State of Iowa v. Jeffrey Ray Nagel

IN THE COURT OF APPEALS OF IOWA

No. 18-2079
Filed January 23, 2020

STATE OF IOWA,
Plaintiff-Appellee,

vs.

JEFFREY RAY NAGEL,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Heather L. Lauber,

Judge.

Jeffrey Nagel appeals his sentence following his guilty plea to assault with

intent to commit sexual abuse. SENTENCE VACATED IN PART AND

REMANDED.

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

Bender, Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee.

Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
2

VAITHESWARAN, Presiding Judge.

Jeffrey Nagel pled guilty to assault with intent to commit sexual abuse. The

district court accepted his plea and imposed sentence. The order of disposition

included a provision requiring Nagel to make restitution in an amount to be

determined. The order further stated, “[I]f the amounts of restitution are not

available at the time of sentencing, a supplemental order will follow.”

On appeal, Nagel contends the district court “did not evaluate [his]

reasonable ability to pay” victim restitution and court costs before ordering

restitution for those items, as required by State v. Albright, 925 N.W.2d 144, 162

(Iowa 2019). See also State v. Gross, 935 N.W.2d 695, 702 (Iowa 2019) (“Albright

makes clear that with respect to restitution, no award of reasonable-ability-to-pay

items . . . may occur until all such items are before the court and the court has then

made a reasonable-ability-to-pay determination.”). He argues we must vacate the

sentencing order and remand for further proceedings consistent with the opinion.

See Albright, 925 N.W.2d at 162.

We agree Albright is controlling. In accordance with the opinion, we vacate

the provision of the order of disposition that requires Nagel to make restitution and

remand for further proceedings. See, e.g., State v. Ackiss, No. 18-1787, 2019 WL

4678184, at *3 (Iowa Ct. App. Sept. 25, 2019); State v. Garvin, No. 18-1258, 2019

WL 2871423, at *2 (Iowa Ct. App. July 3, 2019); State v. Lester, No. 18-0524, 2019

WL 2872322, at *3 (Iowa Ct. App. July 3, 2019); State v. Northern, No. 18-1634,

2019 WL 2144773, at *2 (Iowa Ct. App. May 15, 2019.)

SENTENCE VACATED IN PART AND REMANDED.