                    IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1105
                                 Filed July 30, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MARK LEE JACKSON,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, William A. Price,

District Associate Judge.



       Mark Lee Jackson appeals his sentence and convictions for eluding and

interference with official acts inflicting bodily injury. AFFIRMED.



       Mark C. Smith, State Appellate Defender, and Martha Lucey, Assistant

Appellate Defender, for appellant.

       Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney

General, John P. Sarcone, County Attorney, and Thomas Desio, Assistant

County Attorney, for appellee.



       Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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BOWER, J.

         Mark Lee Jackson appeals his sentence and convictions for eluding and

interference with official acts inflicting bodily injury.   Jackson claims his trial

counsel was ineffective by allowing him to plead guilty to a charge for which there

was no factual basis. He also claims the district court erred in requiring his

present sentences be served consecutively to a prior sentence for which he was

on work release. Finally, he contends the district court abused its discretion by

failing to order a sentence similar to the original sentence in the case. We find

Jackson’s trial counsel did not perform ineffectively because there was a factual

basis for the plea. We also find Jackson’s work release was confinement to a

penal institution within the meaning of Iowa Code section 901.8 (2013) requiring

imposition of consecutive sentences. Finally, we find the trial court did not abuse

its discretion as the sentence was required by law. We affirm.

I.       Background Facts and Proceedings

         Mark Jackson was arrested on March 26, 2013, when a Polk County

deputy observed Jackson’s vehicle leaving an address associated with drug

activity. The vehicle also had a defective license plate lamp. When the deputy

attempted to stop the vehicle, Jackson accelerated to speeds in excess of sixty

miles per hour in a residential neighborhood. He eventually left the roadway,

jumped a snow bank, lost control, and spun the vehicle around so he was facing

the squad car. The deputy used the squad car to block Jackson’s vehicle into

place.
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       Jackson exited the vehicle and began to flee on foot. He was stopped

when he ran into a barb wire fence and some bushes. Two deputies pulled him

from the bushes and fencing and attempted to put Jackson’s arms behind his

back. Jackson resisted. Eventually the deputies were able to subdue Jackson

and handcuff him. During this incident one of the deputies received a scratch on

his face and both hands from the fencing and bushes. At the time of the incident,

Jackson was on work release for an earlier conviction.

       On April 15, 2013, Jackson was charged with one count of eluding and

one count of interference with official acts inflicting bodily injury. He pled guilty at

his arraignment and was sentenced to a maximum term of two years on each

count to be served concurrently with each other and concurrent with his work

release/parole.

       Several weeks later, the sentencing court received an e-mail from a clerk

with the Department of Corrections (DOC). The e-mail informed the district court

of the DOC’s belief Jackson’s sentence must be served consecutively because

Jackson was on work release at the time of the present charges. The district

court set the matter for hearing and resentenced Jackson to a maximum of two

years on each count, concurrent with each other but consecutive to his work

release sentence.

II.    Standard of Review

       Jackson’s ineffective assistance of counsel claim raises a constitutional

issue; accordingly, we review it de novo. State v. Showens, 845 N.W.2d 436,

440 (Iowa 2014).      Jackson’s challenge to the application of the sentencing
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statute is reviewed for errors at law. State v. Liddell, 672 N.W.2d 805, 815 (Iowa

2003). We will not reverse the district court’s sentencing decisions unless there

was a defect in the sentencing procedure or an abuse of trial court discretion. Id.

III.    Discussion

        Jackson raises three issues on appeal. First, he claims his trial counsel

was ineffective by allowing him to plead guilty to a charge for which there was no

factual basis. He also claims consecutive sentences were not required because

work release is not confinement in a penal institution or detention facility. Finally,

he contends the district court abused its discretion by failing to order a sentence

similar to the original sentence in this case.

        A.      Ineffective Assistance

        To prevail on a claim of ineffective assistance of counsel, Jackson must

show both that his trial counsel performed ineffectively and prejudice resulted.

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001). The first prong requires

proof his counsel performed at a level “below the standard demanded of a

reasonably competent attorney.” Id. An attorney is ineffective when a criminal

defendant is allowed to plead guilty to charge for which there is no factual basis,

so long as counsel also fails to file a motion in arrest of judgment challenging the

plea. State v. Brooks, 555 N.W.2d 446, 448 (Iowa 1996). The determinative

question is whether there was a factual basis for Jackson’s plea on the

interference with official acts inflicting bodily injury charge. Jackson claims he did

not “inflict” the injury.
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       Section 719.1(1)(d) defines interference with official acts inflicting bodily

injury when someone interferes with a peace officer’s official acts and in so doing

inflicts a bodily injury that is not a serious injury. The only disputed element is

the term “inflict,” which is not defined by the Iowa Code or any existing Iowa

Supreme Court precedent. Jackson relies upon a series of unpublished Iowa

Court of Appeals cases to define what does and does not constitute infliction of a

bodily injury. See State v. Dudley, No. 11-0413, 2012 WL 170738 (Iowa Ct. App.

Jan 19, 2012); State v. Loggins, No. 08-1836, 2009 WL 3337664 (Iowa Ct. App.

Oct. 7, 2009); State v. Bothwell, No. 03-0421, 2003 WL 22900543 (Iowa Ct. App.

Dec. 10, 2003). These cited cases are not binding upon us today; however, they

each follow a guiding principle that “inflict” requires an intentional, direct action by

the defendant.

       The State contends State v. Palmer, 791 N.W.2d 840, 852 (Iowa 2010), is

controlling and requires proof only of causation. We disagree. In Palmer, the

defendant claimed prejudice because trial counsel failed to object to a

marshalling instruction that used the word “caused” instead of “inflicted.” 791

N.W.2d at 852. Our supreme court found no prejudice, however the case does

not stand for the proposition that inflict and cause are synonymous. Id. Use of

the word “causing” in Palmer was not prejudicial because of other charges in the

case, namely assault on a correctional officer causing bodily injury, upon which

Palmer was convicted. Id. at 851–52. Because the jury must have concluded

the defendant did an act that caused bodily injury, the result of the proceeding

would not have been different if the word “intent” would have been used. Id. at
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852. We find no parallel for Jackson and do not find Palmer equates “inflict” and

“cause” for all purposes.

       The statute exists to allow law enforcement officers to engage in their

activities without interference. State v. Buchanan, 549 N.W.2d 291, 294 (Iowa

1996). One meaning of the term “inflict” is “to lay (a blow) on.” Webster New

International Dictionary, 1160 (3d ed. 2002). The second definition is to “cause

(something damaging or painful) to be endured.”         Id.   Combining the two

together, we thus interpret “inflict” to mean an intentional action directed at the

deputy, or in more legal terms, to directly, not merely proximately, cause the

injury. With this definition in mind, we find sufficient evidence in the record for

the plea. The deputy was injured not while merely pursuing Jackson, but while

Jackson actively and forcefully resisted arrest both by running into the barbed

wire and the bushes, and by refusing to put his hands behind his back.

       Finding a factual basis for the charge, Jackson’s counsel did not perform

ineffectively.

       B.        Sentencing

       Section 901.8 requires consecutive sentences when a person is

sentenced for a crime committed while the person is “confined in a detention

facility or penal institution.” None of these terms are defined by Chapter 901.

Jackson claims he was not so confined at the time of the incident in this case

and, accordingly, was not subject to mandatory consecutive terms.

       In State v. Jones, 298 N.W.2d 296, 298 (Iowa 1980), our supreme court

defined “confined” to mean “committed” under the statute.          This definition
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comports with the rest of the statute and the practical goals of the section. The

next line of the section provides for the location of incarceration when the person

is “presently in the custody of” the DOC. Iowa Code § 901.8. The legislature’s

use of the two terms indicates physical custody of the defendant and

confinement mean different things. Defendants who escape a detention facility

or penal institution, and accordingly are not confined within the usual meaning of

the term, are still committed to the institution despite a physical separation from

the facility or institution. See State v. Knipe, 349 N.W.2d 770, 771–72 (Iowa

1984) (inmate still committed to the institution despite being free on furlough).

This interpretation gives meaningful effect to the statute, as it prevents inmates

from avoiding prosecution by way of escape. See Jones, 298 N.W.2d at 298–99

(holding an inmate was “confined” despite being absent as an escapee). The

guiding principle concerning whether an individual is confined has been whether

the individual remains “subject to the rules and regulations of the institution.”

Knipe, 349 N.W.2d at 771–72.

       For the consecutive sentences mandate to apply, Jackson must be

committed to a specific type of institution. He claims work release is neither a

detention facility nor penal institution.1     In Knipe, our supreme court found

“detention facility or penal institution” includes, at a minimum, the institutions


1
  The district court expressed some dismay regarding the lack of clarity concerning the
precise nature and conditions of Jackson’s work release. We find the same clarity
lacking in the record, significantly hindering our review of the case. The lack of
specificity and clarity may be a result of the unusual circumstances surrounding
Jackson’s resentencing, which occurred at the request of an individual within the DOC.
The authority of the DOC to provide the notice issued in this case is unclear. Because it
is not challenged by Jackson or the State, however, we will not review the issue at this
time.
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listed in section 904.102. Id. at 771. The language employed indicates the

institutions enumerated in section 904.102 are not exclusive or exhaustive. The

fact Jackson’s work release program is not obviously included in section 904.102

is not conclusive on this issue.

       Section 901B.1 establishes a “corrections continuum”, including “work

release facilities.”     Iowa Code § 901B.1(1)(c)(3).   Work release is statutorily

defined as “quasi-incarceration,” which is also defined as being “supported by a

residential facility.”   Id.   The work release program is established by section

904.901, which requires the DOC to create a program for “inmates sentenced to

an institution under the jurisdiction of the department,” giving the individual “the

privilege of leaving actual confinement” for the purpose of working. Id. § 904.901

(emphasis added). When the individual does not return to the institution after

work, the DOC is required to provide for the housing of the individual. Iowa Code

§ 904.904. The nature of work release is further clarified by the fact time spent in

work release from “the institution” applies towards the criminal sentence. Id.

§ 906.16.

       Reviewing each of these sections together, we find Jackson was

“confined” to a “penal institution” while on work release. Work release itself is

defined as quasi-incarceration.        The program itself is created for people

sentenced to DOC “institutions” in place of “actual confinement.” As such, the

district court was required, under section 901.8, to sentence Jackson to

consecutive sentences.
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       B.     Abuse of Discretion

       Jackson claims the district court abused its discretion by failing to order a

sentence similar to the original sentence in this case. His argument is based

upon a statement made during the resentencing hearing, by the district court,

that the original sentence was fair. Jackson contends if the original concurrent

sentence was fair then the only fair sentence at resentencing would be the

concurrent, not consecutive, sentences imposed.

       District courts are permitted to consider sentences as a part of an

integrated whole, or as a package. State v. Harrington, 805 N.W.2d 391, 395-96

(Iowa 2011). Consideration of a package as a whole is not, however, required.

Id. Sentences within the statutory limits will only be set aside for an abuse of

discretion. State v. Peckenschneider, 236 N.W.2d 344, 348 (Iowa 1975). “An

abuse of discretion is found only when the sentencing court exercises its

discretion on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.” State v. Privitt, 571 N.W.2d 484, 486 (Iowa 1997).

       We find no abuse of discretion. The district court was clearly unsettled by

the unusual course of events, particularly with regards to the DOC’s actions in

bringing the sentencing issues to the district court’s attention. The record does

not indicate the district court failed to exercise its discretion because it correctly

believed the consecutive terms were required.

       AFFIRMED.
