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State v. Colvin

Court of Appeals of Iowa

March 8, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
WILLIAM C. COLVIN JR., Defendant-Appellant.

         Appeal from the Iowa District Court for Howard County, James C. Bauch, Judge.

         A defendant appeals the restitution provisions in the district court's sentencing order. APPEAL DISMISSED.

          Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney General, for appellee.

          Considered by Potterfield, P.J., and Doyle and Tabor, JJ.

          TABOR, Judge.

         Twenty-eight-year-old William Colvin Jr. pleaded guilty to sexually abusing a fourteen-year-old member of his household. On appeal, he challenges the restitution ordered by the court. Colvin requests a remand to correct the order and to hold a hearing on his ability to pay restitution. Because Colvin's issues are moot, we dismiss the appeal.

         I. Facts and Prior Proceedings

         On May 23, 2016, Colvin pleaded guilty to sexual abuse in the third degree, in violation of Iowa Code section 709.4 (2015), and was immediately sentenced. The State asked the court to follow the recommendations in the presentence investigation report, including, in part, a ten-year suspended sentence, a five-year probationary term, and sex-offender treatment. The State did not object to the court suspending "the $250 civil penalty fee for being a sex offender." See Iowa Code § 692A.110(2). Colvin asked the court to suspend all fines, civil penalties, and surcharges and enter a deferred judgment.

         The court followed the State's recommendation, including suspension of the $250 civil penalty, "given your work history and your situation, " and ordered victim restitution "for any services required for the victim as a result of your actions." After noting Colvin was not capable of paying attorney fees, the court declined to order repayment. The court required Colvin to pay a surcharge of $100 mandated by Iowa Code section 911.2B and "court costs in an amount to be determined by the clerk's office, and judgment fees accordingly."

         As relevant here, the court's May 24, 2016 written sentencing order, unlike its oral pronouncement, required Colvin to "pay a civil penalty of $250 to the clerk of court" as a sex offender. The court suspended the minimum fine of $1000 and the 35% fine surcharge but required Colvin to pay victim restitution and a room-and-board fee as set by the sheriff. The written order further stated: "COURT COSTS. The defendant shall pay all court costs, fees, and special surcharges required to be assessed for all of these offenses by state law. Under section 911.2B, defendant is fined $100 domestic abuse[1] surcharge . . . . Clerk will assess [him] for these costs."[2]

         On May 27, the DCS filed a restitution plan in which Colvin agreed to pay $50 each month toward $350 in court costs, with payments starting in June 2016. The district court approved Colvin's restitution plan. On June 10, 2016, Colvin filed a notice of appeal.[3]

         On June 29, 2016, the clerk's financial summary showed Colvin had not made any payments toward his then $490 in financial obligations-itemized as civil penalty sex offender ($250), domestic/sexual abuse ($100), court reporter services ($40), and filing fee ($100). See State v. Dudley, 766 N.W.2d 606, 624 (Iowa 2009) (discussing section 910.2 and stating court costs, including court reporter fees, are included in the definition of "restitution" required of a convicted defendant).

         Colvin performed community service at a recycling center on several days over the next two months and submitted his community service hours, at $7.25 per hour, to the court "in lieu of" court costs-$113.16 in July, $246.50 and $244.75 in August, totaling $584.41 ($94.91 more than ...


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