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State v. Bullock

Court of Appeals of Iowa

September 13, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
DAUNTE DOMINIQUE BULLOCK, Defendant-Appellant.

         Appeal from the Iowa District Court for Des Moines County, William L. Dowell (judgment) and Mary Ann Brown (amended judgment), Judges.

         Daunte Dominique Bullock appeals from an order entered on his motion to correct illegal sentences.

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

          Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney General, for appellee.

          Considered by Danilson, C.J., McDonald, J., and Scott, S.J. [*]

          DANILSON, Chief Judge.

         Daunte Dominique Bullock appeals from a district court order entered on his motion to correct illegal sentences. The supreme court granted his motion for delayed appeal and transferred the case to this court. Bullock contends the district court erred in assessing him court costs and attorney fees without making a determination of his reasonable ability to pay and argues any delay in raising the issue is attributable to ineffective assistance of counsel. This claim must first be made to the district court. We dismiss the appeal.

         In 2003, Bullock was convicted of first-degree kidnapping for an offense committed in 1999 when Bullock was sixteen years old.[1] He was sentenced to life without the possibility of parole on the kidnapping conviction. Bullock was sentenced to two consecutive prison terms not to exceed twenty-five years on the burglary and sexual-abuse convictions, with a mandatory minimum on the sexual-abuse charge.

         Bullock's kidnapping conviction was affirmed on direct appeal. See State v. Bullock, No. 03-1444, 2004 WL 2173339, at *1 (Iowa Ct. App. Sept. 29, 2004). In 2011, based on Graham v. Florida, 560 U.S. 48, 74-75 (2010), and Bonilla v. State, 791 N.W.2d 697, 701 (Iowa 2010), Bullock was resentenced to life with the possibility of parole. Provisions of his sentence regarding restitution were left undisturbed.

         In 2014, Bullock filed a motion to correct illegal sentence, seeking resentencing with no mandatory minimum based on State v. Lyle, 854 N.W.2d 378, 381 (Iowa 2014) (holding "juvenile offenders cannot be mandatorily sentenced under a mandatory minimum sentencing scheme"). The district court conducted a resentencing hearing on the motion, heard evidence, and ultimately entered an "order reaffirming previous sentence" after engaging in the analysis required by Lyle.[2] Bullock's appeal of the resentencing on the sexual-abuse and burglary charges was decided by this court on March 23, 2016. See State v. Bullock, 2016 WL 1130311, at *4. There, our court stated: "To the extent Bullock claims he does not have the reasonable ability to pay the restitution ordered in 2002, he can petition the district court for a hearing to review the plan of restitution or the restitution plan of payment pursuant to Iowa Code section 910.7." Id.

         Bullock was allowed a delayed appeal in this case regarding his kidnapping conviction due to counsel's failure to file a timely notice of appeal despite Bullock's timely request.

         On appeal, Bullock does not challenge district court's order resentencing him to life in prison with possibility of parole. Rather, he challenges the restitution portions of his sentence previously entered, which were left undisturbed in both the 2011 and 2014 resentencing proceedings. He contends court costs and mandatory attorney fees were assessed to him "without the constitutionally mandated determination of his reasonable ability to pay." Bullock asserts, "This matter should be reversed and remanded for a hearing to determine Bullock's reasonable ability to pay the obligations in question."

         The State responds in part by contesting Bullock's right to raise this issue here. The State argues Bullock may only challenge the district court's order reaffirming the prior sentence through certiorari or discretionary review. See State v. Propps, 897 N.W.2d 91, 97 (Iowa 2017) (noting there is no right to appeal a denial of a motion to correct illegal sentence and that "appeals from a motion to correct an illegal sentence are most appropriately fashioned" as a petition for writ of certiorari). The State further argues that because Bullock is not challenging the substance of the 2014 order but is rather disputing the amount of restitution-an issue unaddressed in the district court's 2014 order-"[t]he proper mechanism to contest the amount of restitution is a motion pursuant to section 910.7."

         We disagree slightly with the State's characterization of Bullock's request to this court. Bullock is not directly challenging the amount of the restitution ordered. Rather, he is asserting there has been no hearing or finding of "his reasonable ability to pay the obligations emanating from his conviction." Bullock correctly asserts that a finding of an ability to pay is "constitutionally ...


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