State of Iowa v. Thomas Deshawn Holmes

                               No. 20–0335

            Submitted March 24, 2021—Filed April 23, 2021






      Appeal from the Iowa District Court for Black Hawk County,

Bradley J. Harris, Judge.

      The defendant appeals from a 2019 restitution order lacking a

complete determination of his reasonable ability to pay. The State moves

to dismiss his appeal under Senate File 457. APPEAL DISMISSED.

      Waterman, J., delivered the opinion of the court, in which all justices


      R. Ben Stone of Parrish Kruidenier Dunn Gentry Brown Bergmann

& Messamer L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant

Attorney General, Brian Williams, County Attorney, and Brad Walz,

Assistant County Attorney, for appellee.

WATERMAN, Justice.

      We must decide whether Senate File 457 (S.F. 457) requires

dismissal of this appeal from a 2019 order that declined to modify the

defendant’s court-ordered restitution in a criminal case. See 2020 Iowa

Acts ch. 1074, § 80 (codified at Iowa Code § 910.7 (2021)). The defendant,

serving a life sentence, sought relief from court-ordered restitution on the

grounds that the district court failed to determine his reasonable ability to

pay certain items. The legislature enacted S.F. 457 while his appeal was

pending. The State moved to dismiss this appeal pursuant to section 80

of S.F. 457.    Meanwhile, the defendant asked the district court to

determine his reasonable ability to pay; the district court stayed that

request pending this appeal.     We agree with the State that S.F. 457

requires dismissal of the appeal so that the defendant can proceed in

district court pursuant to section 910.7 as amended.

      I. Background Facts and Proceedings.

      On April 25, 2000, following a bench trial, Holmes was convicted of

kidnapping in the first degree and robbery in the first degree. He was

sentenced to life imprisonment on the kidnapping conviction and up to

twenty-five years on the robbery conviction and ordered to pay restitution
“[a]s later ordered.” At the sentencing hearing, the district court ordered

him to pay costs for his court-appointed attorneys but did not make an

ability-to-pay-determination. On March 2, 2001, the district court entered

a supplemental order requiring Holmes to pay $15,260 to the victim

assistance program, $6,042.14 in court costs, and $25,453.60 in attorney

fees. This order did not mention whether Holmes was reasonably able to

pay these sums. The State of Iowa Department of Corrections (DOC) filed

a restitution plan in which Holmes was required to pay 20% of his

institutional accounts. Holmes’s convictions and sentences were affirmed

on his direct appeal that year. State v. Holmes, No. 00–950, 

2001 WL


, at *1 (Iowa Ct. App. Dec. 12, 2001).

      Holmes subsequently filed numerous challenges to his convictions

and sentences, including several appeals.       After one of these appeals

concluded in August 2017, the district court notified Holmes that he could

request an ability-to-pay determination for his court-appointed attorney

fees. On October 5 of that year, the district court found that he “does not

have the ability to pay attorneys fees.”

      Nearly two years later, on August 12, 2019, Holmes requested a

restitution hearing pursuant to Iowa Code section 910.7 (2019). Holmes

alleged that the State had failed to comply with the October 2017 court

order finding that Holmes lacked a reasonable ability to pay attorney fees.

He also argued that the amount ordered for victim restitution had been

reimbursed (in part) by insurance and the DOC was wrongfully continuing

to deduct 20% from his institutional accounts. Neither the October 2017

order nor any other order included an ability-to-pay determination

regarding the court costs or payments to the victim assistance program.

The district court conducted a telephonic hearing on September 23 in

which Holmes represented himself.
      The district court entered a ruling on October 9 that denied relief.

The court stated that the 2017 order “was based upon the fact that

defendant had previously been assessed in this matter attorney fees in

excess of $25,000.”     The court noted that Holmes had “successfully

followed the plan of payment arranged by the Department of Corrections

during defendant’s incarceration.” The court concluded that Holmes had

“the reasonable ability to pay those attorney fees previously assessed.”

The order did not mention other court costs or the amount assessed for

the victim restitution program. Holmes filed a motion to enlarge seeking

a ruling on those matters. On October 25, the district court denied his

motion to enlarge without deciding his reasonable ability to pay those

items. Holmes appealed in November 2019, and we retained the appeal.

S.F. 457 was enacted by the general assembly and signed by the Governor

on June 25, 2020.1 On July 31, Holmes filed a “Request for Reasonable

Ability to Pay Determination for Category B Restitution,” which the district

court stayed pending resolution of this appeal. On September 8, the State

filed a motion to dismiss this appeal. We submitted that motion with this


       II. Preservation of Error and Standard of Review.

       The State argues that Holmes failed to preserve error because he did

not “specifically request[] that the district court conduct a reasonable-

ability-to-pay finding on court costs.” We disagree. “Generally, error is

preserved on an issue if (1) a party raises the issue before the district court,

(2) the district court rules upon the issue, and (3) the party again raises

the issue on appeal.” State v. Gross, 

935 N.W.2d 695

, 698 (Iowa 2019).

When the district court does not rule on the issue, a defendant may

preserve error by filing a motion to enlarge.           Homan v. Branstad, 


N.W.2d 153

, 161 (Iowa 2016).            In his 2019 request for a restitution
hearing, Holmes claimed the State of Iowa erred in failing to modify his

restitution plan after the district court found in October 2017 that he

lacked the ability to pay attorney fees or court costs. The district court’s

October 9, 2019 order did not address his alleged inability to pay court

costs or payments to the crime victim assistance program. Holmes filed a

motion to enlarge to resolve those issues and address whether the order

       1Section93 of S.F. 457 states: “Unless otherwise provided, this Act takes effect
July 15, 2020.” 2020 Iowa Acts ch. 1074, § 93. Section 83 provides that Division XIII
“being deemed of immediate importance, takes effect upon enactment.”

Id. § 83.

was the “final order determining his reasonable ability to pay the costs.”

We find that Holmes preserved error.

      “We review restitution orders for correction of errors at law.” State

v. Waigand, 

953 N.W.2d 689

, 694 (Iowa 2021) (quoting State v. Jenkins,

788 N.W.2d 640

, 642 (Iowa 2010)).

      III. Analysis.

      On appeal, Holmes asks us to remand the case to the district court

for an ability-to-pay determination in a final restitution order hearing. The

State argues that section 80 of S.F. 457 deprives us of jurisdiction or

authority to hear Holmes’s appeal. Both sides seek the return of the case

to the district court. We conclude that S.F. 457 requires dismissal of this

appeal so that Holmes can proceed in district court.

      We first addressed S.F. 457 in State v. Hawk. 

952 N.W.2d 314


2020). Police officers stopped a vehicle operated by Hawk’s son, who had

run a stop sign.

Id. at


Hawk was a passenger, and when the officers

conducted a weapons pat down, they discovered methamphetamine in his


Id. Hawk pled guilty

to possession of methamphetamine with

intent to distribute, and in October 2019, the court sentenced him and

ordered him to pay court costs and attorney fees, which the district court
found he was reasonably able to pay.

Id. at


Hawk appealed his

restitution order.

Id. at


S.F. 457 was enacted while his appeal was


Id. We held that

notwithstanding S.F. 457, we had jurisdiction

to hear Hawk’s appeal because the October 2019 order was a final

restitution order with an ability-to-pay determination.

Id. at



affirmed the order.

Id. at


      In contrast, more recently, in State v. Dessinger, we vacated a

restitution order entered in 2018 because the district court had failed to

determine the defendant’s ability to pay her court costs and correctional

fees. ___ N.W.2d ___, ___ (Iowa 2021). The jury convicted the defendant of

child endangerment, and the district court ordered the defendant to pay

court costs, but because it found she was unable to pay the court-ordered

attorney fees, ordered $0 in attorney fee reimbursement.

Id. at

___. The

district court also ordered her to pay correctional fees “as later assessed.”

Id. at

___. On our review, we agreed with the court of appeals’ decision

that the restitution order must be vacated because it lacked an ability-to-

pay determination as to those items, and we remanded the case to the

district court to apply the new procedures set forth in S.F. 457.

Id. at


Holmes’s situation is similar to Dessinger.

      At the time of Holmes’s sentencing in 2000, he was entitled to an

ability-to-pay determination. See Iowa Code § 910.2 (1999) (limiting the

court’s restitution order of crime victim assistance reimbursement, court

costs, and court-appointed attorney’s fees “to the extent that the offender

is reasonably able to pay”).    The district court failed to determine his

reasonable ability to pay at the time of sentencing. Rather, it included

restitution “as later ordered.” In its supplemental order, it still did not

make an ability-to-pay determination. While it ultimately found him able

to pay his attorney fees almost twenty years later, it never ruled as to
whether he was able to pay other court-ordered costs and crime victim

assistance reimbursement.

      Holmes’s 2019 restitution order, which lacked an ability-to-pay

determination as to certain items, is subject to section 73 of S.F. 457 that


           1. All of the following, if entered by a district court prior
      to the effective date of this Act, shall be converted to
      permanent restitution orders:
            a. A temporary restitution order.
            b. A supplemental restitution order.
             c. A restitution order that does not contain a
      determination of the defendant’s reasonable ability to pay the
      restitution ordered.
             2. The only means by which a defendant may challenge
      the conversion of a restitution order is through the filing of a
      petition pursuant to section 910.7.
            3. The provisions of this chapter, including but not
      limited to the procedures in section 910.2A, shall apply to a
      challenge to the conversion of an existing restitution order in
      the district court and on appeal.
             4. A challenge to the conversion of an existing
      restitution order to a permanent restitution order shall be filed
      in the district court no later than one year from the effective
      date of this Act.

2020 Iowa Acts ch. 1074, § 73 (codified at Iowa Code § 910.2B (2021)). As

we stated in Hawk, “[t]he purpose of section 910.2B is to make existing

restitution orders immediately enforceable and to provide the mechanism

by which a defendant can receive an ability-to-pay determination first from

the district 

court.” 952 N.W.2d at 318


      Section 73 of S.F. 457 became effective on June 25, 2020, converting

Holmes’s temporary order to a permanent order. 2020 Iowa Acts ch. 1074,

§ 83; see also Dessinger, ___ N.W.2d at ___. On July 31, Holmes requested

an ability-to-pay determination in district court, but that court stayed the

request pending resolution of this appeal. Accordingly, his remedies in
district court have not been exhausted.

      Under section 80 of S.F. 457, we are precluded from hearing this


             4. An appellate court shall not review or modify an
      offender’s plan of restitution, restitution plan of payment, or
      any other issue related to an offender’s restitution under this
      subsection, unless the offender has exhausted the offender’s
      remedies under this section and obtained a ruling from the
      district court prior to the issue being raised in the appellate

2020 Iowa Acts ch. 1074, § 80 (codified at Iowa Code § 910.7(4) (2021)).

Holmes’s avenue for relief lies in district court. As we stated in Dessinger,
      Applying the new framework, Dessinger must first exhaust
      remedies before the district court before launching an appeal
      of a restitution order. . . . Under the circumstances, we think
      the proper resolution of Dessinger’s appeal of the restitution
      order is to remand the case to the district court with
      instructions to allow Dessinger to follow the procedures
      required by section 910.2A and then hold a hearing under
      Iowa Code section 910.7 on the remaining restitution issues
      in this case.

___ N.W.2d at ___. The same disposition is required here.

      IV. Disposition.

      For those reasons, we must dismiss this appeal. The district court

shall lift its stay and proceed with its determination of Holmes’s reasonable

ability to pay pursuant to Iowa Code section 910.7 (2021) and follow the

procedures required by section 910.2A.


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