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State v. Gross

Supreme Court of Iowa

November 15, 2019

STATE OF IOWA, Appellee,
v.
LARRY LEROY GROSS JR., Appellant.

         On review from the Iowa Court of Appeals.

          Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

         A defendant convicted of a criminal offense challenges an order that he pay jail fees for pretrial detention.

          Mark C. Smith, State Appellate Defender (until withdrawal), and Maria Ruhtenberg, Assistant Appellate Defender, for appellant.

          Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant Attorney General.

          MANSFIELD, JUSTICE.

         I. Introduction.

         After a defendant was convicted of arson in the second degree, the county sheriff sought recovery of fees under Iowa Code section 356.7 for the defendant's pretrial detention. The sheriff did not, however, ask that the fees be included in restitution. See Iowa Code § 356.7(2)(i) (2017). The district court ordered the defendant to pay the requested amount.

         On appeal, the defendant claims the court should have determined his reasonable ability to pay those jail fees before awarding them. The State counters that because the fees were not awarded as part of restitution, the district court was not required take into account the defendant's reasonable ability to pay.

         On our review, we affirm the order of the district court and the decision of the court of appeals. Based on our reading of the statutes, we find that because the sheriff did not ask for the fees to be included in restitution, the amount is not subject to the reasonable-ability-to-pay limitations on restitution set forth in Iowa Code chapter 910. This means, however, that certain pathways available for collecting restitution are not available here.

         II. Facts and Procedural History.

         On June 29, 2017, Des Moines police officers responded to a house fire at the home of Larry Gross. Four others resided in the house and were also present when the fire started: (1) Megan Gross, Larry's wife; (2) Geoff Hansen, a lifelong friend of Larry's who was renting a room from Larry; (3) Chris Hope, who lived in the basement with Nicole Pote; and (4) Nicole Pote. Based upon their investigation, the police determined that Larry Gross had knowingly set fire to his home with the intent to destroy or damage his home. According to police reports, Gross told Megan and Geoff to grab anything they cared about because he had just lit the house on fire.

         On August 9, the State charged Gross with arson in the first degree. See Iowa Code § 712.2. Pending trial, Gross was held on a $25, 000 cash or surety bond. Gross never posted bail. On October 19, under a plea agreement, Gross pled guilty to arson in the second degree. See id. §§ 712.1, .3.

         On January 5, 2018, the district court sentenced Gross to prison for a term not to exceed ten years with credit for time served. See id. § 902.9(1)(d). The court also indicated there would be restitution, stating, "There will be restitution. If there is restitution, I assume there will be a supplemental order?" to which the State responded, "Correct, Your Honor." The court later added, "You could be ordered to make restitution, which is financial compensation, for any monetary loss that may be suffered by the victim of the crime, if you're financially able to do so."

         The court memorialized this open-ended determination in its sentencing order, which stated, "Defendant is ordered to make restitution in the amount of $TBD. . . . If the amounts of restitution are not available at the time of sentencing, a supplemental order will follow." The sentencing order also suspended fines because of Gross's incarceration and waived attorney fees "based on the circumstances and Mr. Gross's present situation, that he cannot afford [to] pay the fees and costs of the state public defender."

         On January 8, Gross appealed his conviction. On November 21, the court of appeals affirmed Gross's conviction, finding that his plea was supported by a factual basis. Pending appeal, Gross was held on a $20, 000 cash appeal bond. Gross did not post this bond either.

         Meanwhile, on April 6, the Polk County Sheriff's Department filed an application for reimbursement for $11, 415, consisting of Gross's room and board for 197 days of incarceration at the Polk County Jail from June 29, 2017, through January 11, 2018. See id. § 356.7(2)(i). On April 9, the district court entered an order in the criminal case approving the sheriff's claim for $11, 415 in correctional fees. The order stated, in part,

IF YOU DISPUTE THE AMOUNT OWED, PLEASE CONTACT THE POLK COUNTY JAIL AT 515-323-5411 OR VISIT THEIR WEBSITE AT https://wvw.polkcountyiowa.gov /sheriff/divisions/detention/inmate-room-board/.
ANY DEFENDANT AGGRIEVED BY THE ABOVE ORDER MAY FILE AN APPLICATION WITH THE COURT TO HAVE THE COURT REEXAMINE THIS DECISION. THE APPLICATION MUST BE FILED WITHIN 15 DAYS AFTER THE FILING OF THE COURT'S ORDER[.]
Payments may be mailed or made in person:
Attn: Accounting Clerk
Polk County Jail
1985 NE 51st Place
Des Moines, Iowa 50313

(Citation omitted.) The order was mailed to Gross's home address in Des Moines and not to the Mt. Pleasant Correctional Facility where he was then confined.

         On April 16, Gross initiated an appeal of the order approving the sheriff's claim for reimbursement of jail room and board. His pro se notice of appeal also included a financial affidavit claiming indigence and requesting appointment of counsel.

         Gross was appointed appellate counsel, and later, his appeal was transferred to the court of appeals. Just over a year later, on April 17, 2019, the court of appeals affirmed the district court's reimbursement order, finding that it was a civil judgment executable under chapter 626-not a restitution award under chapter 910-and therefore exempt from a reasonable-ability-to-pay analysis.

         On May 7, Gross applied for further review, and we granted his application.

         III. Standard of Review.

         We review restitution orders for correction of errors at law. State v. Jenkins, 788 N.W.2d 640, 642 (Iowa 2010). In doing so, "[w]e determine whether the court's findings lack substantial evidentiary support, or whether the court has not properly applied the law." State v. Albright, 925 N.W.2d 144, 158 (Iowa 2019) (quoting State v. Klawonn, 688 N.W.2d 271, 274 (Iowa 2004)). "We review rulings on questions of statutory interpretation for correction of errors at law." State v. Iowa Dist. Ct., 889 N.W.2d 467, 470 (Iowa 2017) (quoting State v. Olutunde, 878 N.W.2d 264, 266 (Iowa 2016)).

         IV. Did the District Court Err in Ordering Gross to Pay for Room and Board for His Time Spent in Jail Without Finding that He Had the Reasonable Ability to Pay?

         A. Error Preservation.

         Generally, error is preserved on an issue if (1) a party raises the issue before the district court, (2) the district court rules upon the issue, and (3) the party again raises the issue on appeal. State v. Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa 2002). However, the rule of error preservation "is not ordinarily applicable to void, illegal or procedurally defective sentences." State v. Richardson, 890 N.W.2d 609, 615 (Iowa 2017) (quoting State v. Thomas, 520 N.W.2d 311, 313 (Iowa Ct. App. 1994)).

         The State argues that Gross failed to preserve error at the district court level by not seeking reconsideration as suggested in the district court's April 9, 2018 order or, alternatively, seeking enlargement of that order pursuant to Iowa Rule of Civil Procedure 1.904(2). This is consistent with the State's position that the ...


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