top of page
  • Writer's pictureDavid A. Cmelik Law PLC

Iowa high court: escapee can initiate appeal on the run

runner on asphalt in front of concrete wall
I ran (so far away): Iowa Supreme Court says escapee can initiate appeal on the run-- if later in custody.

On May 1, 2020, the Iowa Supreme Court held that an Iowa criminal conviction will stand even though the Defendant ran away after his illegal plea agreement allowed his escape. It rejected government arguments that the entire appeal should have been denied because it was initiated while the Defendant was on escape status.

In State v. Gordon, the Iowa Supreme Court dealt with whether a plea agreement that allowed a 48 hour furlough prior to serving a prison sentence on a forcible felony invalidated the entire guilty plea and agreement. The Defendant appealed while he was a fugitive—having violated the terms of the furlough. The State argued Defendant’s fugitive status invalidated his appeal.

In Gordon, police dispatched to a domestic disturbance where the Defendant was, according to the Supreme Court opinion, “drunk” and “beligerent.” Police allege that the Defendant wielded a snow shovel against police, spat on them, and damaged the interior of a patrol car after he was taken into custody. He was subsequently charged with assault on a peace officer with a dangerous weapon, a felonious assault which requires prison under the “forcible felony” criminal law. A forcible felony requires prison no matter what by State law-- the judge's hands are tied at sentencing.

The parties agreed to a plea bargain wherein they would jointly recommend the Court sentence the Defendant to a combined total of five years in prison—provided the judge also released the Defendant from jail for a 48 hour furlough before he reported for his prison sentence.

The first judge the parties took this sentence to for approval refused to do so, stating that forcible felonies require prison. The Supreme Court recounted:

“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.’” The parties went to another judge who then approved the plea agreement, according to the opinion.

Defendant was released from jail to return 48 hours later and never returned. His criminal defense attorney filed a notice of appeal while he was on fugitive status—but he was taken into custody while the appeal was ongoing.

The State argued Defendant should not have been able to appeal while on fugitive status. It also argued that the entire appeal should be scrapped even though he was taken back into custody. The State also argued that Senate File 589, the criminal omnibus bill recently passed by the Iowa Legislature, states that ineffective assistance of counsel claims may no longer be brought on direct appeal. It finally fell back on the argument that Defendant’s argument that the 48-hour furlough was “illegal” was moot because he already got it.

Armed with new appellate counsel, Defendant argued that his district court criminal law attorney should not have agreed to an illegal furlough even though it benefitted him. Because the plea agreement was illegal, he apparently reasoned, the guilty plea and the entire agreement should be scrapped, or, “voided” like a contract for an illegal purpose or with an illegal term.

Writing for the Court, Justice Appel first denied the State’s motion to dismiss because the Defendant absconded, finding, “… [T]here is no basis to dismiss the appeal on the ground that Gordon absconded.”

Second, the Court noted that appeals claiming ineffective assistance of counsel on appeal pending during the passage of the new crime bill were grandfathered. So his argument that his lawyer allowed him to enter into an illegal bargain could move forward.

Third, it rejected Defendant’s arguments that the entire plea agreement should be scrapped because it was “a better deal than the law allows.” The Court summarized the Defendant’s problems as follows:

“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.”

The Court sent a message that this appeared to be a one-off because the Court had “boots on the ground” in this case and implied it would not view all plea agreements from “the wings of Pegasus,” e.g., from 50,000 feet looking down on all plea bargains and their possible unlawfully lenient defects. It basically signaled that this decision may not have significant precedential value.

However, in this one case, Defendant loses because he got what he wanted, an “unlawfully lenient sentence”, and cannot now complain about it.

NOTE: David A. Cmelik Law PLC had no involvement in the Gordon case.

If you or a loved one have been arrested for a Cedar Rapids or Iowa City criminal offense, including but not limited to domestic abuse, assault on a peace officer, eluding, theft, or other criminal matter in an Iowa community, contact us for a free initial consultation. David A. Cmelik Law PLC practices criminal law exclusively. This is all we do. Remember that a blog is not legal advice and that sending unsolicited information to a lawyer over the Internet does not establish an attorney-client relationship.


bottom of page