              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
                                     3

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.
