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State of Iowa v. James andrew Hols

February 27, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
JAMES ANDREW HOLS, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Mahaska County, Daniel P. Wilson, Judge.

The opinion of the court was delivered by: Miller, S.J.

James Andrew Hols appeals a portion of the sentence, concerning restitution, imposed upon his conviction for domestic abuse assault. AFFIRMED.

Considered by Danilson, P.J., Bower, J., and Miller, S.J.*fn1

Following his conviction for third or subsequent domestic abuse assault, James Hols appeals, challenging the portion of a sentencing order concerning restitution for court-appointed attorney fees. We affirm.

Hols, charged with criminal offenses, was represented by court-appointed attorneys. A jury found Hols guilty, under Count I of a trial information, of domestic abuse assault, and under Count II, of assault causing bodily injury, a lesser included offense of a charge of willful injury. Hols had stipulated to two or more prior convictions for domestic abuse assault, enhancing the current domestic abuse assault conviction to a class "D" felony pursuant to Iowa Code section 708.2A(4) (2009), and had stipulated to two prior class "D" felony convictions, leading to enhanced sentencing as an habitual offender pursuant to Iowa Code sections 902.8 and 902.9(3). The trial court's November 8, 2010 judgment entry sentenced Hols to a term of no more than fifteen years, with a minimum term of three years. See Iowa Code §§ 902.9(3), .8. The court ordered the verdict on Count II merged with the sentence on Count I and entered no separate sentence on Count II.*fn2

The court's written judgment entry provides, in the part relevant to the issue(s) presented on appeal, the following:

The defendant is ORDERED to pay costs of prosecution in the amount of $________ (clerk assess), and court-appointed attorney's fees, in an amount not to exceed $_________, if any. If the defendant was represented by court-appointed counsel, the defendant must pay restitution for attorney fees pursuant to Section 815.9 for any costs incurred, and judgment is ordered for the same.

Any additional costs or restitution items not known at the time of this Judgment Entry may be certified by the Clerk of the District Court at the time those costs are determined. Defendant is ORDERED to make payments in a timely fashion.

Hols appeals. On appeal he asserts that (1) the district court imposed an illegal sentence when it required him to pay court-appointed attorney fees without limiting his liability for such fees to the fee cap set by the State Public Defender, and (2) the procedure used by the court in imposing attorney fees as a part of restitution is statutorily and constitutionally defective. He requests that we vacate that portion of his sentence regarding restitution for attorney fees and remand to the district court for an order establishing his obligation for attorney fees not to exceed $1200.

As a preliminary matter, the State argues that error has not been preserved as notice of appeal was filed on November 12, 2010, some "four months before the 'order' to pay attorneys' fees was entered on the online [Iowa Court Information System] docketing system on March 15, 2011," and a notice of appeal "cannot logically preserve an alleged error that has yet to occur." The record before us on appeal, however, contains no March 15, 2011 "order" and no indication that any such "order" was ever made by a judge. We therefore give no consideration to any such "order." Further, and more importantly, Hols's notice of appeal, filed four days after the district court's written judgment entry, together with the contents of his brief, make it clear that his challenge is to that portion of the court's November 8, 2010 sentence that concerns restitution for court- appointed attorney fees. Sentencing defects may be raised on appeal despite the absence of objection in the trial court. See State v. Cooley, 587 N.W.2d 752, 754 (Iowa 1998) (citing cases). The rule requiring that issues be first raised in the trial court does not apply to void, illegal, or procedurally defective sentences. State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994). We reject the State's assertion that Hols has not preserved error on the issue(s) presented.

Challenges to the legality of a sentence are reviewed for errors at law, State v. Davis, 544 N.W.2d 453, 455 (Iowa 1996), as are challenges to restitution orders, State v. Jenkins, 788 N.W.2d 640, 642 (Iowa 2010). If constitutional issues must be reached, they are reviewed de novo. State v. Brooks, 760 N.W.2d 197, 204 (Iowa 2009).

Iowa Code section 815.9 provides for determination of indigency and appointment of an attorney for a person found to be indigent. The trial court appointed counsel to represent Hols, presumably because Hols demonstrated indigency. Iowa Code section 910.2 provides, in relevant part, the following concerning payment of restitution for court-appointed attorney fees:

In all criminal cases in which there is a . . . verdict of guilty . . . the sentencing court shall order that restitution be made by each offender . . . to the extent that the offender is reasonably able to pay, for . . . ...


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