                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1312
                               Filed May 2, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARC CHRISTOPHER PLETTENBERG,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, Kim M. Riley,

District Associate Judge.




      Marc Plettenberg appeals the restitution order entered following his guilty

pleas to four offenses. AFFIRMED.




      Richard Hollis, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.




      Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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DOYLE, Presiding Judge.

         In this appeal Marc Plettenberg challenges the restitution order entered

after he pled guilty to several crimes. Upon our review, we affirm the restitution

order.

         I. Background Facts and Proceedings.

         Today we also file our opinion in State v. Plettenberg, No. 17-0624, 2018

WL ______ (Iowa Ct. App. May 2, 2018), an appeal involving the same underlying

facts that gave rise to issues in dispute here. Because the relevant facts are fully

set forth in that case, we do not repeat them here, except to explain the posture of

this appeal.    Ultimately, after pleading guilty to four crimes, the district court

adjudged Plettenberg guilty of the crimes and sentenced him.                  Plettenberg

appealed, challenging various matters, all addressed in Plettenberg, No. 17-0624,

2018 WL ______, at *___.

         After his appeal was filed, the county jail filed a claim seeking

reimbursement from Plettenberg for room, board, and medical expenses it claimed

Plettenberg incurred in spending 397 days in its jail.1 The total claim amount was

$12,224.45. The case number on the claim form included FECR088617, along

with two other cases, FECR088508 and FECR086357.                     Plettenberg filed a

resistance to the jail’s claim for reimbursement, asserting that “[b]y filing [the jail’s

reimbursement claim], the State (although NOT the individual prosecutor

personally) has breached the plea agreement.” He pointed out that, in his guilty




1
  The claim form was signed by Plettenberg and the jailer on April 10, 2017, the day
Plettenberg was released from jail. His first notice of appeal was filed that day. The claim
form was filed with the district court on June 5, 2017.
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pleas for the three lesser-included crimes, there were no references “to restitution

more generally or the repayment of costs of incarceration” at the jail. Plettenberg

acknowledged that his guilty plea for the escape charge made reference to

payment of “court-appointed attorney fees and restitution,” but he argued

“restitution” as used in the plea “should not be interpreted as restitution in general,

but only as repayment for expenses associated with legal representation.”

       The court scheduled a July 2017 hearing “on the issue of his reasonable

ability to pay costs assessed in this case.” At the hearing, Plettenberg’s counsel

noted that in addition to Plettenberg’s inability to pay the assessed costs and fees,

“the plea agreement [did] not requir[e] or specify[] payment for the stay in jail,” and

counsel asked “the court to consider . . . whether or not the restitution should be

due and owing at all.” No further discussion of that issue on the record was held.

On July 20, 2017, the court entered an order approving the jail’s room and board

reimbursement claim pursuant to Iowa Code sections 356.7 and 910.2 (2017). The

court noted the claim total included FECR088617 and another case. The next day,

the court entered its order denying Plettenberg’s resistance to the restitution

orders, finding the correctional-fee reimbursement was considered a court cost

and finding “no merit in [Plettenberg’s] assertion that he was not informed of his

obligation to pay court costs, which include[d] correctional fees.” The court also

found Plettenberg was able to pay the restitution. On August 18, 2017, Plettenberg

filed a notice of appeal, specifically appealing the “‘Order Approving Room and

Board’ filed on July 20, 2017 . . . and . . . the ‘Ruling on Restitution’ filed on July

21, 2017.”
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         II. Scope and Standards of Review.

         We review challenges to both guilty pleas and restitution orders for

correction of errors at law. See State v. Weitzel, 905 N.W.2d 397, 401 (Iowa 2017);

State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016); State v. Dubois, 888 N.W.2d

52, 53 (Iowa 2016). We review constitutional claims, such as claims of ineffective

assistance of counsel, de novo. See State v. Virgil, 895 N.W.2d 873, 879 (Iowa

2017).

         III. Discussion.

         In this appeal, Plettenberg argues the district court erred in concluding that

he is “reasonably able to pay” the restitution ordered “and by consequently

imposing the amount of restitution in the amount of $14,585.92 and giving

Plettenberg the option of performing community service instead.” He also asserts

the restitution request by the State constituted a breach of the parties’ plea

agreements, and he maintains his trial counsel rendered ineffective assistance for

not objecting to the breach. Finally, he contends the imposition of restitution was

improper because the district court failed to comply with Iowa Rule of Criminal

Procedure 2.8 and related case law.

         A. Plettenberg’s Ability to Pay.

         “[I]mposition of restitution is mandatory under Iowa law”; specifically, “Iowa

Code section 910.2 states, in relevant part, ‘In all criminal cases in which there is

a . . . verdict of guilty, . . . the sentencing court shall order that restitution be made

by each offender . . . .” State v. Jenkins, 788 N.W.2d 640, 644 (Iowa 2010); see

also Iowa Code § 910.2. “The amount of restitution is part of the sentencing order

and is therefore directly appealable, as are all orders incorporated in the sentence.”
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State v. Jose, 636 N.W.2d 38, 45 (Iowa 2001). Thus, an offender has the general

right to challenge the causal connection of the restitution ordered and the amount

of the restitution awarded “at the time of sentencing and may file a timely appeal

in the criminal case of any restitution order.” See Jenkins, 788 N.W.2d at 644.

Likewise, an offender can challenge his or her ability to pay the amount of

restitution ordered, see Jose, 636 N.W.2d at 45, since the offender’s “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). However, unlike direct causal-connection or amount-of-restitution

challenges, “ability-to-pay challenges to restitution are premature until the

defendant has exhausted the modification remedy afforded by Iowa Code section

910.7.” State v. Richardson, 890 N.W.2d 609, 626 (Iowa 2017) (citing State v.

Jackson, 601 N.W.2d 354, 357 (Iowa 1999)).

       Here, Plettenberg was given a hearing and allowed to challenge the

restitution order, satisfying due process to dispute the restitution awarded. See

Jenkins, 788 N.W.2d at 644. Thereafter, the district court entered an order for the

undisputed amount of restitution stating: “Upon his release from custody,

[Plettenberg] may make arrangements for a payment plan or wage withholding,”

or alternatively, “in lieu of paying that sum, perform 2012 hours of community

service for a public or private non-profit agency or organization upon his release.”

Consequently, though the district court listed numerous reasons it found

Plettenberg could reasonably pay the restitution it ordered, the issue of his ability

to pay was not yet fully resolved, as the record does not include an actual

restitution plan of payment. Because no final plan of payment has been entered,
                                           6

the matter is not ripe for our review, and we do not consider it further. See State

v. Johnson, 887 N.W.2d 178, 183-84 (Iowa Ct. App. 2016) (holding that issue of

ability to pay is directly appealable if the plan of restitution and the restitution plan

of payment are part of the sentencing order).

       B. Breach of Plea Agreements.

       Plettenberg next argues: “The State’s request for restitution for jail

expenses (including medical expenses) was improper because it was a breach of

the plea agreement and defense counsel was ineffective for failing to object to this

breach.” We believe this is an improper backdoor attempt to collaterally attack the

guilty plea. Furthermore, the district court did not specifically rule on the issue. In

order to preserve error, an issue must be both raised and decided by the district

court. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). In any event, the

issue fails on its merits for the same reasons stated in Plettenberg, No. 17-0624,

2018 WL ______, at *___.

       C. Failure to Comply with Iowa Rule of Criminal Procedure 2.8.

       Finally, Plettenberg argues that, should we find no breach of his plea

agreements, the pleas are otherwise invalid because the district court failed to

comply with the requirements set forth in rule 2.8(2) to accept a plea agreement.

As in his other appeal, he contends this alleged failure renders his sentence illegal,

freeing him from the necessity of preserving the error for our review. Again, we

believe this is an improper backdoor attempt to collaterally attack the guilty plea.

In any event, the issue fails for the same reasons stated in State v. Plettenberg,

No. 17-0624, 2018 WL ______, at *___. Moreover, a rule 2.8(2)(b) procedural
                                         7

violation does not constitute an illegal sentence. Lopez-Penaloza v. State, 804

N.W.2d 537, 541-42 (Iowa Ct. App. 2011).

       IV. Conclusion.

       Upon our review, we find the matter of whether Plettenberg had the ability

to pay the ordered restitution is not ripe for appeal. We reject Plettenberg’s other

argument. Accordingly, we affirm the district court’s restitution order.

       AFFIRMED.
