State of Iowa v. Terrence Gordon

IN THE SUPREME COURT OF IOWA
No. 18–1099
Filed May 1, 2020
STATE OF IOWA,
Appellee,
vs.
TERRENCE GORDON,
Appellant.
Appeal from the Iowa District Court for Black Hawk County, Joel A.
Dalrymple, Judge.
Defendant appeals his convictions, arguing the underlying plea
agreement and proceedings should be vacated due to ineffective assistance
of counsel and prosecutorial misconduct. AFFIRMED.
Kent A. Simmons, Bettendorf, for appellant.
Thomas J. Miller, Attorney General, Aaron Rogers and Zachary
Miller, Assistant Attorneys General, Brian Williams, County Attorney, and
James J. Katcher, Assistant County Attorney, for appellee.
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APPEL, Justice.
In this case, counsel for a defendant successfully negotiated an
unlawful forty-eight-hour release from custody as part of a plea bargain
with the prosecution. The defendant absconded but has now been
returned to custody. The defendant now claims ineffective assistance of
counsel because the plea bargain contained an unlawful term which the
prosecution honored and he abused. For the reasons expressed below, we
affirm the conviction.
I. Factual and Procedural Background.
A. The Incident and Resulting Charges. Police responded to a
reported domestic assault at the home of Terrence Gordon. During the
course of the investigation, Gordon was uncooperative, belligerent, and
threatening toward the officers. Eventually, he picked up a snow shovel
and began to swing it at an officer. After Gordon was subdued, he spat on
and at an officer and continued aggressive and belligerent behavior in the
squad car after his arrest, including inflicting damage to a squad car.
During the incident, Gordon was intoxicated.
Gordon was incarcerated in the Black Hawk County jail. A
magistrate set bail at $25,000 in cash. Gordon filed a motion for reduction
of bail, which the court denied. Gordon remained incarcerated pending
trial.
On March 25, 2018, the State charged Gordon with (1) one count of
assault on a peace officer with a dangerous weapon, a class “D” felony;
(2) two counts of assault on a peace officer, serious misdemeanors;
(3) public intoxication as a third offense, an aggravated misdemeanor; and
(4) criminal mischief in the fifth degree, a simple misdemeanor.
The felony charge of assault on a police officer with a dangerous
weapon under Iowa Code section 708.3A(2) is a forcible felony under Iowa
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Code section 702.11. The designation of the felony assault as a forcible
felony in this case is significant because a person who pleads guilty to a
forcible felony is prohibited from admission to bail after pleading guilty to
the offense. See Iowa Code §§ 811.1(1), .2(1) (2017).
B. Plea Bargaining. On May 29, Gordon appeared for a jury trial
but the possibility of a plea bargain was discussed. A term of the
agreement was that Gordon would be given a “48-hour furlough” after
entering the guilty pleas. The parties presented the oral plea agreement
before a judge. The judge, however, rejected the plea agreement, noting
“Well, the Court is not going to give him a 48-hour furlough when this is
a forcible felony.”
On June 5, the parties presented the plea agreement to another
judge, who accepted the plea agreement and ultimately the guilty pleas.
Under the plea agreement, the defendant pled guilty to all counts, with a
five-year term to run concurrently for all offenses. As an additional
condition of the plea agreement, Gordon received a forty-eight-hour
furlough from the Black Hawk County jail. He was to return to the jail by
4:00 p.m. on June 7. The plea agreement further provided that upon his
return, he would not be inebriated. Gordon’s five-year sentence would also
be enlarged by two years with consecutive sentences for probation
violations from two other cases.
On June 7, Gordon did not appear as promised. A warrant was
issued for his arrest on June 8. On June 25, counsel for Gordon filed a
notice of appeal.
Counsel for Gordon withdrew on appeal, and new counsel was
appointed. The State moved to dismiss the case on the ground that
Gordon had absconded. This court ordered that the issue be considered
with the appeal. Counsel for Gordon in his reply brief advised this court
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that Gordon had been apprehended on September 16, 2019, in Urbana,
Iowa. According to Gordon’s counsel, he faced contempt charges in
connection with his failure to comply with the terms of his sentence and
is being held, without bond, in the Black Hawk County jail.
II. Standard of Review.
This court reviews ineffective-assistance-of-counsel claims de novo.
State v. Thorndike, 860 N.W.2d 316, 319 (Iowa 2015); State v. Ortiz, 789
N.W.2d 761, 764 (Iowa 2010). When the defendant claims a guilty plea
resulted from ineffective assistance of counsel, the defendant can raise the
issue on appeal without the necessity of a timely challenge in the district
court. State v. Weitzel, 905 N.W.2d 397, 401 (Iowa 2017).
III. Discussion.
A. Positions of the Parties. On appeal, Gordon seeks relief from
his plea agreement based upon ineffective assistance of counsel and
prosecutorial misconduct. Gordon asserts that he was not entitled to
release for a forty-eight-hour furlough after pleading guilty to felonious
assault on a police officer with a dangerous weapon, and therefore, that
his plea agreement contained an unlawful term. He likens the situation
to that presented in Iowa Supreme Court Attorney Disciplinary Board v.
Howe, 706 N.W.2d 360 (Iowa 2005). In Howe, an assistant city attorney
routinely allowed defendants to plead guilty to equipment violations for
which there was no factual basis in order to avoid convictions for traffic
violations. Id. at 366. Further claims against the attorney dealt with
conflicts of interest within the scope of the attorney’s job performance. Id.
at 371–77. We suspended the license of the prosecutor in Howe, noting
that permitting charges to be filed that are known to be bogus to allow
defendants to escape adverse consequences diminishes respect for the
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court and the public’s confidence in the integrity of the criminal justice
system. Id. at 379.
Gordon argues that a breach of duty occurs when a lawyer seeks to
achieve a result that is illegal. Further, Gordon argues that but for the
illegal provision, he would not have pled guilty to the various charges.
According to Gordon, his trial counsel should have put her foot down to
save Gordon from himself.
Gordon also makes an analogy to contract law. He argues that a
plea agreement is akin to a contract and that the plea agreement in this
case was “void” and not simply “voidable.” In support of his argument,
Gordon cites Dillon v. Allen, 46 Iowa 299 (1877). In that case, the plaintiff
attempted to enforce a contract that called for the defendant to pay him
for threshing of grain by use of a machine that was prohibited by statute.
The Dillon court refused to enforce the contract, noting “that contracts
intended to promote, or requiring the performance of acts forbidden by
statute are void.” Id. at 300.
The State responds first by asserting that the appeal should be
dismissed because the appellant absconded. According to the State, the
case is controlled by State v. Dyer, 551 N.W.2d 320 (Iowa 1996) (per
curiam). In Dyer, we dismissed an appeal where the defendant absconded
and could not be found. Id. at 321.
On the merits, the State argues that Gordon’s direct appeal should
be dismissed as a result of the enactment of Senate File 589. Senate File
589 amended Iowa Code section 814.7 to provide that claims of ineffective
assistance of counsel generally cannot be raised on direct appeal and shall
be brought in postconviction actions. See Iowa Code § 814.7 (2020). The
State argues that the change brought about by Senate File 589 is
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procedural in nature and, as a result, is retroactive and applies to pending
cases.
In the alternative, the State claims that Gordon cannot obtain relief
from the error because his claim is moot. According to the State, he
already received the furlough and got everything he bargained for.
Because he got all he asked for, there is no basis to vacate the guilty plea.
Further, the State points out, Gordon insisted on the furlough as
part of a plea deal. The State argues that the sentence was not illegal
because the district court merely delayed mittimus, which is not part of
sentencing. The State also suggests the idea for a forty-eight-hour
furlough was Gordon’s and, as a result, he cannot take advantage of the
error under the invited-error doctrine.
In reply, Gordon represents that he was apprehended and is
currently being held without bond in the Black Hawk County jail. As a
result, Gordon asserts that Dyer is not applicable and that the proper
approach is presented in State v. Byrd, 448 N.W.2d 29 (Iowa 1989). In
Byrd, an absconding defendant seeking to appeal was apprehended during
the course of the appeal. Id. at 30. Under the facts and circumstances,
we allowed the appeal in Byrd to proceed. Id. at 30–31.
B. Motion to Dismiss. We first address whether the appeal should
be dismissed because Gordon absconded. The State’s position that the
appeal should be dismissed under Dyer would be correct if Gordon were
still at large. We accept, however, the representation of defense counsel
on appeal as a professional statement that Gordon has now been
apprehended. As a result, the case is controlled not by Dyer but by Byrd.
In Byrd, the court engaged in a two-part inquiry. The first question
is whether a statute or rule authorized dismissal. Id. at 31. Here, the
State has not pointed to any such statute or rule, and we have found none
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that would apply to the facts of this case. Therefore, the first prong of Byrd
has been met.
The second prong of Byrd is whether equity or policy requires
dismissal. Id. at 30–31. In Byrd, the court emphasized that the defendant
had been returned to custody. Id. at 30 (“We note . . . Byrd has returned
to this jurisdiction, albeit involuntarily. Because he is now within the
reach of our authority, no element of futility frustrates the force of our
judgment.”). As a result, the Byrd court found there was no reason in
policy or equity for the appeal not to continue. Id. at 31.
We think Byrd is controlling in the case before us, in light of the
arrest and incarceration of Gordon. As a result, there is no basis to
dismiss the appeal on the ground that Gordon absconded.
C. Application of Senate File 589 to a Direct Appeal Filed Prior
to July 1, 2019. In this case, Gordon’s appeal was filed on June 23, 2018.
The amendment to Iowa Code section 814.7 contained in Senate File 589
was passed by the legislature in the spring of 2019. The amendment did
not contain a specific effectiveness date.
While this appeal was pending, we considered the question of
retroactivity of the amendment in State v. Macke, 933 N.W.2d 226 (Iowa
2019). We concluded in Macke that the amendments did not apply
retrospectively to appeals from judgments entered before July 1, 2019, the
effective date of the statutory change. Id. at 228. As a result, the amended
provisions of Iowa Code section 814.7 do not apply to this case.
D. Merits of Ineffective-Assistance-of-Counsel Claim. Gordon
asks this court to vacate his plea bargain on the ground that it contained
an illegal provision, namely, that he would be released from the Black
Hawk County jail for a forty-eight-hour furlough after pleading guilty.
Gordon asserts that this provision was unlawful and that, absent the
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furlough provision, he would not have accepted the deal. He further claims
that his trial counsel committed ineffective assistance of counsel in
obtaining the illegal benefit for him. The State does not disagree with
Gordon’s assertion that the forty-eight-hour furlough provision was illegal,
but challenges his right to relief.
The record does not provide a basis for us to determine whether
Gordon would have accepted the plea bargain without the illegal forty-
eight-hour furlough provision. If resolution of this fact was determinative,
we would affirm Gordon’s convictions under the plea bargain on direct
appeal, and Gordon would be required to pursue his claim in a
postconviction-relief proceeding where the facts could be further
developed.
But there is a legal issue in this case. Gordon received everything
that he bargained for in the plea agreement and the State did not breach
any term of the plea agreement. Further, it was Gordon, and not the State,
that breached a term of the plea agreement. And, finally, the illegal term
in the plea agreement was procured by Gordon and for his benefit, not the
State’s. A narrow question of law arises in this case: whether Gordon, as
a matter of law, is precluded from seeking to challenge the effectiveness of
his lawyer where the plea bargain, which Gordon instigated, provided him
with a better deal than the law allows and which he subsequently breached
after benefiting from the illegal term.
The parties have not cited authority directly on point. But we have
found substantial authority for the proposition that a criminal defendant
who enters a plea agreement with an illegally lenient sentence cannot
benefit from that sentence and then attack the plea bargain. For instance,
in Graves v. State, 822 So. 2d 1089 (Miss. Ct. App. 2002), the defendant
pled guilty to armed robbery. Id. at 1090. He received an illegal suspended
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sentence to which he was not entitled. Id. In an action for postconviction
relief, he attacked the sentence as unlawful, and as a result, the conviction
was void. Id.
The Graves court rejected the attack on the defendant’s prior
conviction. According to the Graves court, the defendant
cannot stand mute when he is handed an illegal sentence
which is more favorable than what the legal sentence would
have been, reap the favorable benefits of that illegal sentence,
and later claim to have been prejudiced as a result thereof.
Id. at 1091.
A Texas court similarly considered the impact of an illegal sentence
in Rhodes v. State, 240 S.W.3d 882 (Tex. Crim. App. 2007). In Rhodes, a
defendant with multiple offenses received an illegal concurrent sentence
for his crimes when the sentences should have run consecutively. Id. at
884–85. It is not clear from the record whether the illegal sentence was
the result of a plea bargain. Id. at 884. When the defendant was later
arrested on other serious charges, the state sought to charge him as a
habitual offender. Id. The question is whether the crimes for which he
was first convicted and received an illegal sentence could be used as a
predicate for habitual-offender status. Id. at 885. The Rhodes court
declared that “a defendant cannot enter a plea agreement that imposes an
illegal sentence, benefit from that sentence, and then attack the judgment
when it is suddenly in his interests to do so.” Id. at 891.
An Illinois appellate court considered a situation involving an
illegally lenient plea bargain in People v. Young, 2 N.E.3d 445 (Ill. App. Ct.
2013). In Young, the defendant’s plea bargain included a sentence that
did not include a mandatory firearm enhancement. Id. at 447. He then
launched a postconviction-relief action, claiming the original sentence was
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illegal, the plea bargain void, and that he was entitled to plead anew or go
to trial. Id.
The Young court denied the defendant relief. Consistent with Graves
and Rhodes, the Young court declared that “[a] defendant who has enjoyed
the benefits of an agreed judgment prescribing a too-lenient punishment
should not be permitted to collaterally attack that judgment on a later date
on the basis of the illegal leniency.” Id. at 456 (quoting Rhodes, 240
S.W.3d at 892).
We have found one unreported case very close to the present case.
In State v. Bruton, No. M199900956CCAR3CD, 2000 WL 374918 (Tenn.
Crim. App. Apr. 7, 2000), the Tennessee court considered a case where a
plea bargain was unlawfully lenient in sentencing a defendant to a
community corrections facility. Id. at *1. Once there, he unlawfully left
the facility and committed an assault. Id. Ordinarily, the Tennessee court
noted, an illegal sentence would be subject to correction, but in this case,
where the defendant had taken advantage of the benefit of the illegal
bargain, there was no basis to vacate the illegal sentence. Id. at *2.
Although not involving a breach of an illegal term of a plea
agreement and not presented in the context of an ineffective-assistance-
of-counsel claim, the case of United States v. Erwin, 765 F.3d 219 (3d Cir.
2014), is instructive. In Erwin, a defendant sought to invalidate a plea
bargain as a result of his own breach. Id. at 223. The Erwin court declined
the invitation to do so, emphasizing that as a matter of contract law “a
party should be prevented from benefitting from its own breach.” Id. at 230
(quoting Assaf v. Trinity Med. Ctr., 696 F.3d 681, 686 (7th Cir. 2012)).
Further, the Erwin court noted that in the criminal context, “a court’s
failure to enforce a plea agreement against a breaching defendant ‘would
have a corrosive effect on the plea agreement process.’ ” Id. (quoting United
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States v. Williams, 510 F.3d 416, 422 (3d Cir. 2007)). We do not think the
teaching of Erwin is undermined by the fact that the provision of the plea
agreement that was breached was illegal.
We conclude under the unique facts presented that Gordon is not
entitled to bring an action alleging ineffective assistance of counsel in
connection with the plea-bargaining process. His trial counsel achieved a
result more beneficial than the law allows, and Gordon took full advantage
of the extra benefit. Gordon received an extra benefit, although an illegal
one. Gordon’s problem is not an unlawfully lenient plea bargain, procured
by ineffective assistance of counsel, but is instead his own action in
absconding. He now is in a new pack of trouble, but that is Gordon’s own
doing. As a result, we do not think Gordon can show the kind of prejudice
required to support an ineffective-assistance-of-counsel claim.
We emphasize that in this case, we do not fly on the wings of Pegasus
surveying the broad field of the many potential consequences of a wide
variety of illegal plea bargains. Instead, we have boots on the ground and
firmly anchor our decision on the unusual facts and claims presented in
this appeal before us. As such, in this particular case, we conclude as a
matter of law that Gordon is not entitled to relief from his plea bargain
based on his claim that his counsel achieved more for his benefit than the
law allows.
IV. Conclusion.
For the above reasons, the judgment of the district court is affirmed.
AFFIRMED.
All justices concur except McDermott, J., who takes no part.