                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0074
                               Filed April 1, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SHAWNETTE CARMALE COURTS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Woodbury County, John C. Nelson,

District Associate Judge.



      The defendant appeals from her conviction for operating while intoxicated,

second offense, and challenges the restitution order. CONVICTION AFFIRMED;

SENTENCE VACATED IN PART AND REMANDED.



      Martha J. Lucey, State Appellate Defender, and Theresa R. Wilson,

Assistant Appellate Defender, for appellant.

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

General, for appellee.



      Considered by Bower, C.J., and May and Greer, JJ.
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GREER, Judge.

         Shawnette Courts appeals her conviction and sentence for operating while

intoxicated, second offense, following a bench trial on the stipulated evidence.

Courts maintains the district court abused its discretion in finding there was not

good cause to extend the deadline to allow her to file a motion to suppress more

than seventy-five days after the deadline and argues the court’s order of restitution

violates the procedure outlined in State v. Albright, 925 N.W.2d 144, 162 (Iowa

2019).

         I. Background Facts and Proceedings.

         On December 12, 2017, a police officer stopped the vehicle Courts was

driving. The officer testified he stopped Courts after witnessing her failure to stop

at a stop sign. After observing Courts, the officer believed she was driving under

the influence of alcohol and placed her under arrest.

         This police intervention led to a charge against Courts of operating while

intoxicated, second offense, and she was arraigned on December 22. An attorney

filed an appearance on Courts’s behalf the same day.

         On April 19, 2018, nearly 120 days after she was arraigned, Courts filed a

motion asking the court “for leave to file motions and notices beyond the time limits

set forth in the Iowa Rules of Criminal Procedure.” Courts, through her attorney,

stated she just recently reviewed tapes that showed there may have been a

possible issue with the stop of the car. She alleged, “Specifically, the video of the

stop seems to show the car the defendant is operating comes to a complete stop

at the stop sign.” On the same day, Courts moved to suppress, asserting that the

stop of her vehicle violated her constitutional rights. The State resisted Courts’s
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motion to extend deadlines and asked the court to dismiss Courts’s untimely

motion to suppress.

       The court set the motion to extend deadlines for hearing. Defense counsel

was present at the hearing, but Courts was not. The court learned that defense

counsel did not have contact with Courts until March 9. Twenty days later, on

March 29, defense counsel requested the videos from the State. Defense counsel

received the videos on April 12 and reviewed them about one week later.

       In its written ruling, the district court denied the motion to extend, stating:

       The motion to extend and motion to suppress were both filed
       approximately [75][1] days after the 40 day deadline for the same had
       elapsed. Defense counsel did move quickly once she had the
       videos. In the best of all worlds, [defense counsel] would have
       requested the videos much earlier in the chronology of this case
       and/or file[d] a timely motion to extend the deadlines.
               The court finds good cause does not exist to allow the motion
       to extend. Defense counsel could have and should have requested
       the videos much sooner, regardless of the level of contact with the
       client. Additionally, the formal charging documents do indicate the
       reason for the stop that led to the filing of criminal charges herein.

A couple of months later, the defense attorney moved to withdraw as Courts’s

attorney. On July 3, the court held a hearing on the motion. Courts joined the

attorney’s motion to withdraw. Over the State’s resistance, the court granted the

motion and appointed Courts new counsel.

       In November, Courts’s new counsel moved to extend deadlines, arguing:


1 The district court found they were filed “approximately 45 days” after the deadline.
This appears to be a scrivener’s error, as nearly 120 days elapsed between
Courts’s arraignment and the filing of the motions, so the motions were actually
filed around seventy-five days after the deadline. See Iowa Rs. Crim. P. 2.11(4)
(“Motions hereunder, except motions in limine, shall be filed when the grounds
therefor reasonably appear but no later than 40 days after arraignment.”);
2.11(2)(c) (requiring “[m]otions to suppress evidence on the ground it was illegally
obtained” to be raised before trial).
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       New counsel was appointed outside the timelines. The issue
       becomes, does the new court appointed attorney come into the case
       with their hands tied because of being outside the timelines and the
       Court[’]s previous denial of the request to extend those timelines.

The court denied the motion, ruling, “The issue has already been litigated. The

circumstances have not changed since the court previously denied an extension.

The current request is also untimely.”

       Courts then waived her right to a jury trial. Following a bench trial on the

stipulated evidence, the court convicted Courts of operation while intoxicated,

second offense. She was later sentenced to jail for a period of 365 days, with 358

days suspended.

       Courts appeals.

       II. Discussion.

       A. Motion to Extend. Iowa Rule of Criminal Procedure 2.11(4) required

Courts to file her motion to suppress within forty days of her arraignment. See

State v. Ortiz, 766 N.W.2d 244, 250 (Iowa 2009). “If a defendant fails to file the

motion within that time, the objection is waived. However, if the court finds good

cause for the late filing, the court can excuse the untimeliness.” Id. (citation

omitted). Here the filing of the April 19, 2018 motion to suppress came almost 120

days after Courts’s December 22, 2017 arraignment.

       To avoid the ramifications of the delay, Courts contends the district court

abused its discretion in denying her motion to extend the deadline to file her motion

to suppress, arguing she established good cause for the extension. To support

the extension, she argues her first trial counsel’s failure to diligently investigate the

case and make a timely request for the video from the squad car established good
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cause.2 “We review the district court’s good cause determination regarding the

timeliness of a motion to suppress for an abuse of discretion.” State v. Ruhs, 885

N.W.2d 822, 825 (Iowa Ct. App. 2016) (citation omitted).

       The bottom line is that the untimely motion to suppress was based on what

the video of the stop purported to show—that Courts had, in fact, made a complete

stop at the stop sign. But neither counsel nor Courts offered a cogent explanation

why the video of the stop was not sought or reviewed sooner. Courts did not meet

with her attorney for the first time until March 9, by which time the deadline for the

motion to suppress had long passed. Not until after this first meeting did counsel

request the video from the State. Still, the minutes of testimony provided the

officer’s explanation for initiating the stop of Courts’s vehicle, so, even without

meeting Courts, counsel had notice of possible suppression issues.             Neither

Courts’s initial failure to take an interest in her own defense nor defense counsel’s


2 At times in her appellate brief, Courts refers to her first attorney’s lack of action
as a breach of duty. We recognize that a trial counsel’s failure to timely file a
motion to suppress that the court should have granted is cause for a claim of
ineffective assistance and would ultimately result in a reversal of a verdict. See
State v. Rhiner, 352 N.W.2d 258, 261 (Iowa 1984). And we note Courts is not
prohibited from bringing an ineffective-assistance-of-counsel claim on direct
appeal by the amended Iowa Code section 814.7 (2019), as the judgment and
sentence here were filed on January 4, 2019. See State v. Macke, 933 N.W.2d
226, 228 (Iowa 2019) (“On our review, we hold Iowa Code sections 814.6 and
814.7, as amended, do not apply to a direct appeal from a judgment and sentence
entered before July 1, 2019.”). But she does not raise a claim of ineffective
assistance. And, even if she did, we would have to preserve the claim, as the
record before us is inadequate for our review. See State v. Carroll, 767 N.W.2d
638, 646 (Iowa 2009). Courts’s theory seems to be that counsel breached a duty
by failing to file a timely motion to suppress and that Courts was prejudiced
because the motion to suppress would have been successful. But this theory
requires proof that the police video establishes Courts stopped at the stop sign—
depriving the officer of probable cause to initiate the stop. Yet the video was never
admitted into the record, so we cannot review it to determine the merits of Courts’s
claim.
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failure to investigate the case constitute “good cause” for missing the filing deadline

by approximately seventy-five days. See State v. Hollie, 854 N.W.2d 695, 697

(Iowa Ct. App. 2013) (affirming district court ruling defendant had not establish

good cause where the motion to suppress was filed twenty-nine days after the

deadline and the basis for the delay was “counsel’s tardiness in realizing the

viability of the suppression issue alleged in its motion” in spite of having full access

to all discoverable evidence).

       Courts’s case is distinguishable from that of Ortiz. 766 N.W.2d at 250.

There, the defendant filed a letter with the court complaining that his counsel failed

to take any action on the case. Id. In response to the defendant’s complaint, the

court removed defendant’s counsel and appointed new counsel. Id. “Shortly after

[the defendant’s] last counsel filed her appearance, she diligently explored the

possibility of filing such a motion” and then did so. Id. In contrast, Courts did not

appear to be involved in her own defense. She did not attend a pretrial conference

in January 2018, so her attorney had to request a continuance. It was Courts’s

attorney who filed the motion to withdraw from representation alleging a

breakdown of the attorney-client relationship. And at the hearing on the matter,

the attorney informed the court she believed it was the appropriate action to take

in response to the court’s order stating she was not diligent in investigating the

case. Once the court asked Courts, she joined the motion to withdraw. Yet after

Courts’s initial counsel was removed and new counsel was appointed, new

counsel waited more than four months for requesting a new extension of deadlines

to file a motion to suppress.
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       The district court did not abuse its discretion in refusing to find good cause

for delay some seventy-five days after the deadline for a motion to suppress had

passed.

       B. Restitution. Courts maintains the district court erred in ordering her to

repay correctional fees and court costs when the amounts were still unknown. “We

review restitution orders for correction of errors at law.” Albright, 925 N.W.2d at

158.

       There are two categories of restitution. Id. at 159. The district court orders

category-one restitution without regard to a defendant’s ability to pay. See id. But

the district court must determine a defendant’s ability to pay any form of category-

two restitution before ordering a defendant to pay it. Id. Court costs, including

correctional fees approved under Iowa Code section 356.7, are a form of category-

two restitution, requiring the court to determine the defendant’s reasonable ability

to pay before ordering the defendant to pay this form of restitution. Iowa Code

§ 910.2(1); Albright, 925 N.W.2d at 159. At the time of Courts’s sentencing, the

sheriff had yet to file a claim for reimbursement.3 Without knowing the amount of

correctional fees or what procedure the sheriff would use to request those fees,

the district court included a blanket order that Court “shall make restitution . . . for


3 The sheriff is not required to seek fees as restitution under chapter 910 and may
instead choose to collect the fees as a civil judgment under chapter 626. See
generally State v. Gross, 935 N.W.2d 695 (Iowa 2019). If the sheriff seeks to
collect fees under chapter 626, an ability-to-pay determination is not required. See
id. at 703 (“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. . . .
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.”).
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correctional fees.” Under Albright this provision cannot stand. See Albright, 925

N.W.2d at 162 (vacating the restitution order because “the court found [the

defendant] had the reasonable ability to pay and ordered restitution for items in the

second category of restitution without having the amount of each item of restitution

before it. This is contrary to the statutory scheme as outlined in this opinion.”).

       We vacate the portion of the sentencing order involving restitution for court

costs and correctional fees and remand to the district court for further proceedings

consistent with Albright.

       CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND

REMANDED.
