State Of Iowa Vs. Kevin Demale Johnson ( 2009 )

IN THE SUPREME COURT OF IOWA
No. 07–0142
Filed July 10, 2009
STATE OF IOWA,
Appellee,
vs.
KEVIN DEMALE JOHNSON,
Appellant.
Appeal from the Iowa District Court for Woodbury County,
Michael S. Walsh (motion to dismiss) and Duane E. Hoffmeyer (trial),
Judges.
Defendant appeals convictions following a bench trial claiming he
was tried in violation of the Interstate Agreement on Detainers and that
there was insufficient evidence to support his convictions. State cross-
appeals claiming a determination of defendant’s habitual offender status
should be bifurcated from the guilt phase of trial. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.
Tod J. Deck, Sioux City, for appellant, and Kevin Johnson,
Anamosa, pro se.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson,
Assistant Attorney General, Patrick Jennings, County Attorney, and Jill
Pitsenbarger, Assistant County Attorney, for appellee.
2
HECHT, Justice.
A defendant appeals his conviction following a bench trial on two
separate class “D” felony charges: failure to register as a sex offender
(second offense) and failure to appear at trial. Although the defendant
was charged as a habitual offender, the district court rejected, without
holding a separate hearing, the State’s claim as to defendant’s habitual
offender status. On appeal, the defendant contends his trial was not
held within the time limit imposed under the Interstate Agreement on
Detainers (IAD) and claims the district court erred in denying his motion
to dismiss. Alternatively, the defendant contends there was insufficient
evidence to support his convictions. The State cross-appeals asserting
the district court erred in failing to bifurcate the determination of the
defendant’s habitual offender status from the guilt phase of trial. We
affirm in part, reverse in part, and remand for further proceedings
consistent with this opinion.
I. Factual and Procedural Background.
On September 9, 2005, Kevin Demale Johnson was charged with
various criminal offenses. 1 Johnson was arraigned on those charges on
September 29, 2005. Attorney Peter Monzel was appointed to represent
Johnson. A trial date was scheduled for January 10, 2006, and Johnson
was released from jail consistent with a bond agreement signed on the
date of arraignment. 2
Monzel had several in-person and telephonic contacts with
Johnson in the weeks following the arraignment. The last of these
1Johnson was charged with robbery in the second degree, assault while
participating in a felony, and willful injury. As these charges and the subsequent
conviction for assault are not at issue on this appeal, we need not discuss them further.
2Johnson was informed of his responsibilities under the bond agreement before
he was discharged.
3
contacts occurred on December 12, 2005, when Monzel informed
Johnson of his intent to seek a continuance of the trial date. Monzel
advised Johnson that a new trial date would not be determined until the
January 4, 2006 pretrial conference was concluded. 3
On or about December 23, 2005, Johnson gathered his
possessions and vacated his apartment on Jackson Street in Sioux City,
Iowa. After vacating the apartment, Johnson apparently stayed several
days in motel rooms and at his mother’s Sioux City home. Johnson was
formally evicted from the Jackson Street apartment. A writ of removal
was issued on December 23, 2005, and when the apartment manager
entered the apartment on December 27, 2005, she found the abode
completely empty of Johnson’s possessions and vacant of residents. 4 On
December 28, 2005, Officer Jay Fleckenstein of the Sioux City Police
Department visited the premises and concluded Johnson had vacated
the apartment. 5
On January 3, 2006, Monzel filed a motion for continuance
consistent with his discussions with Johnson. Monzel was unaware at
3Johnson contends he was never informed of the date of the pretrial conference
or the trial. As more fully discussed below, the record supports a finding that Johnson
was fully aware of both dates.
4Johnson contends he was completely unaware of the eviction proceedings and
that he left the apartment temporarily to spend the holidays with his family. We find no
other support in the record for Johnson’s claim that he was unaware of the eviction
proceedings or for his claim that he did not intend to permanently vacate the
apartment.
5Commencing on February 2, 2002, Johnson was required to register as a sex
offender each time he established a new residence address. The purpose of Officer
Fleckenstein’s visit was to determine if Johnson was residing at the address consistent
with his registration. During the December 28, 2005 visit, Fleckenstein concluded
Johnson had vacated the Jackson Street apartment and discovered the door locks had
been changed by the landlord following the eviction. Officer Fleckenstein returned to
the apartment on January 5, 2006 to confirm the apartment was still vacant. Johnson
failed to register a new address within the five-day grace period as required by Iowa law.
See Iowa Code § 692A.3 (2005). As he was then on probation for an earlier failure-to-
register offense, Johnson was consequently charged with failure to register as a sex
offender (second offense). See id. § 692A.7(1).
4
that time of the fact that Johnson had departed Iowa on January 3, 2006
in a car headed for Arizona. 6 The motion for continuance was never
considered by the district court, as Johnson failed to appear at the
January 4 pretrial conference. 7 On January 13, 2006, after being
informed that Johnson was no longer residing at the Jackson Street
apartment, the Woodbury County attorney charged Johnson with failure
to register as a sex offender (second offense) because he had failed to
register at a new address or as a transient within five days after vacating
his old residence as required by Iowa Code section 692A.3. See Iowa
Code § 692A.7(1) (2005).
Johnson claims he arrived in Arizona on January 8 or 9. Shortly
after arriving in Arizona, Johnson was arrested for attempting to elude
police. 8 He was subsequently convicted and sentenced on that charge to
serve eighteen months in an Arizona prison. While imprisoned in
Arizona, Johnson was notified of a detainer lodged against him for failure
to register in Iowa as a sex offender (second offense). On April 5, 2006,
Johnson executed an “Arizona Department of Corrections Agreement on
Detainers–Form II” requesting a “Final Disposition be made on . . .
indictments, information or complaints now pending.” Johnson’s request
under the IAD for final disposition of the Iowa charges listed the following
6According to Johnson, the trip arose rather spontaneously after he received a
call indicating his father “had started doing drugs again” and Johnson needed to “come
down and pick him up.” Monzel had previously made Johnson fully aware of (1) the
January 4 pretrial conference, (2) the January 10 trial date, and (3) Johnson’s
obligations under the bond agreement. Despite this awareness, Johnson elected to
leave the State of Iowa in clear violation of the bond agreement one day before his
pretrial conference and one week before the scheduled start of trial.
7A court order filed on December 28, 2005 required Johnson’s attendance at the
pretrial conference. Johnson failed to appear at the January 4 pretrial conference and
the January 10 trial.
8Johnson testified he was arrested two or three days after arriving in Arizona.
Although the date of Johnson’s arrest is not clear from the record, a determination of
the date is not essential to our analysis of the issues presented in this appeal.
5
offenses: failure to appear for the January 10 trial (case number
FECR053494), failure to appear for the January 4 pretrial conference
(case number FECR053492), failure to register as a sex offender, and
other criminal charges unrelated to this appeal. However, at the time
Johnson completed the IAD form II, the only pending “indictment,
information or complaint” relevant to this appeal was the one charging
him for failure to register as a sex offender (second offense). 9
The Arizona Department of Corrections notified the Woodbury
County attorney’s office by letter of Johnson’s request for final
disposition of the charges. The letter correctly informed the State of Iowa
that failure to act on the untried Iowa charges within the time
constraints of the IAD would result in the dismissal of the charges
against Johnson. A copy of Johnson’s IAD form II was attached to the
letter which was received in the Woodbury County attorney’s office on
April 14, 2006.
After receiving the letter, an assistant Woodbury County attorney
executed IAD forms notifying the Arizona Department of Corrections of
the State of Iowa’s intention to take custody of Johnson. Johnson was
transported from Arizona to Sioux City, Iowa, where he was booked and
jailed on June 2, 2006. On June 5, Johnson was charged with failure to
appear at the January 4 pretrial conference and the January 10 trial.
Monzel withdrew from his representation of Johnson on June 15, 2006,
as he anticipated being called to testify in Johnson’s trial, and
replacement counsel was appointed.
9While the district court had issued bench warrants for Johnson’s arrest for
failure to appear at pretrial conference and for failure to appear at trial, the charges
were not filed by the county attorney until June 5, 2006, three days after Johnson had
been returned from Arizona to Iowa by law enforcement officers. Under the IAD, “[a]ny
request for final disposition made by a prisoner . . . shall operate as a request for final
disposition of all untried indictments, informations or complaints on the basis of which
detainers have been lodged against the prisoner . . . .” Iowa Code § 821.1, art. III(d).
6
On June 29, 2006, Johnson was arraigned on three charges which
are the subject of this appeal: (1) failure to register as a sex offender
(second offense), (2) failure to appear at the January 4 pretrial
conference, and (3) failure to appear at the January 10 trial. Johnson
pleaded not guilty on all counts, and trial was set for August 22, 2006. 10
On August 4, 2006, Johnson executed a waiver of his right to be tried
within ninety days after the information was filed. See Iowa R. Crim. P.
2.33(2)(b). Notably, the waiver made no reference to a waiver of time
limitations under the IAD.
On August 15, 2006, the prosecutor and Johnson’s counsel orally
agreed to continue the trial to October 31, 2006. This new date for the
commencement of trial was 200 days after Johnson’s IAD notification
was received by the Woodbury County attorney. The district court
granted the continuance in an order that did not disclose the court’s
rationale for granting the continuance.
On October 24, 2006, after the 180-day time limit for trying
Johnson had expired under the IAD, Johnson, his attorney, and the
prosecutor, agreed to another continuance and the court entered an
order continuing the trial to December 12, 2006. This order cited the
unavailability of a witness as the reason for granting the continuance of
the trial scheduled for October 31, 2006. 11
10The trial was scheduled to commence 130 days after the Woodbury County
attorney received Johnson’s IAD notification. Under the IAD, criminal charges shall be
dismissed if the defendant is not brought to trial within 180 days after the defendant
causes to be delivered to the prosecuting officer and the appropriate court written
notice of a request for final disposition of the charges unless for good cause in open
court the trial is continued. See Iowa Code § 821.1, art. III(a).
11The record suggests another plausible reason for granting the continuance was
to allow Johnson to avoid a second jury trial in front of the same jury panel that found
him guilty on October 26, 2006 of various other criminal charges unrelated to this
appeal.
7
On November 8, 2006, Johnson filed a written waiver of his right
under the IAD to be tried within 180 days. Notably, the waiver was filed
208 days after Johnson demanded a timely final disposition of the Iowa
charges under the IAD. Soon thereafter, Johnson’s counsel filed a
motion to dismiss the charges on the ground the State had failed to
timely try Johnson as required by the IAD. Johnson filed a pro se
motion to dismiss asserting arguments substantially similar to those
made in the motion filed by his counsel. The State resisted, and the
court denied both motions. The district court concluded the August 15,
2006 continuance was not in compliance with the IAD, but that the
October 24, 2006 continuance met the requirements of the IAD and
operated as a valid waiver of Johnson’s right under the IAD to a timely
trial despite the fact the continuance was granted after the IAD deadline
had passed.
A bench trial on the charges commenced on December 12, 2006.
Two days later, the district court filed its “Findings of Fact, Conclusions
of Law, Verdict and Order.” Johnson was convicted for failure to register
as a sex offender (second offense) and for failure to appear at trial, but he
was acquitted for failing to appear at the pretrial conference. In the same
order, the court concluded the State had failed to prove Johnson was a
habitual offender. The court did not hold a separate hearing on the
habitual offender issue before entering the order adjudicating that issue.
On December 18, 2006, the State filed a motion to establish
Johnson’s habitual offender status. The State’s motion asserted the
determination of whether Johnson was a habitual offender should have
been bifurcated from the guilt phase of trial. At the subsequent
sentencing hearing, the district court heard arguments on the State’s
motion, denied the motion, reaffirmed its prior ruling on Johnson’s
8
status as a habitual offender, and concluded Iowa Rule of Criminal
Procedure 2.19(9) does not require bifurcation of the adjudication of a
defendant’s habitual offender status if the related criminal charges are
tried in a bench trial. Johnson was sentenced to two consecutive five
year sentences. Johnson appeals, contending the district court erred in
its ruling on the motions to dismiss, and claiming the evidence is
insufficient to support his convictions. The State asserts in support of
its cross-appeal that the district court erred in failing to bifurcate the
determination of habitual offender status from the guilt phase of the
trial.
II. Scope of Review.
This appeal presents three issues for our review: (1) whether the
district court erred in its ruling on the motions to dismiss, (2) whether
the evidence is sufficient to support Johnson’s convictions, and (3)
whether the district court erred in interpreting a statute.
We review the district court’s ruling on a motion to dismiss for
correction of errors at law. State v. Widmer-Baum, 653 N.W.2d 351, 354
(Iowa 2002).
We review sufficiency of evidence claims for correction of errors at
law. State v. Jorgensen, 758 N.W.2d 830, 834 (Iowa 2008). If the court’s
findings are supported by substantial evidence, we will not disturb the
findings on appeal. Id. Evidence is substantial if, when viewed in the
light most favorable to the State, it would convince a rational fact finder
that the defendant is guilty beyond a reasonable doubt. Id.Finally, we review the district court’s interpretation of a statute for
correction of errors at law. State v. Green, 680 N.W.2d 370, 372 (Iowa
2004).
9
III. Discussion.
A. The Purpose of the IAD. The IAD is codified at Iowa Code
chapter 821. Iowa Code §§ 821.1–.8. Forty-eight states, the District of
Columbia, and the federal government are parties to the agreement.12
Widmer-Baum, 653 N.W.2d at 354. The IAD creates uniform procedures
for the efficient disposition of charges against a prisoner held in one
jurisdiction and wanted in another jurisdiction on untried criminal
charges. Id. (citing Iowa Code § 821.1, art. I). It is undisputed that the
IAD applies in the present case as Johnson was being held in Arizona,
and he was wanted on other untried charges in Iowa.
In Widmer-Baum, we explained the purpose of the IAD. Id.(outlining the history of the IAD as adopted by Iowa); see also United
States v. Mauro, 436 U.S. 340, 349–52, 98 S. Ct. 1834, 1842–43, 56
L. Ed. 2d 329, 340–41 (1978) (providing a comprehensive history of the
IAD). As we explained in Widmer-Baum,
[t]he IAD is implicated when a state or jurisdiction wants
custody of a prisoner from another jurisdiction and files a
detainer or written notice informing the jurisdiction in which
the prisoner is serving a sentence to hold the prisoner so the
second jurisdiction may try the prisoner for a different crime
in its jurisdiction.
653 N.W.2d at 354 (citing Mauro, 436 U.S. at 359, 98 S. Ct. at 1846, 56
L. Ed. 2d at 346; State v. Wood, 241 N.W.2d 8, 12–13 (Iowa 1976)). In
this case, Iowa informed Arizona of the criminal charges pending against
Johnson in Woodbury County so that the IAD’s stated purposes would be
fulfilled.
The goal of the IAD is to prevent the abuses that historically
occurred when jurisdictions lodged detainers against a prisoner, but
12Iowa and Arizona are both signatories to the agreement. See Iowa Code §§
821.1–.8; Ariz. Rev. Stat. Ann. § 31-481 (2005).
10
were not required to act on those detainers. Id. at 354–55. In other
words, “[t]he purpose of the IAD is to expedite the ‘delivery of the
prisoner to the receiving state’ and to expeditiously dispose of the untried
charges ‘prior to the termination of [the] sentence in the sending state.’ ”
Id. at 355 (quoting Alabama v. Bozeman, 533 U.S. 146, 148, 121 S. Ct.
2079, 2082, 150 L. Ed. 2d 188, 192 (2001); Iowa Code § 821.1, art. I).
In outlining the procedures established by the IAD, we explained:
The IAD is only invoked once a detainer is lodged. The
detainer, however, does not require the custodial member to
produce the prisoner. Instead, it merely serves to notify the
custodial institution that the prisoner is wanted in another
jurisdiction, and activates certain requirements under the
agreement. Pursuant to the agreement, the authorities of
the state or jurisdiction with custody of the prisoner are
required to inform the prisoner of the source and contents of
the detainer and the prisoner’s right to request a final
disposition of the underlying charge. At the same time, the
agreement permits the requesting state to initiate the
process for the prisoner to be transferred to the receiving
state to stand trial. Thus, once a detainer is filed, either the
prisoner or the receiving state can activate the procedures
under the agreement to promptly dispose of the charge.
Id. (citations omitted). In compliance with this procedure, Iowa
authorities informed Arizona authorities of the Woodbury County
charges, Arizona notified Johnson, and Johnson followed the procedures
required to demand timely disposition of those charges.
Our decision in Widmer-Baum included an extensive discussion of
the time limitations imposed by article III of the IAD. Id. at 355–56. We
explained:
If the prisoner institutes the process by requesting
disposition of the charges pursuant to article III of the
agreement, then the prisoner must be brought to trial within
180 days after written notice of the request has been
delivered to the prosecutor in the appropriate court of the
receiving state. The request by a prisoner under article III is
considered to be a waiver of the right to contest extradition,
11
as well as a consent to appear in any court necessary to
effectuate the purposes of the IAD. Thus, article III is a
voluntary procedure under the agreement where the prisoner
gives up the right to contest extradition in return for an
assurance that the charge will be resolved within a period of
180 days.
Id. (citations omitted).
The 180-day time limit under the IAD “may be extended because
the [detainer] agreement provides that a continuance may be granted for
good cause.” Id. at 356 n.4 (citing Iowa Code § 821.1, art. III(a) (2001)).
The IAD provision providing for a continuance states: “Provided that for
good cause shown in open court, the prisoner or the prisoner’s counsel
being present, the court having jurisdiction of the matter may grant any
necessary or reasonable continuance.” Iowa Code § 821.1, art. III(a)
(emphasis added). If, however, “[t]he prisoner is not brought to trial
within . . . the applicable time period prescribed in article III . . . , the
court where the charges are pending ‘shall enter an order dismissing [the
charge] with prejudice,’ and the detainer shall have no force or effect.”
Widmer-Baum, 653 N.W.2d at 356 (citing Iowa Code § 821.1, art. V(c)
(2001)) (emphasis added).
The IAD can be implemented by the use of optional forms available
for use by all jurisdictions. Id. at 357 (providing an extensive discussion
of the eight IAD forms, as well as the relevant use of each form). As we
explained in Widmer-Baum, the IAD forms provide an excellent road map
of the IAD process as it is generally implemented:
Under article III, once a detainer is lodged, the warden
of the prison uses form I (“Notice of Untried Indictment,
Information or Complaint and of Right to Request
Disposition”) to inform the prisoner of the detainer and the
right to request disposition. If the prisoner elects to request
disposition, then the prisoner signs form I and form II
(“Inmate’s Notice of Place of Imprisonment and Request for
Disposition of Indictments, Informations or Complaints”) and
12
return[s] the forms to the warden. The warden then sends
form II, form III (“Certificate of Inmate Status”) and form IV
(“Offer to Deliver Temporary Custody”) to the prosecutor and
the appropriate court in the receiving state. Upon receipt of
the forms, the prosecutor in the receiving state completes
form VII (“Prosecutor’s Acceptance of Temporary Custody
Offered in Connection With a Prisoner’s Request for
Disposition of a Detainer”) and sends it to the warden. The
prosecutor then completes form VI (“Evidence of Agent’s
Authority to Act for Receiving State”) and sends it to the
state agreement administrator. Form VI shows the date the
prisoner will be transported.
Id. (citations omitted). In this case, the optional IAD forms were used by
law enforcement authorities in both Arizona and Iowa, and by Johnson.
When evaluating compliance with IAD procedures and their
application in any given case, we liberally construe the IAD in favor of the
detained prisoner. State v. Bass, 320 N.W.2d 824, 827 (Iowa 1982)
(citing Wood, 241 N.W.2d at 12). With these principles in mind, we now
turn our attention to whether the IAD was properly applied in this case.
B. The IAD and the 180-Day Time Limitation. Johnson and his
attorney filed separate motions to dismiss the Iowa criminal charges,
contending the State failed to comply with the time limitation. See Iowa
Code § 821.1, art. V(c) (indicating dismissal of charges is the appropriate
remedy when the receiving state fails to try charges within 180 days of
receiving a defendant’s request for final disposition). Johnson contends
the district court erred in denying both motions.
The IAD serves the important purpose of “forc[ing] jurisdictions
with detainers outstanding to try the underlying criminal charge within
180 days or be barred.” Wood, 241 N.W.2d at 12 (citations omitted).
One notable exception to the IAD’s time requirement is the article III
continuance provision. Under this article, a court “for good cause shown
in open court, the prisoner or the prisoner’s counsel being present, . . .
13
may grant any necessary or reasonable continuance.” Iowa Code
§ 821.1, art. III(a). If a defendant is not tried within 180 days after
making a request of the state lodging a detainer for a timely final
disposition of an information, the district court must dismiss the charges
with prejudice, and the detainer shall cease being effective. Id. § 821.1,
art. V(c); see Widmer-Baum, 653 N.W.2d at 359 (noting dismissal is
required when the IAD’s time limitation has expired).
A broad array of constitutional and statutory rights protecting
defendants in criminal cases may be waived. See New York v. Hill, 528
U.S. 110, 114, 120 S. Ct. 659, 663–64, 145 L. Ed. 2d 560, 566 (2000).
The United States Supreme Court has concluded defendant’s counsel’s
agreement to a trial date outside of the 180-day limitation period is
permitted under the IAD and can amount to a waiver of any IAD
objection by a defendant. Id. at 114–15, 120 S. Ct. at 664, 145 L. Ed. 2d
at 566–67. In Hill, the defendant’s counsel agreed to a trial date outside
of the 180-day time limitation. Id. at 112–13, 120 S. Ct. at 663, 145
L. Ed. 2d at 565–66. The Supreme Court reasoned the parties’
agreement was sufficient to effect a waiver of Hill’s right to be tried within
180 days under the IAD. Id. at 114–15, 120 S. Ct. at 664, 145 L. Ed. 2d
at 566–67. Contrasting agreed-upon continuances from those resisted
by the defendant, the Supreme Court concluded the terms of the IAD do
not “overcome the ordinary presumption that waiver is available.” Id. at
116, 120 S. Ct. at 665, 145 L. Ed. 2d at 567–68. In denying Johnson’s
motions to dismiss, the district court correctly relied on the holding in
Hill to support its conclusion that Johnson’s counsel’s agreement to a
continuance beyond the 180-day time limitation amounted to a waiver of
Johnson’s rights under the IAD.
14
The trial of Johnson’s case was scheduled for August 22, 2006.
That date was well within the IAD time limitation period of 180 days
which was set to expire on October 11, 2006. On August 15, 2006,
Johnson’s counsel and the prosecutor agreed to reschedule the trial to
commence on October 31, 2006, a date clearly beyond the limitation
period prescribed by the IAD. A second continuance was granted on
October 24, 2006, after Johnson’s counsel and the prosecutor agreed
upon a new trial date of December 12, 2006. Although the record does
not disclose that the continuances were agreed to in open court and for
good cause, those requirements were waived by Johnson’s counsel’s
agreements to continue the trial to dates more than 180 days after
Johnson gave written notice to the Woodbury County attorney of his
request for disposition of the charges. 13 We conclude under the
circumstances of this case the district court correctly concluded Johnson
waived the right to be tried within 180 days by agreeing to a trial date
outside of the 180-day time limitation.
C. Sufficiency of the Evidence. Johnson challenges the
sufficiency of the evidence supporting his conviction for failure to register
as a sex offender (second offense) and his conviction for failure to appear
at trial. If the trial court’s findings are supported by substantial
evidence, we will not disturb the findings on appeal. Williams, 695
N.W.2d at 27. Evidence is substantial if, when considered in the light
most favorable to the State, it would convince a rational fact finder that
the defendant is guilty beyond a reasonable doubt. Id.
1. Failure to register as a sex offender (second offense). Johnson
signed a sex offender registration form on October 15, 2005 listing his
13“Scheduling matters are plainly among those for which agreement by counsel
generally controls.” Hill, 528 U.S. at 115, 120 S. Ct. at 664, 145 L. Ed. 2d at 567.
15
address as 1626 Jackson Street, Apartment 15, in Sioux City. The form
notified Johnson of his obligation to register any change of that address
within five days of such change and informed him that “ ‘[r]esidence’
means the place where a person sleeps, which may include more than
one location, and may be mobile or transitory, including a shelter or a
group home.” See Iowa Code § 692A.1(8). Johnson was evicted from the
apartment, and the evidence is overwhelming that by December 23, 2005
the dwelling was empty of his possessions. The record conclusively
shows that Johnson did not register his new address or register as
transient within five days after that date.
Johnson contends he had not abandoned his residence in Sioux
City, planned to return there to live after his trip to Arizona, and
therefore was not required to register a new address. We find no support
for this contention in the record as Johnson was evicted from the
Sioux City address, and he removed his belongings from the residence
prior to December 23.
Johnson also contends he had not chosen a new address after
leaving Sioux City, so he was under no obligation to register anew. Iowa
Code section 692A.3(4) required Johnson, as a person required to
register, to notify the sheriff of Woodbury County within five days of
changing his residence to a location outside Iowa. Because the definition
of “residence” under the statute broadly includes places where Johnson
would sleep after abandoning his Sioux City residence, he was obligated
to notify the sheriff of the change within five days after December 23 even
if the new address was mobile or transitory. See id. § 692A.1(8). The
statute’s very broad definition of “residence” is obviously intended to
preclude an effort such as Johnson’s to avoid the statute’s registration
requirements by delaying the choice and designation of a new permanent
16
address. Given the fact Johnson had been in Arizona more than five
days before his arrest, we conclude the record when viewed in the light
most favorable to the State amply supports his conviction for failing to
register as a sex offender (second offense).
2. Failure to appear at trial. Iowa Code section 811.2(8) states
“any person who, having been released pursuant to this section, willfully
fails to appear before any court or magistrate as required shall, . . . if the
person was released in connection with a charge which constitutes a
felony, . . . be guilty of a class ‘D’ felony.” We have defined “willfully” as a
voluntary or intentional violation of a known legal duty. State v. Osborn,
368 N.W.2d 68, 70 (Iowa 1985); see also State v. Tippett, 624 N.W.2d
176, 177 (Iowa 2001) (if a defendant “acted with knowledge that his
conduct was unlawful,” then his conduct was “willful”).
Johnson contends he neither intentionally nor voluntarily failed to
appear for trial on January 10. He claims he was unaware of the trial
date and asserts he was under the impression his counsel planned to file
a motion for continuance which would result in a delay of the trial until a
later date. Johnson further contends the district court erred in its
reliance on Johnson’s mother’s evasiveness, when asked about
Johnson’s whereabouts, to support a finding that Johnson willfully failed
to appear. Johnson also claims his lack of contact with his attorney,
Monzel, after December 12, 2005 does not tend to prove the failure to
appear was willful. Finally, Johnson asserts he may have been in
custody in Arizona by January 10 and was therefore unable to appear
even if he had been aware of the trial date and desired to appear. See
United States v. Reed, 354 F. Supp. 18, 20 (W.D. Mo. 1973) (holding a
defendant detained in state custody cannot be “willful” in his failure to
appear).
17
We conclude Johnson’s arguments are without merit. The
testimony of Johnson’s attorney, Monzel, indicates Johnson was made
fully aware of the January 10 trial date. The district court’s passing
reference to Johnson’s mother’s testimonial evasiveness as to her son’s
location cannot reasonably be understood as an indication that the
district court gave improper weight to such evidence. There is ample
evidence of willfulness other than Johnson’s failure to contact his
counsel during the period between December 12, 2005 and the time of
his arrest in Arizona. He left Iowa without court approval in violation of
the clear terms of his bond agreement the day before his scheduled
pretrial conference after completely vacating his Sioux City apartment.
Although Monzel had reviewed the terms of the bond agreement with
Johnson at the time of his release from custody, Johnson left Iowa and
took a trip to Arizona without making any effort to contact his attorney,
the court, or his probation officer. Further, Johnson’s attempt to elude
police officers in Arizona could reasonably be viewed as evidence that he
was fully aware he had left Iowa in violation of his bond agreement and
had failed to appear for his scheduled court dates. When the evidence is
viewed in the light most favorable to the State, the district court’s verdict
is supported by substantial and sufficient evidence. We affirm Johnson’s
conviction for failure to appear at trial.
D. Habitual Offender Status Determination. The district court
concluded bifurcation of the trial of habitual offender status is required
in jury trials, but not in bench trials. Therefore, the district court issued
a ruling on Johnson’s habitual offender status in its “Findings of Fact,
Conclusions of Law, Verdict and Order.” The court found the State had
failed to meet its burden to prove Johnson was a habitual offender. The
State contends in its cross-appeal that the district court erred in failing
18
to bifurcate the guilt phase of Johnson’s trial from the determination of
Johnson’s habitual offender status. We agree.
Iowa Rule of Criminal Procedure 2.19(9) provides procedures for
the determination of a defendant’s habitual offender status. The rule
states:
Trial of questions involving prior convictions. After conviction
of the primary or current offense, but prior to
pronouncement of sentence, if the indictment or information
alleges one or more prior convictions which by the Code
subjects the offender to an increased sentence, the offender
shall have the opportunity in open court to affirm or deny
that the offender is the person previously convicted, or that
the offender was not represented by counsel and did not
waive counsel. If the offender denies being the person
previously convicted, sentence shall be postponed for such
time as to permit a trial before a jury on the issue of the
offender’s identity with the person previously convicted.
Other objections shall be heard and determined by the court,
and these other objections shall be asserted prior to trial of
the substantive offense in the manner presented in rule
2.11. On the issue of identity, the court may in its discretion
reconvene the jury which heard the current offense or
dismiss that jury and submit the issue to another jury to be
later impaneled. If the offender is found by the jury to be the
person previously convicted, or if the offender acknowledged
being such person, the offender shall be sentenced as
prescribed in the Code.
Iowa R. Crim. P. 2.19(9).
In State v. Kukowski, 704 N.W.2d 687 (Iowa 2005), we explained
the appropriate procedure under this rule as follows:
“If found guilty of the current offense,” the defendant is then
entitled to a second trial on the prior convictions. The prior
convictions must be proven by the State at the second trial
beyond a reasonable doubt, just as the current offense must
be established at the first trial. Generally, the State must
prove the prior convictions at the second trial by introducing
certified records of the convictions, along with evidence that
the defendant is the same person named in the convictions.
The State must also establish that the defendant was either
19
represented by counsel when previously convicted or
knowingly waived counsel.
704 N.W.2d at 691 (citations omitted).
In Kukowski, we recognized the guilt phase of a defendant’s trial
must be separated from a determination of a defendant’s habitual
offender status. Id. The purpose of this bifurcation is to protect a
defendant’s rights by ensuring a fair trial on the current offense without
that trial being muddied by a consideration of the defendant’s previous
convictions. Id. We acknowledge that Kukowski involved a jury trial
which posed a risk that jurors might inappropriately consider evidence of
past crimes in assessing the defendant’s guilt for the current charge. Id.While our concern over inappropriate consideration of past convictions is
lessened in a bench trial, we believe the objective of preventing
consideration of the current charge from being muddied by evidence of
past crimes remains persuasive. See id.Consistent with the rules of criminal procedure, the State operated
under the understanding Johnson’s trial would be bifurcated and did not
present any conclusive evidence of Johnson’s convictions for prior
offenses. In accordance with the general procedure explained in
Kukowski, the State intended to present evidence of Johnson’s prior
offenses in a separate second proceeding so as to avoid muddying the
waters of the trial on Johnson’s current offenses. See id. We conclude
that in the absence of an agreement of the parties to proceed otherwise,
the bifurcation procedures explained in Iowa Rule of Criminal Procedure
2.19(9) and in Kukowski apply in bench trials and jury trials. 14 We
14Johnson asserts the State is essentially seeking a new trial on the habitual
offender status determination in violation of the constitutional prohibition on double
jeopardy. However, a consideration of habitual offender status is merely a
determination of whether a sentencing enhancement applies. Therefore, double
jeopardy concerns are not implicated. See State v. Davis, 258 Iowa 1192, 1195, 140
N.W.2d 925, 926 (1966).
20
reverse and remand for a consideration of Johnson’s habitual offender
status.
IV. Conclusion.
We affirm Johnson’s convictions for failure to register as a sex
offender (second offense) and failure to appear for trial. We conclude the
district court erred, however, under the circumstances presented in this
case, in failing to bifurcate the determination of Johnson’s status as a
habitual offender from the guilt phase of the trial. Accordingly, we affirm
Johnson’s convictions, vacate his sentence, and remand for further
proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
All justices concur except Streit, J., who takes no part.