State of Iowa v. Adam Stephen Miller

                    IN THE COURT OF APPEALS OF IOWA

                                   No. 20-0576
                             Filed January 21, 2021


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ADAM STEPHEN MILLER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, John M. Wright

(sentencing) and Wyatt Peterson (restitution), Judges.



      Adam Stephen Miller appeals from the sentence imposed following his

guilty plea to third-offense possession of a controlled substance with a habitual-

offender enhancement. AFFIRMED.




      Martha J. Lucey, State Appellate Defender, and Nan Jennisch, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.



      Considered by Bower, C.J., and Vaitheswaran and Greer, JJ.
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BOWER, Chief Judge.

         Adam Stephen Miller appeals from the sentence imposed following his

guilty    plea   to    third-offense   possession     of      a   controlled   substance

(methamphetamine) with a habitual-offender enhancement.1 Miller contends the

district court abused its sentencing discretion in considering an improper factor and

failed to consider his reasonable ability to pay for reimbursement of jail fees.

I. Sentence.

         “Our review of a sentence imposed in a criminal case is for correction of

errors at law.” Damme, 944 N.W.2d at 103 (quoting State v. Formaro, 638 N.W.2d

720, 724 (Iowa 2002)).

         A sentencing court’s decision to impose a specific sentence that falls
         within the statutory limits “is cloaked with a strong presumption in its
         favor, and will only be overturned for an abuse of discretion or the
         consideration of inappropriate matters.” Our task on appeal is not to
         second-guess the sentencing court’s decision. Rather, we must
         determine that its decision “was exercised on grounds or for reasons
         that were clearly untenable or unreasonable.” We afford sentencing
         judges a significant amount of latitude because of the “discretionary
         nature of judging and the source of respect afforded by the appellate
         process.” Nevertheless, “[i]f a court in determining a sentence uses
         any improper consideration, resentencing of the defendant is
         required . . . even if it was merely a ‘secondary consideration.’”

Id. at 105–06 (alteration in original) (citations omitted).

         Here, the plea did not include an agreement as to the appropriate sentence.

The presentence investigation report recommended a suspended sentence,



1There is no right of appeal where a defendant has pled guilty except under certain
circumstances. Iowa Code § 814.6(1)(a)(3) (Supp. 2019). However, our supreme
court has held “that good cause exists to appeal from a conviction following a guilty
plea when the defendant challenges his or her sentence rather than the guilty
plea.” State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020). Miller challenges his
sentence and not the guilty plea.
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participation in drug court, and substance-abuse treatment with “intensive level of

supervision.” The defense and the State jointly recommended the court impose a

suspended prison sentence and supervised probation, with special conditions

including completion of drug court and placement in the residential facility.2 The

district court, however, imposed a term of imprisonment not to exceed fifteen years

with a three-year minimum sentence and assessed applicable surcharges, court

costs, and attorney fees.     The court waived all but the D.A.R.E. and Law

Enforcement Initiative surcharges based on Miller’s inability to pay. No restitution

was ordered.

       Miller acknowledges the court considered a number of relevant sentencing

factors—Miller’s age (thirty-five), education (high school diploma), the substance-

abuse evaluation with a recommendation for inpatient treatment, acceptance in the

drug court should the district court suspend sentence, Miller’s fifteen-year history

of substance abuse, lengthy history of criminal convictions, a prior prison sentence,

a past probation revocation, and Miller’s lack of participation in treatment outside

of a controlled setting. But Miller asserts the court considered an improper factor,

emphasizing this statement by the court: “And my belief is that you cannot

overcome an addiction to methamphetamine; you just use the resources available

to manage it.” Miller claims the court’s opinion “is neither rooted in the record nor

supported by scientific research.” The court’s statement is not discernibly different

from Miller’s contention that “drug addiction is a treatable disorder” that can be

“managed successfully.”


2 Miller had been conditionally accepted for participation in drug court and
residential treatment.
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       We are not persuaded the court provided reasons that were clearly

untenable or unreasonable or expressed an impermissible fixed policy.3 The

sentencing court considered several mitigating factors. It acknowledged defense

counsel’s argument that the underlying crime was a “simple possession” of a

controlled substance. But the court also observed, “This possession is subsequent

to a previous possession which is subsequent to a previous possession. So, you

see, nothing has broken the chain so far in your [thirty-five] years.” The district

court did not abuse its sentencing discretion.

II. Reimbursement of jail fees.

       Miller also challenges an order for correctional costs and fees claimed by

the sheriff’s department, contending the court failed to consider his reasonable

ability to pay. The State maintains this issue is not properly presented in this

proceeding.

       Criminal judgment was entered on March 9, 2020. On April 6, Miller’s filed

a notice of appeal “from the final judgment and sentence entered herein on March

9, 2020, and all adverse rulings therein.” As has been stated before, “When a

party . . . files a notice of appeal related to a specific order, we cannot rewrite it to

include an order entered on a later date.” State v. Boyer, No. 18-1892, 2020 WL

2108129, at *2 (Iowa Mar. 12, 2020).




3  “If a court in determining a sentence uses any improper consideration,
resentencing of the defendant is required.” State v. Grandberry, 619 N.W.2d 399,
401 (Iowa 2000). “This is true even if it was merely a ‘secondary consideration.’”
Id. (citation omitted). And a court cannot apply a “fixed policy to govern every
case.” See State v. Hildebrand, 280 N.W.2d 393, 396 (Iowa 1979).
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       Yet, “whether the sentencing court determined the defendant’s reasonable

ability to pay before imposing restitution” is an issue that may be raised for the first

time on appeal even though it was not raised in the district court. State v. Gross,

935 N.W.2d 695, 698 (Iowa 2019). However, “an award of jail fees is not subject

to a reasonable-ability-to-pay limitation unless the fees are a component of

restitution.” Id. at 703.

       On March 10, 2020, the day after sentencing, the sheriff served a claim on

Miller at the jail for room and board fees in the amount of $7350 (147 days at the

rate of $50 per day). That same date, Miller signed an agreement to make monthly

payments of $20 per month on the fees. On March 11, 2020, the sheriff filed the

claim for room and board fees, and the district court entered a “judgment for costs

and fees pursuant to Iowa Code [section] 356.7” in the amount of $7350. The

judgment noted it “may be enforced pursuant to Iowa Code [chapter] 626.” Section

626.1 provides: “Judgments or orders requiring the payment of money, or the

delivery of the possession of property, are to be enforced by execution.”

       The district court’s March 11 judgment does not mention restitution or

chapter 910. This court has recently addressed a very similar challenge by a

defendant and concluded the district court correctly treated the sheriff’s claim as a

civil judgment. See generally State v. Sorter, No. 19-0534, 2020 WL 2487615

(Iowa Ct. App. May 13, 2020). In Sorter we explained:

       The Gross decision weighed an error-preservation claim under facts
       much like Sorter’s case. On one hand, if the award is a civil
       judgment, “the rules of error preservation for civil matters apply.”
       Gross, 935 N.W.2d at 702. On the other hand, restitution is part of
       a criminal sentence, and defendants may raise the failure to consider
       their reasonable ability to pay for the first time on appeal. See State
       v. Gordon, 921 N.W.2d 19, 22–23 (Iowa 2018). But “once the
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deadline for direct appeal has run, the defendant is limited to filing a
petition to modify restitution . . . under Iowa Code section 910.7.”
Gross, 935 N.W.2d at 699 (citing State v. Jose, 636 N.W.2d 38, 46–
47 (Iowa 2001)). The court noted “error preservation is intertwined
with the merits” in such cases. Id. “If the award of jail fees is part of
restitution, then Gross can raise the lack of a reasonable-ability-to-
pay hearing for the first time in a timely direct appeal.” Id. Like the
Gross court, we proceed to the merits.
        Because category-two items include jail fees, it appears at first
blush that a sheriff’s claim is subject to a reasonable-ability-to-pay
determination. Id. But the code adds greater complexity to the jail-
fee question. Only those fees approved under section 356.7 may be
assessed as category-two restitution.                See Iowa Code
§ 910.2(1)(a)(3). “The sheriff, municipality, or the county attorney,
on behalf of the sheriff, or the attorney of the municipality, may file a
reimbursement claim with the clerk of district court” which includes
all the relevant information. Id. § 356.7(2). On that list of relevant
information is “a request that the amount owed be included within the
order for payment of restitution by the person” if the sheriff wishes to
go that route. See id. § 356.7(2)(i) [Deleted by 2020 Iowa Acts
ch. 1074, § 60, effective June 25, 2020].
        ....
        Gross addressed a sheriff’s claim that did not include a
specific request to include jail fees within restitution. 935 N.W.2d at
703. The supreme court held where the sheriff does not “opt . . . to
have jail fees included in restitution,” there is no reasonable-ability-
to-pay limitation. Id. In other words, “an award of jail fees is not
subject to a reasonable-ability-to-pay limitation unless the fees are a
component of restitution” and the sheriff must include the request in
their application for reimbursement. Id.
        ....
        The district court properly entered these claims as civil
judgments under chapter 626. . . . [T]he sheriff did not elect to
include the jail fees as an item of restitution. So when the court
approved the fees under section 356.7(3), it correctly inferred the
sheriff was choosing to enforce the claim under chapter 626. Under
Gross and the relevant statutes, the court did not need to perform a
reasonable-ability-to-pay analysis.
        To recap, because the sheriff did not ask for the jail fees to be
included in the amount of restitution, the district court correctly
treated the claim as a civil judgment. And because the awards are
civil judgments, two consequences follow. First, Sorter did not
preserve error by objecting in the district court. Second, even if he
had, the awards would not be subject to a reasonable-ability-to-pay
determination. Thus we affirm the awards.
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2020 WL 2487615, at *2–3. For the same reasons stated in Sorter, we conclude

the district court was not required to make a reasonable-ability-to-pay

determination here. We affirm.

      AFFIRMED.