Opinion
No. 5-814 / 05-0498
Filed November 23, 2005
Appeal from the Iowa District Court for Warren County, Peter A. Keller, Judge.
Daniel Appell appeals from the restitution order arising from his conviction for second-degree theft. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha Boesen, Assistant Attorney General, Gary Kendell, County Attorney, and Jane Orlanes, Assistant County Attorney, for appellee-State.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Daniel Appell appeals from the restitution order arising from his conviction for second-degree theft. We reverse and remand for proceedings consistent with this opinion.
I. Background Facts and Proceedings.
On October 4, 2004, a pick-up truck belonging to an employee of the Warren County Water District was reported stolen. At the time of the theft, a toolbox was bolted to the bed of the truck box. The box contained several tools and a fifty-page map illustrating the location of the water district's various utilities. Fourteen days after the theft was reported, law enforcement officers observed the stolen truck traveling in Warren County. When their attempts to stop the stolen truck went unheeded, officers instituted a chase that ended when the rear wheel of the truck came off its rim. Daniel Appell, the truck's operator, was arrested. No toolbox or water district map was recovered from the truck.
Appell was initially charged with first-degree theft but was permitted to enter a guilty plea to second-degree theft based on his claim that he knowingly purchased the stolen truck. The factual basis on which Appell was permitted to plead did not include the receipt of either the stolen toolbox or the water district map.
In the restitution hearing that followed, the State sought to hold Appell responsible not only for damages to the stolen truck, but for the loss of the toolbox and the map as well. In addition to the $500 deductible claimed for the damage to the stolen truck, the truck's owner testified that the insurance deductible for the tools lost was $250. He also testified that the cost of recreating the map would be $3,567.75, based on the estimated number of hours it would take the required water district employees to replace the lost data and the relevant rate of pay for those employees. Appell did not challenge the State's claim that he must make restitution for damages he caused to the stolen truck when attempting to elude law enforcement officers, but he vigorously maintained the value of the toolbox and its contents should not be included in the restitution order because those items were not present in the vehicle when he purchased the stolen truck. The district court ordered Appell to make restitution in the amount of $4,317.75, the total value of the truck damage, the toolbox, and the water district map.
Appell now appeals contending the district court erred in concluding the State had shown by a preponderance of the evidence that Appell was causally connected to the theft of the toolbox and map. In the alternative, Appell contends he cannot be held responsible for the cost of recreating the water district map because the map was created by employees in the course of their employment, and as such was not a contemplated "pecuniary damage" envisioned by Iowa Code section 910.1(4) (2003).
II. Scope and Standard of Review.
Decisions regarding restitution are reviewed for errors of law and are only reversed for abuse of discretion. State v. Bradley, 637 N.W.2d 206, 210 (Iowa Ct.App. 2001). While it is the State's burden to prove by a preponderance of the evidence that the amount of damages requested is causally connected to the criminal act charged, State v. Tutor, 538 N.W.2d 894, 897 (Iowa Ct. App. 1995), the burden of demonstrating an abuse of discretion concerning the restitution ordered falls squarely on Appell. State v. Storrs, 351 N.W.2d 827, 828 (Iowa 1984). An abuse of discretion will only be found where the district court acted for reasons clearly untenable or to an extent clearly unreasonable. State v. Mai, 572 N.W.2d 168, 170 (Iowa Ct.App. 1997).
III. Discussion.
A restitution order must be supported by a reasonable causal connection between the defendant's criminal acts and the resulting damages. State v. Holmberg, 449 N.W.2d 376, 377 (Iowa 1989). The State attempts to justify the district court's restitution order on the theory that the theft of the truck and its contents was a continuing crime. In particular, the State posits that for purposes of restitution, Appell is responsible for all of the stolen property by virtue of his receipt of the stolen truck. This is true, the State maintains, even though the factual basis for Appell's guilty plea includes no showing that Appell ever exercised possession over the map or the toolbox. In fact, Appell's contention that the toolbox and map were not present in the stolen truck when he purchased it was not refuted by the State at either the plea hearing or the restitution hearing.
In State v. Ihde, 532 N.W.2d 827, 830 (Iowa Ct.App. 1995), the defendant pled guilty to a theft of money between the dates of December 1, 1991, and April 30, 1992. Nothing in the Ihde plea agreement suggested that the defendant admitted involvement in thefts outside that time period, and the record contained no evidence that the defendant agreed to pay restitution for losses incurred at other times. Ihde, 532 N.W.2d at 830. A panel of this court concluded Ihde's plea agreement required him to pay restitution only for the money and goods taken during the period for which he was charged and pled guilty. Id. at 829. Thus the Ihde restitution order was reversed, and the matter was remanded to the district court with instructions to set the amount of restitution with reference only to damages caused by the criminal activities alleged in the trial information and established in the plea record. Id.
From the holding in Ihde, it is clear that an order of restitution entered following a guilty plea is established with reference to both the range and extent of criminal activity alleged in the trial information and supported by evidence in the plea record. Here, Appell pled guilty only to receiving the stolen truck and vigorously denied ever having taken possession of the stolen toolbox or map. In the absence of a factual basis in the plea record tending to establish that Appell also received the stolen tool box and map, he may only be held to make restitution for the truck. See Ihde, 532 N.W.2d at 830 (stating "[t]heft by another individual, in which the defendant did not participate, is not chargeable to him" in the restitution hearing). We conclude the district court abused its sentencing discretion in ordering Appell to pay restitution for the value of the toolbox and water district map, and we therefore reverse the restitution order and remand for the entry of a restitution order consistent with this opinion. REVERSED AND REMANDED.
If the truck, the toolbox, and the map were indeed stolen by a third party, we believe Appell could be criminally liable for the thefts of the toolbox and the map only if he received them. If another person had knowingly received the stolen toolbox and map, both he and Appell would incur criminal liability under Iowa Code section 714.1(4) for the original theft, but it seems clear that Appell's receipt of only the stolen truck would not be the proximate cause of the loss of the toolbox or map illegally possessed by another without some showing that Appell "was involved in a scheme or concert of action" with the other person. Ihde, 532 N.W.2d at 830.
Because we conclude the restitution order must be reversed, we need not reach the alternative challenge leveled by Appell against the restitution order.