State of Iowa v. Jon Arthur Dieckmann

• Court: Supreme Court of Iowa
• Decided: April 26, 2019
• Docket: 17-1806
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA No. 17–1806

Filed April 26, 2019

STATE OF IOWA,

Appellee,

vs.

JON ARTHUR DIECKMANN,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Scott County, Marlita A.

Greve, Judge.

A defendant appeals the judgment and sentence imposed following

his attempted burglary in the second degree and possession of burglar’s

tools convictions. DECISION OF COURT OF APPEALS AFFIRMED IN

PART AND VACATED IN PART; CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND CASE REMANDED.

Mark C. Smith, State Appellate Defender (until withdrawal), and

Mary K. Conroy, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Zachary Miller, Assistant

Attorney General, Michael Walton, County Attorney, and Nathan L. Repp,

Assistant County Attorney, for appellee. 2

PER CURIAM.

Jon Dieckmann appeals his conviction and sentence for attempted

burglary in the second degree and possession of burglar’s tools. He argues

his counsel was ineffective on several grounds and the district court

improperly assessed restitution for appellate attorney fees.

We transferred the case to the court of appeals. The court of appeals

found his counsel was not ineffective for failing to challenge the sufficiency

of the evidence. The court of appeals was unable to decide his other

ineffective-assistance-of-counsel claims on the present record. Therefore,

it affirmed Dieckmann’s conviction. The court also found the district court

did not err in assessing restitution for appellate attorney fees. Dieckmann

asked for further review, which we granted.

On further review, we choose to let the court of appeals decision

stand as our final decision regarding his ineffective-assistance-of-counsel

claims. See State v. Baker, ___ N.W.2d ___, ___ (Iowa 2019) (“On further

review, we have the discretion to review all or some of the issues raised on

appeal or in the application for further review.” (quoting State v. Clay, 824

N.W.2d 488, 494 (Iowa 2012))). Therefore, we affirm Dieckmann’s

conviction.

As to Dieckmann’s argument that the district court erred in ordering

him to pay restitution in the form of appellate attorney fees without first

determining his reasonable ability to pay those fees, we find the restitution

part of his sentence regarding these fees should be vacated. In State v.

Albright, ___ N.W.2d ___, ___ (Iowa 2019), filed after the court of appeals

decision in this case, we held that certain items of restitution are subject

to a reasonable-ability-to-pay determination. Id. at ___; see also Iowa Code

§ 910.2(1) (2019). We also clarified that a plan of restitution is not

complete until the sentencing court issues the final restitution order. 3

Albright, ___ N.W.2d at ___. Finally, we emphasized that a final restitution

order must take into account the offender’s reasonable ability to pay

certain items of restitution. Id.

Here, the district court did not have the benefit of the procedures

outlined in Albright when it entered its order regarding restitution of

appellate attorney fees. Accordingly, we must vacate that part of the

sentencing order regarding restitution and remand the case back to the

district court to impose restitution consistent with our decision in Albright.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; CONVICTION AFFIRMED, SENTENCE VACATED

IN PART, AND CASE REMANDED.

All justices concur except McDonald, J., who takes no part.

This opinion shall not be published.