                 IN THE SUPREME COURT OF IOWA
                               No. 18–0678

                          Filed March 22, 2019


STATE OF IOWA,

      Appellee,

vs.

CHRISTOPHER RYAN COVEL,

      Appellant.



      Appeal from the Iowa District Court for Dickinson County, David A.

Lester, Judge.



      A defendant challenges the district court’s revocation of his deferred

judgment and probation, and challenges the imposition of his prison

sentence and order to pay restitution. AFFIRMED IN PART, REVERSED

IN PART, AND REMANDED.



      Pamela Wingert of Wingert Law Office, Spirit Lake, for appellant.


      Thomas J. Miller, Attorney General, Genevieve Reinkoester,

Assistant Attorney General, and Jon M. Martin, County Attorney, for

appellee.
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WIGGINS, Justice.

      The district court revoked the defendant’s deferred judgment and

probation and sentenced him to serve a maximum of twenty-five years in

prison and pay restitution. On appeal, we find the district court did not

abuse its discretion in revoking the defendant’s deferred judgment and

probation or in ordering the defendant to serve the twenty-five-year

sentence he would have served had the court not granted a deferred

judgment. Therefore, we affirm those decisions. However, we find the

district court erred in ordering the defendant to pay restitution without

knowing the total amount of restitution owed, which we find is necessary

to know in order to determine the defendant’s reasonable ability to pay.

Therefore, we reverse the part of his sentence regarding restitution and

remand for resentencing regarding restitution consistent with this opinion

and our opinion in State v. Albright, ___ N.W.2d ___ (Iowa 2019).

      I. Factual and Procedural Background.

      On August 23, 2012, the defendant, Christopher Covel, babysat his

one-year-old sister B.C. Covel was fourteen-years-old at the time. That

evening, B.C. became very ill. On August 24, B.C. died. The autopsy

revealed peritonitis due to a rectal perforation caused B.C.’s death. Her

death was ruled a homicide.

      In interviews with investigators, Covel admitted he stuck his finger

into B.C.’s anus the day she became ill. He later admitted he had done

this on multiple prior occasions as well. According to the state medical

examiner, Covel’s digital penetration of B.C. caused the rectal perforation,

which in turn triggered the peritonitis that led to B.C.’s death.

      On March 25, 2013, Covel pled guilty to sexual abuse in the second

degree, a class “B” felony, in violation of Iowa Code sections 709.1(3) and

709.3(2) (2011). Covel was a youthful offender at the time, and therefore
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the district court deferred sentencing and transferred supervision back to

the juvenile court.

      On September 28, 2015, just before Covel’s eighteenth birthday, the

district court sentenced Covel as an adult, pursuant to the youthful

offender provisions of the Iowa Code. See Iowa Code § 907.3A. The district

court deferred judgement and placed Covel on probation for five years. As

part of his probation, the court required Covel to continue with sexual

abuse and mental health treatment, maintain full-time employment or

status as a full-time student, and successfully complete the program of a

residential treatment facility when a bed became available.

      On February 20, 2016, Covel entered the sex offender treatment

program at the residential treatment facility in Sioux City. On June 12,

2017, the residential treatment facility terminated Covel from the program

due to noncompliance with the facility’s rules and regulations.

      During Covel’s 479 days in the program, he had one minor rule

violation, two medium violations, and seventeen major violations.         The

residential treatment facility ultimately terminated Covel after residential

officers found twenty-one pornographic magazines in Covel’s possession.

Upon termination from the residential treatment facility, Covel had not yet

completed the sex offender treatment program. The residential treatment

facility staff recommended to Covel’s probation officer that the court

reevaluate Covel’s probationary status because, in their opinion, Covel was

unsuitable to return to the community at that time.

      On June 14, the State filed an application for revocation of Covel’s

probation with the district court. The district court held two probation

revocation hearings. On January 9, 2018, the court held the first hearing.

Covel’s probation officer testified that neither she nor the supervisor at the

residential treatment facility recommended the court return Covel to the
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facility.   The court inquired into other options outside the residential

treatment facility that could be appropriate for Covel. Covel’s probation

officer recommended the court revoke Covel’s deferred judgment and

sentence Covel to a term in prison.

       Covel also testified at the hearing. He testified that since pleading

guilty as a juvenile, he successfully completed two sex offender treatment

programs and his high school education. He also successfully completed

a polygraph test as part of his treatment, and he was on the last packet of

his sex offender treatment programming.         Covel further testified his

employers had terminated him because of illness, not poor performance.

At the close of the hearing, the judge said he wanted to take judicial notice

of Covel’s juvenile court files and review an updated presentence

investigation report (PSI) before sentencing Covel.

       On April 9, the court held the second probation revocation hearing.

The State asked the court to revoke Covel’s probation and sentence him to

twenty-five years in prison. Defense asked the court to return Covel to the

residential treatment facility.   After the district court reviewed all the

information, it gave a detailed and thoughtful explanation as to why it was

revoking Covel’s deferred sentence and probation and sentencing him to

twenty-five years in prison. Because Covel was a minor at the time of the

crime, the court did not impose a mandatory minimum as required by the

statute. Although the court was concerned about the length of time Covel

would spend in prison, the court saw an opportunity for Covel to earn an

early release by the parole board if Covel addressed his problems in prison.

       The court then ordered Covel to pay restitution for fines, penalties,

surcharges, courts costs, correctional fees, and court-appointed attorney

fees. The court found Covel had a reasonable ability to pay restitution.

However, at the time of sentencing, the court did not know the amount of
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restitution Covel was to pay and set no amounts in the order.          Covel

appealed his sentence.

         II. Issues.

         On appeal, Covel raises two issues. First, he claims the district

court erred in revoking his deferred judgment and probation and

sentencing him to twenty-five years in prison.       Second, he argues the

district court erred in imposing restitution without determining his

reasonable ability to pay.

         III. Standards of Review.

         We will overturn a revocation of probation only if there has been an

abuse of discretion. State v. Rogers, 251 N.W.2d 239, 243 (Iowa 1977) (en

banc).     An abuse of discretion occurs when the court exercises its

discretion on grounds or for reasons that are clearly untenable or

unreasonable. State v. Thompson, 856 N.W.2d 915, 918 (Iowa 2014). We

may find grounds untenable when based on an erroneous application of

the law. State v. Gordon, 921 N.W.2d 19, 24 (Iowa 2018).

         On the issue of restitution, we review the order for correction of

errors at law. State v. Klawonn, 688 N.W.2d 271, 274 (Iowa 2004). We

will reverse if the court has not properly applied the law or the court’s

findings lack substantial evidentiary support.      State v. Bonstetter, 637

N.W.2d 161, 165 (Iowa 2001).

         IV. Revocation of Covel’s Deferred Judgment and Probation.

         On appeal, Covel argues the district court abused its discretion by

revoking his deferred judgment and probation because the court failed to

recognize his capacity for reform.

         A court may revoke probation if the person on probation violates the

terms of the probation. State v. Darrin, 325 N.W.2d 110, 112 (Iowa 1982).

The judge must base a revocation “on more than a simple reevaluation of
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the information known by the trial judge at the time of sentencing.” Id. at

113. A court may not revoke probation arbitrarily, capriciously, or without

adequate information. State v. Hughes, 200 N.W.2d 559, 562 (Iowa 1972).

       The district court is to apply a straightforward two-step analysis for

revocation decisions. Patterson v. State, 294 N.W.2d 683, 684 (Iowa 1980).

The first step is determining whether the person has acted in violation of

one or more conditions of his or her probation. Id. If the court determines

the person violated his or her probation, the second step is determining

whether the person should be committed to prison or whether the court

should take other steps to protect society and improve chances of

rehabilitation. Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 479–80, 92

S. Ct. 2593, 2599 (1972)); 1 see also Iowa Code § 908.11(4) (2018).

       In the present case, Covel stipulated that he violated the rules of the

residential treatment facility and thereby violated his probation. Thus, the

question before the district court was whether Covel should continue with

probation either in the community or at the residential treatment facility,

or whether Covel should serve the sentence he would have served if not for

the deferred judgment. See Iowa Code § 908.11(4).

       The record shows the district court put a great deal of time and
thought into its decision to revoke Covel’s probation. The court held an

initial revocation hearing at which it heard testimony from Covel and

Covel’s probation officer. The court inquired into alternatives to revoking

probation or returning Covel to the residential treatment facility. The court

then ordered an additional and updated PSI be conducted and took three

months to review Covel’s record, including his juvenile record outlining the

State’s efforts to rehabilitate him.

       1Although Morrissey was a parole revocation case, the same principles apply to
probation. See Patterson, 294 N.W.2d at 684.
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      Covel’s juvenile record contained positive reports of his stable
behavior and progress in juvenile sexual abuse programs as well as his
completion of his high school education. However, Covel’s adult record
showed that once on adult probation at the residential treatment facility,
he had twenty rule violations by the time of his discharge from the sex
offender treatment program. The final violation that led to his discharge
was his possession of twenty-one pornographic magazines, which he
admitted to keeping for personal use and for selling to other residents in
the sex offender treatment program.       The treatment facility staff and
Covel’s probation officer both expressed deep concern about Covel’s
possession of pornography. The residential treatment facility reported,

      The level of secrecy and criminal thinking involved in
      Mr. Covel’s most recent treatment violation is concerning. It
      indicates severe deficits in his internalization of and
      motivation to use [sex offender treatment program] skills to
      work towards avoiding further deviant cycles which could in
      turn result or progress to further victimization, especially
      given the added incentive of a deferred judgment.

Covel’s probation officer stated in the PSI, “Please note that the sexual
component of the pornography is concerning because he was heavily into
pornography when this crime occurred, ultimately killing his sister
sexually.”
      After reviewing Covel’s entire file, the district court held the second
revocation hearing.   There, the district court judge explained at great
length his decision for revoking Covel’s probation, including the three
overarching principles he considered in reaching Covel’s sentence:
retribution, rehabilitation, and restitution. The court expressed concern
that Covel might reoffend. Ultimately, the judge concluded Covel’s actions
showed the efforts to rehabilitate Covel failed and Covel still showed
propensities toward being unable to control himself even in one of the most
structured environments available at the residential treatment facility.
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      The district court has broad discretion in determining whether
probation should be continued or revoked.         See Iowa Code § 908.11;
Darrin, 325 N.W.2d at 113 (“The legislature has given the judge hearing
the request for revocation wide discretion to practice wisdom and justice
in determining whether probation should be continued.”); see also
Patterson, 294 N.W.2d at 685 (holding trial court did not err in revoking
defendant’s parole when the only evidence it had to consider was the
violation report and no conflicting evidence was presented); Rheuport v.
State, 238 N.W.2d 770, 772–75 (Iowa 1976) (holding trial court did not err
in revoking defendant’s probation when defendant was charged with
another crime while on probation); Hughes, 200 N.W.2d at 563 (holding
trial court did not err in revoking probation when it found by a
preponderance of the evidence that defendant committed an armed
robbery).
      Based on the updated PSI and two probation revocation hearings,
we find there was sufficient evidence in Covel’s record for the district court
to revoke Covel’s probation. See Hughes, 200 N.W.2d at 562. The district
court exercised its discretion with ample information beyond the original
file used in Covel’s initial proceedings. See Darrin, 325 N.W.2d at 113.
Further, the court did not err in the sentence it imposed because it
imposed the sentence that Covel would have served but for the deferred
judgment, pursuant to Iowa Code section 908.11(4).           See Iowa Code
§ 908.11(4) (“If the violation is established . . . and, if the imposition of
sentence was deferred, [the court] may impose any sentence which might
originally have been imposed.”).
      V. Order of Restitution.
      The district court ordered Covel to make restitution for court costs,
correctional fees, and court-appointed attorney fees. The court also found
                                       9

that Covel had a reasonable ability to pay restitution when it did not have
the amount of restitution before it.
      In Albright, we examined the Iowa Code provisions related to
restitution. We held,

      Courts must wait to enter a final order of restitution until all
      items of restitution are before the court. Once the court has
      all the items of restitution before it, then and only then shall
      the court make an assessment as to the offender’s reasonable
      ability to pay. A court should make every effort to determine
      an offender’s financial condition as early as possible. This
      may require the offender filing an updated financial
      statement, a colloquy with the offender, or both. A court
      cannot impose restitution on an offender for the items subject
      to the offender’s reasonable ability to pay if the offender does
      not have a reasonable ability to pay those items. Finally, any
      temporary, permanent, or supplemental order regarding
      restitution is not appealable or enforceable until the court files
      its final order of restitution.

Albright, ___ N.W.2d at ___.

      Here, the district court did not have the total amount of restitution

owed when it entered its order finding Covel reasonably able to pay.

Therefore, the court erred, and we reverse the part of the sentence

regarding restitution and remand the case for resentencing consistent with

this opinion and our opinion in Albright. See id.

      VI. Disposition.

      We affirm the district court’s decision to revoke Covel’s deferred

judgment and probation and sentence him to twenty-five years in prison

without a mandatory minimum. However, we vacate the restitution part

of the sentencing order and remand the case to the district court to order

restitution in a manner consistent with this opinion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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