Opinion
No. 3-807 / 03-0248
Filed February 27, 2004
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
The defendant, Roger Anthony Doggett, has appealed his felony conviction for eluding a pursuing law enforcement vehicle, following his plea of guilty, despite his purported waiver of his right to appeal. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Martha Lucey, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, John Sarcone, County Attorney, and Frank Severino, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Vaitheswaran, J., and Brown, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
The defendant, Roger Anthony Doggett, has appealed his felony conviction for eluding a pursuing law enforcement vehicle, following his plea of guilty, despite his purported waiver of his right to appeal. The appeal presents two issues: does Doggett's waiver of his right to appeal preclude our review, and, if review is appropriate, was Doggett's trial counsel ineffective for failing to raise a lack-of-factual-basis challenge to his guilty plea to the eluding charge.
I. Background facts and proceedings.
On November 14, 2002 Doggett, his girlfriend, Shelly Boysel, and her six-year old daughter arrived at the Prairie Meadows casino. When the couple attempted to enter the casino, officials apparently became aware they had some $700 in quarters with them so they requested identification. Boysel complied but Doggett returned to his car and, when officials approached, left the casino at a high rate of speed. Law enforcement, made aware there was an outstanding warrant for Doggett's arrest for failure to appear for trial on November 4, 2002, pursued him. The ensuing chase reached speeds of 100 mph. After one of Doggett's front tires came off, he continued his attempts to elude the officers, driving on the rim of the wheel at 90 mph and passing two trucks on the shoulder, all the while trailing sparks from the bare rim. When eventually stopped, the child was found in the rear seat. After the child was removed, a fire broke out in the area where the child was riding. Further facts will appear in our discussion of the issues involved.
II. Waiver of the right to appeal.
We first address the State's claim that this appeal should be dismissed because Doggett waived his right to appeal as part of the plea agreement eventually reached. During the plea proceedings the county attorney outlined the agreement which included Doggett's waivers of his rights to appeal and to reconsideration of his sentence. The court did not include any mention of the appeal waiver in its colloquy with Doggett, nor did Doggett or his counsel refer to the waiver. Doggett was sentenced in accord with the plea agreement and he now pursues this appeal.
The following took place at the defendant's sentencing:
Mr. Severino (county attorney): In addition, your honor, as part of our plea negotiations in this case, Mr. Doggett is agreeing that he will not ask for a reconsideration or an appeal and that he will simply go and serve his time, and when the parole board has made a decision to release him, he will be released. We are also agreeing not to file several felony charges.
. . . .
Ms. Summers (defendant's counsel): Judge, thank you. Mr. Severino has correctly stated the plea negotiations between the parties. He has correctly put forth the case numbers, the charges, the expected penalties. At the conclusion of the acceptance of my client's plea I would ask — he would like to waive his rights to motion in arrest of judgment, waive the use of the presentence investigation report and asked to be sentenced immediately. And I would only ask that the court adopt the recommendations of the parties and sentence my client for a total term not to exceed 12 years. Thank you.
The court stated it accepted the plea agreement. There was no other reference to the waiver of the defendant's appeal right, except that he was advised by the court of the time within which he must appeal the court's sentence.
Plea bargains or agreements are, of course, a useful and necessary part of our criminal justice system. Iowa Rule of Criminal Procedure 2.10 authorizes plea agreements and requires that the agreement be made part of the record. Iowa R. Crim. P. 2.10(2). It is established in Iowa and the great majority of other jurisdictions that plea agreements may include a waiver of the defendant's right to appeal and that such waivers may be enforced. State v. Hinners, 471 N.W.2d 841, 844 (Iowa 1991).
In Iowa, the right to appeal is established by statute and does not have a constitutional basis. Id. at 843. Nevertheless, our supreme court requires that a waiver of the right to appeal meet the same standards as the waiver of a constitutional right. Id. at 845. This means the waiver must be voluntary, knowing and intelligent, which "presupposes the defendant knows about the right of appeal and intentionally relinquishes it." Id. In Hinners, the court fleshed out the procedure to implement a waiver. The trial court should inquire if the defendant knows he has a right to appeal, whether he voluntarily waives the right and whether he knows the consequences of the waiver. Id. Significantly, the court stated it would not infer a waiver from a silent record. Id. These principles were reiterated in a recent case:
The colloquy between the court and the defendant is also deficient because the court made no inquiry as to whether the defendant knew she had the right of appeal, whether she voluntarily waived that right, and whether she knew the consequences of giving up that right.
State v. Loye, 670 N.W.2d 141, 148 (Iowa 2003).
This colloquy requirement comports with the recent recommendation of the eighth circuit court of appeals regarding waivers of appeal rights. See U.S. v. Andis, 333 F.3d 886, 890-91 (8th Cir. 2003) ("One important way a district court can help ensure that a plea agreement and corresponding waiver are entered into knowingly and voluntarily is to properly question a defendant about his or her decision to enter that agreement and waive the right to appeal.").
The State argues that the county attorney's statement of the plea bargain, which included Doggett's waiver of an appeal, suffices to establish a valid waiver. We conclude, however, this falls appreciably short of the affirmative showing required by Hinners and Loye that the waiver be voluntary, intelligent and knowing. This record reveals only a statement by the prosecutor, as a part of his recitation of the overall plea agreement, that the defendant waives his appeal right, an agreement by defendant's counsel that the prosecutor has correctly stated the agreement, and the court's acceptance of the plea agreement. We believe more is required. The cases direct there be some active exchange between the court and the defendant concerning the waiver, which we find absent here. We therefore reject the State's request that the appeal be dismissed.
III. Ineffective assistance of counsel.
Having determined the appeal waiver is not enforceable in this case, we now address Doggett's claim that his counsel was ineffective for failing to challenge the eluding charge on the ground it lacked a factual basis. Evidently this ineffective counsel claim is asserted in Doggett's direct appeal to avoid error preservation problems. Ordinarily, the district court should first pass on ineffective assistance claims in a postconviction relief action. However, if the record is sufficient to allow our review on direct appeal, we will do so. State v. Stallings, 658 N.W.2d 106, 108 (Iowa 2003). That is the case here.
In finding the purported appeal waiver unenforceable we need not address the thorny problem area of when an appeal may be pursued despite an appeal waiver where a defendant claims his sentence was "illegal" for one reason or another. See Andis, 333 F.3d at 891-92. Also, the parties have not addressed the possible issue of waiver under Iowa Rule of Criminal Procedure 2.24(3)( a) (motion in arrest of judgment), so we likewise do not consider it.
To establish ineffective counsel, Doggett must show by a preponderance of the evidence that counsel failed to perform an essential duty and he experienced prejudice as a result. Irving v. State, 533 N.W.2d 538, 540-41 (Iowa 1995). Of course, counsel is not ineffective for failing to raise an issue that has no merit. State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998).
In Iowa, a defendant may not plead guilty to a crime he did not commit. Therefore, a factual basis for the crime to which the defendant is pleading guilty must always be demonstrated. State v. Carter, 582 N.W.2d 164, 165 (Iowa 1998) (holding counsel may be ineffective for allowing guilty plea to a charge for which there is no factual basis); State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996) (holding a court may not accept plea to a charge lacking a factual basis). Because Doggett now claims he was not guilty of the predicate offense to the felony to which he pleaded guilty, he asserts there was no factual basis for his guilty plea.
Doggett pleaded guilty to several offenses including felony eluding committed on November 14, 2002, a violation of Iowa Code section 321.279(3)(a) (2001), and failure to appear, the November 4, 2002 incident, a violation of Iowa Code section 811.2(8). The crime of eluding involves willfully failing to stop after being given a visual and audible signal to do so by a uniformed police officer driving a marked official law enforcement vehicle, and in doing so, exceeding the speed limit by twenty-five miles per hour or more. Eluding becomes a felony when the eluder "is participating in a public offense, . . ., that is a felony" at the time of the eluding. Iowa Code § 321.279(3)(a).
The public offense the State claims enhances the eluding charge in this case was Doggett's previous failure to appear on November 4, 2002 for his scheduled trial for the crime of burglary, a felony. Failure to appear for trial is a felony offense if the person "was released in connection with a charge which constitutes a felony." Iowa Code § 811.2(8). The question thus becomes whether Doggett was still participating in the November 4 felony offense of failure to appear when he attempted to elude officers on November 14. The State claims his failure to appear on November 4 was a continuing, ongoing offense that Doggett was committing each day he failed to submit himself for trial. Doggett claims the offense was complete on November 4, the day he failed to appear for the burglary trial. He therefore claims he could not have been "participating in a felony" on November 14, and his counsel was remiss in not objecting on this basis.
The accepted rule is that a criminal offense will not be considered continuing unless there is explicit language in the statute which compels that effect, or the nature of the offense is such that the legislature must have intended that result. State v. Francois, 577 N.W.2d 417, 418 (Iowa 1998); State v. Hippler, 545 N.W.2d 568, 572 (Iowa 1996). There is no language in our failure to appear statute expressly making it a continuing offense. However, for the reasons that follow, we conclude the legislature intended that failure to appear be a continuing crime.
Initially, we note the statutory definition of "participating" in a crime is quite broad and supports this conclusion. Iowa Code section 702.13 provides a person is
"participating in a public offense" during part or the entire period commencing with the first act done directly toward the commission of the offense and for the purpose of committing that offense, and terminating when the person has been arrested or has withdrawn from the scene of the intended crime and has eluded pursuers, if any there be.
Iowa Code § 702.13 (emphasis added). By the statute's terms, then, Doggett, who had not been arrested for his failure to appear, was still participating in that crime.
There are various levels of unauthorized-absence-from-custody crimes depending on the defendant's initial degree of custody. Where the defendant had been convicted and placed in custody, the Supreme Court observed:
First, we think it clear beyond peradventure that escape from federal custody as defined in section 751(a) is a continuing offense and that an escapee can be held liable for failure to return to custody as well as for the initial departure. Given the continuing threat to society posed by an escaped prisoner, "the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one." Toussie v. United States, 397 U.S. 112, 115, 25 L.Ed.2d 156, 161, 90 S.Ct. 858 (1970).
United States v. Bailey, 444 U.S. 394, 413, 62 L.Ed.2d 575, 592, 100 S.Ct. 624, 636 (1980).
Where a defendant has been convicted but not yet confined, the public threat is generally considered to be of a lesser degree. However, the cases uniformly hold failure to appear in these circumstances is a continuing offense. U.S. v. Green, 305 F.3d 422, 432-33 (6th Cir. 2002) (holding failure to appear for sentencing is continuing offense); U.S. v. Lopez, 961 F.2d 1058, 1059-60 (2d Cir. 1992) (same); U.S. v. Martinez, 890 F.2d 1088, 1091 (10th Cir. 1989) (holding failure to appear to commence prison sentence is a continuing offense); U.S. v. Gray, 876 F.2d 1411, 1419 (9th Cir. 1989) (holding failure to appear for sentencing is continuing offense). Our supreme court decided in Francois the crime of absence from custody in violation of Iowa Code section 719.4(3), where the defendant had failed to appear to begin her jail sentence as ordered, was a continuing offense. Francois, 577 N.W.2d at 420-21.
Several rationales are advanced by these courts for holding failure to appear is a continuing offense. A defendant's failure to appear when required may be considered a continuing threat to the integrity and authority of the court. Gray, 876 F.2d at 1419; Francois, 577 N.W.2d at 421. Others cite the continuing threat to the public posed by a criminal who is avoiding efforts to be taken into custody. Green, 305 F.3d at 433; Gray, 876 F.2d at 1419. Also, in Lopez the court stated "[t]he nature of this offense is continuing because each day that the defendant is absent enhances the dangers of delay in processing criminal cases that the statute was designed to protect against. Lopez, 961 F.2d at 1060. Although there is no crime of failing to return to custody, an absent defendant presents the same societal problems discussed above each day that he remains at large. See Gray, 876 F.2d at 1419.
Doggett points out that in Francois our supreme court expressed some doubt that the danger-to-the-public rationale is applicable to situations where the defendant has not escaped from custody. Francois, 577 N.W.2d at 420-21. However, the court went on to observe that
[i]n retrospect, our conclusion that convicted criminals who fail to appear are no threat to society may be too absolute. It is perhaps more accurate to say that the threat posed by criminals who fail to return after an authorized release is less than that posed by a confined criminal, but is not nonexistent. Additionally, we think all violators of section 719.4 pose a "threat to the integrity and authority of the court" and to the authority of correction officials. These similarities justify treating escape crimes the same for purposes of the continuing offense doctrine.
Id. at 421.
We are quite aware that in our case Doggett had not yet even been convicted of a crime. However, in U.S. v. Camacho, 340 F.3d 794, 797 (9th Cir. 2003) and U.S. v. Merino, 44 F.3d 749, 753-54 (9th Cir. 1994), both cases in which the defendants failed to appear for trial, that failure was held to be a continuing offense.
Although the defendant was "not yet a convicted felon, and therefore did not pose the same danger to society noted . . . in Gray," the "`threat to the integrity and authority of the court'" found in Gray was similarly "posed by a recalcitrant defendant who refuses to abide by lawful court orders." [ Merino, 44 F.3d] . at 754 (quoting Gray, 876 F.2d at 1419). As in Gray and Merino, Camacho's failure to appear "poses a threat to the integrity and authority of the court." Gray, 876 F.2d at 1419. The reasoning in Gray therefore applies as strongly to a defendant whose failure to appear begins before his conviction as to a defendant who fails to appear only for sentencing.
Camacho, 340 F.3d at 797. We further note that the court in Francois refused to recognize a difference in "the degree of liberty enjoyed by the offender prior to commission of the [escape or absence of custody] violation[.]" in determining whether the offense is continuing or not. Francois, 577 N.W.2d at 421. We also have concern with a defendant evading prosecution for such a continuing affront to society by successfully avoiding custody until a statute of limitations precludes trial.
We hold Doggett's failure to appear for trial on November 4, 2002 in violation of Iowa Code section 321.279(3)(a) was a continuing felony offense and therefore he was still "participating in a felony" on November 14, 2002 when he attempted to elude law officers. We reach this conclusion because his ongoing failure to appear posed a danger to the public, it obstructed the State from proceeding to trial with the attendant dangers of absent witnesses and faulty memories, and it constituted a continuing threat to the integrity and authority of the court.
Doggett also asserts there is no nexus between the predicate felony of failure to appear and the eluding offense. As in felony-murder, there must be some relationship between the underlying crime of failure to appear and the resulting eluding offense. Hippler, 545 N.W.2d at 572. The simple answer to this contention is found in Doggett's responses at the sentencing hearing.
Mr. Severino [county attorney]: At some point after you left Prairie Meadows there was a police officer in a marked patrol vehicle, and he gave you a signal using his lights and sirens to pull over, correct? Defendant: Yes.
Mr. Severino: What you did, rather than stopping, you were scared because you knew you were wanted and you took off, correct? Defendant: Yes.
(emphasis added). Obviously, the defendant's failure to appear for his trial directly prompted the egregious car chase. We think this not only answers the nexus question, but also vividly illustrates the potential for continuing danger to the public posed by defendants who fail to appear as required by our criminal justice system.
IV. Summary and disposition.
In summary, we conclude the defendant did not waive his right to appeal in this case, and, because failure to appear was a continuing criminal offense, he was participating in that offense at the time he committed the eluding offense. Therefore his trial counsel was not ineffective in failing to object to defendant's guilty plea to felony eluding on the ground it lacked a factual basis. We affirm the trial court's judgment and sentence.