                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1692
                            Filed November 7, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

TIMOTHY LETURE CHEW,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse

(trial) and Mary Ann Brown (appeal bond review), Judges.



      A defendant appeals his convictions for assault with intent to inflict serious

injury and going armed with intent. CONVICTIONS AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant

Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
                                               2


TABOR, Judge.

       A jury convicted Timothy Chew of assault with intent to inflict serious injury

and going armed with intent. On appeal, Chew argues the jury did not receive

proper instructions. He also contends his $750,000 cash-only appeal bond is

unreasonable.     Because Chew cannot show prejudice resulting from the jury

instructions, we affirm. As for his appeal bond, we conclude the district court

abused its discretion in imposing an amount so high Chew was functionally denied

bail in violation of legislative directives.

I.     Facts and Prior Proceedings

       A shoot-out in broad daylight drew Burlington police to a residential

neighborhood on South Central Street the weekday morning of May, 10, 2017.

When Officer Kenneth Zahner arrived just after 9 a.m., he spotted Chew walking

down the street carrying an assault-style rifle. Officer Zahner drew his service

revolver and ordered Chew to the ground. As the officer was handcuffing Chew,

A.J. Smith charged from his friend’s front porch and kicked Chew in the face.

       After securing the scene, officers found shell casings indicating Chew fired

thirty-six rounds from his rifle and Smith fired eight rounds from a small-caliber

pistol. Several witnesses testified they heard the higher-pitch sound of the pistol

shooting first, followed by the deeper sound of the rifle firing in response.

       Allen Swayzer lived on South Central Street and often hosted Smith for

coffee and marijuana cigarettes in the morning. On May 9, the morning before the

shootout, Smith and Swayzer were following their usual routine on the front porch

when Chew drove by yelling: “Come get it.” Smith recalled Chew shouting: “Come

out and play.” Chew claimed Smith “flashed” a gun at him.
                                              3


         The next morning, Swayzer saw Chew coming toward his house again.

This time, Swayzer started “hearing gunshots.” A passerby saw a man matching

Chew’s description crouched between parked cars, aiming an assault-style rifle at

another man across the street. Chew admitted being in Swayzer’s neighborhood

that morning. Chew wore a bullet-proof vest and carried an assault-style rifle

equipped with two thirty-round clips, bound together with black electrical tape to

facilitate faster reloads.1 Chew claimed Smith shot at him first, and when Chew

returned fire, Smith ran away.

         In Smith’s version of events, Chew fired first and Smith shot back with a

pistol he commandeered from a friend at the scene. Smith did not remember how

many shots he fired: “I can’t tell you exactly because [Chew] was firing so many

times, it was just like panic firing, trying to get him up off me.” When Smith’s gun

jammed, he fled. As Smith ran away, one of Chew’s bullets grazed his head and

he fell. Smith returned to his feet and darted between the houses. He tossed the

pistol to avoid being arrested as a felon in possession of a firearm. Surveillance

video from neighborhood houses showed Smith running and Chew apparently

pursuing him.

         The State charged Chew with going armed with intent and attempted

murder. After a four-day trial, the jury returned guilty verdicts for going armed and

the lesser-included offense of assault with intent to commit serious injury. The

district court imposed indeterminate sentences of two and five years for the

respective counts, running the terms consecutively. Chew seeks a new trial.



1
    Chew had a license to carry the firearm, which he produced for police at the scene.
                                          4


II.      Scope and Standards of Review

         Each issue raised in this appeal calls for a different standard of review.

First, we review the district court’s refusal to give a requested jury instruction for

the correction of legal error. Shams v. Hassan, 905 N.W.2d 158, 162 (Iowa 2017).

Second, we review a claim of ineffective assistance of counsel de novo. State v.

Harrison, 914 N.W.2d 178, 188 (Iowa 2018). Third, we review the amount of an

appeal bond for an abuse of discretion. State v. Formaro, 638 N.W.2d 720, 724

(Iowa 2002).

III.     Analysis

         A.       Jury Instruction on Resisting a Forcible Felony

         A district court cannot refuse to instruct the jury on a defense theory when

the evidence supports the theory and the instruction is a correct statement of the

law. State v. Ross, 573 N.W.2d 906, 913 (Iowa 1998). If a defendant presents

substantial evidence to support an affirmative defense, the district court must

instruct the jury on that defense. State v. Broughton, 425 N.W.2d 48, 52 (Iowa

1988).        Erroneously denying a jury instruction requires reversal unless the

complaining party suffers no prejudice. State v. Hoyman, 863 N.W.2d 1, 7 (Iowa

2015).     When the error does not implicate a constitutional right, we test for

prejudice by assessing whether the rights of the complaining party have been

“injuriously affected” or the party suffered a miscarriage of justice. State v. Plain,

898 N.W.2d 801, 817 (Iowa 2017) (quoting State v. Marin, 788 N.W.2d 833, 836

(Iowa 2010)).
                                            5

       Before trial, Chew filed a notice of intent to rely on self-defense. See Iowa

Code § 704.3 (2017). The district court gave the jury a series of eight uniform

instructions to explain the law controlling Chew’s justification defense.2

       In addition to those self-defense instructions, Chew asked the district court

to instruct on the justification of resisting a forcible felony. On the date of the

shooting, that defense provided: “A person who knows that a forcible felony is

being perpetrated is justified in using, against the perpetrator, reasonable force to

prevent the completion of that felony.” Iowa Code § 704.7.3 To communicate that

defense to the jury, Chew urged the court to submit the following uniform

instruction:

              A person is justified in using reasonable force against
       someone committing a forcible felony to prevent completion of the
       felony if [he] [she] knows a (name of forcible felony) is being
       committed.

             If the State has proved any one of the following elements, the
       defendant was not justified:
        1. The defendant knew (name of forcible felony) was not being
       committed by (name of victim).
        2. The defendant did not believe the force was necessary to
       prevent the (name of forcible felony).
        3. The defendant did not have reasonable grounds for the belief.
        4. The force used by the defendant was unreasonable.

Iowa Crim. Jury Instruction 400.6.




2
  The eight uniform instructions included Iowa Criminal Jury Instructions 400.1, 400.2,
400.7, 400.8, 400.10, 400.12, 400.13, and 400.16.
3
  Effective July 1, 2017, the legislature amended the defense as follows: “A person who
knows reasonably believes that a forcible felony is being or will imminently be perpetrated
is justified in using, against the perpetrator, reasonable force, including deadly force,
against the perpetrator or perpetrators to prevent the completion of or terminate the
perpetration of that felony.” 2017 Iowa Acts ch. 69, § 42 (now codified at Iowa Code §
704.7).
                                             6


       Unlike the self-defense instruction, the uniform instruction on resisting a

forcible felony omits the requirement the defendant have no other available course

of action. State v. Newsom, No. 13-2078, 2015 WL 1046132, at *4 (Iowa Ct. App.

Mar. 11, 2015) (adding proviso that jury instructions “are not themselves laws”).

       The State objected to the resisting-a-forcible-felony instruction, arguing it

did not apply because Chew was “claiming self-defense.” To bolster this position,

the prosecutor asserted: “[R]esisting a forcible felony doesn’t have any language

that the forcible felony is being committed against yourself. The way I read that is

this would have to be another category.”

       The district court declined to give the requested instruction, first opining it

was “duplicative” of the self-defense instruction but also suggesting “it’s made for

a different factual situation not presented here.” The district court also read from

our decision in Newsom, “Additionally, because the asserted felony was assault,

the resisting forcible felony justification would have been in substance

indistinguishable from the defense-of-self and -others instructions.” Id. at *5.

       Chew renews his jury-instruction argument on appeal. He contends uniform

instruction 400.6 was a correct statement of the law and applied to his case.4

Without it, Chew claims he was prejudiced because the self-defense instruction



4
  Chew does not specify whether he believes this justification defense countered only the
attempted-murder charge (and its lesser-included assault offenses) or also excused the
going-armed count. Of note, only the assault offenses included an element of force (i.e.,
Chew shooting at Smith) that could be justified by Smith’s alleged perpetration of a forcible
felony. The marshalling instruction for going armed did include an element Chew was “not
acting with justification.” But the only act at issue was “moving from one place to another”
while armed with a firearm. See Iowa Code § 708.8. The reference to use of reasonable
force in instruction 400.6 does not logically justify the movement element in section 708.8.
Therefore, we consider this issue as challenging only Chew’s conviction for assault with
intent to inflict serious injury.
                                          7


given to the jury required him to prove he had no other available course of action.

By contrast, the defense of resisting a forcible felony does not carry a duty to

retreat or seek an alternative course of action, according to Chew.              Chew

distinguishes Newsom because Newsom was on his own property, so the district

court instructed the jury he was not required to retreat to avoid a confrontation.

See id. Where Newsom’s self-defense was void of a duty to retreat, uniform

instruction 400.6 would have been superfluous. See id.

       But Chew was not on his own property. Consequently, the instructions

enabled the State to argue Chew’s justification defense failed because he ignored

an alternative course of action. In summation, the prosecutor told the jury: “After

A.J. Smith [ran] away, [Chew] could have stayed on this side of the street. He

could have walked away. . . . [H]e could have ducked for cover here instead of

pressing forward to where the shooter was.”          Chew contends had the court

instructed the jury no such duty existed under the defense of resisting a forcible

felony, its verdict “could have been substantially different.”

       In response to Chew’s arguments on appeal, the State does a one-eighty

from its position at trial. Rather than echoing the prosecutor’s argument that self-

defense and resisting a forcible felony apply to separate situations, the State now

derides Chew for suggesting “the exceptions to Iowa Code sections 704.3 and

704.7 are distinct.” The State continues:

       Assuming section 704.7 creates an affirmative defense and that
       Chew established substantial evidence to support the defense, he
       was not entitled to uniform instruction 400.6 in its present form
       because the uniform instruction is incomplete. A complete version
       of the instruction would permit the State to disprove the justification
       by establishing an alternative course of action exists.
                                          8


       But because the State did not present that argument to the district court, it

is not viable here. See DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002) (declining

to consider issue for the first time on appeal, even if it is the only ground available

to uphold a district court ruling).

       Alternatively, the State contends even an unmodified version of uniform

instruction 400.6 would have been unavailing because Chew used unreasonable

force. The State highlights the fact Chew went to Swayzer’s house “while armed

and armored.” Chew wore a bulletproof vest, fashioned a “poor-man’s tactical

reload” for his assault-style rifle, and fired at Smith even after Smith stopped

perpetrating any forcible felony.

       After sizing up the arguments from both sides, we conclude even if the

district court should have granted Chew’s request for an instruction on resisting a

forcible felony, not doing so was harmless error.

       To be sure, we appreciate the district court’s hesitation to confuse the jury

with duplicative instructions.    The defense of resisting a forcible felony is an

enigma. Newsom, 2015 WL 1046132, at *4 (acknowledging “very little case law

[exists] to aid in our interpretation of section 704.7”).      Only the unpublished

decisions in Newsom and O’Shea v. State, No. 05-0331, 2006 WL 623593, at *3

(Iowa Ct. App. Mar. 15, 2006) explore the availability of the defense. And neither

decision matches the facts at hand.

       Here several witnesses testified they heard small-caliber gunfire before they

heard the louder report coming from Chew’s assault-style rifle. That chronology

bolstered the defense theory Chew knew Smith was perpetrating a felonious

assault (listed among the forcible felonies in section 702.11(1)) by firing his pistol
                                             9


at Chew. But assuming without deciding the district court should have given

uniform instruction 400.6, the absence of the instruction did not negatively affect

Chew’s rights or cause him to suffer a miscarriage of justice. See Plain, 898

N.W.2d at 817. “[M]arginal or technical omissions” do not warrant reversal.” Id.

(citation omitted).

       Here, the omission of uniform instruction 400.6 made no difference in the

jury’s understanding of the key issue before it—whether Chew’s acknowledged

show of force was reasonable under the circumstances. See State v. Coleman,

907 N.W.2d 124, 138 (Iowa 2018).             The State’s evidence established Chew

continued to use potentially deadly force even after any valid self-defense (or

resistance-to-a-forcible-felony) defense subsided. The district court supplied the

jury adequate instructions on justification and reasonable force. Given the State’s

strong evidence of Chew’s unrelenting pursuit of Smith—shooting at him as he ran

away and even after Smith stopped firing his pistol—no prejudice resulted from the

instructional error.5 Reversal is not required.

       B.      Jury Instruction on Going Armed With Intent

       In his next complaint about the jury instructions, Chew alleges his trial

counsel missed the mark when advocating for an expanded marshaling instruction

on the elements of going armed with intent. Chew insists counsel was ineffective




5
  The jury’s decision to acquit Chew on the attempted murder count and convict him of the
lesser-included offense of assault with intent to cause serious injury buttresses our finding
of harmless error. Following their instructions, the jurors did not find substantial evidence
Chew expected to set in motion a force of events which would cause Smith’s death and
did not believe Chew had the specific intent to cause Smith’s death. But the jury did
believe Chew intended to cause serious injury and did not find Chew was acting with
justification.
                                         10


in failing to recognize the 2017 amendment to Iowa Code section 708.8 clarified

existing law rather than changed the elements of the offense.

       To prevail on appeal, Chew must show counsel breached an essential duty

and prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

On the first prong, Chew must show his attorney’s performance fell “below the

standard demanded of a reasonably competent attorney.” See State v. Virgil, 895

N.W.2d 873, 879 (Iowa 2017) (quoting Millam v. State, 745 N.W.2d 719, 721 (Iowa

2008)). On the second prong, Chew was prejudiced if a reasonable probability

existed, but for counsel’s substandard performance, the result of the trial would

have been different. See id. at 882. While we often preserve such claims for

further factual development, this record enables us to decide the question. See id.

at 879.

       We start by examining counsel’s performance. Counsel asked the district

court to instruct the jury on the July 1, 2017 amendment to the going-armed statute.

On the day of the shootout, the statute provided: “A person who goes armed with

any dangerous weapon with the intent to use without justification such weapon

against the person of another commits a class ‘D’ felony.” Iowa Code § 708.8. In

the omnibus weapons legislation discussed above, the General Assembly added

the following sentence to section 708.8: “The intent required for a violation of this

section shall not be inferred from the mere carrying or concealment of any

dangerous weapon itself, including the carrying of a loaded firearm, whether in a

vehicle or on or about a person’s body.” 2017 Acts ch. 69, § 4 (now codified at

Iowa Code § 708.8).
                                          11


       On this point, defense counsel argued Chew should receive the retroactive

benefit of any change in the criminal statute. The State disagreed, reasoning while

ameliorative changes apply in sentencing, altering the elements the State was

required to prove at trial would result in unfairness.

       The district court denied the defense’s request to add the amended

language to the marshaling instruction for going armed with intent. The court drew

a distinction between substantive and procedural laws. Finding the change to

section 708.8 substantive, the court decided the legislature intended it to be

prospective only. See Iowa Code § 4.5 (presuming prospective application of

enactments).

       Now imagine the district court had heard a more compelling argument for

including the new language in the marshaling instruction.       Chew contends if

counsel had argued the no-inference addition to the going-armed offense clarified

rather than changed the prior statute, the court would have ruled in his favor. See

Barnett v. Durant Cmty. Sch. Dist., 249 N.W.2d 626, 629 (Iowa 1977) (“Whenever

it appears legislation may have been passed simply for the purpose of removing

doubt from previous acts, the courts should give effect to that purpose.” (citing

Slutts v. Dana, 115 N.W. 1115, 1118 (Iowa 1908))).

       For its part, the State now agrees the amendment did not create a new

element for going armed. Nor did it mark a substantive change to the statute.

Rather, the State acknowledges “the amendment makes clear that violation of the

existing statute could not be established solely by proof of the defendant’s

possession of the dangerous weapon; the jury must base its verdict on additional

evidence of an unlawful intent to use the weapon without justification.” The State
                                         12


concedes trial counsel was remiss in not making that point when asking for the

expanded going-armed instruction.

       That concession made, the State focuses on the lack of prejudice. The

State maintains: “Under the evidence adduced at trial, an additional instruction

touching upon the legislative amendment to section 708.8 would have no impact

on the jury’s verdict.”

       We likewise believe Chew’s challenge falls short on prejudice grounds. See

King v. State, 797 N.W.2d 565, 574 (Iowa 2011) (bypassing issue of counsel’s

performance to decide whether trial attorney’s failure to take certain action

undermined confidence in verdict). The State presented ample evidence from

which the jury could infer Chew’s intent to use his assault-style rifle against Smith.

This evidence went far beyond “mere carrying” of a dangerous weapon. Chew

revealed his intent in taunting Smith the day before the shooting. And the morning

of the shootout, Chew received a ride to Swayzer’s neighborhood before

proceeding on foot to Smith’s location. He came clad in body armor and with two

clips taped together to increase his speed in reloading.

       What’s more, Chew acted on his intent. He admitted shooting at Smith. In

fact, Chew fired more than three-dozen rounds. Chew continued to move from

place to place—firing his weapon—even as Smith fled. One of Chew’s bullets hit

Smith in the head. Given the strength of the evidence showing Chew’s intent to

use the weapon against Smith, the omission of the clarifying instruction did not

affect the jury’s verdict.
                                             13


         C.      Appeal Bond Amount

         “All defendants are bailable both before and after conviction, by sufficient

surety.” Iowa Code § 811.1; accord Iowa Code § 811.5 (“After conviction, upon

appeal to the appellate court, the defendant must be admitted to bail . . . .”).6

Chew—who listed no income or financial resources on court documents—argues

the district court abused its discretion in setting his cash-only appeal bond at three-

quarters of a million dollars.

         A district associate judge set this high bond at Chew’s initial appearance on

May 11, 2017. Once appointed, defense counsel sought a reduction.                In its

subsequent evaluation, the Eighth Judicial District Department of Correctional

Services (DCS) recommended Chew “remain incarcerated and be placed on a

bond that the Court deems to be appropriate.”

         At a May 30 bond hearing, Chew testified he was unemployed and unable

to work because he suffered from seizures. He told the court he was a life-long

resident of Burlington, lived with his grandmother, and had numerous other

relatives in the community. He testified his criminal record included a deferred

judgment for possession of marijuana and a fine for a simple misdemeanor assault

conviction. He denied ever missing a court hearing. Chew assured the court he

would abide by pretrial supervision conditions and asked for a surety bond, noting

family members owned houses that could be posted as security. Defense counsel

asserted a bond of $50,000 cash or surety would ensure Chew’s appearance. The




6
    Section 811.1 contains exceptions, but none are applicable here.
                                               14


State argued Chew posed “a danger to the community” and asked the court to

maintain the $750,000 cash-only bond.

          After the hearing, the district court recognized Chew was “bailable” under

section 811.1. In concluding the State established $750,000, cash only, was a

reasonable amount of bail, the court pointed to the following eight factors:

          1. the nature and circumstances of the offense—serious assaultive
          behavior resulting in charges of Attempted Murder and Going
          Armed With Intent;
          2. the Defendant’s family ties—his grandmother and other
          unnamed relatives are his only relatives in the area;
          3. the Defendant’s employment history – he is unemployed;
          4. the Defendant’s financial resources – he has no financial
          resources;
          5. the Defendant’s character and mental condition—he suffers from
          seizures;
          6. the length of the Defendant’s residence in the community—
          lifelong with his grandmother;
          7. the Defendant’s record of convictions—the Defendant has a
          previous conviction for assaultive behavior; and,
          8. the Defendant’s record of appearance at court proceedings or of
          flight to avoid prosecution or failure to appear at court
          proceedings—Defendant has one failure to appear. (Although the
          Defendant denies this, he goes on to testify he has no recollection
          of the proceeding.)[.]

These factors track the conditions noted in section 811.2(2).7

          Unable to afford the cash-only bail, Chew remained incarcerated through

his mid-August 2017 trial. After Chew’s convictions, his counsel again sought a


7
    Section 811.2(2) provides:
          In determining which conditions of release will reasonably assure the
          defendant’s appearance and the safety of another person or persons, the
          magistrate shall, on the basis of available information, take into account the
          nature and circumstances of the offense charged, the defendant’s family
          ties, employment, financial resources, character and mental condition, the
          length of the defendant’s residence in the community, the defendant’s
          record of convictions, including the defendant’s failure to pay any fine,
          surcharge, or court costs, and the defendant’s record of appearance at
          court proceedings or of flight to avoid prosecution or failure to appear at
          court proceedings.
                                           15


bond review. Defense counsel emphasized the jury’s acquittal on the attempted

murder charge meant Chew faced no mandatory prison time. Still the court

declined to reduce Chew’s bond. The court reasoned:

         The unrebutted record presented to the jury and the court during the
         course of the trial was that the defendant, shortly after 9:00 a.m. on
         May 10, 2017, was armed with a high-powered rifle and he engaged
         Arthur Johnson Smith in gunfire, discharging his weapon at least 38
         times. This all occurred in a residential area of Burlington, Iowa. That
         set of circumstances is not now a mere allegation, but evidence
         presented at trial.

Although the jury found Chew guilty of a lesser-included offense of attempted

murder, the court believed Chew’s danger to society was “just as great now as it

was at the time of his original appearance.” The court noted testimony from

Chew’s mother at the bond-review hearing revealing Chew’s brother had been

murdered after the jury returned its verdict in this case and expressing concern the

two crimes could be related. The court observed: “It was clear during the course

of the bond review that emotions in the Chew family are high. Such volatile

emotions could lead a person to not exercise good judgment and react in irrational

ways.”

         After sentencing, the district court left the $750,000 cash-only bond in place

for appeal, citing “the serious nature of the offenses, the use of a firearm and other

factors in this case.”

         Now on appeal, Chew maintains the district court mistakenly relied on the

earlier bail determinations in setting the cash-only appeal bond. He contends such

reliance overlooked the jury’s acquittal on the attempted murder charge. He also

complains the court ignored his strong ties to the community and exaggerated the

extent of his criminal history.
                                           16


       Before addressing the merits on appeal, the State flags the issue as moot,

urging us to avoid the appeal-bond question because our opinion will have no

impact on the underlying controversy. See State v. Briggs, 666 N.W.2d 573, 576

(Iowa 2003) (“As a rule, we do not decide appeals in which ‘the issue becomes

nonexistent or academic and, consequently, no longer involves a justiciable

controversy.’” (quoting State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa

2002))).

       At the same time, the State acknowledges Iowa appellate courts have

addressed similar issues despite their mootness. See, e.g., Formaro, 638 N.W.2d

at 726 (characterizing $50,000 appeal bond following conviction for second-degree

burglary as “high, particularly in light of the condition that it would be paid in cash,”

but declining to conclude the bond was “excessive to the point of constituting an

abuse of discretion”); Kellogg, 534 N.W.2d at 433 (upholding $20,000 appeal bond

for two serious misdemeanor domestic-abuse assault convictions); State v.

Olofson, No. 17-0737, 2018 WL 1098906, at *2 (Iowa Ct. App. Feb. 21, 2018)

(holding imposition of $2000 appeal bond following guilty plea to possession of a

controlled substance was not an abuse of discretion); State v. Maxwell, No. 15-

1392, 2016 WL 6652361, at *12 (Iowa Ct. App. Nov. 9, 2016) (concluding district

court did not abuse its discretion in imposing a firearms ban as part of

the appeal bond); State v. Woods, No. 16-0698, 2016 WL 6269881, at *2 (Iowa Ct.

App. Oct. 26, 2016) (finding no abuse of discretion in $5000 appeal bond after

guilty plea to assault while displaying a dangerous weapon); State v. Steenhoek,

No. 99-0632, 2000 WL 564173, at *2 (Iowa Ct. App. May 10, 2000) (rejecting claim
                                            17


$25,000 cash-only appeal bond following convictions for stalking and extortion was

excessive and effectively denied bail).

       Like the appellate courts did in those cases, we opt to reach the merits of

the appeal-bond issue here.          See Briggs, 666 N.W.2d at 576 (entertaining

controversy over cash-only bond “despite it being moot”). As Chew argues in his

reply brief, the imposition of cash-only bail on appeal is an issue of public

importance that is likely to recur. See id. at 576–77.

       We begin our analysis by looking to the main purposes of imposing bail

conditions following appeal of a bailable offense: (1) assuring the future

appearance of the defendant upon completion of the appeal and (2) providing for

the safety of others during the course of the appeal. See Formaro, 638 N.W.2d at

726.

       The second of those purposes, concern for the safety of others, propelled

the district court to continue setting Chew’s bond at $750,000, cash only. Without

dispute, the district court was justified in giving considerable weight to the

dangerous nature of Chew’s current crimes, including his indiscriminate use of the

firearm in a residential neighborhood. See id. But the raw amount of the bond—

without access to a commercial bail-bond company or a traditional surety

arrangement8—was exorbitant even “in light of the perceived evil.” See Kellogg,

534 N.W.2d at 434.




8
  In Briggs, the majority of our supreme court decided cash-only bond did not violate
“the sufficient sureties clause of the Iowa Constitution so long as the accused is permitted
access to a surety in some form.” 666 N.W.2d at 583.
                                         18


       Even Chew acknowledges the reasonableness of imposing “a significant

appeal bond” given the seriousness of the offenses for which he was convicted.

But he contends “a cash-only bond amounting to $20,000 for every bullet fired is

excessive and an abuse of discretion.”

       While this rhetorical device is not a viable measure of what is excessive bail,

our case law offers little in the way of objective guidelines for trial judges setting

bond amounts.     To that end, Iowa appellate courts have repeatedly rejected

reference to the Iowa Judicial Council’s uniform bond schedule as a calibration for

setting appeal bond. See, e.g., Kellogg, 534 N.W.2d at 435 (noting supervisory

order recommends amounts to be used in “setting conditions of defendants’ pretrial

release” and finding “it has no application to bond set for a convicted defendant

while appeal is pending”); Woods, 2016 WL 6269881, at *2 (deflecting defendant’s

reliance on bond schedule); State v. Huss, No. 09-0574, 2010 WL 200043, at *3–

4 (Iowa Ct. App. Jan. 22, 2010) (rejecting argument $50,000 cash bond following

conviction for operating while intoxication violated Iowa Constitution “simply

because it is twenty-five times the amount that would have been initially set if the

court were not in session”).

       Accepting the logic of Kellogg, Huss, and Woods, we nevertheless turn to

the uniform bond schedule as a mere point of reference for what dollar amount

would attach to certain offenses in the absence of a judicial officer exercising his

or her discretion. Cf. In re Marriage of Mauer, 874 N.W.2d 103, 108 (Iowa 2016)

(referring to spousal support guidelines as “useful reality check in some cases” but

not binding on Iowa courts). Chew faces convictions for a class “D” felony and an

aggravated misdemeanor. Had Chew been arrested for those two offenses and
                                             19


the courts were not in session, he could have been released pending an initial

appearance with a bond of $5000 for the class “D” felony and $2000 for the

aggravated misdemeanor. See Iowa Supreme Court Judicial Council, In re Unif.

Bond Schedule, at 1 (June 23, 2017) (effective July 1, 2017). The $750,000 cash

only bond in place throughout these proceedings was more than one-hundred

times the amounts listed in the supervisory order.

       Keeping that “reality check” in mind, we consider whether the district court

abused its discretion in leaving the cash-only bond of $750,000 in place for the

appeal. The district court cited Chew’s lack of employment and non-existent

financial resources when setting the original bond.               Still, the court set an

unattainable bail given the defendant’s indigent status.                 See Brangan v.

Commonwealth, 80 N.E.3d 949, 959 (Mass. 2017) (“A bail that is set without any

regard to whether a defendant is a pauper or a plutocrat runs the risk of being

excessive and unfair.”). We realize an appeal bond does not have to be affordable.

See Kellogg, 534 N.W.2d at 435 (noting the public interest in promoting victim

safety is a concern independent of the defendant’s financial status). But when a

judge sets bail in an amount so far beyond a defendant's ability to pay making it

all-but impossible the defendant could post that amount of cash, the order amounts

to “the functional equivalent” of denying bail. See Brangan, 80 N.E.3d at 963

(discussing due process and pretrial bail);9 see also Colin Starger & Michael


9
 The Supreme Judicial Court of Massachusetts held using “unattainable bail to detain a
defendant because he is dangerous” violated due process. Id. at 963–66; see also In re
Humphrey, 228 Cal. Rptr. 3d 513, 528–29 (Ct. App. 2018) (“Money bail . . . has no logical
connection to protection of the public, as bail is not forfeited upon commission of additional
crimes. Money bail will protect the public only as an incidental effect of the defendant
being detained due to his or her inability to pay, and this effect will not consistently serve
a protective purpose, as a wealthy defendant will be released despite his or her
                                           20

Bullock, Legitimacy, Authority, & the Right to Affordable Bail, 28 Wm. & Mary Bill

Rts. J. 589, 610–18 (2018) (“[United States v. Salerno, 481 U.S. 739, 754 (1987)]

established that it is constitutionally acceptable to detain a person pretrial because

she is dangerous—but it does not authorize setting a deliberately unaffordable bail

to achieve the same detention result.”).

       Because our legislature determined individuals in Chew’s situation are

bailable, the de facto denial of bail thwarts that legislative intent. The legislature

intended district courts to weigh all factors in section 811.2(2). In this case, the

dangerous nature of Chew’s offenses loomed large, and the court naturally gave

that factor greater weight. But the remaining factors tilted against the sky-high bail.

Chew was a life-long resident of Burlington and had many family members in the

community. He was unable to work because he suffered seizures from a head

injury and owed a large amount of money for his medical bills. His record of prior

convictions consisted of simple misdemeanor assault in 2008 and possession of a

controlled substance, for which he received a deferred judgment in 2011. Chew

denied any history of failing to appear at court proceedings. At sentencing, his

attorney reported Chew had no substance-abuse or mental-health problems.

Defense counsel also argued the district court could protect Smith by entering a

no-contact order.




dangerousness while an indigent defendant who poses minimal risk of harm to others will
be jailed.”); Lauryn P. Goldin, Disentangling Flight Risk from Dangerousness, 2016 BYU
L. Rev. 837, 863–65 (2016) (“[I]f a court views a defendant as being a high risk for
committing a new crime on release, it does not seem appropriate to simply set a high price
for release. Dangerous defendants do not become less dangerous by paying bail.”
(footnote omitted)).
                                           21


       The bond review court provided a truncated analysis of the factors it

considered in declining to reduce the bond on appeal. The court did not reference

Chew’s financial status or a risk he would not appear after the appeal. Neither did

the court acknowledge the jury acquitted Chew of the most serious charge—

attempted murder.

       While the court set a bail amount in form, it denied Chew bail in function by

continuing the unattainable bond through the appeal. On this record, the district

court abused its discretion in setting a cash-only appeal bond at $750,000. But

because our determination will not have any practical effect once the appeal ends,

we decline to direct the district court to take any further action concerning bail. 10

        CONVICTIONS AFFIRMED.




10
   In the conclusion of both his opening and reply briefs, Chew asks this court to “direct
the district court to set a new, reduced appeal bond.” The parties suggest no mechanism
for doing so. Moreover, this appeal did not arise under Iowa Code section 811.2(7)(b)
where the post-trial release issue could be decided “summarily” with or without briefing.
