appellant reply brief

STATE OF IOWA,
IN THE SUPREME COURT OF IOWA
FILED
MAR 182011
CLERKSUPREMECOURT
Plaintiff-Appellee,
v.
SUPREME COURT 10-0631
MARK DARYL BECKER,
Defendant-Appellant.
APPEAL FROM THE IOWA DISTRICT COURT
IN AND FOR BULTER COUNTY
HONORABLE STEPHEN P. CARROLL, JUDGE
APPELLANT'S REPLY BRIEF AND ARGUMENT
MARK C. SMITH
State Appellate Defender
No. AT0007410
MARTHA J. LUCEY No. AT0004837
Assistant Appellate Defender
Mlucey@spd. state, ia. us
STATE APPELLATE DEFENDER'S OFFICE
Fourth Floor Lucas Building
Des Moines, Iowa 50319
(515)281-8841
(515) 281-7281 (FAX)
ATTORNEYS FOR DEFENDANT-APPELLANT

n q~T5
Wul acrS i I !
I CERTIFICATE OF SERVICE AND FILING
MS S } iA^'Ori the 18 th
day of March, 2011, the undersigned certifies
^ui^t^true copy ofthe foregoing instrument was served upon
the Attorney General's Office, Criminal Appeals Division by
electronic transmission to: CAmail@ag.state.ia.us and on
Defendant-Appellant by placing one copy thereof in the United
States mail, proper postage attached, addressed to Mark D.
Becker, # 6099733, Iowa Medical & Classification Center, 2700
Coral Ridge Avenue, Coralville, IA 52241.
I further certify that on March 18, 2011,1 will file this
document by mailing 18 copies of it to the Clerk of the Supreme
Court, Iowa Judicial Building, 1111 East Court Avenue, Des
Moines, Iowa 50319 through Iowa State Capitol Complex Local
Mail.
STATE APPELLATE DEFENDER'S OFFICE
MJL/sm/3/11
MJL/jlb/3/11
MARTHA J. LUCEY AT0004837
Assistant Appellate Defender

TABLE OF CONTENTS
Page
Certificate of Service and Filing
Table of Authorities
i
iii
Statement of the Issues Presented for Review 1
Statement of the Case 3
Argument
Division 1 3
Division II 5
Conclusion 8
Attorney's Cost Certificate 9
Certificate of Compliance 10
4
ii

TABLE OF AUTHORITIES
Cases:
Page:
Daniel M'Naghten's Case 10 CI. & F. 200,
8 E.R. 718(1843)........ .....................3-4
State v. Austin, 585 N.W.2d 24 i(Iowa 1998)..................7
State v. Hamann, 285 N.W.2d 180(Ipwa 1979)...,. ,3
Statutes and Court Rules:
Iowa Admin. Code r. 493-7.1 (6/17/09).....;.. .6
Iowa Admin. Code r. 493-7.1 (12/29/10) .....7
Iowa Admin. Code r. 493-12.6 (13B, 815)........ ........7
Iowa Admin. Code r. 493-12.6(1)..... ........................5
Iowa Admin. Code r. 493-12.7......................... .6
Iowa Admin. Code r. 493-13.2(3) .6
Iowa Code § 701.4 . 3
Iowa Code § 815.14 ...5, 8
Iowa Code § 815.7. 5
Iowa Code § 910.3....... .........5
iii

TABLE OF AUTHORITIES
Other Authorities:
Black's Law Dictionary 1265 {& h ed. 1990) .4
The American Heritage Dictionary 1275 (2d ed. 1985) 7
4
iv

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW
I. WHETHER THE DISTRICT COURT ERRED IN
FAILING TO PROPERLY INSTRUCT THE JURY
Authorities
1. Jury Instruction 35 - failure to give the proposed jury
instruction on the elements of the insanity defense.
Iowa Code section 701.4
State v. Hamann, 285 N.W.2d 180, 182 (Iowa 1979)
Daniel M'Naghten's Case 10 CI. & F. 200, 210, 8 E.R. 718,
722-723 (1843)
Black's Law Dictionary 1265 (6* ed. 1990)
2. Jury Instruction 10- failure to give proposed jury
instruction on the consequences of a not guilty by reason
of insanity verdict.
This issue is not addressed in the reply brief.
II. WHETHER THE DISTRICT COURT ERRED IN
ORDERING DEFENDANT TO PAY LEGAL ASSISTANCE FEES
IN EXCESS OF THE FEE LIMIT
Iowa Admin. Code r. 493-12.6(1)
Iowa Code section 815.14
Authorities
1

Iowa Code Section 910.3
Iowa Code section 815.7
Iowa Admin. Code r 493-12.7
Iowa Admin. Code r. 493-12.7(1)
Iowa Admin. Code r. 493-13.2(3)
Iowa Admin. Code r. 493-7.1 (6/17/09)
Iowa Admin. Code r. 493-12.6 (13B, 815)
Iowa Admin. Code r. 493-7.1 (12/29/10)
The American Heritage Dictionary 1275 (2d ed. 1985)
State v. Austin, 585 N.W.2d 241, 244 (Iowa 1998)
<
2

STATEMENT OF THE CASE
COMES NOW the defendant-appellant, pursuant to Iowa
i
R. App. P. 6.903(4), and hereby submits the following argument
in reply to the plaintiff-appellee's brief.
ARGUMENT
I. THE DISTRICT COURT ERRED IN FAILING TO
PROPERLY INSTRUCT THE JURY.
1. Jury Instruction 35
The State contends that Iowa Code section 701.4 is "very
much about sufficient mental capacity." St. Brief, p. 27. Iowa
Code section 701.4 is the codification of the M'Naghten rule.
State v. Hamann, 285 N.W.2d 180, 182 (Iowa 1979). The
M'Naghten Case does not mention "mental capacity." Lord
Chief Justice Tindall opined
that the jurors ought to be told in all cases that every
man is presumed to be sane, and to possess a
sufficient degree of reason to be responsible for his
crimes, until the contrary be proved to their
satisfaction; and that to establish a defence on the
ground of insanity, it must be clearly proved that, at
the time of the committing of the act, the party
accused as laboring under such a defect of reason,
from disease of the mind, as not to know the nature
»
3

and quality of the act he was doing; or if he did know
it, that he did not know he was doing what was
wrong. * * * If the accused was conscious that the
act was one which he ought not to do, and if that act
was at the same time contrary to the law of the land,
he is punishable; and the usual course therefore has
been to leave the question to the jury, whether the
party accused had a sufficient degree of reason to
know that he was doing an act that was wrong; and
this course we think is correct, accompanied with
such observations and explanations as the
circumstances of each particular case may require.
Daniel M'Naghten's Case 10 CI. & F. 200, 210, 8 E.R. 718,
722-723 (1843).
M'Naghten centers on "sufficient degree of reasoning."
M'Naghten does not reference "sufficient mental capacity."
"Reason" is defined as a "faculty of the mind by which it
distinguishes truth from falsehood, good from evil, and which
enables the possessor to deduce inferences fromfacts or from
propositions." Black's Law Dictionary 1265 {& h ed. 1990).
"Degree of reasoning" is not synonymous with "mental
capacity." Instruction 35 is an incorrect statement of the law
as it does not convey the requirements of Iowa Code section
701.4.

II. THE DISTRICT COURT ERRED IN ORDERING
DEFENDANT TO PAY LEGAL ASSISTANCE FEES IN EXCESS
OF THE FEE LIMIT.
The fee limitation for a class A felony is $ 18,000. Iowa
Admin. Code r. 493-12.6( 1). (App. p. 766). The State
contends Becker must pay $53,709.82 in "expert witness fees"
and "other" expenses in the sum of $824.80 in addition to
$16,600 in attorney fees. State's Brief p. 48. The State is
mistaken.
The State confuses the term "expense" as used in Iowa
Code section 815.14 with only the costs ofthe attorney and
paralegal time. State's Brief, p. 48. Iowa Code section 815.14
provides, "When determining the amount of restitution for each
case under section 910;3, the expense ofthe public defender
shall be calculated at the same hourly rate of compensation
specified under section 815.7. However, the expense of the
public defender shall not exceed the fee limitations established
in section 13B.4." Iowa Code § 815.14 (2009). The statute
limits the total expense of the public defender.

, Iowa Administrative Code rule 493-12.7 provides for
t
reimbursement for the payments made by the attorney for
necessary certified shorthand reporters, investigators, foreign
language interpreters, evaluations and experts. Iowa Admin.
Code r. 493-12.7(1). (App. p. 767). The Administrative Code
also provides for reimbursement of claims for expert witnesses.
Iowa Admin. Code r. 493-13.2(3). (App. pp. 768-771).
However, all of these expenses are contained in the fee
limitation. Iowa Admin. Code r. 493-7.1 (6/17/09). (App. p.
760).
The Iowa Administrative Code provides definitions for use
in the rules. At the time of defense counsel's appointment,
"fee limitation" meant "the fee limitation established by the
state public defender for specific classes of cases." Iowa Admin
Code. r. 493-7.1 (6/17/09). (App. p. 760).
The Administrative Code was amended in December 2010.
The code now provides '"Tee limitations" means the attorney
<
fee limitation established by the state public defender for
6

specific classes of cases as specified in rule 493-12.6 (13B,
815), together with out-of-pocket expenses approved by the
state public defender, whether submitted by the public
defender, by an appointed attorney pursuant to 493-Chapter
12, or by another professional pursuant to 493-Chapter 13."
Iowa Admin. Code r. 493-7.1 (12/29/10). (App. p. 763). The
scope of this definition turns on the meaning of "together."
"Together''is defined as "regarded collectively; in total."
The American Heritage Dictionary 1275 (2d ed. 1985). In
usage, "together with like in addition to, is often employed
following the subject of a sentence or clause to introduce an
addition." Id.
This Court need not determine whether the change in the
administrative code altered the definition of "fee limitation." The
administrative code in effect at the time of the appointment of
counsel must control the required reimbursement Cf. State v.
Austin, 585 N.W.2d 241, 244 (Iowa 1998) (Defendant is
sentenced under the code which was the law in effect at the
7

time the crime was committed.). Becker cannot be ordered to
pay in excess of $18,000 for the total cost of his legal
representation.
CONCLUSION
Mark Becker respectfully requests this Court reverse his
conviction and remand for a new trial. Additionally, Becker
requests this Court vacate the legal assistance restitution and
remand for an order consistent with Iowa Code§ 815.14 (2009).
Respectfully submitted,
STATE APPELLATE DEFENDER'S OFFICE
MARTHA J. LUCEY A$0004837
Assistant Appellate Defender
8

ATTORNEY'S COST CERTIFICATE
I, the undersigned, hereby certify that the true cost of
producing the necessary copies of the foregoing Reply Brief and
Argument was
/H-Ok . and that amount has been paid in
full by the Office of the Appellate Defender.
JkiL O^aY
t/MARTHA J. LUCEY $T0004837
Assistant Appellate Defender
9

CERTIFICATE OF COMPLIANCE WITH TYPEVOLUME
LIMITATIONS, TYPEFACE REQUIREMENTS AND
TYPE-STYLE REQUIREMENTS
1. This brief complies with the type-volume limitation of
Iowa R. App. P. 6.903(l)(g)(l) or (2) because:
[X] this brief contains 935 words, excluding the parts of
the brief exempted by Iowa R. App. P. 6.903(l)(g)(l) or
2. This brief complies with the typeface requirements of
Iowa R. App. P. 6.903(l)(e) and the type-style requirements of
Iowa R. App. P. 6.903(l)(f) because:
[x] this brief has been prepared in a proportionally
spaced typeface using Microsoft Word 2010 in Bookman Old
Style, font 14 point.
Assistant Appellate Defender
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