                   IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0517
                               Filed July 22, 2020


ADAM CADE GILSON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Story County, Bethany Currie,

Judge.



      Adam Gilson appeals the denial of his application for postconviction relief.

AFFIRMED.



      Christopher A. Clausen of Clausen Law Office, Ames, for appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.



      Considered by Vaitheswaran, P.J., May, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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SCOTT, Senior Judge.

       In 2013, Adam Gilson pled guilty to a tax-stamp violation and third-degree

theft in the Iowa District Court for Story County. He was sentenced to consecutive

terms of imprisonment not to exceed five and two years.              The terms of

imprisonment were suspended, and Gilson was placed on probation for two years.

       In March 2014, the State applied for revocation of Gilson’s probation,

alleging several violations. A warrant issued for his arrest. In May, Gilson was

taken into custody in Tama County. He was subsequently indicted on federal

charges. At some point, Gilson was transported to the Linn County Jail on a federal

detainer. According to Gilson’s testimony at the postconviction-relief trial, his

attorney in federal court advised him to reach out to the State and get the

probation-revocation matter resolved prior to federal sentencing. Also according

to Gilson, at some point he directed his revocation counsel “to get Story County to

come get” him, presumably for the purpose of serving his active warrant and

resolving the probation-revocation matter, but “they basically said to just let [him]

go into the federal system.”

       While serving his federal sentence, Gilson attempted to enter a residential

drug-abuse program. At that point in time, he learned he was still under a Story

County detainer for violating his probation. Gilson believed he could not enter the

program with a pending detainer. As a result, Gilson, in early 2016, reached out

to his revocation counsel to get the matter resolved. Following a number of

continuances, a revocation hearing was held in September.                    At the

commencement of the hearing, counsel advised the court Gilson was aware of his

right to be personally present at the hearing. Gilson participated in the hearing via
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telephone, and he acknowledged his waiver of his right to be personally present.

Gilson stipulated to violating the terms of his probation in various respects. The

court revoked Gilson’s probation and imposed the original terms of imprisonment,

to be served consecutively to his federal sentence.

      In November, Gilson filed an application for postconviction relief. In April

2017, the district court granted the State’s motion for summary disposition. We

reversed and remanded for further proceedings, see generally Gilson v. State, No.

17-0736, 2018 WL 3472039, at *2 (Iowa Ct. App. July 18, 2018), after which the

State moved for a more specific statement and summary disposition.          In his

amended application, Gilson argued, among other things, (1) “his conviction and

sentence should be deemed served because he attempted to be extradited back

to Story County” but “Story County declined to extradite” him and (2) “his due

process rights were violated when he was not permitted to appear at his probation

[revocation] hearing in person but appeared by telephone.”

      The matter proceeded to trial. As to the due process claim, Gilson seemed

to suggest he should have been entitled to wait until he completed his federal

sentence, appeared at the revocation hearing in person, and demonstrated the

progress he had made while in federal prison. Gilson’s revocation counsel also

testified at trial. He noted he specifically advised Gilson that he would have a

better chance of having his State sentence ordered to be served concurrently to

his federal sentence if he waited until the end of his federal sentence. On that

advice, Gilson chose early on to do nothing in the probation-revocation matter.

Then, later, when Gilson was unable to enter programming in federal prison, Gilson

directed counsel to get the matter resolved as soon as possible. Counsel again
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advised he would have a better chance at a concurrent sentence on the State

charges if he waited until he completed his federal sentence. Then, after speaking

with his federal attorney, Gilson directed his revocation attorney to schedule a

telephonic revocation hearing. Counsel again advised it would be better to wait,

but Gilson insisted.

       Ultimately, the district court denied Gilson’s application for postconviction

relief. This appeal followed. Appellate review of denials of postconviction-relief

applications is generally for correction of legal error. Sauser v. State, 928 N.W.2d

816, 818 (Iowa 2019). We review constitutional claims de novo based on the

totality of the circumstances. Goode v. State, 920 N.W.2d 520, 523 (Iowa 2018).

       First, Gilson argues his sentence should be deemed served or waived

because the State did not extradite him to Story County before he began serving

his federal sentence. Gilson relies solely on Shields v. Beto, 370 F.2d 1003 (5th

Cir. 1967).   That case is readily distinguishable, as it merely stands for the

proposition that a twenty-eight-year “lack of interest” in return of a prisoner from

another state after surrendering him prior to discharging his sentence, “either by

agreement between the sovereigns, by detainer, or any other affirmative action,”

“was equivalent to a pardon or commutation of his sentence and a waiver of

jurisdiction.” Shields, 370 F.2d at 1006. Here, the State placed a detainer on

Gilson for the purpose of having Gilson returned to the State upon his completion

of his federal sentence. The State exhibited a sufficient interest to preclude a

waiver of jurisdiction.

       Second, Gilson argues his due process rights were violated when the court

allowed him to participate in the revocation hearing telephonically. But counsel
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made clear he advised such a procedure might be illegal. See Calvert v. State,

310 N.W.2d 185, 188 (Iowa 1981) (noting probationers are constitutionally entitled

to “an opportunity to be heard in person”). Gilson insisted. He cannot now be

heard on appeal to complain. See, e.g., Jasper v. State, 477 N.W.2d 852, 856

(Iowa 1991) (noting litigants “cannot deliberately act so as to invite error and then

object because the court has accepted the invitation”).         In any event, even

characterizing the revocation hearing as a critical stage of the criminal

proceedings, we are convinced the right to physical presence can be waived, at

least under the circumstances presented here—with Gilson participating

telephonically and the hearing being nothing more than a cut-and-dry stipulation

to probation violations—and Gilson did so knowing, voluntarily, and intelligently.

       We affirm the denial of Gilson’s application for postconviction relief.

       AFFIRMED.
