State of Iowa v. Kevin Dwayne Garvin ( 2019 )


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  •                     IN THE COURT OF APPEALS OF IOWA
    No. 18-1258
    Filed July 3, 2019
    STATE OF IOWA,
    Plaintiff-Appellee,
    vs.
    KEVIN DWAYNE GARVIN,
    Defendant-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
    Judge.
    Kevin Garvin appeals restitution-related orders following his criminal
    conviction. ORDER VACATED AND REMANDED.
    Mark C. Smith, State Appellate Defender (until withdrawal), and Nan
    Jennisch, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney
    General, for appellee.
    Considered by Vaitheswaran, P.J., and Mullins and Bower, JJ.
    2
    MULLINS, Judge.
    In May 2018, Kevin Garvin entered an Alford1 plea to second-degree
    robbery.    In July, the court sentenced Garvin to an indeterminate term of
    incarceration not to exceed ten years with a mandatory minimum of five years.
    See 
    Iowa Code §§ 711.3
    , 902.9(1)(d), .12(3) (2018). The court also ordered
    Garvin to “make any restitution.” The court noted “there is no restitution right now”
    but indicated it would subsequently issue a restitution order.                In its written
    sentencing order, the court ordered Garvin to make restitution in an amount to be
    determined. However, the court found Garvin had no reasonable ability to pay
    restitution for court-appointed legal assistance under Iowa Code section 815.9(5).
    Garvin appealed.2 On July 31, Garvin was transported from the county jail
    to a state prison facility. In October, pursuant to Iowa Code section 356.7, the
    county sheriff filed an application for reimbursement for room-and-board fees in
    the amount of $10,395 relative to Garvin’s time in the county jail. The district court
    entered an order approving the claim the same day.3 There is nothing in our record
    to indicate the court made a reasonable-ability-to-pay determination as to Garvin’s
    ability to reimburse the county for room-and-board fees.               Although the order
    1
    See North Carolina v. Alford, 
    400 U.S. 25
    , 37 (1970) (“An individual accused of [a] crime
    may voluntarily, knowingly, and understandingly consent to the imposition of a prison
    sentence even if he is unwilling or unable to admit his participation in the acts constituting
    the crime.”).
    2
    Although the remainder of the procedural matters discussed below occurred after Garvin
    filed his notice of appeal, they are included in the record provided us on appeal, as the
    record was not transmitted to the supreme court clerk until March 2019. See Iowa Rs.
    App. P. 6.801, .802.
    3
    Upon such approval, the claim for the amount owed by Garvin became “a judgment for
    purposes of enforcement by the sheriff.” 
    Iowa Code § 356.7
    (3).
    3
    approving the claim for room-and-board fees notified Garvin of his ability to dispute
    the claim within fifteen days, no such dispute appears in the record on appeal.
    On appeal, Garvin argues the court improperly ordered him to pay
    restitution for court costs including correctional fees without first determining his
    reasonable ability to pay the same. The State responds Garvin’s challenge is
    premature “because no restitution plan or restitution plan of payment exists.” We
    disagree. While the supreme court has stated “[r]estitution orders entered by the
    court prior to the final order are not appealable as final orders,” State v. Albright,
    
    925 N.W.2d 144
    , 161 (Iowa 2019), both of Iowa’s appellate courts have frequently
    vacated restitution-related orders absent a final restitution order.4 Further, the
    order entered against Garvin became “a judgment for purposes of enforcement by
    the sheriff” upon approval by the court. 
    Iowa Code § 356.7
    (3).
    It is undisputed that the district court can only order restitution for “court
    costs including correctional fees approved pursuant to section 356.7” to the extent
    the offender has the reasonable ability to pay. 
    Id.
     § 910.2(1); Albright, 925 N.W.2d
    at 159. Here, the district court made no determination of Garvin’s reasonable
    ability to pay restitution for court costs including correctional fees before rendering
    judgment against him for the same.         The imposition of court costs including
    correctional fees “must await the filing of a final restitution plan and a determination
    of [Garvin]’s ability to pay.” Smeltser, 
    2019 WL 2144683
    , at *1. Applying Albright,
    4
    See, e.g., State v. Headley, 
    926 N.W.2d 545
    , 549, 553 (Iowa 2019); State v. McMurry,
    
    925 N.W.2d 592
    , 601 (Iowa 2019); State v. Petty, 
    925 N.W.2d 190
    , 194, 197 (Iowa 2019);
    State v. Covel, 
    925 N.W.2d 183
    , 187–89 (Iowa 2019); Albright, 925 N.W.2d at 162; State
    v. Rankin, No. 18-1033, 
    2019 WL 2372142
    , at *1 (Iowa Ct. App. June 5, 2019); State v.
    Maresch, No. 18-1296, 
    2019 WL 2151674
    , at *1 (Iowa Ct. App. May 15, 2019); State v.
    Rawls, No. 18-0882, 
    2019 WL 2145722
    , at *2 (Iowa Ct. App. May 15, 2019); State v.
    Smeltser, No. 18-0998, 
    2019 WL 2144683
    , at *1 (Iowa Ct. App. May 15, 2019).
    4
    we vacate the court’s imposition of correctional fees against Garvin pending
    completion of a final restitution order and a subsequent assessment of his
    reasonable ability to pay. We remand the matter to the district court for receipt of
    a final restitution plan and a determination of Garvin’s reasonable ability to pay.
    ORDER VACATED AND REMANDED.
    

Document Info

Docket Number: 18-1258

Filed Date: 7/3/2019

Precedential Status: Precedential

Modified Date: 7/3/2019