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State v. Opperud

Court of Appeals of Iowa

February 20, 2019

STATE OF IOWA, Plaintiff-Appellee,
v.
MICHAEL JOHN OPPERUD, Defendant-Appellant.

          Appeal from the Iowa District Court for Bremer County, Chris Foy, Judge.

         A 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.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Tabor, P.J., Mullins, J., and Blane, S.J. [*]

          TABOR, PRESIDING JUDGE.

         In 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 Opperud.[1]

         On 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.

         I. Facts and Prior Proceedings

         In September 2013, Opperud pleaded guilty to theft in the first degree, a class "C" felony.[2] 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 law-enforcement-initiative surcharge.

         In 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."

         Following 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.

         On the same day as the restitution order, the court discharged Opperud ...


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