whether substantial

evidence supports its findings. See Albright, 925 N.W.2d at 158. But our supreme

court has applied an abuse-of-discretion standard to review a district court’s

reasonable-ability-to-pay determination. See State v. Kaelin, 362 N.W.2d 526, 528

(Iowa 1985) (“[A] defendant who seeks to upset an order for restitution for [court

costs and attorney fees] ‘has the burden to demonstrate a failure of the trial court

to exercise discretion or abuse of discretion.’” (citation omitted)); see also State v.

Van Hoff, 415 N.W.2d 647, 649 (Iowa 1987) (holding refusal to reduce restitution

amount was not an abuse of discretion).


1 The district court declined to order DeLong to pay correctional fees under Iowa
Code section 356.7.
2 DeLong only contests his ability to pay the amount ordered for the CVCP and

court-appointed counsel claims. He does not challenge the remaining $1105.90
in costs assessed, which included a court reporter fee of $320, service and
transportation costs of $235.90, and court costs of $550.
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       III.   Analysis

       A sentencing court may order restitution for the CVCP and court-appointed

attorney fees only if the offender is reasonably able to make those

reimbursements. See Iowa Code § 910.2(1). The reasonable ability to pay means

the offender has the wherewithal to assume that obligation without undue financial

hardship. See Albright, 925 N.W.2d at 161. In fleshing out that hardship standard,

the Albright court collected cases from other jurisdictions and endorsed factors

considered by those courts. Id. at 161–62. For example, our supreme court

embraced this Massachusetts holding:

       [T]he judge must consider the financial resources of the defendant,
       including income and net assets, and the defendant’s financial
       obligations, including the amount necessary to meet minimum basic
       human needs such as food, shelter, and clothing for the defendant
       and his or her dependents.

Id. at 161 (citing Commonwealth v. Henry, 55 N.E.3d 943, 953–54 (Mass. 2016)).

Albright also borrowed from the Florida criminal code, “in determining ability to pay,

the court must consider the financial resources of the defendant, the present and

potential future financial needs and earning ability of the defendant and his or her

dependents, and other factors as the court deems appropriate.” Id. at 162 (citing

favorably Fla. Stat. Ann. § 775.089(6)).

       With those factors in mind, we assess DeLong’s argument that the

sentencing court “failed to adequately take into account [his] financial resources,

including his ability to meet his basic needs and those of any dependents, as is

required by Albright.” Without doubt, those requirements were at the forefront of

the sentencing court’s thinking. In opening the hearing, the court acknowledged

that
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       for everyone involved, this is a new and developing area of the law.
       And every person involved in the court system is working diligently
       to understand how to implement these new requirements under the
       Albright decision to fairly determine a defendant’s reasonable ability
       to pay and to do it in a proper way.

       After the court’s acknowledgment, defense counsel mentioned DeLong’s

indigency, his lack of income, and his poor job prospects considering the habitual-

offender and sex-offender enhancements. The presentence-investigation report

(PSI) listed DeLong’s income sources, assets, and debts.3 DeLong told the PSI

investigator he owned his own company, Leak Proof Exteriors, since 2007. His

annual take-home income from the business was as high as $40,000. He had

assets related to his work valued at more than $30,000. He also had a home

mortgage and vehicle loan. The PSI also conveyed DeLong had a teenaged

daughter but she was in her mother’s custody. When the court afforded DeLong

his right to allocution, he did not discuss his finances or his ability to pay restitution.

       After listening to the parties’ arguments, the court explained its reasonable-

ability-to-pay determination. The court started by noting DeLong was forty-five

years old and had been incarcerated for nearly two years, meaning “he has the

prospect of being released from custody at still a relatively early age, in the scheme

of one entire life span, that will afford him an opportunity over time to pay the

amounts that are being taxed against him by the court.”                  The court also

emphasized he had “no known disabilities physically or mentally . . . that would

prevent him from being employed.”



3At the resentencing, the court asked DeLong if he had any objection to the court
not requesting a new, up-to-date PSI. The existing PSI is from roughly eighteen
months before the resentencing hearing. DeLong’s counsel did not object.
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       The court identified “the biggest barriers” to DeLong’s future employment

as his felony conviction and “special” sentence. Because of those barriers, the

court “elected not to charge [him] with the correctional fees that the county asked

for.” On the other hand, the court found that DeLong could make payment “over

time” on the CVCP reimbursement and the court-appointed attorney fees. The

court noted no fines and only one surcharge was taxed against him. The court

specifically stated it was considering the “hardships” DeLong faced upon release

from prison. “The court has taken that into consideration and reduced partially the

amounts that you shall pay in this matter.”

       In the written order memorializing the on-the-record sentencing, the court

stated that it considered these factors:

       the nature or length of the sentence imposed; the defendant’s
       application for court-appointed counsel, including the financial
       resources of the defendant including income and assets; the fines,
       surcharges, penalties, and victim restitution already assessed; the
       defendant’s earning capacity; the defendant’s dependents; the
       defendant’s basic human needs; the hardship to the defendant or
       defendant’s family; and any other factor relevant to this
       determination. The court considers the defendant’s present and
       future ability to pay over the life of the obligation and a determination
       not based merely on chance. Further, the court has considered
       education, marketable job skills, potential and proven business skills,
       value of existing assets as well as the defendant’s ingenuity and
       capabilities as well as any other information provided by the parties.

The court then ordered DeLong to reimburse the CVCP and repay his court-

appointed attorney fees.

       Contrary to DeLong’s contention, the district court appropriately weighed

the factors highlighted in Albright. The court’s on-the-record statement and further

notations in the written sentencing order provide a sound basis for its restitution

decision. The court considered DeLong’s age, the short timeline of his release
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from prison, and the suspension of his other fines. While DeLong had been found

indigent, that alone does not require reversal of the restitution order. See State v.

Richmond, No. 18-0046, 2018 WL 4361031, at *3 (Iowa Ct. App. Sept. 12, 2018)

(citing Kaelin, 362 N.W.2d at 528). The PSI showed DeLong had assets and

reported steady income before his incarceration. And DeLong reported having no

dependents to support. As for future financial obligations, the PSI contained a

record of DeLong’s debts in the form of a mortgage and car loans.

       And DeLong produced no evidence payment of the restitution would cause

him undue hardship.4 He did not assert any future debt obligations, disability, or

inability to earn income beyond the consequences of his convictions. The court

recognized those barriers and reduced DeLong’s restitution in response. Thus,

DeLong’s complaint the court failed to consider his future financial obligations is

unfounded. After reviewing its reasoning, we find the sentencing court followed

Albright in determining DeLong’s reasonable ability to pay these restitution

amounts. We decline to disturb the restitution order.

       AFFIRMED.




4 Granted, the parties did not have the benefit of the supreme court’s decision in
DeLong, ___ N.W.2d at ___, 2020 WL 2600966, at *7, when briefing this
reasonable-ability-to-pay issue. Yet the supreme court’s reduction of the amount
of restitution owed would create an even higher bar for DeLong to show repayment
would pose a hardship for him.
