James Farnsworth II. v. State of Iowa ( 2022 )


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  •                    IN THE SUPREME COURT OF IOWA
    No. 20–0786
    Submitted September 14, 2022—Filed November 18, 2022
    JAMES FARNSWORTH II,
    Appellee,
    vs.
    STATE OF IOWA,
    Appellant.
    On review from the Iowa Court of Appeals.
    Appeal   from      the   Iowa   District   Court   for   Cerro   Gordo   County,
    Christopher C. Foy, Judge.
    Both the defendant and the State seek further review of a court of appeals
    decision in a postconviction-relief proceeding that declined to disturb the
    defendant’s second-degree murder conviction but ordered the return of a
    previously-forfeited $50,000 cash bond. DECISION OF COURT OF APPEALS
    AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT JUDGMENT
    AFFIRMED.
    Mansfield, J., delivered the opinion of the court, in which all participating
    justices joined. May, J., took no part in the consideration or decision of the case.
    Philip B. Mears of Mears Law Office, Iowa City, for appellant.
    Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
    General, for appellee.
    2
    MANSFIELD, Justice.
    I. Introduction.
    A decade ago, a melee between two young men resulted in the death of one
    of them. The defendant, who had pulled a knife and fatally stabbed the decedent,
    was charged with first-degree murder; he claimed self-defense. To obtain pretrial
    release, the defendant’s family had to post a $200,000 cash bond, with $50,000
    subject to the condition that it would be forfeited for restitution purposes if the
    defendant were convicted. Following a jury trial, the defendant was found guilty
    of the lesser included offense of second-degree murder. The $50,000 was
    forfeited to pay victim restitution.
    The defendant applied for postconviction relief, raising several claims of
    ineffective assistance of counsel. The district court denied the application. The
    court of appeals affirmed on the issues relating to the defendant’s conviction but
    reversed as to the bond forfeiture order. It found that the defendant’s counsel
    had been ineffective in failing to challenge what it viewed as an unlawful bond
    forfeiture order. The court of appeals remanded for return of the $50,000 to the
    defendant.
    We granted both parties’ applications for further review. In our discretion,
    we let the court of appeals decision stand as the final appellate decision on all
    issues relating to the defendant’s conviction. We reverse the court of appeals
    decision on the bond forfeiture issue. While we do not approve of the forfeiture
    order that was entered in this case, we hold that postconviction relief is not a
    way to overturn that order. Generally, bond forfeiture orders are civil matters
    3
    separate from the actual criminal proceeding. And to the extent that the
    forfeiture order here could be deemed part of the defendant’s sentence, it
    nonetheless “relat[es] to restitution” and thus cannot be the basis for
    postconviction relief. See 
    Iowa Code § 822.2
    (1)(g) (2015).
    II. Facts and Procedural History.
    In 2014, the court of appeals affirmed James Farnsworth’s second-degree
    murder conviction, summarizing the relevant facts as follows:
    Several witnesses to the details of this incident testified, each
    relating slightly different facts depending on their proximity to
    certain actions. None, however, contradicted another. Based on this
    testimony, the jury could have found the following facts. On April
    13, 2012, Farnsworth, his girlfriend, Victoria Miller, and several
    others were at the apartment of Echo Dority. The group then decided
    to go to a local bar. At the bar, Miller received a text of a smiley face
    from her ex-boyfriend, Ian Decker, who is also the father of her child.
    Farnsworth and Miller argued, and Farnsworth slapped Miller.
    Miller then told Farnsworth she was “done with him” and that he
    should leave. With the encouragement of others in the group,
    Farnsworth left.
    Not long after that, the group decided to go back to Dority’s
    apartment. Farnsworth was waiting around the corner from the bar.
    Miller ignored Farnsworth and others told him to leave. Undeterred,
    Farnsworth followed the group, which continued to largely ignore
    his presence. When Farnsworth approached Miller, Dority kicked
    Farnsworth in the crotch, causing him to fall to the ground.
    Farnsworth got up and ran to Dority’s apartment, arriving ahead of
    the group.
    Dority did not allow Farnsworth to enter her apartment. In an
    effort to talk with Miller, Farnsworth sent her numerous text
    messages. Miller replied, telling him to leave and that “[e]veryone
    wants to beat the f * * * out of you.” Farnsworth threatened to kill
    himself and walked away from the door and out of sight of those in
    the apartment.
    Dority and Miller went outside the apartment to wait for
    Decker, whom Dority had invited. After Decker’s arrival, Farnsworth
    came from around the corner and made a request to speak with
    4
    Miller, which she refused. Miller and Decker told Farnsworth to
    leave, so he got in his car and drove quickly away. However, a few
    minutes later, Farnsworth “came barreling back down the street” as
    other guests, Alyssa Fullerton and Derek Wentworth, were leaving
    the apartment. Miller and Wentworth told Farnsworth to leave.
    Farnsworth approached Miller, and Wentworth stepped between the
    two. After Miller informed Farnsworth she did not want to speak with
    him, Farnsworth stated: “If Ian [Decker] tries anything, I’m going to
    f * * * * * * stab him.”
    Decker was standing around the corner of the apartment
    building. Upon hearing Miller and Farnsworth arguing, Decker
    appeared to be very angry. He walked around the corner and began
    fighting with Farnsworth. It was not disputed that Decker threw the
    first punch. Miller tried to warn Decker by yelling, “[S]top, [Decker],
    he has a knife.” The two continued fighting and grappled on the
    ground but both got back up. At one point, Decker was hunched
    over Farnsworth, but Farnsworth was able to throw Decker off of
    him. When Decker stood up, he lifted his shirt to reveal blood
    streaming down his chest and onto the sidewalk. Decker collapsed;
    Miller and Dority applied pressure to his chest wound. Farnsworth
    stood there briefly, then got in his car and sped away. It was later
    revealed Decker had been stabbed once in the ribs, once in the thigh,
    and had a cutting wound on his left forearm. Although police and
    paramedics quickly arrived, Decker died at the scene from the stab
    wound in his side, which had pierced his heart.
    Police stopped Farnsworth shortly after he drove away.
    Farnsworth was cooperative and informed police the knife was in his
    center console. When asked what happened, Farnsworth replied
    Decker had punched him four or five times, prompting Farnsworth
    to pull the knife from his pocket and “[fling] it around.” Although
    Farnsworth had some visible injuries, he refused medical treatment
    and was transported to the police station. Farnsworth later
    complained about being dizzy, and was then taken to the hospital.
    A neurological exam revealed the absence of a head injury, and
    though the doctor thought perhaps Farnsworth’s nose was broken,
    Farnsworth refused to have X-rays taken and declined further
    treatment.
    State v. Farnsworth, 
    2014 WL 2884732
    , at *1–2 (Iowa Ct. App. June 25, 2014)
    (alterations in original) (footnote omitted).
    5
    Soon after the above-described events, Farnsworth was arrested by the
    Mason City police and charged with first-degree murder. He was initially held in
    jail on a $100,000 cash bond. Farnsworth applied for bond review, and a hearing
    took place. After that, the bond was increased to $200,000 cash, but with the
    proviso that $150,000 of the cash could be posted by a surety while $50,000 had
    to be deposited in the defendant’s name. This requirement was intended to allow
    the $50,000 to be applied immediately to restitution if the defendant were
    convicted.
    A month later, Farnsworth again sought bond review. He asked for
    permission to post a surety bond instead of cash for the $150,000 that did not
    have to be in his name. The State countered that Farnsworth should be required
    to post an increased sum of $100,000 in cash bond under his own name. The
    district court adopted neither suggestion and left the existing bail conditions in
    place.
    To meet those conditions, a $50,000 cash bond was posted in the
    defendant’s name, while a bail bonding company posted the remaining
    $150,000. The record indicates that the $50,000 came from Farnsworth’s family.
    When the $50,000 was deposited, Farnsworth was required to agree as follows:
    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 District Court in the final judgment of this matter or any other
    criminal judgment against me in Cerro Gordo County.
    Farnsworth was released pending trial.
    Trial began in the Cerro Gordo County Courthouse on January 14, 2013.
    Farnsworth primarily relied on a defense of justification. Three days later, the
    6
    jury returned a verdict finding Farnsworth guilty of the lesser included offense
    of second-degree murder. See 
    Iowa Code § 707.3
     (2012).
    At Farnsworth’s March 8 sentencing hearing, the district court imposed a
    sentence on the second-degree murder conviction of fifty years’ incarceration
    with a mandatory minimum of 70%. See id.; 
    id.
     § 902.12(1). The court added,
    “I’ll enter an order separate from the sentencing order in regard to bond
    disposition.” It continued, “Pursuant to Mr. Farnsworth’s bond receipt
    agreement, I intend to forfeit the sums posted in his name for application toward
    victim restitution.” The court further indicated that the parties would have ten
    days to object to this procedure.
    The court’s formal sentencing order, entered that day, directed Farnsworth
    to pay $150,000 in pecuniary damages to Decker’s heirs at law pursuant to Iowa
    Code section 910.3B and $14,972 to the crime victim compensation program. It
    did not address Farnsworth’s bond payments.
    Twelve days later, on March 20, the court entered an order as to the bond.
    The order exonerated the $150,000 in cash bond posted by the bonding company
    while stating that the court “intend[ed] to forfeit” the $50,000 in cash bond
    posted in Farnsworth’s name “for application toward victim restitution.” The
    clerk was directed to hold the latter funds in trust “until further order of the
    court, which will enter upon the opening [of] a probate estate of Ian Decker, the
    appointment of a conservator for the minor heir of Ian Decker, or the
    establishment of a trust for the benefit of the minor heir of Ian Decker.” The
    court’s order added, “In the absence of a written objection by either party, the
    7
    court will enter [an order forfeiting the $50,000 cash bond] on or after April 2,
    2013.”
    On April 4, noting the absence of any objection, the court ordered the
    forfeiture of the $50,000. It directed that the funds be held in trust by the clerk
    until further order of the court. Three months later, after being notified that a
    trust had been formed for Decker’s minor heir with Miller as trustee, the court
    ordered that the $50,000 be released to her as trustee.
    Meanwhile, Farnsworth had appealed on March 14. That appeal was
    transferred to the court of appeals, which affirmed Farnsworth’s conviction and
    sentence in 2014. Specifically, the court of appeals rejected arguments that the
    prosecutor had engaged in misconduct, that a Miranda violation had occurred
    when an officer who apprehended Farnsworth was asked whether Farnsworth
    had made statements that would support a defense of justification, and that a
    prospective juror had been wrongfully stricken for cause at the State’s request.
    In 2015, Farnsworth filed the present application for postconviction relief.
    He raised a number of ineffective-assistance claims relating to Farnsworth’s
    retained trial counsel, David Roth. It turned out that Roth had been engaged in
    very significant financial improprieties at the time he was representing
    Farnsworth. Roth took his own life in the fall of 2014 as the details of those
    improprieties emerged.
    Farnsworth’s ineffective-assistance claims included an allegation of
    conflict of interest because Roth and his firm had represented Mason City and
    some of its police officers. Farnsworth also alleged that Roth should have
    8
    retained a forensic pathologist who could have countered—or at least added
    context to—the state medical examiner’s testimony that the fatal stab wound
    had been inflicted in a “slightly downward” direction. In addition, Farnsworth
    faulted Roth for not objecting to an instruction that allowed the jury to reject his
    justification defense by finding that Farnsworth had started or continued the
    incident which resulted in Decker’s death. In Farnsworth’s view, there was no
    evidence that he had started or continued the incident. Farnsworth also claimed
    ineffective assistance based on Roth’s failure to mention the “beyond a
    reasonable doubt” burden of proof during closing argument. Farnsworth went
    on to allege several other pretrial and trial errors, including a failure to assure
    that witnesses were sequestered, a failure to convey a plea offer from the State
    to Farnsworth, and an allegation of cumulative error.1 Finally, Farnsworth
    claimed Roth had been ineffective in seeking review of the initial $100,000 cash
    bond, which review resulted in a higher cash bond, and in not objecting to the
    forfeiture of the $50,000 that had been posted in Farnsworth’s name.
    The district court conducted a trial on Farnsworth’s postconviction-relief
    application in 2019 and entered a ruling denying it several months later in 2020.
    The district court’s ruling noted there was “nothing in the record . . . to show
    that Roth or his law firm ever represented any of the police officers whom the
    State called as trial witnesses against Farnsworth.” It pointed out that
    Farnsworth’s forensic pathologist expert for the postconviction-relief proceeding
    1The   plea offer was for second-degree murder, the offense of which Farnsworth was
    convicted. Farnsworth testified at the postconviction-relief trial that he would have rejected such
    a plea offer.
    9
    did not criticize the State medical examiner’s conclusions and “does not appear
    to shed much light on the relative positions of the combatants”; at most,
    Farnsworth’s postconviction-relief expert took issue with statements made by
    the prosecutor during closing argument. The court also found sufficient evidence
    that Farnsworth had started or continued the incident resulting in the fatal
    stabbing. Concerning Roth’s failure to mention the burden of proof during
    closing argument, the district court agreed this was “unusual” but did not find
    that it breached an essential duty. And the court rejected the various other
    claims of pretrial and trial error.
    Lastly, on the bond issue, the court found no breach of duty in the decision
    to seek review of the initial $100,000 all-cash bond. Regarding the subsequent
    bond forfeiture, the court noted that we did not decide State v. Letscher, 
    888 N.W.2d 880
     (Iowa 2016), until 2016. It was then we held that district courts lack
    authority to forfeit bail as a term of sentencing. 
    Id.
     at 886–87. The district court
    thus declined to find that Roth “breached an essential duty in his representation
    of Farnsworth by failing to assert a position that had yet to be validated by any
    appellate court in Iowa.” The district court also observed that the “issue of bond
    is completely separate from and has no bearing on the trial or the verdict
    returned by the jury.”
    Farnsworth filed a motion to reconsider, amend, and enlarge findings,
    which the district court overruled.
    10
    Farnsworth appealed, and we transferred the case to the court of appeals.
    On November 3, 2021, the court of appeals affirmed the district court on all
    issues but the bond issue. As to the bond, the court concluded as follows:
    We need not address whether counsel breached an essential
    duty in seeking bond review. The operative omission with respect to
    the bond was counsel’s failure to object to the court’s application of
    the cash portion to Farnsworth’s restitution obligation. See State v.
    Letscher, 
    888 N.W.2d 880
    , 885, 887 (Iowa 2016) (“No statutory
    sentencing provision exists in Iowa to authorize a court to forfeit
    bail. . . . 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.”). Although the State correctly notes Letscher postdated
    Farnsworth’s posting of his bond and counsel had no duty “to
    foresee that result,” counsel did not require Letscher to argue that
    no statutory authority supported the forfeiture of the cash bond for
    restitution. Indeed, statutory authority in effect at the time said
    precisely the opposite:
    Upon the filing of the undertaking and the
    certificate of the officer, or the certificate of the officer
    alone if money has been deposited instead of bail, the
    court or clerk shall immediately order return of the money
    deposited to the person who deposited the same, or
    order an exoneration of the surety.
    
    Iowa Code § 811.8
    (2) (2015) (emphasis added). We conclude counsel
    had a duty to object to the district court’s expressed intent to apply
    the cash bond amount to his outstanding restitution obligation. We
    further conclude Farnsworth was prejudiced by the omission, to the
    tune of $50,000. We “return the case to the district court for the
    clerk to disburse the bail money as required by law.” Letscher, 888
    N.W.2d at 886.
    (Omission in original.) At the conclusion of its opinion, the court of appeals
    remanded for “return of that sum [(i.e., $50,000)] to Farnsworth.”
    Both parties sought further review. We granted the applications and
    directed supplemental briefing “addressing both the appellant’s ability to
    11
    challenge in a postconviction-relief action the district court’s forfeiture of his
    appearance bond in this case and the court of appeals’ order to remand for the
    clerk of court ‘to disburse the bail money as required by law.’ ”
    III. Scope and Standard of Review.
    “When we grant further review, we may exercise our discretion to let the
    court of appeals decision stand as the final decision on particular issues.” State
    v. Fogg, 
    936 N.W.2d 664
    , 667 n.1 (Iowa 2019). Here, while respecting the
    vigorous advocacy of Farnsworth’s present counsel, we elect to let the court of
    appeals decision stand as the final decision on all issues but the bond forfeiture.
    The bond forfeiture question is a matter of statutory interpretation. We review
    the district court’s interpretation for correction of errors at law. Sahinovic v.
    State, 
    940 N.W.2d 357
    , 359 (Iowa 2020).
    IV. Analysis.
    The State does not claim that the forfeiture of the $50,000 cash bond
    posted in Farnsworth’s name was proper. In other words, the State does not
    argue that it was lawful to condition Farnsworth’s pretrial release on his posting
    of bail money that could be redirected to pay fines, costs, and restitution if
    Farnsworth were convicted. Nor does the State try to defend the actual order
    forfeiting Farnsworth’s cash bond in order to pay restitution.
    Our 2016 decision in Letscher is relevant here. 
    888 N.W.2d 880
    . There, we
    reversed a sentencing order that required a convicted defendant to forfeit a
    $2,000 cash appearance bond so it could be used to cover financial obligations
    arising out of the defendant’s conviction. 
    Id. at 887
    . We explained that bail exists
    12
    to assure the defendant’s appearance and protect public safety, not to secure
    payment of financial obligations that might be imposed later if the defendant
    were convicted. 
    Id.
     at 884–87; see also 
    Iowa Code § 811.1
    (3). As we stated,
    “Under our law today, conditions on bail are only imposed to assure the
    subsequent appearance of the defendant or protect the safety of others.”
    Letscher, 888 N.W.2d at 886. And “the statutes governing a forfeiture of bail do
    not authorize forfeiture as a term of sentencing.” Id. at 884.
    We also took note of the state’s argument that the defendant had agreed
    his bond could be forfeited to pay any financial obligations. Id. at 886 (“[T]he
    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.”). Yet we concluded that “any issue of consent is not properly before us in
    this appeal.” Id. “No record exists to reveal the circumstances behind the bond
    form signed by Letscher,” we said. Id. We left open the possibility that the clerk
    of court could seek to forfeit the bond based on the defendant’s written
    agreement, subject to the defendant’s “opportunity to challenge the action in a
    separate district court proceeding” with judicial review by writ of certiorari. Id.
    In lieu of arguing that the forfeiture of the $50,000 cash bond was lawful,
    the State raises several other grounds why the district court properly denied
    postconviction relief in this area. First, the State contends that Farnsworth
    cannot use postconviction relief to challenge the bond forfeiture because the
    forfeiture was not a part of his sentence and was civil in nature. Second, the
    State alleges that Farnsworth had no constitutional right to effective assistance
    13
    of counsel with respect to the bond forfeiture. Third, the State maintains that
    reasonably competent counsel did not have a duty to challenge bond forfeiture
    for payment of restitution until Letscher was decided. Lastly, the State argues
    that it would be inequitable and unjust to try to recoup the money at this point
    from the victim’s child and heir.
    We will begin with the State’s first argument. Iowa Code section 822.2(1)(a)
    (2015) authorizes a defendant to file an application for postconviction relief when
    “[t]he conviction or sentence was in violation of the Constitution of the United
    States or the Constitution or laws of this state.” Clearly, Farnsworth’s present
    attack on the bond forfeiture isn’t an attack on his conviction, so to be eligible
    for postconviction relief Farnsworth must be attacking his sentence. Was the
    district court’s April 4, 2013 “order for disposition of bond” part of Farnsworth’s
    “sentence”? That order directed that the cash bond posted by Farnsworth be
    forfeited and applied toward victim restitution. Thus, it could potentially be
    viewed as a bond order or as a restitution order, or as something of both.
    The State insists that bond forfeiture orders are civil in nature and not a
    proper subject of a postconviction-relief application. It directs us to State v.
    Dodd, where the court of appeals said, “Proceedings for forfeiture of bail and
    judgment thereon are civil in nature.” 
    346 N.W.2d 42
    , 43 (Iowa Ct. App. 1984).
    There are several precedents saying the same thing. See, e.g., State v. Costello,
    
    489 N.W.2d 735
    , 737–38 (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))); State v. Marrufo-Gonzalez, 
    806 N.W.2d 475
    , 480 (Iowa
    14
    Ct. App. 2011) (“The proceedings for forfeiture of bail and judgment are civil
    actions . . . .”).
    Clearly, the April 4, 2013 order has some characteristics of a classic bond
    forfeiture order. At sentencing, the district court stated that it would enter a
    “separate” order in regard to bond disposition. In that separate order, the court
    made an effort to comply with the ten-day notice provision of Iowa Code section
    811.6(1) (2012) relating to forfeiture of bonds.
    Yet this case does not involve a standard bond forfeiture for failure to
    appear. Cf. Costello, 
    489 N.W.2d at 737
    ; Marrufo-Gonzalez, 
    806 N.W.2d at
    477–
    78; Dodd, 
    346 N.W.2d at 43
    . Here, the forfeiture order was based on the
    defendant’s conviction, following the court’s announcement at sentencing that it
    planned to enter such an order. And the order did not merely take away the bond
    money, it also directed that the bond be applied to Farnsworth’s restitution
    obligation to the victim’s heirs. Farnsworth argues that we treated a similar order
    as a term of sentence in Letscher and that the present situation is analogous.
    See 888 N.W.2d at 884 (“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 have said that “the meaning of ‘sentence’ depends on the context.”
    State v. Richardson, 
    890 N.W.2d 609
    , 617–18 (Iowa 2017). “[D]epending on the
    context, restitution could be considered part of the ‘sentence.’ ” 
    Id. at 617
    .
    Notably, the type of victim restitution that was awarded to Decker’s heirs under
    section 910.3B has previously been determined by our court to be “partly
    punitive.” Id.; see also State v. Davison, 
    973 N.W.2d 276
    , 285 (Iowa 2022).
    15
    Section 910.2(1) provides that restitution is ordered by “the sentencing court.”
    
    Iowa Code § 910.2
    (1). Also, we have “acknowledged that restitution is a phase of
    sentencing.” State v. Alspach, 
    554 N.W.2d 882
    , 883 (Iowa 1996). We have
    indicated that “a restitution hearing is a critical stage of the criminal
    proceedings requiring assistance of counsel” when the restitution is imposed “as
    part of the original sentencing order” or in a “supplemental order[].” 
    Id.
     at 883–
    84. Farnsworth points out that in Letscher the bond forfeiture order was set forth
    as a paragraph of the judgment and sentence, whereas here a separate order
    was entered less than a month later. Not a material difference, in his view.2
    In the end, though, we don’t believe it matters how the district court’s bond
    forfeiture order is characterized. If we view the April 4 order as a stand-alone
    bond forfeiture order, it is clearly a civil matter—Letscher confirms this. See 888
    N.W.2d at 886. We explained in Letscher that forfeiture is available to the state
    “only as a civil matter.” Id. We allowed for the possibility that, on remand, the
    state could try to pursue forfeiture based on the defendant’s written agreement
    that his bond could be used to pay the financial obligations of the sentence. Id.
    2Moreover,   Farnsworth’s March 8, 2013 written judgment and sentence had form
    language stating,
    The appearance bond of the Defendant, if any, shall be first applied to the payment
    of costs, then to the payment of the fine, then to the payment of any other
    outstanding restitution, fines, and costs owing in this matter, and the balance, if
    any refunded to the Defendant.
    This boilerplate did not reflect the correct priority of payment. Payments to victims were—and
    still are—prioritized ahead of other payments. See 
    Iowa Code § 910.9
     (2012); 
    id.
     § 910.9(3) (2022).
    As noted, follow-on orders were entered on March 20 and April 4 providing that only the $50,000
    cash bond in the name of Farnsworth would be forfeited and that the proceeds would go to
    Decker’s minor heir.
    16
    In that case, though, we said that the defendant’s avenue for challenging such
    action would be by writ of certiorari, and we cited to the Iowa Rules of Civil
    Procedure. Id. In other words, we reiterated that a stand-alone bond forfeiture
    proceeding, even one based on the defendant’s consent rather than his failure to
    appear, was a civil matter. Id. As a civil matter, the bond forfeiture order would
    not be a proper subject for postconviction relief.
    On the other hand, if the forfeiture order is considered a term of sentence,
    then Farnsworth runs smack into Iowa Code section 822.2(1)(g) (2015), which
    precludes any use of the postconviction-relief remedy to attack a sentence for
    “alleged error relating to restitution.” See Earnest v. State, 
    508 N.W.2d 630
    , 633
    (Iowa 1993) (“[T]his subsection unambiguously excludes claims relating to
    restitution in postconviction proceedings.”). To the extent that the April 4, 2013
    order was a term of Farnsworth’s sentence, it was a term relating to restitution.
    The April 4 order specifically provided that Farnsworth’s $50,000 cash bond
    would be used for victim restitution.
    The problem with Farnsworth’s Letscher analogy is that Letscher was a
    direct appeal. This case is a postconviction-relief action. Thus, even if we treat
    the April 4, 2013 order as a term of Farnsworth’s sentence, we have to ask
    whether it is a term that Farnsworth can challenge under Iowa Code chapter
    822. And some sentencing terms can’t be challenged. In particular, restitution
    terms can’t be challenged in postconviction-relief proceedings. See 
    Iowa Code § 822.2
    (1)(g) (excluding “restitution, court costs, or fees”).
    17
    So, we sum up as follows: If the forfeiture order is a term of Farnsworth’s
    sentence, it is a term of his sentence because it relates to restitution. And in that
    event, postconviction relief is not available. See 
    id.
    In his supplemental brief, Farnsworth argues that the State waived its
    present position that postconviction relief is unavailable to challenge the bond
    forfeiture order by not raising that claim in its principal brief. As Farnsworth
    puts it:
    The State never argued that there was no ability in a postconviction
    [proceeding] to raise this issue. The State did not even argue that
    the forfeiture provision was not part of sentencing.
    Given the State’s original brief on appeal, the Court should
    find that the State cannot now raise those issues. The State should
    not be able to raise these arguments for the first time in its
    Application for Further Review.
    We believe that we can exercise our discretion to consider the issue. The
    State made a minimalist argument below that postconviction relief was not an
    available remedy, asserting, “If Farnsworth believes he should have bond money
    back, he should file a civil malpractice suit, not raise this issue in post-conviction
    relief.” The State is the appellee. Furthermore, the issue is a legal one, and the
    supplemental briefs have afforded both sides a full opportunity to make a
    thorough adversarial presentation. See, e.g., Iowa Ass’n of Bus. & Indus. v. City
    of Waterloo, 
    961 N.W.2d 465
    , 476 (Iowa 2021) (affirming in part based on an
    argument that was raised in an amicus brief); King v. State, 
    818 N.W.2d 1
    , 12,
    35–36 (Iowa 2012) (affirming based on an argument that was raised below but
    not in the appellee’s brief and noting that “[o]ur rules provide that an appellee
    need not even file a brief in our court”).
    18
    Thus, we conclude that postconviction relief is not available to set aside
    the April 4, 2013 order directing that Farnsworth’s cash bond be forfeited for
    victim restitution. At the time, other remedies may have been available—direct
    appeal, review by certiorari, or a petition under Iowa Code chapter 910.7 (2012).
    We do not decide which of those remedies Farnsworth could have pursued at the
    time. But clearly postconviction relief is not available today. In light of this
    conclusion, we need not reach the State’s second through fourth arguments, but
    we note that the State’s final argument provides some policy support for the
    conclusion we are reaching today. It would be unworkable if defendants could
    challenge orders forfeiting their bail for victim restitution purposes years after
    the fact. The money is gone. It has long since been paid by the State to victims
    and used by the victims to pay bills and for other purposes.3
    V. Conclusion.
    For the foregoing reasons, we affirm the order of the district court denying
    Farnsworth’s application for postconviction relief and affirm the decision of the
    court of appeals except as to the bond forfeiture issue. On that point, we vacate
    the decision of the court of appeals for the reasons stated herein.
    3Farnsworth also argues that Roth rendered ineffective assistance when he sought review
    of the initial $100,000 cash bond. This review resulted in the bond being increased to $200,000
    cash, with $50,000 required to be posted in the defendant’s name.
    The original April 14, 2012 bond order required $100,000 “cash only in defendant’s name
    only.” Following the review hearing, the bond was increased on April 27 to $200,000 cash but
    only $50,000 of that had to be in Farnsworth’s name. At this point, Farnsworth’s family paid
    $20,000 to a bonding company for a $150,000 cash bond and also deposited $50,000 in
    Farnsworth’s name. Thus, we agree with the district court that even with hindsight, the effort to
    seek review of the bond was a reasonable strategic decision that actually reduced the family’s
    out-of-pocket outlay from $100,000 to $70,000.
    19
    DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
    VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED.
    All justices concur except May, J., who takes no part.