                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0982
                            Filed September 13, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAUNTE DOMINIQUE BULLOCK,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, William L.

Dowell (judgment) and Mary Ann Brown (amended judgment), Judges.



      Daunte Dominique Bullock appeals from an order entered on his motion to

correct illegal sentences. APPEAL DISMISSED.




      Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., McDonald, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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DANILSON, Chief Judge.

       Daunte Dominique Bullock appeals from a district court order entered on

his motion to correct illegal sentences. The supreme court granted his motion for

delayed appeal and transferred the case to this court.        Bullock contends the

district court erred in assessing him court costs and attorney fees without making

a determination of his reasonable ability to pay and argues any delay in raising

the issue is attributable to ineffective assistance of counsel. This claim must first

be made to the district court. We dismiss the appeal.

       In 2003, Bullock was convicted of first-degree kidnapping for an offense

committed in 1999 when Bullock was sixteen years old.1 He was sentenced to

life without the possibility of parole on the kidnapping conviction. Bullock was

sentenced to two consecutive prison terms not to exceed twenty-five years on

the burglary and sexual-abuse convictions, with a mandatory minimum on the

sexual-abuse charge.

       Bullock’s kidnapping conviction was affirmed on direct appeal. See State

v. Bullock, No. 03-1444, 2004 WL 2173339, at *1 (Iowa Ct. App. Sept. 29, 2004).

In 2011, based on Graham v. Florida, 560 U.S. 48, 74-75 (2010), and Bonilla v.

State, 791 N.W.2d 697, 701 (Iowa 2010), Bullock was resentenced to life with the

possibility of parole. Provisions of his sentence regarding restitution were left

undisturbed.




1
  Bullock had been convicted previously of first-degree burglary and second-degree
sexual abuse in 2000 for additional offenses committed in 1999. See State v. Bullock,
No. 15-0077, 2016 WL 1130311, at *4 n.3 (Iowa Ct. App. Mar. 23, 2016) (further review
denied July 28, 2016).
                                             3


         In 2014, Bullock filed a motion to correct illegal sentence, seeking

resentencing with no mandatory minimum based on State v. Lyle, 854 N.W.2d

378, 381 (Iowa 2014) (holding “juvenile offenders cannot be mandatorily

sentenced under a mandatory minimum sentencing scheme”). The district court

conducted a resentencing hearing on the motion, heard evidence, and ultimately

entered an “order reaffirming previous sentence” after engaging in the analysis

required by Lyle.2 Bullock’s appeal of the resentencing on the sexual-abuse and

burglary charges was decided by this court on March 23, 2016. See State v.

Bullock, 2016 WL 1130311, at *4.                 There, our court stated: “To the

extent Bullock claims he does not have the reasonable ability to pay the

restitution ordered in 2002, he can petition the district court for a hearing to

review the plan of restitution or the restitution plan of payment pursuant to Iowa

Code section 910.7.” Id.

         Bullock was allowed a delayed appeal in this case regarding his

kidnapping conviction due to counsel’s failure to file a timely notice of appeal

despite Bullock’s timely request.

         On appeal, Bullock does not challenge district court’s order resentencing

him to life in prison with possibility of parole.          Rather, he challenges the

restitution portions of his sentence previously entered, which were left

undisturbed in both the 2011 and 2014 resentencing proceedings. He contends


2
    At the resentencing hearing, the court stated:
                 So the sentences in these cases will be—first of all, in
          FECR001942, the sentence will remain as it was previously imposed
          [consecutive terms of imprisonment], except I will lift any minimum
          sentence to be served before you’re eligible for parole, and the sentence
          in FECR002831, the life sentence, will remain as previously entered in
          the resentencing in 2011.
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court costs and mandatory attorney fees were assessed to him “without the

constitutionally mandated determination of his reasonable ability to pay.” Bullock

asserts, “This matter should be reversed and remanded for a hearing to

determine Bullock’s reasonable ability to pay the obligations in question.”

       The State responds in part by contesting Bullock’s right to raise this issue

here. The State argues Bullock may only challenge the district court’s order

reaffirming the prior sentence through certiorari or discretionary review.       See

State v. Propps, 897 N.W.2d 91, 97 (Iowa 2017) (noting there is no right to

appeal a denial of a motion to correct illegal sentence and that “appeals from a

motion to correct an illegal sentence are most appropriately fashioned” as a

petition for writ of certiorari). The State further argues that because Bullock is not

challenging the substance of the 2014 order but is rather disputing the amount of

restitution—an issue unaddressed in the district court’s 2014 order—“[t]he proper

mechanism to contest the amount of restitution is a motion pursuant to section

910.7.”

       We disagree slightly with the State’s characterization of Bullock’s request

to this court.   Bullock is not directly challenging the amount of the restitution

ordered. Rather, he is asserting there has been no hearing or finding of “his

reasonable ability to pay the obligations emanating from his conviction.” Bullock

correctly asserts that a finding of an ability to pay is “constitutionally mandated”;

however, this does not automatically bring his claim within the ambit of an illegal

sentence.

       This court has previously stated:
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                 Regardless of a defendant’s ability to pay, the sentencing
         court must order restitution to crime victims and to the clerk of court
         for fines, penalties, and surcharges. Iowa Code § 910.2(1); see
         also State v. Wagner, 484 N.W.2d 212, 215–16 (Iowa Ct. App.
         1992). But ordering court costs and court-appointed attorney fees
         is subject to the defendant’s reasonable ability to pay. Iowa Code
         § 910.2(1); see also State v. Kaelin, 362 N.W.2d 526, 528 (Iowa
         1985). A defendant’s reasonable ability to pay is a “constitutional
         prerequisite” for restitution orders under section 910.2. State v.
         Van Hoff, 415 N.W.2d 647, 648 (Iowa 1987). “A determination of
         reasonableness, especially in a case of long-term incarceration, is
         more appropriately based on the inmate’s ability to pay the current
         installments than his ability to ultimately pay the total amount due.”
         Id. at 649.

State v. Campbell, No. 15-1181, 2016 WL 4543763, at *3 (Iowa Ct. App. Aug. 31,

2016).

         The distinction is relevant because:

         The amount of restitution is part of the sentencing order and is
         therefore directly appealable, as are all orders incorporated in the
         sentence. [State v.] Janz, 358 N.W.2d [547,] 549 [(Iowa 1984)].
         The ability to pay is an issue apart from the amount of restitution
         and is therefore not an “order[] incorporated in the sentence” and is
         therefore not directly appealable as such.

Jose v. State, 636 N.W.2d 38, 45 (Iowa 2001) (final alteration in original).3

         As noted in State v. Jenkins, 788 N.W.2d 640, 644 (Iowa 2010),

                In connection with restitution orders, a criminal defendant
         may challenge restitution at the time of sentencing and may file a
         timely appeal in the criminal case of any restitution order. State v.
         Blank, 570 N.W.2d 924, 925-26 (Iowa 1997). In addition, “[a]t any

3
 In Jose, the court also stated:
       Janz instructs that a defendant challenging a restitution order entered as
       part of the original sentence has two options: to file a petition in district
       court under section 910.7, or to file a direct appeal. To be considered an
       extension of the criminal proceedings, however, the defendant’s petition
       under section 910.7 must be filed within thirty days from the entry of the
       challenged order. Failing that, or a timely appeal [under Janz], a later
       action under section 910.7 would still provide an avenue for relief. But
       the action would be civil, not criminal, in nature.
636 N.W.2d at 47 (alteration in original) (citation omitted).
                                         6


       time during the period of probation, parole, or incarceration, the
       offender . . . may petition the court on any matter related to the plan
       of restitution or restitution plan of payment.” Iowa Code § 910.7(1).
       A petitioner seeking to challenge a restitution award outside of a
       criminal appeal, however, is not automatically entitled to a hearing,
       but is granted a hearing only if the district court determines, based
       on the petition, that a hearing is warranted. Blank, 570 N.W.2d at
       927; State v. Alspach, 554 N.W.2d 882, 883-84 (Iowa 1996). If the
       district court determines that a hearing should be held, the court
       has authority to modify the plan of restitution, the plan of payment,
       or both. Iowa Code § 910.7(2).

(Alteration in original); accord State v. Wolcott, No. 2012 WL 1439510, at *2-3

(Iowa Ct. App. Apr. 25, 2012) (discussing the litigation “spawned” by the timing of

a defendant’s challenge to a restitution order and the right to court-appointed

counsel).

       The judgment entered on the kidnapping conviction on August 15, 2003,

provides in part:

       3. The Defendant shall pay the following:
              (a) Court costs in the sum of $424.42. . . .
              (b) Restitution for court-appointed attorney fees to be
       determined and set pursuant to section 815.9, Code of Iowa.
              (c) Restitution for this crime in an amount to be determined
       at a later date after a statement of pecuniary damages is filed in
       this matter by the State of Iowa within thirty (30) days of this Order,
       and a hearing is subsequently scheduled, if necessary.

(Emphasis added.)

       A statement of pecuniary damages in the sum of $100 for the Crime

Victim Assistance Program was filed on August 20, 2003. Notice of appeal was

filed on September 2, 2003. Restitution plans and amendments that included

court-appointed attorney fees were subsequently filed.

       This case is akin to Wolcott, where we stated:

             In Wolcott’s case, he filed his notice of appeal prior to the
       supplemental order establishing the amount of restitution. He could
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      have filed a petition under section 910.7 in the district court within
      thirty days of the supplemental order, and it would have been
      considered an extension of his criminal proceedings. [See State v.]
      Dudley, 766 N.W.2d [606,] 619 n.5; Jose, 636 N.W.2d at 47; Blank,
      570 N.W.2d at 926. He did not do so. Under these circumstances,
      we do not believe a remand is mandated.

2012 WL 1439510, at *4. Moreover, the December 2014 order only provided

that the previous orders concerning restitution were reaffirmed without

consideration of the issue Bullock now raises.       We dismiss this appeal as

improvidently granted.

      APPEAL DISMISSED.
