December 30, 2016
STATE OF IOWA, Appellee,
PATRICK JOHN LETSCHER, Appellant.
review from the Iowa Court of Appeals.
from the Iowa District Court for Winnebago County, Gregg R.
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. DECISION OF COURT OF APPEALS AFFIRMED IN PART
AND VACATED IN PART; DISTRICT COURT JUDGMENT AND SENTENCE
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
C. Smith, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
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
R. Ostergren, County Attorney, for amicus curiae Iowa County
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.
Factual Background and Proceedings.
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 OF
ARRAIGNMENT - AUTHORIZATION OF PLEAS OF GUILTY, "
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 applies)."
___ 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 I DO NOT
APPEAR, THIS BOND MAY BE FORFEITED AND A WARRANT FOR MY
ARREST MAY BE ISSUED IF THE 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
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.
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.
moved for reconsideration and requested he be sentenced to
probation. The motion was denied, and Letscher appealed.
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.
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.
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.
Gathercole, 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.
Standard of 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
Preservation of Error.
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
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).
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))).
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.
Authority of the District Court to Forfeit Bail as a Term of
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.
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. The Iowa statute provided,
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 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.").
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.
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.
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).
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. Iglesias, 149517 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); State v.
Briggs, 666 N.W.2d 573, 582 (Iowa 2003) (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).
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.
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.
OF COURT OF APPEALS AFFIRMED IN PART AND VACATED IN PART;
DISTRICT COURT JUDGMENT AND SENTENCE AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED WITH DIRECTIONS.
See 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, § 1074(3)
(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