from the Iowa District Court for Bremer County, Chris Foy,
defendant appeals an order denying his application to
eliminate his remaining restitution obligation following his
conviction for first-degree theft.
Richard N. Tompkins, Jr., Mason City, for appellant.
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee.
Considered by Tabor, P.J., Mullins, J., and Blane, S.J.
2014, Michael Opperud agreed to pay fifty dollars per month
toward his restitution obligation of $18, 501.85 arising from
his first-degree theft conviction. Two years later, facing
serious health issues and unemployment, Opperud urged the
district court to find he did not have the ability to pay the
remaining balance of $17, 450.32. After an evidentiary
hearing, the district court found it had "no
authority" to grant the relief sought by
appeal, Opperud claims the district court erred by not
determining "his ability to pay and adjusting the order
to pay accordingly." But Opperud did not ask the
district court to determine his ability to pay certain
categories of restitution under Iowa Code section 910.2(1)
(2016). He asked the court to "waive the balance of the
restitution" because he was "unable to pay the
same." The district court properly determined that
request was outside its authority. Finding no abuse of
discretion in the court's handling of Opperud's
specific demand, we affirm.
Facts and Prior Proceedings
September 2013, Opperud pleaded guilty to theft in the first
degree, a class "C" felony. In January 2014, the
district court sentenced him to incarceration of no more than
ten years and a fine of $1000 but suspended both. The court
also ordered to him pay victim restitution totaling $18,
375.85, court costs of $180.00, and a $125.00
November 2016, Opperud applied to modify his restitution. He
asserted he suffered from several health issues including
kidney disease, gallbladder surgery, and a diagnosis of
stomach cancer. He was unable to work and relied on
disability benefits. He offered a single exhibit-his recent
bank statements showing monthly deposits of $490.00 from the
Social Security Administration. Opperud argued because he was
"now unable financially to complete the restitution
payments due to his health conditions," the court should
"determine that the defendant does not have the ability
to pay the balance of the restitution, costs and attorney
fees." Opperud further requested "the Court order
that he should not be required to pay any more restitution,
costs or attorney fees."
a hearing under Iowa Code section 910.7, the district court
denied the application. The court believed Opperud's
health was declining, he was not working, and his only income
came from disability benefits. But, the court concluded it
had "no authority to grant [Opperud] the relief he
seeks." The court reasoned,
[A] sentencing court must order the defendant to make full
restitution to the victim . . . . Defendant presented no
evidence to show that the amount of restitution he was
ordered to pay in this case was incorrect or exceeded the
loss that [the victim] sustained as a result of his crime.
Regardless of his present ability (or inability) to pay, the
express terms of section 910.2 require that the court order
Defendant to make full restitution to his victim.
same day as the restitution order, the court discharged