STATE OF IOWA, Plaintiff - Appellee, vs. BENJAMIN ALLEN GOYETTE, Defendant - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-650 / 07-0300
Filed September 17, 2008
STATE OF IOWA,
Plaintiff-Appellee,
vs.
BENJAMIN ALLEN GOYETTE,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Jane F. Spande,
Judge.
Defendant appeals a restitution order entered after his guilty plea.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney
General, Harold L. Denton, County Attorney, and Heidi Carmer, Assistant County
Attorney, for appellee.
Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ.
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EISENHAUER, J.
On September 22, 2006, Benjamin Goyette filed a written plea of guilty
(Alford) to assault causing bodily injury. On January 4, 2007, the court accepted
Goyette’s plea, ordered deferred judgment with probation, and set a restitution
hearing for February 8, 2007. At the February hearing Goyette challenged the
reasonableness of the restitution payment by the Crime Victim Assistance
Program (CVAP) and sought a separate hearing to determine the restitution
amount. Goyette also argued his due process rights were violated. The court
rejected Goyette’s claims and ordered him to reimburse the CVAP the full
amount it had paid the victim. Goyette now appeals.
“Decisions regarding sentencing and restitution issues are . . . reviewed
for errors at law . . . and are reversed only for a demonstrated abuse of
discretion.” State v. Bradley, 637 N.W.2d 206, 210 (Iowa Ct. App. 2001). See
Iowa R. App. P. 6.4. We review constitutional challenges de novo. Bradley, 637
N.W.2d at 210.
Goyette first argues the district court erred in citing to an unpublished
court of appeals opinion in violation of Iowa Rule of Appellate Procedure
6.14(5)(b), which states unpublished opinions may be cited in briefs to the court
but “unpublished opinions shall not constitute controlling legal authority.” We
find no error. While unpublished cases are not controlling, such cases may be
cited in briefs and used as persuasive authority. Additionally, the unpublished
case referenced by the district court quotes a published opinion with precedential
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value, Bradley, 637 N.W.2d 206.
As discussed below, the Bradley decision
guides our conclusion the district court did not error in rejecting Goyette’s claims.
Goyette next argues he has been deprived of due process because he
was not allowed to challenge the amount of restitution paid to the victim by the
CVAP. Restitution is a statutory requirement applicable in criminal cases where
guilt is established. State v. Holmberg, 449 N.W.2d 376, 377 (Iowa 1989). “It is
a mandatory part of sentencing in Iowa.” State v. Mai, 572 N.W.2d 168, 171
(Iowa Ct. App. 1997). Iowa Code section 910.2 (2005) provides:
In all criminal cases in which there is a plea of guilty . . . the
sentencing court shall order that restitution be made by each
offender to the victims . . . and, to the extent that the offender is
reasonably able to pay, for crime victim assistance reimbursement.
(Emphasis added.) The district court does have the power to determine the
“defendant’s ability to make payment for crime victim assistance disbursements,”
however, the court does not have “authority to arbitrarily waive imposition” of this
statutory expense. Bradley, 637 N.W.2d at 213. Rather, “[t]he district court is
not only authorized but mandated to order restitution for [crime victim assistance
payments], subject only to the offender’s reasonable ability to pay.” Id. at 215.
We decline Goyette’s request to overturn Bradley, which discussed the
fact the offender has the ability to challenge inappropriate CVAP awards. The
Bradley court stated:
This is not to say an offender is without power to question the
validity of an award made by the crime victim compensation
program. Although the decision to award compensation lies with
the Iowa Department of Justice . . . that decision must be made in
compliance with the prevailing law. Thus, a defendant could
successfully challenge an order for payment made by the program
if such payment was unauthorized by rule or statute.
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Id. We find no deprivation of due process when the restitution order mandated
as a part of sentencing does not prevent Goyette from seeking administrative or
civil relief in separate proceedings. See Iowa Code chapter 910; Iowa Admin.
Code r. 61-9.1(912)-9.36(915). See also State v. Jose, 636 N.W.2d 38 (Iowa
2001); State v. Blank, 570 N.W.2d 924 (Iowa 1997).
Finally, Goyette summarily claims ineffective assistance of counsel. He
raises this as an alternative to his appeal issues “should this Court deem any of
the issues raised on appeal to be inadequately preserved.” He “incorporates all
arguments and authorities cited above and asserts that counsel had a duty to
raise, litigate and preserve those issues for appeal and that any failure to do so
has resulted in prejudice.”
To establish a claim of ineffective assistance of
counsel, a defendant must show: (1) the attorney failed to perform an essential
duty; and (2) prejudice resulted to the extent it denied defendant a fair trial. State
v. Shanahan, 712 N.W.2d 121, 136 (Iowa 2006). The only issue not addressed
above appears to involve Goyette’s appellate argument that he is entitled to have
a jury determination of the amount of restitution. However, restitution is a phase
of sentencing. State v. Alspach, 554 N.W.2d 882, 882 (Iowa 1996). Sentencing
hearings are not required to conform to the requirements of a criminal trial. State
v. Ashley, 462 N.W.2d 279, 281 (Iowa 1990). Goyette’s claim of entitlement to a
jury is without merit; therefore, Goyette’s counsel did not fail to perform an
essential duty and was not ineffective. See State v. Brooks, 555 N.W.2d 446,
448 (Iowa 1996).
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We have considered all arguments raised by Goyette and those not
specifically addressed are deemed to be without merit.
AFFIRMED.
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