IN THE COURT OF APPEALS OF IOWA
No. 18-2079
Filed January 23, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JEFFREY RAY NAGEL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Heather L. Lauber,
Judge.
Jeffrey Nagel appeals his sentence following his guilty plea to assault with
intent to commit sexual abuse. SENTENCE VACATED IN PART AND
REMANDED.
Mark C. Smith, State Appellate Defender, (until withdrawal) and Bradley M.
Bender, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
2
VAITHESWARAN, Presiding Judge.
Jeffrey Nagel pled guilty to assault with intent to commit sexual abuse. The
district court accepted his plea and imposed sentence. The order of disposition
included a provision requiring Nagel to make restitution in an amount to be
determined. The order further stated, “[I]f the amounts of restitution are not
available at the time of sentencing, a supplemental order will follow.”
On appeal, Nagel contends the district court “did not evaluate [his]
reasonable ability to pay” victim restitution and court costs before ordering
restitution for those items, as required by State v. Albright, 925 N.W.2d 144, 162
(Iowa 2019). See also State v. Gross, 935 N.W.2d 695, 702 (Iowa 2019) (“Albright
makes clear that with respect to restitution, no award of reasonable-ability-to-pay
items . . . may occur until all such items are before the court and the court has then
made a reasonable-ability-to-pay determination.”). He argues we must vacate the
sentencing order and remand for further proceedings consistent with the opinion.
See Albright, 925 N.W.2d at 162.
We agree Albright is controlling. In accordance with the opinion, we vacate
the provision of the order of disposition that requires Nagel to make restitution and
remand for further proceedings. See, e.g., State v. Ackiss, No. 18-1787, 2019 WL
4678184, at *3 (Iowa Ct. App. Sept. 25, 2019); State v. Garvin, No. 18-1258, 2019
WL 2871423, at *2 (Iowa Ct. App. July 3, 2019); State v. Lester, No. 18-0524, 2019
WL 2872322, at *3 (Iowa Ct. App. July 3, 2019); State v. Northern, No. 18-1634,
2019 WL 2144773, at *2 (Iowa Ct. App. May 15, 2019.)
SENTENCE VACATED IN PART AND REMANDED.