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State v. Delacy

Court of Appeals of Iowa

July 18, 2018

STATE OF IOWA, Plaintiff-Appellee,
v.
SEAN NEAL DELACY, Defendant-Appellant.

          Appeal from the Iowa District Court for Henry County, Mark E. Kruse (guilty plea) and John G. Linn (sentencing), Judges.

         Defendant appeals the district court's order requiring him to pay restitution following his convictions for sexual exploitation of a minor and lascivious acts with a child.

          Mark C. Smith, State Appellate Defender, and Brenda J. Gohr, Assistant Appellate Defender, for appellant.

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

          Considered by Vogel, P.J., and Doyle and Bower, JJ.

          BOWER, JUDGE.

         Sean Delacy appeals the district court's order requiring him to pay restitution following his convictions for sexual exploitation of a minor and lascivious acts with a child. We deny Delacy's claim the restitution order and plan is improper. We affirm the restitution order and restitution plan.

         I. Background Facts & Proceedings

         Delacy pleaded guilty to sexual exploitation of a minor, in violation of Iowa Code section 728.12(1) (2015), and lascivious acts with a child, in violation of section 709.8(1)(a), both class "C" felonies. On April 25, 2016, he was sentenced to a term of imprisonment not to exceed ten years on each count, to be served consecutively. The court stated on the record, "The defendant shall pay court costs, victim restitution, if there is any, and the cost of court-appointed counsel. Based on the defendant's financial situation, $100 is the amount that I conclude the defendant is reasonably able to pay."

         Delacy filed his first notice of appeal on May 10, claiming he received ineffective assistance because defense counsel did not inform him he could be assessed surcharges. We affirmed his convictions and preserved his claims of ineffective assistance of counsel for postconviction relief. See State v. Delacy, No. 16-0827, 2017 WL 1735684, at *5 (Iowa Ct. App. May 3, 2017).

         The State filed a statement of pecuniary loss on October 14, 2015, showing restitution totaling $2347.92 to the Iowa Crime Victim Compensation Program. Prior to Delacy's appeal, on May 10, the State filed an application for restitution, asking the court to amend the judgment entry to require Delacy to pay restitution in this amount. The court entered an order on May 11, the day after Delacy appealed, ordering Delacy to pay restitution of $2347.92. A restitution plan was filed on August 17, 2017, showing Delacy owed costs of $694.49, fines of $2000.00, surcharges of $700.00, and restitution of $2347.92. Delacy appeals the court's August 17 order.[1]

         II. Discussion

         Delacy claims a procedural due process violation because restitution was ordered against him on May 11, 2016, without notice and an opportunity to be heard. Our review of a restitution order is for the correction of errors at law. State v. Coleman, 907 N.W.2d 124, 134 (Iowa 2018). On constitutional issues our review is de novo. State v. Plain, 898 N.W.2d 801, 810 (Iowa 2017).

         "[A] defendant challenging a restitution order entered as part of the original sentence has two options: to file a petition in district court under section 910.7, or to file a direct appeal." State v. Blank, 570 N.W.2d 924, 926 (Iowa 1997) (citing State v. Janz, 358 N.W.2d 547, 549 (Iowa 1987)). If the time for a direct appeal has expired at the time a restitution order is entered, the defendant may file a petition under section 910.7 within thirty days for the action to be considered an extension of the criminal proceedings. Id. Barring a timely direct appeal or petition under section 910.7, a defendant may still file an ...


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