IN THE COURT OF APPEALS OF IOWA
No. 17-1501
Filed July 18, 2018
STATE OF IOWA,
Plaintiff-Appellee,
vs.
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. AFFIRMED.
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.
2
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
3
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 action under section 910.7, “[b]ut
the action would be civil, not criminal, in nature.” Id. (citing State v. Alspach, 554
N.W.2d 882, 884 (Iowa 1996)).
1
Delacy filed the notice of appeal on September 22, 2017, and filed a motion for delayed
appeal with the Iowa Supreme Court. The supreme court ruled, “Upon consideration, this
court determines the appellant exhibited a timely intent to appeal from the district court’s
August 17, 2017 order. The appellant’s motion for delayed appeal is granted.” (Citation
omitted).
4
The time for a direct appeal expired on May 25, 2016, thirty days after the
judgment entry was filed on April 25. See State v. Hallock, 765 N.W.2d 598, 602
(Iowa Ct. App. 2009) (noting under Iowa Rule of Appellate Procedure 6.101,
appeals in criminal actions must be taken within thirty days of the final judgment).
Delacy filed a timely direct appeal but did not raise this issue, which arose the day
after he filed his notice of appeal. He did not file a second notice of appeal within
the thirty-day period after the judgment entry.
Additionally, Delacy could have filed a petition under section 910.7(1)
challenging the restitution order within thirty days after the order was filed on
May 11, 2016. See State v. Jose, 636 N.W.2d 38, 47 (Iowa 2001) (“To be
considered an extension of the criminal proceedings, however, the defendant’s
petition under section 910.7 must be filed within thirty days from the entry of the
challenged order.”). If he filed a petition under section 910.7(1) at a later time, it
would be civil in nature. See Alspach, 554 N.W.2d at 884 (“When, pursuant to
Iowa Code section 910.7, a later action is initiated to modify the plan or extend its
completion date, the suit is civil in nature and not part of the criminal
proceedings.”).
The record shows Delacy did not file a petition under section 910.7(1)—
within thirty days or at all. Delacy took no action to challenge the restitution order
until he filed his notice of appeal on September 22, 2017. He could have
challenged the restitution plan or restitution plan of payment at any time under the
provisions in section 910.7. In his appellate brief, Delacy acknowledges he did not
follow the proper procedure to challenge the restitution order under section 910.7.
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Delacy asks to have his case remanded to the district court for a restitution
hearing with court-appointed counsel. He did not make a timely request for a
restitution hearing under section 910.7 in order for such a proceeding to be
considered a continuation of his criminal proceedings, where he would have the
right to court-appointed counsel. See id. (noting a defendant has the right to
counsel in a proceeding filed within thirty days under section 910.7, but not
ordinarily in a later, civil action under section 910.7).
Delacy can still file a petition for a restitution hearing under section 910.7,
although at this point the action would be civil, rather than criminal in nature. See
Blank, 570 N.W.2d at 926. He would be granted a hearing if the district court
determines from “the face of the petition it appears that a hearing is warranted.”
Iowa Code § 910.7(1).
We find Delacy’s claim he was denied procedural due process is
disingenuous because he did not avail himself of the statutory procedure in section
910.7 to challenge the restitution order. We deny Delacy’s claim the restitution
order is improper. We affirm the restitution order and restitution plan.
AFFIRMED.