State of Iowa v. Caesar Charles Davison

IN THE SUPREME COURT OF IOWA

No. 20–0950

Submitted October 21, 2021—Filed April 15, 2022

STATE OF IOWA,

Appellee,

vs.

CAESAR CHARLES DAVISON,

Appellant.

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

Wright, Judge.

A defendant convicted of assault causing serious injury and conspiracy to

commit a forcible felony (murder) appeals the award of $150,000 restitution and

the sentence. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Mansfield, J., delivered the opinion of the court, in which Appel,

McDonald, and Oxley, JJ., joined, and in which McDermott, J., joined, except as

to the discussion of legislative history in part III.A. McDonald, J., filed a

concurring opinion, in which Oxley, J., joined. McDermott, J., filed a special

concurrence. Waterman, J., filed an opinion concurring in part and dissenting

in part, in which Christensen, C.J., joined.
 2

Martha Lucey, State Appellate Defender, and Maria Ruhtenberg, Assistant

Appellate Defender, and Lucee Laursen (argued), law student, for appellant.

Thomas J. Miller, Attorney General, and Martha E. Trout (argued),

Assistant Attorney General, for appellee.
 3

MANSFIELD, Justice.

A jury found the defendant guilty of assault causing serious injury and

conspiracy to commit murder in connection with a shooting death. The district

court later awarded restitution against the defendant under Iowa Code section

910.3B (2017). That law mandates an award of at least $150,000 restitution

when “the offender is convicted of a felony in which the act or acts committed by

the offender caused the death of another person.” Id. § 910.3B(1). The defendant

now argues that the restitution was statutorily and constitutionally

impermissible because the offenses of which he was convicted did not include,

as an element, causing the death of another person.

We conclude that Iowa Code section 910.3B does not require a jury finding

that the defendant caused the death of another person. But the Sixth

Amendment to the United States Constitution is a different matter. The United

States Supreme Court has repeatedly held that the Sixth Amendment requires

facts that increase the defendant’s minimum or maximum punishment to be

determined by a jury. Because the $150,000 restitution is punitive in part,

awards of such restitution must be based on jury findings. No jury found that

the defendant caused the death of the victim of the shooting. Therefore, we

reverse the award of restitution in this case and remand for further proceedings.

I. Facts and Procedural History.

Early in the morning of September 10, 2017, Demarcus Chew rode back

with a group of friends from a club in Gulfport, Illinois to his home in Burlington,

Iowa. Another group had been at the same club. Members of that other group,
 4

which included the defendant Caesar Davison, Emmanuel Spann, Antoine

Spann, Andre Harris, and Derrick Parker, also left at the same time. The second

group was aware that an individual named A.J. Smith had a conflict with the

Chew family and had put a bounty on Demarcus Chew’s head.

When the car carrying Chew home neared Chew’s apartment, a vehicle

carrying most of the members of the second group also stopped. Davison and

Emmanuel Spann got out of that vehicle, leaving Antoine Spann and Harris

behind.1

Davison and Emmanuel Spann were out of the vehicle for only seconds or,

at most, a couple of minutes. During that time, multiple gunshots were fired.

Chew was struck seven times by bullets, once in the head, three times in the

chest or abdomen, once in the pelvis, once in the left arm, and once in the left

leg. Chew’s head wound was “rapidly fatal,” according to the medical examiner,

but the wounds to Chew’s lungs and liver would also have resulted in Chew’s

death by themselves.

Davison and Emmanuel Spann returned quickly to their vehicle. Antoine

Spann was told “to go.” When Davison and Emmanuel Spann were asked if they

got Chew, Davison responded, “Yeah, it was up close.” Davison was also heard

saying, “He gone.” As Antoine Spann drove away, Emmanuel Spann was seated

in the vehicle holding the murder weapon wrapped in a T-shirt. The vehicle made

another brief stop so Emmanuel could get out and hide the gun in some bushes.

1Both Antoine Spann and Harris made plea agreements that avoided murder charges but

required them to testify for the State.
 5

On April 2, 2019, the State filed a trial information in the Iowa District

Court for Des Moines County charging Davison with first-degree murder, in

violation of Iowa Code sections 707.1 and 707.2(1), and conspiracy to commit a

forcible felony, murder, in violation of Iowa Code sections 706.1 and 706.3.

The case was heard by a jury beginning on February 11, 2020. On

February 20, the jury returned verdicts finding Davison guilty of the lesser

included offense of assault causing serious injury, a class “D” felony, in violation

of Iowa Code section 708.2(4), and guilty as charged of conspiracy to commit a

forcible felony, murder, a class “C” felony.

The jury instruction for assault causing serious injury read as follows:

The State must prove all of the following elements of the
lesser-included offense of Assault Causing a Serious Injury:

1. On or about September 10, 2017, the defendant committed
an assault upon Demarcus Chew.

2. The defendant had the apparent ability to do the act.

3. The defendant’s act caused a serious injury to Demarcus
Chew.

The instruction for conspiracy to commit a forcible felony read:

As to Count II of the Trial Information, the State must prove
all of the following elements of Conspiracy to Commit a Forcible
Felony:

1. On or about the 10th day of September, 2017, Caesar
Davison agreed with Antoine Spann, Andre Harris, Emmanuel
Spann, and Derrick Parker that one or more of them would commit
the crime of Murder, a forcible felony, or solicit another to commit
the crime of Murder; or attempt to commit the crime of Murder.

2. Caesar Davison entered into the agreement with the intent
to promote or facilitate the crime of Murder.
 6

3. Caesar Davison, or Antoine Spann, Andre Harris,
Emmanuel Spann, or Derrick Parker committed an overt act in
furtherance of the agreement.

Significantly, neither of those crimes—unlike the murder and lesser-included

manslaughter offenses of which Davison was acquitted—required the jury to find

that Davison had caused Chew’s death.

On March 12, the State filed a statement of pecuniary damages requesting

an award of $150,000 restitution for the benefit of the Chew’s estate because

Davison had “caused the death of another person.” Iowa Code § 910.3B(1). The

next day, Davison lodged an objection based on Apprendi v. New Jersey, 530

U.S. 466 (2000), and Southern Union Co. v. United States, 567 U.S. 343 (2012).

On July 13, the district court imposed consecutive prison sentences on Davison

totaling fifteen years and ordered him to pay $150,000 in restitution to Chew’s

family under Iowa Code section 910.3B(1).

Davison appeals his restitution award and sentence. He argues that

section 910.3B does not authorize a restitution award unless causing the death

of another is an element of an offense for which the defendant was convicted.

Alternatively, Davison argues that the Sixth Amendment to the United States

Constitution and article I, section 9 of the Iowa Constitution require a jury

finding beyond a reasonable doubt that he caused the death of another. Finally,

Davison claims the district court abused its discretion at sentencing because it

was not aware it could sentence him to probation.

We retained Davison’s appeal.
 7

II. Standard of Review.

This court reviews restitution orders for correction of errors at law. State

v. Waigand, 953 N.W.2d 689, 694 (Iowa 2021). However, our review is de novo

when a constitutional claim is at issue. State v. Izzolena, 609 N.W.2d 541, 545

(Iowa 2000) (en banc). We review the district court’s sentence for abuse of

discretion. State v. Crooks, 911 N.W.2d 153, 161 (Iowa 2018).

III. Legal Analysis.

A. Does Iowa Code Section 910.3B(1) Apply Only to Defendants

Convicted of a Crime in Which an Element Was Causing the Death of

Another? Iowa Code section 910.3B(1) states:

In all criminal cases in which the offender is convicted of a felony in
which the act or acts committed by the offender caused the death of
another person, in addition to the amount determined to be payable
and ordered to be paid to a victim for pecuniary damages, as defined
under section 910.1, and determined under section 910.3, the court
shall also order the offender to pay at least one hundred fifty
thousand dollars in restitution to the victim’s estate if the victim
died testate.
The first issue Davison raises is one of statutory interpretation—does the

phrase “a felony in which the act or acts . . . caused the death of another person”

mean that the death-causing acts have to be part of the definition of the felony

itself or is it sufficient if the defendant is convicted of a felony and the acts that

constituted the felony also caused a death? Id. The defendant argues that the

correct interpretation requires causing a death to be an element of the felony.2

2The State does not dispute that causing a death is not a required element of either
offense of which Davison was convicted. See Iowa Code §§ 706.1, .3 (listing the elements of
conspiracy to commit a forcible felony); id. §§ 708.1(2), .2(4) (listing the elements of assault
causing serious injury).
 8

Our first step in a case of statutory interpretation “is to determine whether

the language is ambiguous.” State v. Richardson, 890 N.W.2d 609, 616 (Iowa

2017). To determine if a statute is ambiguous, we consider its language in

context and consider whether “reasonable minds differ or are uncertain as to the

meaning of the statute.” Id. (quoting Rhoades v. State, 880 N.W.2d 431, 446

(Iowa 2016)). In our view, the plain text of section 910.3B leaves room for

reasonable minds to differ, providing two explicit requirements but limited

guidance as to how closely they must connect. It is clear that the statute is

intended to apply to defendants convicted of a felony where a felonious act

resulted in the death of another, but less clear whether an act causing death

must be part of the felony.

The legislature could have avoided this issue with clearer language. For

example, the general rule for restitution is that the victim is entitled to pecuniary

damages they “could recover against the offender in a civil action arising out of

the same facts or event.” Iowa Code § 910.1(6). Iowa Code section 910.3B(1) does

not track that broad causation standard. On the other hand, the legislature

didn’t choose to say, “In all criminal cases in which the offender is convicted of

a felony an element of which is causing the death of another person . . . .” That

word choice would have mandated that we follow the narrower of the two

interpretations at issue here.

While the text leaves room for reasonable debate, we think it tends to favor

the broader interpretation. The statute uses the past tense, “caused,” rather than

the present tense, “cause.” The present tense would have conveyed that the
 9

attributes of the felony are determinative. In other words, does this felony involve

causing the death of another person? The past tense suggests that the acts in

the specific case matter—i.e., did this defendant’s felonious acts cause the death

of another person?

We note that the rule of lenity can come into play when interpreting

criminal statutes. Recently, though, in State v. Shears, we seemed to question

whether the rule of lenity applied to victim restitution:

We have stated that because criminal restitution is penal in
nature, the provisions of Iowa Code chapter 910 should be
interpreted strictly. See [State v. Bonstetter, 637 N.W.2d 161, 166
(Iowa 2001)]. We have also stated in passing that the rule of lenity
is applicable to criminal restitution. See State v. Hagen, 840 N.W.2d
140, 146 (Iowa 2013). Yet, we have suggested that it is appropriate
to consider a broader interpretation of restitution provisions
because the purpose of the statute is to protect the public. See [State
v. Kluesner, 389 N.W.2d 370, 372–73 (Iowa 1986)]. We have thus
held, for example, that the amount of restitution ordered is not
limited by the parameters of the offense for which the defendant
enters a guilty plea. See [State v. Watts, 587 N.W.2d 750, 751 (Iowa
1998)].

920 N.W.2d 527, 533 (Iowa 2018). We need not resolve today whether the rule of

lenity applies to awards of restitution to crime victims. We have said that the

rule of lenity is a “last resort.” In re Prop. Seized from Bo Li, 911 N.W.2d 423, 429

n.4 (Iowa 2018). It “applies only when a reasonable doubt persists after the

traditional canons of interpretation have been considered.” Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 197 (2012). For

the reasons we discuss herein, we believe Iowa Code section 910.3B can be

interpreted without touching upon the question of whether the rule of lenity

applies to criminal victim restitution.
 10

Iowa Code section 910.3B became law in 1997. 1997 Iowa Acts ch. 125,

§ 11. In 2000, we decided several cases involving that section. State v. Rohm,

609 N.W.2d 504 (Iowa 2000) (en banc); State v. Klawonn, 609 N.W.2d 515 (Iowa

2000) (en banc); State v. Artzer, 609 N.W.2d 526 (Iowa 2000) (en banc); Izzolena,

609 N.W.2d 541. None of the four cases directly presented the question of

interpretation we must answer today. Yet some language in State v. Izzolena

supports the broader interpretation that the State urges here. In Izzolena, this

court considered section 910.3B as it applied to a defendant convicted of

unintentionally causing the death of another by operating a motor vehicle in a

reckless manner. 609 N.W.2d at 545. The district court imposed victim

restitution under section 910.3B of $150,000. Id. On appeal, the defendant

argued that the restitution award was unconstitutional because it was an

excessive fine, a violation of due process, and a violation of double jeopardy. Id.

at 546–47.

In rejecting these claims, we observed in Izzolena that the statute “only

applies to offenders who committed a crime which caused the death of another

human.” Id. at 550. We also remarked that “[the defendant’s] actions resulted in

the death of [the victim].” Id. at 552. Additionally, we noted that “the commission

of the offense must have been the proximate cause of the victim’s death.” Id. at

553. Our choice of words in Izzolena indicates that Iowa Code section 910.3B

would be triggered by the defendant’s felonious acts, not necessarily by the

elements of the crime. The defendant’s actions, i.e., his or her commission of the
 11

offense, must cause the death of another, but causing the death of another

doesn’t have to be part of the crime itself.

Also, the legislative history of Iowa Code section 910.3B seemingly

supports the broader interpretation. See Iowa Code § 4.6(3) (providing that the

court may consider legislative history in interpreting an ambiguous statute). The

preamble characterizes the section as “providing restitution for death of a victim

of a crime.” 1997 Iowa Acts ch. 125. The official bill explanation states that “[t]he

bill also provides for payment of $150,000 by an offender, . . . to the estates of

persons whose deaths are caused by the offender’s felonious criminal acts.” S.F.

503, 77th G.A., 1st Sess., explanation (Iowa 1997). Thus, in the legislature’s

view, the key point appears to be whether the victim died as a result of the

defendant’s felonious acts, not whether the elements of the crime included

causing the victim’s death.

For these reasons, we are not persuaded by Davison’s argument that Iowa

Code section 910.3B requires causing the death of another to be an element of

a felony for which the defendant is convicted.

B. Is Section 910.3B Restitution an Increase in Penalty Requiring a

Jury Finding under Apprendi v. New Jersey and its Progeny? Davison also

argues that awarding restitution against him under section 910.3B was

unconstitutional absent a jury finding beyond a reasonable doubt that he had

caused the death of another. See Apprendi, 530 U.S. at 490.3

3Davison does not dispute that the district court found he had caused the death of Chew.
 12

1. The Apprendi Line of Cases. In Apprendi, the United States Supreme

Court held that a New Jersey statute violated the Fourteenth and Sixth

Amendments because it authorized the sentencing court to enhance the

defendant’s prison term as a “hate crime” without a jury determination that the

defendant acted with a purpose to intimidate based on the victims’ race. Id. at

468–69, 497. The Court held that because the fact of racial animus increased

the defendant’s maximum penalty, it was subject to the Sixth Amendment

requirement of a jury finding like any other element of a crime. Id. at 476–77.

Under this standard, the relevant inquiry is “one not of form, but of effect—does

the required finding expose the defendant to a greater punishment than that

authorized by the jury’s guilty verdict?” Id. at 494.

Over a decade later, in Southern Union, the Court considered whether a

statutory fine was subject to the rule in Apprendi. 567 U.S. at 346. A jury

returned a verdict finding the defendant guilty of one count of unlawfully storing

liquid mercury. Id. at 346–47. The criminal statute under which the defendant

was convicted authorized “a fine of not more than $50,000 for each day of

violation.” Id. at 347 (quoting 42 U.S.C. § 6928(d)). The district court imposed a

fine of $6 million after determining there had been a 762-day violation. Id. The

defendant argued that because it had only been convicted of a single count, the

district court could only levy the maximum fine for one day; Apprendi, in other

words, limited fines to the maximum authorized by the jury verdict alone. Id. The

Court agreed with the defendant’s argument, expressly holding that the Apprendi

rule applied to criminal fines. Id. at 360. As the Court put it, “In stating
 13

Apprendi’s rule, we have never distinguished one form of punishment from

another. Instead, our decisions broadly prohibit judicial factfinding that

increases maximum criminal ‘sentence[s],’ ‘penalties,’ or ‘punishment[s]’—terms

that each undeniably embrace fines.” Id. at 350 (alterations in original).

Southern Union was followed by Alleyne v. United States, 570 U.S. 99

(2013). There, the defendant had been convicted of robbery and using a firearm

in relation to a crime of violence, which carried a mandatory minimum of five

years in prison. Id. at 103–04. Yet the defendant received a seven-year

mandatory minimum sentence based on a district court finding that he had

“brandished” a firearm. Id. at 104. The Supreme Court rejected such district

court fact-finding. Id. at 108. It held that “[f]acts that increase the mandatory

minimum sentence are . . . elements and must be submitted to the jury and

found beyond a reasonable doubt.” Id.

This sets the stage for Davison’s argument here. We will parse Davison’s

argument into its components. First, the Apprendi rule embraces all forms of

penalty or punishment including monetary fines. See S. Union, 567 U.S. at 360.

Second, that rule requires the jury to find beyond a reasonable doubt any fact

that increases the minimum or maximum penalty or punishment. See Alleyne,

570 U.S. at 108; Apprendi, 530 U.S. at 490. Third, the $150,000 restitution

award is an additional penalty or punishment for committing a felony that

caused the death of another. See Izzolena, 609 N.W.2d at 548–49. And fourth,

no jury found that Davison caused Chew’s death.
 14

2. Courts have generally declined to apply Apprendi to restitution because

restitution is usually compensatory and indeterminate. At first glance, Davison’s

argument faces a steep climb. Courts considering the matter have ruled

overwhelmingly that Apprendi and Southern Union do not apply to criminal

restitution. See, e.g., State v. Leon, 381 P.3d 286, 289 (Ariz. Ct. App. 2016) (“Leon

acknowledges that no court has applied Apprendi to restitution awards.”); State

v. Arnett, 496 P.3d 928, 933 (Kan. 2021) (“[A]t least 11 of 13 federal United States

Circuit Courts of Appeal have refused to extend Apprendi and its progeny to

orders of restitution, not to mention the many state courts which have followed

suit.”); State v. Deslaurier, 371 P.3d 505, 509 n.2 (Or. Ct. App. 2016) (“Our

conclusion here is consistent with other jurisdictions that have considered

whether Southern Union has expanded the rule of Apprendi to restitution.”); see

also State v. Jenkins, 788 N.W.2d 640, 643 (Iowa 2010) (“Most federal authorities

reject the requirement of a jury trial for criminal restitution.”).

Although the rationales behind these decisions have varied, courts have

typically emphasized that restitution is both (1) compensatory and (2) an

indeterminate scheme arising from the conviction itself, with no statutory

maximum or minimum. See Arnett, 496 P.3d at 933. The decision in United

States v. Green is illustrative. 722 F.3d 1146 (9th Cir. 2013). There, the United

States Court of Appeals for the Ninth Circuit considered the constitutionality of

a federal restitution award under Apprendi and Southern Union. Id. at 1150. The

defendants argued that the crimes for which they had been convicted had no

express element of a victim or a loss, and therefore these elements had to be
 15

independently found by a jury. Id. The defendants equated restitution to a

criminal fine that would be subject to Apprendi in the wake of Southern Union.

Id. at 1149–50. The Ninth Circuit disagreed, noting the differences between a

criminal fine and restitution. Id. at 1150–51. First, restitution has compensatory

purposes. Id. at 1150. Second, the federal restitution scheme at issue was “an

indeterminate scheme” that had no statutory maximum. Id. at 1151.

One problem with relying on federal precedent here is that it primarily

involves restitution under the Mandatory Victims Restitution Act (MRVA) and the

Victim and Witness Protection Act (VWPA), which differ from Iowa Code section

910.3B in key respects. See VWPA, 18 U.S.C. § 3663; MRVA, 18 U.S.C. § 3663A.

In both acts, the restitution obligation flows from the conviction itself. See id.

§§ 3663(a), 3663A(a). Neither act sets any mandatory maximum or minimum

amount of restitution to be awarded; they merely identify types of actual

damages that may be recovered. Id. §§ 3663(b), 3663A(b). The specific amount

of restitution is dependent on the court’s factual findings of the victim’s loss. Id.

§§ 3663(b), 3663A(b). This includes offenses resulting in bodily injury that

results in death. Id. §§ 3663(b)(3), 3663A(b)(3).

3. Restitution under Iowa Code section 910.3B is punitive and determinate.

By contrast, Iowa Code section 910.3B establishes a mandatory minimum of

$150,000 awardable only if the defendant’s felonious acts caused the death of

another person. It may be a low number for the nonmonetary loss attributable

to a death of a human being, but it is a floor—and it is awarded only if certain

facts are found to exist. Under normal circumstances, a victim of crime in Iowa
 16

is limited to recovery of “pecuniary damages,” which exclude “damages for pain,

suffering, mental anguish, and loss of consortium.” Iowa Code §§ 910.1(6),

.2(1)(a). Only when the defendant is convicted of a felony in which their acts

caused the death of another person may the minimum amount of $150,000 be

recovered in addition. See id. § 910.3B(1).

Like other forms of restitution, the restitution authorized by Iowa Code

section 910.3B provides compensation. “It serves a remedial purpose in

compensating the victim’s estate.” Klawonn, 609 N.W.2d at 520.

But section 910.3B restitution is also punitive. In our 2000 decision,

Izzolena, we detected “several punitive elements” in the statute. 609 N.W.2d at

548. Restitution under section 910.3B “is awarded in addition to separate

restitution for pecuniary damages.” Id. Also, the statute “establishes a minimum

threshold amount of $150,000 for all cases, with no required proof of evidence

to support damages excluded from the definition of pecuniary damages.” Id. at

548–49. For this reason, we found that the $150,000 restitution was subject to

the Excessive Fines Clause of the Eighth Amendment to the United States

Constitution and article I, section 17 of the Iowa Constitution. Id. at 549.

We amplified on the punitive character of section 910.3B restitution in

State v. Corwin, decided later the same year. 616 N.W.2d 600, 601–02 (Iowa

2000) (en banc). There we held that the Ex Post Facto Clause barred an award

of the $150,000 minimum restitution for conduct that predated the 1997

enactment of the statute. Id. at 602. We remarked that “our analysis in Izzolena

rested on the premise that the legislative aim of section 910.3B was to enhance
 17

the punishment for crimes resulting in death, thereby deterring such conduct in

others.” Id. We concluded that “[b]ecause section 910.3B makes more

burdensome the penalty suffered by Corwin for crimes he committed before the

statute was enacted, it cannot be applied to him without violating constitutional

norms.” Id.

Our court most recently examined the punitive role of section 910.3B

restitution in State v. Richardson, 890 N.W.2d 609. Richardson had pleaded

guilty to aiding and abetting second-degree murder as a juvenile and was ordered

to pay $150,000 in restitution under section 910.3B. Id. at 612–13. She appealed

the order of restitution, arguing that the court should have considered her age

and related circumstances before ordering the full mandatory restitution. Id. at

613–14. Her statutory argument was based on what is now Iowa Code section

901.5(13), which gives the court authority to “suspend the sentence in whole or

in part, including any mandatory minimum sentence” for juvenile offenders. The

defendant maintained that “mandatory minimum sentence” includes restitution

under section 910.3B, and therefore the sentencing court had the discretion to

suspend the $150,000 restitution. Richardson, 890 N.W.2d at 615. The

defendant also maintained that assessment of the $150,000 restitution on a

juvenile offender violated the Excessive Fines Clause. Id. at 620.

We reiterated in Richardson that “a restitution award under section 910.3B

is partly punitive. Therefore, depending on the context, restitution could be

considered part of the ‘sentence.’ ” Id. at 617. Yet we concluded it was not part
 18

of the “mandatory minimum sentence” as that term was used by the legislature.

Id. at 619.

We also rejected Richardson’s argument that the $150,000 restitution was

an unconstitutional excessive fine when assessed on a juvenile homicide

offender. Id. at 624. Among other things, we noted that “payments on wrongful-

death judgments and settlements are credited against section 910.3B

restitution.” Id. at 623. We also pointed out that “[i]n a sense, Iowa Code section

910.3B functions as an alternative to a wrongful-death action.” Id. And we noted

that “$150,000 is not extraordinary or even generous compensation for the death

of a person,” despite the fact that pecuniary damages can be recovered

separately. Id. at 623 & n.10. Still, we reiterated that section 910.3B is subject

to an excessive fines analysis because of its “punitive characteristics.” Id. at 622.

Notably, in this case, the district court made clear that the $150,000

restitution award was a single award to be assessed jointly and severally against

all the defendants who had been convicted in connection with Chew’s death. In

that respect, it resembled a civil rather than a criminal sanction.

Yet at the end of the day, restitution under Iowa Code section 910.3B is a

form of punishment, as we explained in Izzolena and continued to acknowledge

in Corwin and Richardson. The $150,000 minimum assessment occurs only

upon conviction of a felony where the felonious act results in the death of the

victim, and the assessment is mandatory. See Iowa Code § 910.3B.

As we have already noted, every criminal conviction in Iowa can result in

an award of restitution. See id. § 910.2(1)(a) (“In all criminal cases in which there
 19

is a plea of guilty, verdict of guilty, or special verdict upon which a judgment of

conviction is rendered, the sentencing court shall order that pecuniary damages

be paid by each offender to the victims of the offender’s criminal activities . . . .”).

But this standard restitution is limited to damages the victim could recover in a

civil action, exclusive of punitive damages, pain and suffering, mental anguish,

and loss of consortium. Id. § 910.1(6). And with this regular type of restitution,

there is no predetermined minimum or maximum. The defendant is on notice

that their criminal conduct, if proved in a jury trial, could lead to an

indeterminate award of restitution as needed to compensate the victim for

pecuniary losses.

Section 910.3B restitution is different. A criminal defendant is required to

pay at least $150,000 to the decedent’s estate for having “caused the death of

another person.” Id. § 910.3B(1). This additional assessment for criminally

causing the death of another is not triggered by the mere fact of conviction and

must be paid regardless of the attendant circumstances. For example, it must

be paid even if, hypothetically, the decedent had already been dying of a painful

terminal illness; the decedent had asked the defendant to assist him in taking

his own life; and the decedent’s spouse (and sole beneficiary of his estate) had

been present and backed the wishes of the decedent. In sum, section 910.3B

restitution is both determinate and a form of punishment.

4. Applying Apprendi to Iowa Code Section 910.3B. We conclude that the

punitive and determinate characteristics of the $150,000 restitution bring it

within the rule of Apprendi and its offspring. The $150,000 assessment is, at
 20

least in constitutional terms, a fine, and “juries must determine facts that set a

fine’s maximum amount.” S. Union, 567 U.S. at 356.

Some other states have restitution statutes that impose mandatory

amounts of restitution for specific crimes. Under Minnesota law, those convicted

of identity theft must pay each direct victim “not less than $1,000” in restitution.

Minn. Stat. § 609.527(4)(b) (West, Westlaw through 2022 Reg. Sess.). The

Minnesota Supreme Court has held that given the purpose to “compensate crime

victims for their losses” and “the modest amount of mandatory restitution,” such

awards do not constitute “fines.” State v. Rey, 905 N.W.2d 490, 496–97 (Minn.

2018). Hence, the court declined to consider Apprendi-type arguments as to

identity theft restitution. Id. at 497.

Under California law, defendants convicted of a felony pay a “restitution

fine” of no less than $300 and no more than $10,000. Cal. Penal Code

§ 1202.4(b)(1) (West, Westlaw through 2022 Reg. Sess.). Defendants convicted of

a misdemeanor pay restitution fines of no less than $150 and not more than

$1,000. Id. California courts have found that Apprendi and Southern Union do

not impact the restitution fines imposed under this section. As the California

Supreme Court has explained,

[T]his mandatory restitution fine “is properly understood as part of
the maximum penalty statutorily authorized by a jury’s finding that
the defendant is guilty of a felony.” In imposing the fine, a court does
not make any factual finding that increases the range of penalties to
which the defendant is exposed. It simply sets a fine within the
prescribed statutory range. “Its ruling therefore raises no concerns
under Apprendi.”
 21

People v. Chhoun, 480 P.3d 550, 590 (Cal. 2021) (citations omitted) (first quoting

People v. Wall, 404 P.3d 1209, 1228 (Cal. 2017); then quoting People v.

Henriquez, 406 P.3d 748, 781 (Cal. 2017)).

Iowa Code section 910.3B differs from these laws. Unlike the $1,000

minimum authorized in Minnesota, $150,000 is not a modest amount. In fact,

we have previously treated section 910.3B restitution as a form of punishment

for Eighth Amendment and Ex Post Facto purposes. See Izzolena, 609 N.W.2d at

549; Corwin, 616 N.W.2d at 602. Nor is the restitution under section 910.3B

simply a range of sentencing discretion that attaches to every criminal

conviction, like the restitution fines available in California or the standard victim

restitution available under section 910.2(1)(a).

One could well argue that even if Iowa Code section 910.3B did not contain

a $150,000 mandatory minimum, it would still be subject to the rule in Apprendi

because the statute imposes an otherwise unavailable type of restitution—

namely, nonpecuniary damages—only on defendants whose felonious acts

caused the death of another. That seemingly necessitates a jury finding that the

defendant’s acts caused the death of another. “When a judge inflicts punishment

that the jury’s verdict alone does not allow, the jury has not found all the facts

‘which the law makes essential to the punishment,’ and the judge exceeds his

proper authority.” Blakely v. Washington, 542 U.S. 296, 304 (2004) (citation

omitted) (quoting 1 J. Bishop, Criminal Procedure § 87, at 55 (2d ed. 1872)). In

any event, the existence of “a minimum threshold amount of $150,000 for all

cases” helped us conclude in Izzolena that the award is partly punitive. 609
 22

N.W.2d at 548–49. And, here, it clearly distinguishes this case from other cases

where Apprendi has not been applied because the award of restitution was

considered simply a form of compensation.

For these reasons, we conclude that the district court’s award of $150,000

restitution in this case violated the Sixth Amendment to the United States

Constitution.4 We therefore vacate this award and remand for further

proceedings consistent with this opinion. Since the parties have not briefed or

argued the issue, we do not address today whether the Double Jeopardy Clause

or any other source of law would prohibit the State from pleading and proving in

a jury trial that the defendant caused Chew’s death and therefore should pay

$150,000 in restitution.

5. Responding to the opinion concurring in part and dissenting in part. The

opinion concurring in part and dissenting in part veers off the mark in two

respects. First, the opinion suggests that the jury did find Davison responsible

for Chew’s death. This suggestion is built on a mix-and-match of aiding-and-

abetting law, outdated criminal law that predates the current Iowa Criminal

Code, and civil tort law. The suggestion is incorrect. The State doesn’t even make

this suggestion, only members of this court do.

We can guess today that the verdicts may have been the product of a jury-

room compromise. Still, the jury could have rationally found that Davison

4In light of this conclusion, we need not reach Davison’s alternative argument that the
$150,000 restitution award violated the jury trial guarantee in article I, section 9 of the Iowa
Constitution. We point out that article I, section 10—not article I, section 9—is Iowa’s counterpart
to the Sixth Amendment. However, article I, section 9 does contain a separate jury trial
guarantee, stating, “The right of trial by jury shall remain inviolate . . . .” Iowa Const. art. I, § 9.
 23

entered into an agreement to murder Chew which included the overt act of

following Chew by car to Burlington. The jury could also have found that Davison

only fired nonfatal shots at Chew after both he and Emmanuel Spann got out of

the car, thus supporting the assault verdict. The jury did not receive an aiding-

and-abetting instruction.

The second error committed by the opinion concurring in part and

dissenting in part is its admonition to “follow the wisdom of the crowd” without

recognizing that we are interpreting a statute with unique characteristics. In a

typical restitutionary scheme, committing any crime automatically triggers an

indeterminate amount of purely compensatory restitution. So, courts have held

that Apprendi only requires that a jury have found a crime was committed. Here,

by contrast, having “caused the death of another person” (and no other

circumstance) triggers a punitive award of $150,000. We hold, therefore, that

Apprendi requires the jury to find that the defendant caused the death of another

person.

We also note that the practical effects of today’s decision should be

relatively narrow. In each of the previous cases where we were asked to review

an award of section 910.3B restitution following a jury trial, the defendant had

been convicted of a homicide felony—that is, a felony where the jury had to find

the defendant caused the death of another person.5 We believe cases where the

5SeeState v. Kolbet, 638 N.W.2d 653, 655 (Iowa 2001) (homicide by vehicle); Corwin, 616
N.W.2d at 601 (homicide by vehicle); Izzolena, 609 N.W.2d at 544 (involuntary manslaughter);
Rohm, 609 N.W.2d at 507 (involuntary manslaughter); Artzer, 609 N.W.2d at 528–29 (second-
degree murder); Klawonn, 609 N.W.2d at 517 (involuntary manslaughter).
 24

$150,000 restitution would be assessed on a defendant who was not convicted

of a homicide felony are, and likely will remain, relatively rare.

Further, to assure a jury finding of causation in such cases, the State

would have the option of submitting a special interrogatory to the jury. This

could be analogous to the special interrogatory used today to ascertain whether

an offense was sexually motivated, thus requiring the defendant to register as a

sex offender. See Iowa Code § 692A.126(1).

C. Did the Trial Court Abuse its Discretion by Not Considering the

Possibility of Probation? Although the briefing and oral argument in this

appeal have largely focused on the question of restitution, there is one other

issue we must address. Davison argues that the district court abused its

sentencing discretion by not considering him for probation based on a mistaken

belief that he was not eligible for probation after having been convicted of a

forcible felony.

The record raises some concerns about a misunderstanding. As Davison

points out, his defense counsel said near the beginning of the sentencing

proceeding that “Count I [assault causing serious injury under Iowa Code section

708.2(4)] is a forcible felony, so that probation would not be an option.” That

statement by Davison’s counsel was not correct. Assault causing serious injury

is not a forcible felony. See Iowa Code § 702.11(2)(f) (excluding assault causing

serious injury from the category of forcible felony).
 25

Later, the district court may have considered the possibility of probation.

During pronouncement of sentence, the court said to Davison, “You have no

family in the area who can assist you if you were on probation.”

Yet, still later, the district court expressed the view that Davison was not

eligible for bond on appeal because he had been convicted of a forcible felony.

Both the prosecutor and defense counsel agreed with that view, mistakenly. The

prosecutor said that “Count I would be a forcible felony,” and defense counsel

concurred, “That’s my understanding, Judge.” Again, that was incorrect.

“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. . . .’ ” State v. Boldon, 954 N.W.2d 62, 73 (Iowa 2021) (quoting State v.

Formaro, 638 N.W.2d 720, 724 (Iowa 2002)). But when the sentencing court fails

to exercise discretion because it “was unaware that it had discretion,” we

typically vacate and remand for resentencing. State v. Moore, 936 N.W.2d 436,

440 (Iowa 2019). Here the State tries to thread a needle. It acknowledges that

the district court may have misunderstood whether the assault conviction was a

forcible felony when bond on appeal was discussed, yet claims that the district

court didn’t misunderstand the situation several minutes earlier when it

sentenced Davison to prison.

Although any fault lies primarily with the parties and not with the district

court, prudence dictates that we should vacate Davison’s prison sentence and

remand for resentencing.
 26

IV. Conclusion.

For the foregoing reasons, we affirm Davison’s conviction. We vacate his

sentence and the award of $150,000 restitution and remand for resentencing.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Appel, McDonald, and Oxley, JJ., join this opinion, and McDermott, J.,

joins this opinion except as to the discussion of legislative history in part III.A.

McDonald, J., files a concurring opinion, in which Oxley, J., joins. McDermott,

J., files an opinion concurring specially. Waterman, J., files an opinion

concurring in part and dissenting in part, in which Christensen, C.J., joins.
 27

#20–0950, State v. Davison

McDONALD, Justice (concurring).

The Sixth Amendment to the United States Constitution provides that “[i]n

all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury.” In Apprendi v. New Jersey, the United States

Supreme Court held that the Sixth Amendment right to trial by jury required the

jury—and not the sentencing judge—to find “any fact,” except the fact of a prior

conviction, “that increases the penalty for a crime beyond the prescribed

statutory maximum.” 530 U.S. 466, 490 (2000). In Blakely v. Washington, the

Court clarified that the “statutory maximum” within the meaning of Apprendi is

the “maximum sentence a judge may impose solely on the basis of the facts

reflected in the jury verdict or admitted by the defendant.” 542 U.S. 296, 303

(2004). “Thus, while judges may exercise discretion in sentencing, they may not

‘inflic[t] punishment that the jury’s verdict alone does not allow.’ ” S. Union Co.

v. United States, 567 U.S. 343, 348 (2012) (alteration in original) (quoting

Blakely, 542 U.S. at 304). In Southern Union Co. v. United States, the Court

extended Apprendi and held “that the rule of Apprendi applies to the imposition

of criminal fines.” Id. at 360.

The threshold question in this case is whether Iowa Code section 910.3B

(2017) is a penalty for a crime within the meaning of the Supreme Court’s

Apprendi jurisprudence. See United States v. Behrman, 235 F.3d 1049, 1054 (7th

Cir. 2000) (stating that in determining whether Apprendi applies “the first

question is whether restitution is a ‘penalty for a crime’ ”). Our precedents dictate
 28

the answer to that question. In State v. Izzolena, we stated the financial penalty

imposed pursuant to “section 910.3B . . . serves other purposes normally

associated with punishment such as retribution and deterrence” and is a “fine”

subject to “the Eighth Amendment of the United States Constitution and article I,

section 17 of the Iowa Constitution.” 609 N.W.2d 541, 549 (Iowa 2000) (en banc).

In State v. Corwin, we stated “the legislative aim of section 910.3B was to

enhance the punishment for crimes resulting in death” and held the Ex Post

Facto Clauses of the Federal and State Constitutions prohibited the retroactive

imposition of the statutory punishment. 616 N.W.2d 600, 602 (Iowa 2000) (en

banc). In State v. Richardson, we reiterated that section 901.3B has several

punitive elements and is subject to the excessive fines clause of the Iowa

Constitution. 890 N.W.2d 609, 621–22 (Iowa 2017). This court’s repeated

conclusion that section 910.3B imposes a criminal punishment or fine subject

to the Excessive Fines and Ex Post Facto Clauses is controlling here, and I see

no reason why section 910.3B should be deemed a criminal punishment for

those purposes and not for the purposes of the right to trial by jury. See Oregon v.

Ice, 555 U.S. 160, 173 (2009) (Scalia, J., dissenting) (stating Apprendi and

related cases reject “artificial limitations upon the facts subject to the jury-trial

guarantee” and “the guarantee turns upon the penal consequences attached to

the fact”).

The opinion concurring in part and dissenting in part argues that Apprendi

should not be extended to restitution awards, but this merely begs the question.

It is not disputed that courts almost uniformly have held that Apprendi does not
 29

apply to restitution awards. See, e.g., United States v. Flynn, 969 F.3d 873, 881–

82 (8th Cir. 2020); United States v. Green, 722 F.3d 1146, 1151 (9th Cir. 2013);

United States v. Milkiewicz, 470 F.3d 390, 404 (1st Cir. 2006); United States v.

Carruth, 418 F.3d 900, 904 (8th Cir. 2005); but see Hester v. United States, 139

S. Ct. 509, 509–11 (2019) (Gorsuch, J., dissenting from the denial of certiorari)

(“[J]ust as a jury must find any facts necessary to authorize a steeper prison

sentence or fine, it would seem to follow that a jury must find any facts necessary

to support a (nonzero) restitution order.”); Green, 722 F.3d at 1151 (“Our

precedents are clear that Apprendi doesn’t apply to restitution, but that doesn’t

mean our caselaw’s well-harmonized with Southern Union. Had Southern Union

come down before our cases, those cases might have come out differently.”). And

the court’s opinion in this case says nothing different. The question in this case

is not, as the dissenting opinion frames it, whether Apprendi should be extended

to restitution awards. Instead, the question is whether section 910.3B is merely

a restitution award or whether it also amounts to criminal punishment. The

dissent assumes the former, but our precedents dictate the latter.

The dissenting opinion also concludes Apprendi is not applicable here

because section 910.3B prescribes a specific fine and thus does not “increase”

the defendant’s “ ‘statutory maximum’ (or minimum) sentence.” (Quoting

Apprendi, 530 U.S. at 490.) In my view, this argument misapprehends the

Court’s Apprendi jurisprudence. Crime and punishment is wholly a creature of

statute. See State v. Crawford, ___ N.W.2d ___, ___, 2022 WL 815299, at *5 (Iowa

Mar. 18, 2022). Crimes are defined by statute, and the district court can impose
 30

a sentence only when authorized by statute. See State v. Manser, 626 N.W.2d

872, 874 (Iowa Ct. App. 2001) (noting the court’s power to punish a defendant

only extends as far as the Iowa Code authorizes). Apprendi requires that the facts

authorizing the imposition of a statutory sentence be found by a jury and

reflected in the jury’s verdict. 530 U.S. at 490. It is immaterial whether the

punishment is a maximum, a minimum, range-bound, or wholly discretionary.

“When a judge inflicts punishment that the jury’s verdict alone does not allow,

the jury has not found all the facts ‘which the law makes essential to the

punishment,’ and the judge exceeds his proper authority.” Blakely, 542 U.S. at

304 (citation omitted) (quoting 1 J. Bishop, Criminal Procedure § 87, at 55 (2d

ed. 1872)).

Apprendi ensures “that the judge’s authority to sentence derives wholly

from the jury’s verdict. Without that restriction, the jury would not exercise the

control that the Framers intended.” Id. at 306. Justice Scalia, writing for the

Court, provided an example of how Apprendi applies and the type of absurd

result Apprendi prohibits:

Those who would reject Apprendi are resigned to one of two
alternatives. The first is that the jury need only find whatever facts
the legislature chooses to label elements of the crime, and that those
it labels sentencing factors—no matter how much they may increase
the punishment—may be found by the judge. This would mean, for
example, that a judge could sentence a man for committing murder
even if the jury convicted him only of illegally possessing the firearm
used to commit it—or of making an illegal lane change while fleeing
the death scene. Not even Apprendi’s critics would advocate this
absurd result. The jury could not function as circuitbreaker in the
State’s machinery of justice if it were relegated to making a
determination that the defendant at some point did something
 31

wrong, a mere preliminary to a judicial inquisition into the facts of
the crime the State actually seeks to punish.

Id. at 307–08 (emphasis added) (citation omitted).

This case is Justice Scalia’s absurd result that Apprendi prohibits. Davison

was charged with murder in the first degree. With respect to this charge, the jury

was instructed that the State had to prove, among other things, Davison caused

the death of Demarcus Chew. The jury was also instructed on the lesser included

offenses of murder in the second degree, voluntary manslaughter, and

involuntary manslaughter. With respect to each of these lesser included offenses,

the jury was instructed the State had to prove, among other things, Davison

caused the death of Demarcus Chew. The jury did not find Davison guilty of

these charges and instead found Davison guilty of assault causing serious injury

and conspiracy to commit a forcible felony. Neither of these offenses required the

jury to find Davison caused the death of another, nor is any such finding

reflected in the jury’s verdict. Even though the jury acquitted Davison of murder

and three lesser included offenses requiring the State to prove Davison caused

the death of another, the district court nonetheless found Davison caused the

death of another and imposed a $150,000 punishment on the defendant

pursuant to Iowa Code section 910.3B. As in Justice Scalia’s absurd and

prohibited result, here the district court imposed a financial penalty on Davison

for a homicide offense even though the jury found him guilty only of an assault.

This is precisely the kind of jury circumvention Apprendi was intended to avoid.

See S. Union Co., 567 U.S. at 350 (stating Apprendi applies broadly to “prohibit

judicial factfinding that increases maximum criminal ‘sentence[s],’ ‘penalties,’ or
 32

‘punishment[s]’ ” (alterations in original)); Apprendi, 530 U.S. at 482–83 (noting

the “historic link between verdict and judgment” and denouncing “a legislative

scheme that removes the jury from the determination of a fact that, if found,

exposes the criminal defendant to a penalty exceeding the maximum he would

receive if punished according to the facts reflected in the jury verdict alone”

(emphasis omitted)).

With this understanding, I join the court’s opinion.

Oxley, J., joins this concurring opinion.
 33

#20–0950, State v. Davison

McDERMOTT, Justice (concurring specially).

I join today’s opinion except for the part relying on legislative history. The

majority analyzes whether the statute’s phrase “a felony in which the act or acts

committed by the offender caused the death of another person” requires that the

death-causing acts be part of the elements of the felony itself. Iowa Code

§ 910.3B (2017). The majority correctly construes the statute’s use of past tense

language (caused vs. cause) as requiring that the death of another person need

not be one of the elements of the felony. But instead of ending the inquiry there,

the majority goes on to evaluate the legislative history of the statute, citing to the

bill “explanation” that initially accompanied the legislation when it was

introduced as indicative of “the legislature’s view.” I believe that this detour into

the legislative history is unnecessary and, in fact, undermines the majority’s

otherwise sound textual analysis.

“The law is what the law says.” Bank One Chi., N.A. v. Midwest Bank & Tr.

Co., 516 U.S. 264, 279 (1996) (Scalia, J., concurring in part and concurring in

the judgment). That statement might seem so obvious that it borders on banal.

But to explain the grounds for why we must reject legislative history as an

interpretive tool, it’s important to consider what the law is—and is not.

The law is not the statements or beliefs of particular legislators or

legislative staff. State v. Macke, 933 N.W.2d 226, 233 (Iowa 2019) (“[W]e must

apply the new enactment as written, not by what the legislature might have said

or intended.”). A statute’s meaning “is to be found not in the subjective, multiple
 34

mind of Congress but in the understanding of the objectively reasonable person.”

Frank H. Easterbrook, The Role of Original Intent in Statutory Construction, 11

Harv. J.L. & Pub. Pol’y 59, 65 (1988). Legislators of varying viewpoints—aware

that courts might cite to legislative history in potential future cases involving the

interpretation of the legislation—may seek to stack the deck with suitable

“legislative history” for just such a purpose. Justice Scalia, perhaps the foremost

critic of using legislative history in construing statutes, deemed it “less that the

courts refer to legislative history because it exists than that legislative history

exists because the courts refer to it.” Antonin Scalia, A Matter of Interpretation:

Federal Courts and the Law 34 (1997) [hereinafter Scalia].

The practice of mining legislative history for statements that support a

favored viewpoint (while almost always disregarding statements that support

disfavored ones) diverts us from our judicial charge: giving effect to the text that

lawmakers have adopted and that the people are entitled to rely on. With most

important legislation, “the legislative history is extensive, and there is something

for everybody.” Scalia at 36. Judges, who should be constrained by the statutory

text, thus open a path to “manipulate the meaning of a law by choosing which

snippets to emphasize.” In re Sinclair, 870 F.2d 1340, 1343 (7th Cir. 1989)

(Easterbrook, J.).

Reliance on legislative history is built on the flawed premise that when

construing statutes we are looking for the intent of the legislature rather than

the meaning of a statute’s text. Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 375 (2012) [hereinafter Scalia & Garner]. But
 35

legislative bodies do not possess some freestanding “intent” or “views” that courts

can divine. See State v. Mathias, 936 N.W.2d 222, 239 (Iowa 2019) (Mansfield,

J., dissenting) (“Statutory interpretation is not a quest for legislative intent.”).

For this reason, “[w]e do not inquire what the legislature meant; we ask only

what the statute means.” Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S.

384, 396–97 (1951) (Jackson, J., concurring) (quoting Oliver Wendell Holmes,

The Theory of Legal Interpretation, in Collected Legal Papers 203, 207 (1920)).

A broad body of legal canons have formed around how courts should

construe statutes. See generally Scalia & Garner. But no similar canons exist for

all the disparate legislative histories one might find. “Since there are no rules as

to how much weight an element of legislative history is entitled to, it can usually

be either relied upon or dismissed with equal plausibility.” Scalia at 35–36.

Proper constraints on judicial decision-making that derive from the text—

constraints consistent with, if not critical to, the nature of our democratic

system—come undone when we resort to legislative history as an interpretive

tool.

In Iowa, a bill must pass both the senate and house of representatives and

be signed by the Governor to become law. Iowa Const. art. III, §§ 15–16. The

preamble and bill explanation are attached at the beginning and end of a bill

when introduced, but neither part is voted on, and neither becomes part of our

codified law. See, e.g., Star Equip., Ltd. v. State, 843 N.W.2d 446, 454 n.3 (Iowa

2014) (“The legislature enacts the bill—not the accompanying explanation.”).

Ours is a system of written laws, and people can readily understand that they
 36

will be bound by a law’s actual text. But people have no way of knowing that

they might also be bound by explanatory passages that a sponsoring legislator

includes when the bill is introduced in the legislature, or bound by some

individual legislator’s statements uttered in the course of debate on a bill. And,

with any particular piece of legislative history, people “would not know any way

of anticipating what would impress enough members of the Court to be

controlling” in any event. Schwegmann Bros., 341 U.S. at 396 (Jackson, J.,

concurring). Our interpretation should be based on what the text says and fairly

implies without resort to extraneous “history,” which neither controls nor

clarifies the law’s meaning.

I otherwise fully join the court’s opinion on all the issues presented.
 37

#20–0950, State v. Davison

WATERMAN, Justice (concurring in part and dissenting in part).

I join the court’s opinion except for part III.B. I respectfully dissent from

the court’s holding extending Apprendi v. New Jersey, 530 U.S. 466 (2000) and

its progeny to victim restitution awards. Our court is the first appellate court in

the nation to do so. Only two justices of the United States Supreme Court have

concluded that Apprendi should be applied to require a jury to find all the facts

needed to justify a restitution order. Hester v. United States, 139 S. Ct. 509, 509–

11 (2019) (Gorsuch, J., joined by Sotomayor, J., dissenting from the denial of

certiorari). Seven justices declined to take the bait. See id. at 509 (mem.). Every

federal circuit court of appeals to reach the issue has refused to extend Apprendi

to victim restitution awards. So too has every state appellate court to reach the

issue. I would follow the wisdom of that crowd.

The court correctly construes Iowa Code section 910.3B (2017) to allow

the award of $150,000 in victim restitution for Chew’s death even though the

crimes of conviction did not include causing his death as an element. In my view,

the legal effect of the jury’s conspiracy verdict also satisfies Apprendi. See, e.g.,

United States v. Garcia-Castillo, 127 F. App’x 385, 388–90 (10th Cir. 2005)

(rejecting Apprendi challenge to restitution award because the defendant, as a

“conspiracy participant is legally liable for all reasonably foreseeable acts of his

or her coconspirators in furtherance of the conspiracy” (quoting United States v.

Brewer, 983 F.2d 181, 185 (10th Cir. 1993))).
 38

The jury convicted Caesar Davison of felony assault causing serious injury

and conspiracy to commit murder. Davison joined a death squad to hunt down

Demarcus Chew, who literally had a bounty on his head. It is undisputed that

Chew was shot to death. Mission accomplished. The conspiracy was a success.

It doesn’t matter whether Davison fired a fatal shot, a mere flesh wound, or

missed, because the conspiracy conviction makes him liable for the acts of his

coconspirators as a matter of law. See Iowa Code §§ 703.1 (“All persons

concerned in the commission of a public offense, whether they directly commit

the act constituting the offense or aid and abet its commission, shall be charged,

tried and punished as principals.”), .2 (“When two or more persons, acting in

concert, knowingly participate in a public offense, each is responsible for the

acts of the other done in furtherance of the commission of the offense . . . .”).

Iowa has long recognized criminal liability for the acts of coconspirators.

State v. Kneedy, 3 N.W.2d 611, 616 (Iowa 1942) (“Where two or more persons

combine to accomplish an unlawful purpose, each is responsible for the act of

another which is a probable consequence of carrying out the unlawful design,

even though the particular crime committed was not a part of that design.” (citing

State v. McCahill, 33 N.W. 599, 601–02 (Iowa 1887))).

United States v. Garcia-Castillo is illustrative. There, the defendant was

convicted of conspiracy to rob a train, and the district court ordered him to pay

restitution for personal injuries inflicted by his coconspirators. Garcia-Castillo,

127 F. App’x at 386, 388. He objected under Apprendi and its progeny, arguing

the absence of a jury finding that he caused those injuries. Id. at 388. The United
 39

States Court of Appeals for the Tenth Circuit affirmed the restitution order,

holding that he was legally liable for the acts of his coconspirators, without the

need for a jury verdict on the restitution award. Id. at 388–89; see also United

States v. Sawyer, 825 F.3d 287, 294–97 (6th Cir. 2016) (affirming entire

$10,688,576 restitution award and rejecting the defendant’s Apprendi challenge

and argument “that the district court erred in assessing the total losses

attributed to the conspiracy jointly and severally against him and his

co-defendants rather than assessing an amount keyed to his specific role in the

conspiracy”); United States v. Bengis, 783 F.3d 407, 413–14 (2d Cir. 2015)

(conditionally affirming restitution award based on acts of coconspirators);

United States v. Castillo, 186 F. App’x 25, 27 (2d Cir. 2006) (“[A] restitution order

may hold a defendant liable for ‘the reasonably foreseeable acts of all

co-conspirators’, even though the jury acquitted the defendant as to some

aspects of the conspiracy.” (quoting United States v. Boyd, 222 F.3d 47, 51 (2d

Cir. 2000) (per curiam))); State v. Arnett, 496 P.3d 928, 931–33 (Kan. 2021)

(rejecting Sixth Amendment Apprendi challenge to restitution award of $33,248

jointly and severally with co-defendants based on conviction for conspiracy to

commit burglary, even though Arnett only obtained $200 for her part in the

burglaries). The court and the concurrences cite no case to the contrary

addressing Apprendi and the law of conspiracy.

Iowa’s criminal restitution statute is linked to civil tort law. State v.

Roache, 920 N.W.2d 93, 100 (Iowa 2018); see also Iowa Code §§ 910.1(6)

(allowing restitution in the amount that “a victim could recover against the
 40

offender in a civil action arising out of the same facts or event”), .8 (providing

that restitution payments are set off against a civil judgment); State v.

Richardson, 890 N.W.2d 609, 623 (Iowa 2017) (payments on civil wrongful death

judgments credited against criminal restitution ordered under section 910.3B).

Under black letter law, Davison is culpable for the acts of his coconspirators in

furtherance of the goal of the conspiracy. See Anderson v. Anderson Tooling, Inc.,

928 N.W.2d 821, 828 (Iowa 2019) (holding the district court “correctly applie[d]

our rule of law, holding coconspirators jointly and severally liable for damages

resulting from the conspiracy”); see also Restatement (Third) of Torts:

Apportionment of Liab. § 15 (Am. L. Inst. 2000) (“When persons are liable

because they acted in concert, all persons are jointly and severally liable for the

share of comparative responsibility assigned to each person engaged in

concerted activity.”). Davison’s crime of conviction, conspiracy to commit

murder, legally and factually caused Chew’s death. Based on that jury verdict,

the district court correctly ruled that Davison is jointly and severally liable for

Chew’s death and for restitution to the victim’s estate or heirs. No separate jury

finding that he personally caused the death is required to order restitution under

section 910.3B.

Davison and the court rely in part on Southern Union Co. v. United States,

which extended Apprendi to criminal fines. 567 U.S. 343, 346–48, 360 (2012).

But that case did not address victim restitution. Unlike a criminal fine paid to

the government, the restitution award is compensation payable to the deceased

victim’s estate or heirs. See Richardson, 890 N.W.2d at 623. The $150,000
 41

restitution award under Iowa Code section 910.3B does not move up or down

based on any factual finding by the judge or jury as to the value of the victim’s

life. Rather, that amount is fixed by the legislature and therefore, by definition,

is within the statutory range. And as the court reiterates today, “$150,000 is

[neither] extraordinary, [n]or even generous compensation for the death of a

person.”

The theory of Apprendi is that the Sixth Amendment to the United States

Constitution requires a jury to find any fact that triggers an increase in a criminal

defendant’s “statutory maximum” (or minimum) sentence. 530 U.S. at 490. That

theory is inapplicable here because the jury verdict on the crime of conviction in

this felony death case triggers the automatic $150,000 victim restitution award.

Because the award is set at the legislatively prescribed statutory amount, there

is no “increase” based on a factual finding by the court that should have been

made by a jury. The California Supreme Court for that very reason declined to

extend Apprendi to victim restitution awarded by the court within ranges set by

the legislature. People v. Chhoun, 480 P.3d 550, 590 (Cal. 2021) (holding that no

Apprendi concerns are raised when restitution is set “within the prescribed

statutory range”). I see no purpose for requiring an additional jury finding to

support this restitution award under section 910.3B.

Today’s unprecedented extension of Apprendi to victim restitution is not

justified by characterizing such awards as partly punitive. The court, as it must,

acknowledges that this victim restitution award is compensatory, and is

effectively a substitute for a civil wrongful death award. See Richardson, 890
 42

N.W.2d at 623; State v. Klawonn, 609 N.W.2d 515, 520 (Iowa 2000) (en banc)

(“[Restitution] serves a remedial purpose in compensating the victim’s estate.”).6

“Restitution both ‘serves to protect the public by compensating victims for

criminal activities, [and] also serves to rehabilitate the defendant.’ ” State v.

Waigand, 953 N.W.2d 689, 694 (Iowa 2021) (alteration in original) (quoting State

v. Izzolena, 609 N.W.2d 541, 548 (Iowa 2000) (en banc)). “[Restitution] forces the

offender to answer directly for the consequences of his or her actions.” Id.

(quoting State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001)). Thus, the

overriding purpose of restitution is victim compensation with a secondary goal

of offender rehabilitation to instill responsibility.

True, we have described the victim restitution award as having “punitive

characteristics.” Richardson, 890 N.W.2d at 622. But we said so in the context

of applying precedent under the Eighth Amendment Excessive Fines Clause,

which can be violated by an award in a criminal case that is “grossly

disproportional to the gravity of the defendant’s offense.” Id. (quoting Izzolena,

609 N.W.2d at 549). We have repeatedly rejected Eighth Amendment challenges

to the $150,000 restitution award in felonious death cases. Id. at 624–25;

Izzolena, 609 N.W.2d at 551. Neither Davison nor the court rely on the Eighth

Amendment. Yet our court today photoshops words from Eighth Amendment

jurisprudence to this Sixth Amendment setting. What’s missing here is any

6Neither the court nor Davison rely on the Seventh Amendment right to a jury trial in civil
cases.
 43

precedent or sound basis for doing so. Perhaps that’s why our court stands alone

on this issue.

Our court of appeals correctly rejected an Apprendi challenge in State v.

Turner, No. 15–2191, 2016 WL 7393894, at *2–3 (Iowa Ct. App. Dec. 21, 2016).

Turner fatally stabbed his brother and entered an Alford plea to attempted

murder. Id. at *1. The sentencing court ordered restitution of $150,000 under

Iowa Code section 910.3B(1). Id. Turner appealed, relying on Apprendi to argue

“the assessment violates the [Sixth Amendment] because he neither admitted he

caused [his brother’s] death nor was there a jury finding that he caused his

death.” Id. at *1–2. In upholding the restitution award, the court of appeals

followed federal precedent:

Even if Apprendi covers all forms of punishment, restitution’s
not “clearly” punishment . . . .

. . . Restitution carries with it no statutory maximum; it’s
pegged to the amount of the victim’s loss. A judge can’t exceed the
non-existent statutory maximum for restitution no matter what
facts he finds, so Apprendi’s not implicated.

Id. at *3 (omissions in original) (quoting United States v. Green, 722 F.3d 1146,

1150 (9th Cir. 2013)).

The Ninth Circuit, joining other circuit courts, unequivocally held

“Apprendi doesn’t apply to restitution.” Green, 722 F.3d at 1151; see also United

States v. Garza, 429 F.3d 165, 170 (5th Cir. 2005) (per curiam) (“We agree with

our sister Circuits, who have uniformly held that judicial fact-finding supporting

restitution orders does not violate the Sixth Amendment.”); United States v.

Carruth, 418 F.3d 900, 904 (8th Cir. 2005) (“Restitution is designed to make
 44

victims whole, not to punish perpetrators; it is essentially a civil remedy created

by Congress and incorporated into criminal proceedings for reasons of economy

and practicality.” (citation omitted)); United States v. Behrman, 235 F.3d 1049,

1054 (7th Cir. 2000) (“A civil remedy included with a criminal judgment does not

make it a ‘penalty for a crime’ that must be established beyond a reasonable

doubt; otherwise it would not be possible to apply the law of preclusion (or grant

summary judgment) in an ordinary civil suit seeking restitution. It follows that

Apprendi does not affect the calculation of restitution.”). In United States v.

Wooten, the Tenth Circuit stated, “Even if the court were to conclude that [the

restitution order] is a criminal penalty, Mr. Wooten does not contend that the

restitution order exceeds the value of the damaged property, and it is for that

reason that Apprendi does not apply here.” 377 F.3d 1134, 1145 (10th Cir. 2004).

Similarly, Davison does not contend that $150,000 exceeds the value of the

victim’s life.

Courts offer varying rationales applicable here when holding Apprendi

doesn’t apply to restitution. The restitution award under 910.3B(1) is primarily

compensatory rather than “clearly punitive.” The $150,000 restitution award

doesn’t exceed the value of the loss and is within the legislatively prescribed

statutory range for the conviction based on the jury verdict. No additional jury

finding is necessary.

[In Apprendi and its progeny] all the facts found by trial judges that
rendered the sentences unconstitutional [under the Sixth
Amendment] were facts that made the defendant’s offense more
serious or culpable and hence exposed the defendant to a greater
sentencing range.
 45

In contrast, a court’s factfinding regarding restitution is
limited to determining the victim’s actual damages and the
defendant’s ability to pay. When a sentencing court concludes the
punishment warrants restitution, it does so based only on the fact
of conviction. As federal courts have noted, it is the conviction that
authorizes restitution.

State v. Clapper, 732 N.W.2d 657, 663 (Neb. 2007) (per curiam).

Davison argues the $150,000 restitution can’t be awarded without a jury

finding that he personally killed the victim. The United States v. Green court

specifically rejected this “trigger” argument: that Apprendi requires a jury

determination “of whether restitution is triggered at all” even if the court can

then determine the amount. 722 F.3d at 1149. In affirming a $250,000

restitution order, the court in Green adhered to its categorical precedent holding

that “restitution is ‘unaffected’ by Apprendi.” Id. at 1148–49. The Green court

added, “We further hesitate to adopt the trigger argument because the Greens

can’t cite any case—state or federal—that has accepted it, and because the two

circuits that considered it, rejected it.” Id. at 1149. Davison suffers the same

shortcoming. The majority confronts Green, but errs by not following its Sixth

Amendment analysis.

Over eleven years ago in State v. Jenkins, we observed that “[m]ost federal

authorities reject the requirement of a jury trial for criminal restitution.” 788

N.W.2d 640, 643 (Iowa 2010). That hasn’t changed. See, e.g., United States v.

Vega-Martínez, 949 F.3d 43, 54–55 (1st Cir. 2020); Sawyer, 825 F.3d at 297;

United States v. Thunderhawk, 799 F.3d 1203, 1209 (8th Cir. 2015); Bengis, 783

F.3d at 411–13; United States v. Rosbottom, 763 F.3d 408, 419–420 (5th Cir.

2014); Green, 722 F.3d at 1148–1151; United States v. Wolfe, 701 F.3d 1206,
 46

1215–1217 (7th Cir. 2012); United States v. Day, 700 F.3d 713, 732 (4th Cir.

2012); see also United States v. Geovanni, No. 19–11044, 2022 WL 291761, at

*11 (11th Cir. Feb. 1, 2022) (“Geovanni argues that the imposition of restitution

violated his Sixth Amendment right to a jury trial because there was no jury

finding on the facts needed to support the restitution order. But, as Geovanni

acknowledges, this argument is foreclosed by our decision in Dohrmann v. United

States.” (citation omitted)); Dohrmann v. United States, 442 F.3d 1279, 1281

(11th Cir. 2006); United States v. Leahy, 438 F.3d 328, 335–39 (3d Cir. 2006) (en

banc); Wooten, 377 F.3d at 1143–45; United States v. Bauer, No. 3:19 CR 490,

2022 WL 822089, at *1 (N.D. Ohio Mar. 11, 2022) (“[T]he Sixth Circuit has

‘already squarely held that restitution orders are not affected by the Supreme

Court’s ruling in Apprendi v. New Jersey because the restitution statutes do not

specify a statutory maximum.’ ” (quoting United States v. Churn, 800 F.3d 768,

782 (6th Cir. 2015))).

Yet our court today strains to evade federal constitutional precedent such

as Green based on perceived differences between the federal restitution statutes

in which the district court determines the amount of restitution, and Iowa’s fixed

$150,000 award for the victim’s death. But the common denominator in both the

federal and Iowa statutes is that the restitution award does not increase the

criminal penalties beyond what the legislature already prescribed. It makes no

constitutional difference under the Sixth Amendment whether the legislature

fixes the amount of restitution for a victim’s death or the court, so long as the
 47

award falls within the maximum amount the legislature permits for the crime of

conviction.

I would follow the federal and state caselaw uniformly holding the Sixth

Amendment requires no jury finding on causation or the amount awarded for

victim restitution when, as here, the legislature required victim restitution for

the crime of conviction. In State v. Arnett, the Kansas Supreme Court recently

reached that conclusion, noting “at least 11 of 13 federal United States Circuit

Courts of Appeal have refused to extend Apprendi and its progeny to orders of

restitution, not to mention the many state courts which have followed suit.” 496

P.3d at 933.

Our court attempts to distinguish several contrary cases from sister state

courts while obscuring the reality that state courts overwhelmingly hold

Apprendi is inapplicable to restitution. See, e.g., State v. Leon, 381 P.3d 286,

289–90 (Ariz. Ct. App. 2016) (noting the absence of authority supporting the

defendant’s argument that Southern Union extends Apprendi to restitution);

Chhoun, 480 P.3d at 590 (“[T]his mandatory restitution fine ‘is properly

understood as part of the maximum penalty statutorily authorized by a jury’s

finding that the defendant is guilty of a felony.’ ” (quoting People v. Wall, 404

P.3d 1209, 1228 (Cal. 2017))); People v. Wasbotten, 169 Cal. Rptr. 3d 878, 879

(Ct. App. 2014) (“[D]irect victim restitution is a substitute for a civil remedy so

that victims of crime do not need to file separate civil suits. It is not increased

‘punishment.’ ”); People v. Smith, 181 P.3d 324, 327 (Colo. App. 2007) (“A

number of state courts have similarly concluded that Apprendi does not apply to
 48

restitution orders because the states’ restitution statutes do not set a maximum

restitution amount that can be ordered.”); Smith v. State, 990 N.E.2d 517, 520–

22 (Ind. Ct. App. 2013) (holding Apprendi is not violated when “the trial court

based its restitution order wholly on the acts underlying Smith’s conviction”);

State v. Brown, 498 P.3d 167, 178 (Kan. 2021) (“Kansas’ criminal restitution

statutes do not trigger the Sixth Amendment protections identified in Apprendi

and its progeny.”); Commonwealth v. Denehy, 2 N.E.3d 161, 174 (Mass. 2014)

(“Because we treat restitution as an entirely judicially determined penalty,

lacking any legislative parameters, the mandate of Apprendi does not apply.”);

State v. Maxwell, 802 N.W.2d 849, 852 (Minn. Ct. App. 2011) (“Based on the

unmistakable consensus of the persuasive authority, we conclude that . . .

Apprendi [is] inapplicable to restitution orders.”); Clapper, 732 N.W.2d at 663

(“But the critical distinction is that for restitution, the sentencing court is not

required to make any additional finding of fact regarding the defendant’s conduct

or offense.”); State v. Martinez, 920 A.2d 715, 721–22 (N.J. Super. Ct. App. Div.

2007) (relying on federal precedent to hold Apprendi does not apply to

restitution); People v. Horne, 767 N.E.2d 132, 139 (N.Y. 2002) (holding Apprendi

does not apply to restitution because “a sentencing court is not increasing the

maximum sentence available when it makes factual determinations affecting

restitution but is merely issuing a sentence within the authorized statutory

range”); State v. Deslaurier, 371 P.3d 505, 509 (Or. Ct. App. 2016) (“Restitution

in the full amount of the victim’s economic damages does not exceed the

‘prescribed statutory maximum’ because restitution for the full amount of the
 49

victim’s economic damages is the only ‘restitution outcome that is consistent

with a jury’s verdict.’ ” (quoting State v. Ramos, 340 P.3d 703, 706–07 (Or. Ct.

App. 2014))). Our court today declines to follow that body of precedent, without

citing a single decision to the contrary applying Apprendi to a victim restitution

award.

For these reasons, I am unable to join part III.B of the court’s opinion.

Christensen, C.J., joins this concurrence in part and dissent in part.