IN THE SUPREME COURT OF IOWA
No. 09–0063
Filed September 17, 2010
STATE OF IOWA,
Appellee,
vs.
JEREMY FRANK JENKINS,
Appellant.
Appeal from the Iowa District Court for Webster County, Gary L.
McMinimee, Judge.
Defendant appeals district court restitution order asserting there is
no causal connection between the offense and the victim’s injuries.
REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, and Martha J. Lucey,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,
Assistant Attorney General, and Ricki Osborn, Assistant County
Attorney, for appellee.
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APPEL, Justice.
In this case we must determine the extent of the district court’s
discretion in ordering defendants to pay restitution to the Crime Victim
Compensation Program. Citing precedent from the court of appeals, the
district court concluded that it had no discretion in ordering restitution
to the program. The court ordered the defendant to compensate the
program for all monies previously distributed to the victim. The
defendant appeals alleging that the instant criminal offenses were not the
proximate cause of the compensated injuries.
I. Factual and Procedural Background.
A Webster County jury convicted the defendant, Jeremy Frank
Jenkins, of kidnapping in the third degree and assault with intent to
commit sexual abuse. On March 19, 2008, the district court sentenced
Jenkins as a habitual offender to an indeterminate term of imprisonment
not to exceed fifteen years, with a minimum sentence of three years, for
the kidnapping conviction and to an indeterminate term of imprisonment
not to exceed two years on the sexual abuse conviction. The court
ordered the sentences to run consecutively. The district court further
ordered Jenkins to pay restitution to the victim if applicable. Because
the amount of restitution was then unknown, the court ordered, “Any
claim for restitution shall be filed with the Court within 30 days. If the
parties cannot agree upon the amount of restitution, a hearing will be
held.”
Following sentencing, the Crime Victim Compensation Program
(CVCP) of the Iowa Department of Justice submitted a claim in the
amount of $946.60 to the Webster County Attorney’s Office for payments
it previously made to the victim. The claim included two payments for
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lost wages totaling $899.60 and one payment of $47 for clothing and
bedding replacement. The State moved for a restitution hearing.
The only witness called at the hearing was Ruth Walker, the
restitution subrogation coordinator for the Crime Victim Assistance
Division. Walker testified that the CVCP reimbursed the victim $659.20
for two weeks of lost wages following the criminal offense. The CVCP also
reimbursed the victim $240.40 for one week of lost wages for preparation
and attendance at Jenkins’ trial. On cross-examination, Walker
admitted that she was unaware that the victim was on unpaid leave from
her job at the time the offense occurred. The victim had taken unpaid
leave after Jenkins threatened her, but prior to the commission of the
instant offenses. Walker testified that the CVCP reviews lost wage claims
for “reasonableness” and accepts the employer’s statement that the
victim was “absent due to crime injuries.”
After Walker’s testimony, the State moved that Jenkins be ordered
to pay restitution to the CVCP in the full amount requested—$946.60.
Jenkins countered that the CVCP is only entitled to partial
reimbursement. According to Jenkins, the program can reimburse
victims in any manner it chooses, but can only receive restitution from
offenders where the criminal offense is the proximate cause of the
victim’s injuries. Jenkins argued that some of the victim’s lost wages
were not causally connected to the instance offenses. He noted that prior
to the commission of the offense, the victim took unpaid leave. The
victim’s absence from work, therefore, was not caused by the instant
offenses. Finally, Jenkins asserted the victim’s attendance at trial only
caused her to miss fifteen hours of work and not an entire week. During
the week of trial, the victim was scheduled to work from 3 p.m. to
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11 p.m. According to Jenkins, the victim could have attended trial each
day and then worked from 6 p.m. to 11 p.m.
The district court ordered Jenkins to pay restitution to the CVCP
in the full amount of $946.60. Citing State v. Bradley, 637 N.W.2d 206
(Iowa Ct. App. 2001), the court held that it had no discretion to review a
restitution order to the CVCP and that it was required to order restitution
to the CVCP for all payments remitted to the victim, regardless of
whether a “causal connection” existed between the criminal offense and
the victim’s injuries. Jenkins appealed.
II. Standard of Review.
We review restitution orders for correction of errors at law. State v.
Klawonn, 688 N.W.2d 271, 274 (Iowa 2004). “When reviewing a
restitution order, ‘we determine whether the court’s findings lack
substantial evidentiary support, or whether the court has not properly
applied the law.’ ” Id. (quoting State v. Bonstetter, 637 N.W.2d 161, 165
(Iowa 2001)).
III. Discussion.
A. History of Criminal Restitution. A proper interpretation of
the Iowa statute requires an understanding of the context within which
this statute was enacted. See Iowa Code § 4.6(2) (2007) (instructing the
court to consider “[t]he circumstances under which the statute was
enacted” in determining legislative intent); 2B Norman J. Singer, Statutes
and Statutory Construction § 49:1, at 7 (7th ed. 2008) (suggesting court
“tak[e] into consideration the historical framework” of a statute when
interpreting it). Because the historical framework of this law informs our
search for legislative intent, we begin our discussion with a review of the
historical development of criminal restitution.
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Prior to the 1970s, restitution in criminal matters was generally
imposed only as a condition of probation or parole. Matthew Dickman,
Should Crime Pay?: A Critical Assessment of the Mandatory Victims
Restitution Act of 1996, 97 Cal. L. Rev. 1687, 1688 (2009) [hereinafter
Dickman]. Over recent decades, however, both federal and state
governments, including Iowa’s, have enacted statutes designed to
increase the level of restitution to crime victims in response to a growing
victims’ rights movement. See 6 Wayne R. LaFave, et al., Criminal
Procedure § 26.6(c), at 824 (3d ed. 2007) [hereinafter LaFave].
On the federal level, congressional activity in criminal restitution
began with the enactment of the Victim and Witness Protection Act
(VWPA) in 1982. Dickman, 97 Cal. L. Rev. at 1688. The VWPA expanded
the discretion of federal judges to impose restitution obligations on
criminal defendants. Id. In 1996, Congress strengthened restitution by
passing the Mandatory Victims Restitution Act (MVRA). Id. In place of
the discretionary VWPA regime, the MVRA made restitution mandatory in
nearly all cases. Id.
Numerous states also enacted legislation related to restitution in
state criminal proceedings. By the early 1980s, approximately two-thirds
of the states had enacted some kind of statutory regime providing for
victim compensation. Alan T. Harland, Monetary Remedies for the
Victims of Crime: Assessing the Role of the Criminal Courts, 30 UCLA L.
Rev. 52, 59 (1982) [hereinafter Harland].
Several constitutional issues have arisen as a result of the
restitution legislation. For example, arguments have been made that
under either the Sixth or Seventh Amendment, a criminal defendant is
entitled to a jury trial on all factual issues before restitution is imposed.
See generally Melanie D. Wilson, In Booker’s Shadow: Restitution Forces
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a Second Debate on Honesty in Sentencing, 39 Ind. L. Rev. 379 (2006)
[hereinafter Wilson] (asserting Sixth Amendment guaranties of right to
jury trial and proof of guilt beyond a reasonable doubt apply in
sentencing); Bonnie Arnett Von Roeder, Note, The Right to a Jury Trial to
Determine Restitution Under the Victim and Witness Protection Act of 1982,
63 Tex. L. Rev. 671 (1984) (asserting right to jury trial under Seventh
Amendment).
Most federal authorities reject the requirement of a jury trial for
criminal restitution. See Wilson, 39 Ind. L. Rev. at 402. Even where
procedural due process applies to the offender’s loss of property resulting
from restitution orders, the process that is required is ordinarily less
than a full blown, trial-type evidentiary hearing before a jury. LaFave,
§ 26.6(c), at 825–26; see also United States v. Sunrhodes, 831 F.2d 1537,
1541–43 (10th Cir. 1987); United States v. Palma, 760 F.2d 475, 477–79
(3d Cir. 1985); United States v. Satterfield, 743 F.2d 827, 839–40 (11th
Cir. 1984); Franco v. State, 918 A.2d 1158, 1162 (Del. 2007); State in re
D.G.W., 361 A.2d 513, 521 (N.J. 1976); State v. Lack, 650 P.2d 22, 29
(N.M. Ct. App. 1982); State v. Tuttle, 460 N.W.2d 157, 159–60 (S.D.
1990); State v. Pope, 321 N.W.2d 359, 361 (Wis. Ct. App. 1982); Note,
Victim Restitution in the Criminal Process: A Procedural Analysis, 97
Harv. L. Rev. 931, 943 (1984) (arguing due process protections in regard
to restitution are limited to notice and an informal process); Lorraine
Slavin & David L. Sorin, Congress Opens a Pandora’s Box—The
Restitution Provisions of the Victim and Witness Protection Act of 1982, 52
Fordham L. Rev. 507, 544–63 (1984) (same).
In this case, Jenkins does not object to the nature of the hearing
provided by the district court. The sole issue raised by Jenkins is
whether, after hearing the evidence presented, the district court erred by
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determining that it was foreclosed by law from making a judicial
determination of the “causal connection” between the amounts paid to
the victim by the CVCP and the defendant’s criminal activity.
For the reasons expressed below, we conclude that the district
court erred in failing to make a determination regarding the amount of
damages caused by the criminal activity in this case. As a result, we
remand the case to the district court for further proceedings.
B. Iowa Statutory Framework. Iowa Code chapter 910 generally
provides the framework for imposition of the criminal sanction of
restitution. Iowa Code section 910.1(4) defines the term “restitution.”
Restitution means the “payment of pecuniary damages to a victim in an
amount and in the manner provided by the offender’s plan of restitution.”
Iowa Code § 910.1(4). “Restitution” also means “the payment of crime
victim compensation program reimbursements” and other governmental
expenses. Id.
Regardless of whether the restitution is made to the victim or to
the government, imposition of restitution is mandatory under Iowa law.
Iowa Code section 910.2 states, in relevant part, “In all criminal cases in
which there is a . . . verdict of guilty, . . . the sentencing court shall order
that restitution be made by each offender . . . .” Iowa Code § 910.2
(emphasis added). Thus, like the federal MVPA, judges have no
discretion in Iowa to decline to impose restitution. Where the offender is
not reasonably able to pay all or part of a CVCP reimbursement,
however, the district court may allow the offender to perform community
service. Id.
An offender is provided with notice of a potential restitution claim
under the statute. Iowa Code section 910.3 requires the county attorney
to “prepare a statement of pecuniary damages to victims of the defendant
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and, if applicable, any award by the [CVCP],” and provide it to the
presentence investigator or submit it to the court at the time of
sentencing. Id. § 910.3. The court is then to enter an order setting “out
the amount of restitution” and the persons to whom restitution is to be
paid. Id.
In connection with restitution orders, a criminal defendant may
challenge restitution at the time of sentencing and may file a timely
appeal in the criminal case of any restitution order. State v. Blank, 570
N.W.2d 924, 925–26 (Iowa 1997). In addition, “[a]t any time during the
period of probation, parole, or incarceration, the offender . . . may
petition the court on any matter related to the plan of restitution or
restitution plan of payment.” Iowa Code § 910.7(1). A petitioner seeking
to challenge a restitution award outside of a criminal appeal, however, is
not automatically entitled to a hearing, but is granted a hearing only if
the district court determines, based on the petition, that a hearing is
warranted. Blank, 570 N.W.2d at 927; State v. Alspach, 554 N.W.2d 882,
883–84 (Iowa 1996). If the district court determines that a hearing
should be held, the court has authority to modify the plan of restitution,
the plan of payment, or both. Iowa Code § 910.7(2).
Iowa Code chapter 915 provides the framework for operation of
what has been known as the CVCP. Under this statutory provision, the
department of justice is authorized to award compensation for “economic
losses incurred as a direct result of an injury to or death of the victim.”
Id. § 915.86. Included in compensable economic loss is “[l]oss of income
from work the victim would have performed and for which the victim
would have received remuneration if the victim had not been injured, not
to exceed six thousand dollars.” Id. § 915.86(2). Compensable economic
loss also includes “[l]oss of income from work that the victim . . . would
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have performed . . . where the loss of income is a direct result of . . .
attendance at criminal justice proceedings including the trial . . . .” Id.
§ 915.86(4).
C. Iowa Case Law Regarding Challenges to Restitution. This
court has not had occasion to consider the ability of an offender to
challenge the factual determination by the CVCP that certain losses were
caused by the crime and thus subject to payment to the victim and
restitution from the offender. In Bradley, 637 N.W.2d at 210, however,
our court of appeals considered whether a restitution order by the
district court should include amounts paid by the CVCP for the funeral
expenses of an out-of-state victim. In Bradley, there was no factual
question that the funeral expenses paid by the CVCP were caused by the
crime. Id. at 214 n.5. The issues presented on appeal were purely legal,
namely, whether the district court’s restitution order was timely, whether
the requirement for restitution had been waived by the failure to include
a restitution provision in a plea agreement, and whether restitution could
be ordered for expenses arising out of a crime for which the defendant
was charged in Missouri. Id. at 212–15.
The Bradley court rejected the offender’s arguments. Id. While the
court held that the restitution order was not timely filed under Iowa Code
section 910.3, it also concluded that the timeliness requirement was
directory, not mandatory. Id. at 212. The court further found that
silence in a plea agreement did not in and of itself override the
mandatory imposition of restitution and that the district court had
jurisdiction to impose the order of restitution. Id. at 213–15.
As noted previously Bradley did not involve a factual challenge to
causation with respect to payments made by the CVCP. Id. at 214 n.5.
Nonetheless, the Bradley court, in dicta, declared that while the district
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court is charged with finding proximate cause between the offender’s
activities and the victim’s damages when ordering restitution to be paid
directly to the victim, the district court is without authority to determine
causation when funds are paid by the CVCP. Id. at 215. The court
stated that no “discretion exists in regard to crime victim assistance
payments” and that “[t]he district court is not only authorized but
mandated to order restitution for these amounts, subject only to the
offender’s reasonable ability to pay.” Id. This Bradley dicta was
transformed into black letter law in subsequent unpublished cases. See
State v. Mott, No. 08–1656, 2009 WL 1676974, *2 n.1 (Iowa Ct. App.
June 17, 2009); State v. Bertch, No. 07–0492, 2008 WL 4725159, *3
(Iowa Ct. App. Oct. 29, 2008); State v. Hoaglund, No. 05–1104, 2006 WL
1897134, *1 (Iowa Ct. App. July 12, 2006). In two of these cases,
however, the court of appeals, perhaps recognizing weakness in
Bradley’s dicta, held in the alternative that causation was in fact
established in the record. Mott, No. 08–1656, 2009 WL 1676974 at *2;
Hoaglund, No. 05–1104, 2006 WL 1897134 at *1 n.1.
The unpublished post-Bradley case law received further
elaboration in State v. Goyette, No. 07–0300, 2008 WL 4308213 (Iowa Ct.
App. Sept. 17, 2008). In Goyette, the court of appeals rejected a
procedural due process challenge to the Bradley dicta. Goyette, No. 07–
0300, 2008 WL 4308213 at *1–*2. The Goyette court noted that an
offender could challenge such causation in the administrative process
before the CVCP or in separate civil proceedings under Iowa Code section
910.7. Id. at *2. Therefore, the court did not find a constitutional
infirmity. Id.
As a result of the above cases, under the current case law of our
court of appeals, the factual question of causation of payments made by
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the CVCP may not be challenged by an offender in a sentencing
proceeding for purposes of determining the proper amount of restitution.
D. Analysis. While Bradley has been affirmed in unpublished
court of appeals decisions in the past decade, this case presents a matter
of first impression for this court. Based on our review of the statute and
the applicable law, we conclude that while the district court has a
mandatory duty to impose restitution under Iowa Code chapter 910, it
may review CVCP payments to determine whether there is a causal
connection with the underlying crime as required by Iowa Code section
915.86 in order to determine the proper amount of a restitution order.
Our interpretation is consistent with ordinary sentencing procedures, is
not inconsistent with the provisions of Iowa Code chapters 910 and 915,
and provides defendants with a meaningful predeprivation remedy to
challenge erroneous CVCP payments.
Under section 910.2, ordering restitution to the CVCP is
mandatory, mitigated only by the defendant’s reasonable ability to pay.
The fact that restitution is mandatory, however, does not necessarily
mean that the court is without authority to determine the amount of
restitution. Indeed, the federal MVRA eliminates judicial discretion on
the decision to impose restitution, but does not deprive courts of
jurisdiction to determine the amount. See 18 U.S.C. § 3663(a)(1)(B)(i)(I)
(2006) (authorizing court to determine the amount of the loss sustained
by each victim as a result of the offense); see also United States v.
Reichow, 416 F.3d 802, 805 (8th Cir. 2005) (causal link of mandatory
restitution must be established).
As noted above, section 910.3 establishes a procedure to ensure
that an offender receives notice in the presentencing process of the
amounts that could be imposed as restitution, including payments made
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by the CVCP. Section 910.3 then authorizes the court to “set the amount
of restitution.” There is nothing in the language of section 910.3 that
suggests that the district court lacks the power to determine whether
reimbursements made by the CVCP were, in fact, “caused” by the
underlying criminal offense as required by Iowa Code section 915.86.
Further, denying Jenkins an opportunity to challenge the amount
of the restitution order before the district court implicates his right to
procedural due process. The overwhelming weight of federal and state
authorities agree that procedural due process in the context of criminal
restitution orders requires some kind of notice and an opportunity to be
heard. 1 In addition, giving preclusive effect to determinations of the
CVCP would give rise to a substantial issue regarding improper
delegation of judicial authority. See Harland, 30 UCLA L. Rev. at 94–96;
see also Morgan v. Wofford, 472 F.2d 822, 827 (5th Cir. 1973) (delegation
of power to set amount of restitution to probation officer without notice
and opportunity to be heard held invalid); State v. Summers, 375 P.2d
143, 146 (Wash. 1962) (“It is an unlawful delegation of judicial authority
to authorize the probation officer to fix the amount of the payments.”).
Although Jenkins has not raised due process or delegation of judicial
authority challenges, when interpreting a statute we construe the
language so as to avoid a constitutional infirmity where possible. In re
Young, 780 N.W.2d 726, 729 (Iowa 2010).
1Our analysis is not inconsistent with State v. Izzolena, 609 N.W.2d 541 (Iowa
2000). In Izzolena, we determined that procedural due process was not offended by the
failure to provide a hearing concerning the imposition of restitution in the amount of
$150,000 in connection with a murder. Izzolena, 609 N.W.2d at 552–53. There was
virtually no risk of error since the amount of restitution was liquidated and not subject
to any factual determination other than the commission of the crime of murder, which
was established beyond a reasonable doubt in the criminal trial. Id. at 553. Here, the
amount to be awarded by the CVCP is not liquidated and is fact dependent, thereby
triggering materially more substantial due process concerns than were present in
Izzolena.
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Recognizing the potential difficulty with procedural due process,
the State suggests that Jenkins has an adequate avenue for contesting
the amount of restitution, namely, an administrative challenge to the
CVCP payment. The offender, however, is not a party to the CVCP
proceeding. Further, under the applicable administrative rule, only a
victim can appeal the amount of a CVCP payment. Iowa Admin. Code r.
61—9.36(1). Such an illusory remedy does not avoid the due process
problem present in this case.
Although the State does not press the argument in this appeal, the
Goyette court’s suggestion—that any potential due process problem is
avoided because the offender may file a postsentencing petition under
Iowa Code section 910.7—is misplaced. While the offender may bring a
claim under Iowa Code section 910.7, this is a postdeprivation remedy
where a hearing is a discretionary matter, not a matter of right. In
addition, an offender is not entitled to appointed counsel as a matter of
right. Alspach, 554 N.W.2d at 883–84. A contingent postdeprivation
remedy where the offender may be unrepresented does not give this court
comfort in the context of procedural due process.
In any event, as a matter of statutory interpretation, it would make
no sense to prevent an offender from directly challenging the causal
connection of payments made by the CVCP in a sentencing proceeding
under Iowa Code section 910.3, only to allow the offender to later make
such a challenge in a petition under section 910.7.
In sum, while an order for restitution under Iowa Code section
910.2 to the CVCP is mandatory, we hold that the district court is not
precluded from reviewing CVCP payments to determine whether the
statutory causation requirements of Iowa Code section 915.86 have been
met. Specifically, the district court may review whether there was a
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sufficient causal link as a matter of fact between the loss of income paid
by the CVCP and Jenkins’ criminal activity as required by Iowa Code
section 915.86(2) and (4). In light of our ruling, this case is remanded to
the district court for a determination of whether the instant criminal
offenses were the cause of injuries which were compensated by the
CVCP.
IV. Conclusion.
The decision of the district court is reversed and the case is
remanded for further proceedings.
REVERSED AND REMANDED.