State of Iowa v. Bruce Rankin ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1033
Filed June 5, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BRUCE RANKIN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Craig M.
Dreismeier, District Associate Judge.
Bruce Rankin appeals from the restitution portion of the sentencing order.
SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Mark C. Smith, State Appellate Defender, (until withdrawal) and Melinda J.
Nye, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., Tabor, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
2
GAMBLE, Senior Judge.
Bruce Rankin appeals the sentence imposed upon his conviction for two
counts of indecent contact with a child. Pursuant to Iowa Code section 815.9
(2016), the court ordered Rankin to pay restitution of court-appointed attorney fees.
In its sentencing order, the district court found, “[T]he defendant has the
reasonable ability to pay attorney fees in the total cost of legal assistance approved
by the State Public Defender.” The amount of court-appointed attorney fees was
not before the court at the time of sentencing. Rankin contends the district court
erred in determining he had the reasonable ability to pay an unknown amount of
attorney’s fees.1
We review restitution orders for legal error. Albright, 925 N.W.2d at 158. A
court can only order restitution for court-appointed attorney fees “to the extent the
offender has the reasonable ability to pay.” Id. at 159. In Albright, the supreme
court held that for the category of restitution including court-appointed attorney
fees, the sentencing court shall not enter a final order of restitution until all items
of restitution are before it; “then and only then shall the court make an assessment
as to the offender’s reasonable ability to pay.” Id. at 162; see also State v. Covel,
925 N.W.2d 183, 189 (Iowa 2019); State v. McMurry, 925 N.W.2d 592, 601 (Iowa
2019).
1
The State argues Rankin’s claim is not ripe for appellate review. The State made the
same argument in State v. Albright. See Appellee’s Brief at 55–58, State v. Albright, 925
N.W.2d 144 (Iowa 2019) (No. 17-1286), 2018 WL 7890463, at *55–58. However, the
supreme court implicitly rejected the claim by ruling on the issue. State v. Albright, 925
N.W.2d 144, 158 (Iowa 2019).
3
Here, the sentencing court determined Rankin possessed the reasonable
ability to pay court-appointed attorney fees as restitution without knowledge of the
total amount of court-appointed attorney fees owed. The court erred in doing so.
See McMurry, 925 N.W.2d at 601 (reversing the sentencing order pertaining to the
assessment of court-appointed attorney fees and remanding for resentencing on
restitution for court-appointed attorney fees). Consequently, we reverse the part
of the sentence regarding restitution and remand the case for resentencing
consistent with Albright.
SENTENCE AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.