Amended March 21, 2017 State of Iowa v. Patrick John Letscher ( 2016 )

  •                IN THE SUPREME COURT OF IOWA
                                  No. 14–1851
                            Filed December 30, 2016
                            Amended March 21, 2017
          On review from the Iowa Court of Appeals.
          Appeal from the Iowa District Court for Winnebago County,
    Gregg R. Rosenbladt, Judge.
          Defendant seeks further review of a court of appeals decision
    affirming a sentence imposed by the district court that forfeited a $2000
    cash bail to pay the financial obligations imposed by the sentence.
          Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy,
    Assistant Appellate Defender, for appellant.
          Thomas J. Miller, Attorney General, Katherine M. Krickbaum (until
    withdrawal), then Thomas J. Ogden and Kevin Cmelik, Assistant
    Attorneys General, and Adam D. Sauer, County Attorney, for appellee.
          Alan R. Ostergren, Muscatine, for amicus curiae Iowa County
    Attorneys Association.
    CADY, Chief Justice.
          In this case, we consider whether a sentence in a criminal case
    may include a provision for the forfeiture of a pretrial bail bond in
    payment of the various financial obligations imposed as a part of the
    sentence. We conclude a sentencing court in Iowa is not authorized to
    impose forfeiture of bail. We vacate the decision of the court of appeals
    in part and affirm it in part. We affirm the sentence of the district court
    in part, reverse in part, and remand with directions.
          I. Factual Background and Proceedings.
          On August 28, 2013, the Forest City Police Department took
    Patrick Letscher and another person into custody and filed a complaint
    accusing them of stealing a pickup truck.       A magistrate set bail at
    $2000, cash only. Two days later, Letscher posted the bail with the clerk
    of court. He also signed a form entitled, “APPEARANCE BOND - WAIVER
    ostensibly provided to him by the clerk. The form contained preprinted
    text with several blank lines requesting information.    The blanks were
    completed and identified Letscher’s name, the offenses charged, the date
    and time of the preliminary hearing, and the amount of bail. The text
    included two set-off paragraphs with an underlined lead-in next to each.
    The paragraphs provided, “(Arresting officer to check the one that
                SIMPLE MISDEMEANOR – Upon my failure to appear
          and enter a plea to said charge, I hereby waive my rights to
          appear in Court, to have an attorney, to further move or
          plea, and to have a trial. On my failure to appear, I
          authorize the Court to enter a plea of guilty to the charge set
          out above and I understand that my bond will be forfeited in
          payment of fines, surcharges, costs and victim restitution in
          this matter and any other criminal judgment(s) against me in
          Winnebago County. The Surety whose name appears below
          agrees and consents to such payment.
                 OTHER – The bond is posted to insure my appearance
          in Court on said date and time and at all future court
          appearances until these matters are concluded and to
          comply with all future court orders. I UNDERSTAND THAT IF
          COURT SO ORDERS. I authorize the Clerk of Court to use
          this bail bond to pay all fines, surcharges, costs and victim
          restitution that I may be ordered to pay by the Court in the
          final judgment of this matter or any other criminal
          judgment(s) against me in Winnebago County.
    The paragraph marked “OTHER” was checked as the pertinent provision.
    The form then stated, “Posted by,” and contained a line for the
    defendant’s signature and address.        Letscher signed his name on this
    line. He was released from custody.
          Letscher was subsequently charged by trial information with the
    felony crimes of theft in the first degree and criminal mischief in the
    second degree.    The charges were later amended to include habitual
    felony offender enhancements.     In August of 2014, Letscher entered a
    written plea of guilty to the theft charge pursuant to a plea agreement.
    Under this agreement, the State promised to concur in the sentencing
    recommendation of the presentence investigator, dismiss the habitual
    felony offender enhancement, dismiss the criminal mischief charge, and
    dismiss all charges against the other person arrested with Letscher. The
    written plea identified, and the court reiterated, Letscher’s understanding
    of the maximum penalties, including a fine up to $10,000, ten years in
    custody, a thirty-five percent surcharge on the fine, court costs, and
    reimbursement of attorney fees.           The district court subsequently
    sentenced Letscher to a period of incarceration not to exceed ten years.
    It refused to suspend the period of incarceration and grant probation. It
    also imposed a fine of $1000, with a surcharge of thirty-five percent and
    an additional surcharge of $125, restitution in the amount of $398.74,
    and attorney fees in the amount of $240.            It suspended the fine and
    surcharge. Paragraph 6 of the sentencing order then provided,
                Appearance bond is forfeited and applied to
          Defendant’s obligations in this and other criminal matters in
          Winnebago County.          Bond in excess of Defendant’s
          obligations will be returned to the person in whose name it
          was posted. Remaining obligations shall be paid to the Clerk
          of Court in full by the date of this order.
    Letscher moved for reconsideration and requested he be sentenced to
    probation. The motion was denied, and Letscher appealed.
          On appeal, Letscher raised two claims of error. First, he claimed
    his request for probation was improperly denied because the district
    court utilized a fixed policy against granting probation to defendants with
    a prior criminal record.     Second, Letscher claimed the district court
    lacked authority to order forfeiture of the bail.
          We transferred the case to the court of appeals. It held the record
    at the sentencing hearing supported the conclusion that the district
    court imposed a sentence of incarceration based on the individual
    circumstances of the case, not a fixed policy. It further found that the
    authority of the district court to forfeit an appearance bond at sentencing
    was never at issue because the district court did not forfeit the bond.
    Instead, the court of appeals found the district court at sentencing
    effectively only directed the bond to be returned to Letscher subject to
    the agreed conditions.      A special concurrence found Letscher never
    objected to the conditions of the bond during the trial court proceedings
    and, therefore, failed to preserve error.
          Letscher sought, and we granted, further review. In doing so, we
    now affirm the decision of the court of appeals in part and vacate in part.
    We affirm the decision of the court of appeals on the issue pertaining to
    the denial of probation without further discussion and vacate the
    decision on the issue pertaining to the appearance bond. See State v.
    877 N.W.2d 421
    , 427 (Iowa 2016) (noting “our discretion to
    select the issues addressed on further review”). We affirm the judgment
    and sentence of the district court as modified by this decision. We strike
    provision 6 from the sentencing order and remand the case to the district
    court for further proceedings on the bond.
          II. Standard of Review.
          Review of sentencing decisions is for correction of errors at law.
    Iowa R. App. P. 6.607; State v. Formaro, 
    638 N.W.2d 720
    , 724 (Iowa
    2002). “We will not reverse the decision of the district court absent an
    abuse of discretion or some defect in the sentencing procedure.”
    Formaro, 638 N.W.2d at 724.      Absent a constitutional argument, “we
    review a district court’s decisions related to bail for an abuse of
    discretion.” See State v. Briggs, 
    666 N.W.2d 573
    , 575 (Iowa 2003). To
    the extent there is a constitutional argument, our review is de novo. See
          III. Preservation of Error.
          We first consider whether Letscher properly raised the issue of bail
    on appeal from the judgment and sentence entered by the district court.
    The State claims Letscher was required to raise any dispute before the
    district court for the court to address and review it in a proceeding
    separate from this criminal appeal.
          The State correctly observes that bail is normally a matter we
    address and review separate from the entry of a judgment and sentence.
    See Formaro, 638 N.W.2d at 727; State v. Costello, 
    489 N.W.2d 735
    , 738
    (Iowa 1992) (“[P]roceedings for forfeiture of bail and judgment therein are
    civil actions . . . .” (quoting State v. Zylstra, 
    263 N.W.2d 529
    , 531 (Iowa
    1978))). In this case, however, the district court made forfeiture of the
    pretrial appearance bond posted by Letscher into a term of the
    sentencing order.     As a term of sentence, Letscher was entitled to
    challenge it as any other term of sentence, and the challenge could
    properly include the authority of the court. See State v. Bruegger, 
    773 N.W.2d 862
    , 872 (Iowa 2009) (noting a claim of an illegal sentence “may
    be brought at any time”); see also State v. Louisell, 
    865 N.W.2d 590
    , 597
    (Iowa 2015) (noting “the well-established principle that sentences
    imposed without statutory authorization are illegal and void”).             A
    provision of a sentence becomes part of the sentence and may be
    challenged on appeal.    Formaro, 638 N.W.2d at 727. Our rule is that
    matters following the imposition of sentence are collateral and must be
    addressed separately.    Id.; see also State v. Alspach, 
    554 N.W.2d 882
    884 (Iowa 1996).
          The court of appeals majority viewed the sentencing provision as
    an order for exoneration of the bond following a disposition of the
    sentence. It concluded the sentencing court, in exonerating the bond,
    only followed the provisions of the bond form to which Letscher had
    agreed and that a special concurrence noted he failed to challenge during
    the course of the proceedings.     See Iowa Code § 811.2(7)(a)–(b) (2015)
    (authorizing motions and appeals of conditions of release on bail). The
    State asserts Letscher made forfeiture incidental and collateral to the
    central sentencing provisions by failing to challenge the bail conditions.
    See, e.g., Iowa State Bank & Trust Co. v. Michel, 
    683 N.W.2d 95
    , 110
    (Iowa 2004) (“Although the filing of a notice of appeal generally deprives
    the district court of jurisdiction, the court ‘retains jurisdiction to proceed
    as to issues collateral to and not affecting the subject matter of the
    appeal.’ ” (quoting Landals v. George A. Rolfes Co., 
    454 N.W.2d 891
    , 897
    (Iowa 1990))).     Yet, the district court did not allow the bail to be
    disbursed by the clerk of court collateral to sentencing so that Letscher
    would have had an opportunity to assert a challenge, but ordered
    forfeiture as a part of sentencing. A defendant is not required to object to
    a term of sentence to preserve error on appeal.      State v. Pearson, 
    876 N.W.2d 200
    , 205 (Iowa 2016) (“[A] defendant may challenge an ‘error[] in
    sentencing . . . on direct appeal even in the absence of an objection in the
    district court.’ ” (alteration in original) (quoting State v. Lathrop, 
    781 N.W.2d 288
    , 293 (Iowa 2010))).
          When the district court applied the forfeiture condition, it took
    action to forfeit a portion of the appearance bond to pay the various
    financial obligations of the sentence. Accordingly, it passed judgment on
    the legal consequences of the terms of bail, and this action permitted
    Letscher to properly challenge the authority of the district court to take
    such action as a part of the sentence. Cf. Alspach, 554 N.W.2d at 884
    (finding “challenges to restitution imposed as part of the original
    sentencing order, or supplemental orders,” are part of the criminal
    proceedings, as opposed to “a later action . . . to modify the plan or
    extend its completion date,” which are civil).       The issue raised by
    Letscher is properly before us on this appeal.
         IV. Authority of the District Court to Forfeit Bail as a Term of
          We now consider the authority of the district court to order the
    forfeiture of a pretrial appearance bond as a term of a sentence.       We
    begin with the general proposition that a sentence is illegal if it is not
    authorized by statute.     Louisell, 865 N.W.2d at 597.       No statutory
    sentencing provision exists in Iowa to authorize a court to forfeit bail.
    See Iowa Code ch. 901 (judgment and sentencing procedures); id.
    ch. 902 (felonies); id. ch. 905 (community-based correctional program);
    id. ch. 906 (parole and work release); id. ch. 909 (fines); id. ch. 910
    (restitution); id. ch. 911 (surcharge).                  Furthermore, the statutes
    governing a forfeiture of bail do not authorize forfeiture as a term of
    sentencing. See Iowa Code §§ 811.2, .6. Thus, forfeiture of bail has no
    support within the framework of our sentencing laws.
           We recognize forfeiture of bail to satisfy court-imposed obligations
    was a statutorily recognized procedure in Iowa throughout much of our
    history. See State v. Owens, 
    112 Iowa 403
    , 407–08, 
    84 N.W. 529
    , 530–
    31 (1900) (citing Iowa Code Ann. § 5527 (1897)); see also Iowa Code
    § 3235 (1851); State v. Schultz, 
    245 N.W.2d 316
    , 318 (Iowa 1976) (citing
    Iowa Code § 765.4 (1975)). As in many jurisdictions, as well as federal
    law, our legislature formerly authorized the disbursement of bail funds
    following convictions to pay court-imposed obligations such as fines,
    surcharges, costs, and restitution. 1 The Iowa statute provided,
           1See   28 U.S.C. § 2044 (2012) (“On motion of the United States attorney, the
    court shall order any money . . . deposited . . . with the court for the purposes of a
    criminal appearance bail bond . . . to be applied to the payment of any assessment, fine,
    restitution, or penalty imposed upon the defendant.”); Cal. Penal Code § 1297 (West,
    Westlaw current through 2016 Reg. Sess.) (“If the money remains on deposit at the time
    of a judgment for the payment of a fine, the clerk shall, under the direction of the court,
    if the defendant be the depositor, apply the money in satisfaction thereof . . . .”); Idaho
    Code Ann. § 19-2908 (West, Westlaw current through 2016 Second Reg. Sess.) (“When
    bail has been posted by cash deposit and remains on deposit at the time of the
    judgment, the clerk of the court shall, under the direction of the court, apply the money
    in satisfaction of fines, fees, costs and restitution . . . .”); 725 Ill. Comp. Stat. Ann.
    § 5/110-7(h) (West, Westlaw current through P.A. 99-906 of the 2016 Reg. Sess.) (“After
    a judgment for a fine and court costs or either is entered in the prosecution of a cause
    in which a deposit has been made . . . the balance of such deposit, after deduction of
    bail bond costs, shall be applied to the payment of the judgment.”); Ind. Code Ann.
    § 35-33-8-3.2(a)(1) (West, Westlaw current through 2016 Second Reg. Sess.) (“[T]he
    court may require the defendant and each person who makes a deposit . . . to execute
    an agreement that allows the court to retain all or a part of the cash to pay publicly
    paid costs of representation and fines, costs, fees, and restitution . . . if the defendant is
    convicted.”); Kan. Stat. Ann. § 22-2802(4) (West, Westlaw current through 2016 Reg.
    and Special Sess.) (“Any person charged with a crime who is released on a cash bond
    shall be entitled to a refund of all moneys paid for the cash bond, after deduction of any
    outstanding restitution, costs, fines and fees . . . .”); 15 Me. Rev. Stat. Ann. tit. 15,
            When money has been deposited by the defendant, if it
            remain on deposit at the time of a judgment against him, the
            clerk, under the direction of the court, shall apply the money
            in satisfaction of so much of the judgment as requires the
            payment of money, and shall refund the surplus, if any, to
            him, unless an appeal be taken to the supreme court, and
            bail put in, in which case the deposit shall be returned to the
    Iowa Code § 765.4 (1977).                 But as part of the 1976 criminal code
    revisions, effective 1978, the legislature repealed this long-standing rule.
    See 1976 Iowa Acts ch. 1245, ch. 4, § 526 (repealing Iowa Code ch. 765
    (1975)); see also Estate of Lyon v. Heemstra, No. 08–0934, 
    2009 WL 1676662
    , at *2–3 (Iowa Ct. App. June 17, 2009) (noting change in
    law); Op. Iowa Att’y Gen. No. 79-4-36 (Apr. 27, 1979), 
    1979 WL 20942
    , at
    *2 (noting Iowa legislature expressly repealed Iowa Code § 765.4). The
    repeal of this statute is a clear indication that our legislature no longer
    wanted to continue the practice of applying bail money to court-ordered
    § 1074(3) (West, Westlaw current through 2015 Second Reg. Sess.) (“The court may
    order all or a portion of the bail owned by a defendant that has not been forfeited to be
    first paid and applied to . . . [a]ny fine, forfeiture, penalty or fee . . . [,] restitution . . . [,]
    attorney’s fees . . . [,] [and] [a]ny surcharge . . . .”); Mich. Comp. Laws Ann. § 765.15(2)
    (West, Westlaw current through P.A. 2016, No. 340 of the 2016 Reg. Sess.) (“If the court
    ordered the defendant to pay a fine, costs, restitution, assessment, or other payment,
    the court shall order [the payment] collected out of cash bond or bail personally
    deposited by the defendant . . . .”); Minn. Stat. Ann. § 629.53 (West, Westlaw current
    through 2016 Reg. Sess.) (“In case of conviction, the judge may order the money bail
    deposit to be applied to any fine or restitution imposed on the defendant by the court
    . . . .”); N.Y. Crim. Proc. Law § 420.10(1)(e) (McKinney, Westlaw current through L. 2016
    chs. 1 to 503) (“Where cash bail has been posted by the defendant as the principal and
    is not forfeited or assigned, the court at its discretion may order that bail be applied
    toward payment of any order of restitution or reparation or fine.”); N.D. Cent. Code Ann.
    § 29-08-28 (West, Westlaw current through 2016 Special Sess.) (“In the case of a
    conviction, the judge may order the moneys to be applied to any fine, cost, or restitution
    imposed on the defendant.”); 12 R.I. Gen. Laws Ann. § 12-13-10 (West, Westlaw current
    through chapter 542 of the January 2016 Sess.) (“If the money remains on deposit at
    the time of a judgment . . . , the clerk must apply the money in satisfaction of the
    judgment . . . .”); Wis. Stat. Ann. § 969.03(4) (West, Westlaw current through 2015 Act
    392) (“If a judgment of conviction is entered . . . , the balance of the deposit, after
    deduction of the bond costs, shall be applied first to . . . restitution . . . and then . . . to
    the payment of the judgment.”).
    obligations. See Wieslander v. Iowa Dep’t of Transp., 
    596 N.W.2d 516
    522 (Iowa 1999) (“The repeal of a statute typically destroys the
    effectiveness of the statute, and the repealed statute is deemed never to
    have existed.”).
          Iowa Code requires, in certain circumstances, conditions on
    pretrial release.     See Iowa Code § 811.2(1) (2015).       None of these
    conditions would support the sentence imposed here.          Under our law
    today, conditions on bail are only imposed to assure the subsequent
    appearance of the defendant or protect the safety of others. See id.; see
    also Shedlock v. Iowa Dist. Ct., 
    534 N.W.2d 656
    , 659 (Iowa 1995) (finding
    authority for pretrial release condition of no-contact order based on
    safety of others); Luster v. Broderick ex rel. Scott Cty., 
    327 N.W.2d 224
    226 (Iowa 1982) (“The purpose of an appearance bond is to ensure the
    appearance of a released defendant as required.”). The conditions are set
    by the court, not a clerk of court or an arresting officer. See Iowa Code
    § 811.2(1)(a); id. §§ 804.21–.22.   Additionally, a statutory procedure is
    provided for the return of bail to the person who deposited it.           Id.
    § 811.8. Finally, forfeiture is available, but only as a civil matter, and is
    triggered when a defendant fails to appear for court proceedings where
    appearance is required. Id. § 811.6; see Costello, 489 N.W.2d at 738.
          This body of law would normally instruct that the State could not
    act to extract an unauthorized condition of bail from a defendant. Yet,
    while the jurisdiction of a court cannot be conferred by consent,
    authority may. See Schaefer v. Putnam, 
    841 N.W.2d 68
    , 80 n.13 (Iowa
    2013) (“Unlike subject matter jurisdiction, which may not be conferred
    on a court by the parties, a ‘court’s authority can be obviated by consent,
    waiver or estoppel.’ ” (quoting State v. Mandicino, 
    509 N.W.2d 481
    , 483
    (Iowa 1993))).      Based on this proposition, the State argues that the
    authority of the district court to order forfeiture at sentencing was
    derived from the consensual nature of the terms of bail in this case. We
    find any issue of consent is not properly before us in this appeal. No
    record exists to reveal the circumstances behind the bond form signed by
    Letscher.    While the circumstances would suggest Letscher did not
    initiate and pursue the bail conditions, we cannot properly act on the
    issue without a record.
            Notwithstanding, we also observe the authorization only addressed
    the authority of the clerk of court to use bail to pay any financial
    obligations. It did not authorize forfeiture by the court as a term of the
    sentence. As a result, we must return the case to the district court for
    the clerk to disburse the bail money as required by law. See Iowa Code
    § 811.8(2). In the event the clerk of court seeks to use the authorization
    to pay the financial obligations of the sentence, Letscher will have an
    opportunity to challenge the action in a separate district court
    proceeding, and the court will have the opportunity to adjudicate the
    issue based on a full and complete record. See Iowa R. Civ. P. 1.1401
    (authorizing petition for writ of certiorari to claim a judicial officer
    exceeded its jurisdiction or otherwise acted illegally). Judicial review will
    also be available.   See id. rs. 1.1410, 1.1412 (authorizing hearing and
    appeal on petition for writ of certiorari).
            Finally, we address the argument made by the amicus filed in this
    case.   It asserts the sentencing court merely exercised its authority to
    levy on a convicted defendant’s assets, which happened to already be
    under the control of the court. See generally Iowa Code chs. 626, 639,
    641; Iowa R. Crim. P. 2.26(1)(d)(1) (“Upon a judgment for a fine, an
    execution may be issued as upon a judgment in a civil case . . . .”). This
    argument, too, is conditioned on the forfeiture occurring outside of the
    sentence.   Because we conclude the court forfeited the bail money as
    part of the sentence, and without statutory authorization, we have no
    occasion to reach amicus’s arguments. Nevertheless, we note generally
    the implicated policy considerations of making bail available, see State v.
    517 N.W.2d 175
    , 186 (Wis. 1994) (Bablitch, J., dissenting)
    (noting potential chilling effect of levying on bail money posted by third
    parties), and not undermining the purpose of bail, which is securing
    appearance, see Landau v. Vallen, 
    895 F.2d 888
    , 892 (2d Cir. 1990)
    (discussing concern that attachment diminishes the incentive to appear
    and receive returned bail money). We also note applying bail money to
    court-imposed obligations such as restitution ignores the fact that the
    calculations for each amount may be different: $2000 may be what
    Letscher was required to put on the line to give him sufficient interest
    not to flee, but it is unclear whether a court would find Letscher
    reasonably able to pay the same in regular installments. See Iowa Code
    § 910.2 (authorizing plans of restitution); Briggs, 666 N.W.2d at 582
    (noting bail is a lump sum set at what the court deems sufficient to
    ensure appearance); State v. Van Hoff, 
    415 N.W.2d 647
    , 648 (Iowa 1987)
    (noting restitution is based on a defendant’s reasonable ability to pay).
    Finally, we note the court followed none of the ordinary procedures for
    attachment and execution. See, e.g., Iowa Code § 626.12 (prescribing the
    form of execution); id. § 626.72 (authorizing claim contests); id. § 639.3
    (prescribing form of petition asking for attachment); id. § 639.61
    (requiring hearing on claim for attachment); id. § 641.2 (prescribing
    requirements to seek attachment of money due the state).
          The disposition of pretrial bail money is not an authorized part of
    sentencing, and therefore, a sentencing court is without statutory
    authority to forfeit bail as a part of a sentence. Action taken against bail
    must comply with the statutory terms and conditions.
          V. Conclusion.
          We conclude the district court was without authority to forfeit bail
    as a part of the sentencing order in this case. We strike paragraph 6
    from the sentencing order and remand the case to the district court for
    further action on the bail. We otherwise affirm the decision of the court
    of appeals in part and vacate in part and affirm the judgment and
    sentence of the district court.