                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-0799
                                Filed June 11, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JUSTEN ALAN FAGAN,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Iowa County, Douglas S. Russell,

Judge.



      Justen Fagan appeals the district court’s denial of his pro se motion

claiming his 2001 conviction for first-degree robbery is a “void judgment” because

he did not have counsel when he requested final disposition of Iowa charges

against him pursuant to the Interstate Agreement on Detainers Act. AFFIRMED.



      David A. Cmelik of David A. Cmelik Law, P.L.C., Cedar Rapids, for

appellant.

      Justen Alan Fagan, Anamosa, pro se.

      Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney

General, Tim D. McMeen, County Attorney, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ. Potterfield

and Tabor, JJ., take no part.
                                            2


DOYLE, J.

       This is Justen Fagan’s fourth direct appeal from his conviction and

sentence for first-degree robbery.1 In this appeal, Fagan asserts that because he

did not have the benefit of counsel when he was presented with and signed

paperwork concerning the Interstate Agreement on Detainers Act (IAD)2 when in

the custody of the State of Illinois, the paperwork was void. He further asserts

that because the IAD paperwork was void, the State’s use of the speedy trial time

period (180 days) under Iowa Code section 821.1(3)(a) (2001)3 was improper

and violated his rights to a ninety-day speedy trial deadline pursuant to Iowa Rule

of Criminal Procedure 2.33(2).4 He thus concludes the judgment entered against

him was void. The State waived its time-bar claim asserted on appeal by failing

to first raise the claim in the district court. In considering the merits of Fagan’s

claims, we affirm the district court’s denial of Fagan’s request for relief.

       I. History and Previous Appeals.

             Fagan was under the jurisdiction of the Illinois correctional
       system when he was charged with first-degree robbery in Iowa.
       Fagan filed a “Demand for Speedy Trial Pursuant to Agreement on
       Detainers” requesting a “final disposition of all detainers based on


       1
           Fagan also appealed the dismissal of two postconviction-relief actions arising
from the same criminal incident. Fagan v. State, No. 07-1421, 2009 WL 1492722, *1-*4
(Iowa Ct. App. May 29, 2009); Fagan v. State, 10-0739, 2012 WL 3854635, *1-*2 (Iowa
Ct. App. Sept. 6, 2012). This court affirmed both dismissals. See id.
         2
           For an excellent overview of the IAD, see State v. Johnson, 770 N.W.2d 814,
820-22 (Iowa 2009), and State v. Widmer-Baum, 653 N.W.2d 351, 354-57 (Iowa 2002).
         3
           Iowa Code section 821.1(3)(a) requires a prisoner to be brought to trial on any
“untried indictment, information or complaint” within 180 days after delivery of written
notice of place of imprisonment and request “for a final disposition.”
         4
           Iowa Rule of Criminal Procedure 2.33(2)(b) requires a defendant be brought to
trial within ninety days after indictment is found. This rule applies when charges are
brought against a defendant by way of a trial information. See State v. Olson, 528
N.W.2d 651, 653 (Iowa Ct. App. 1995). Here, the trial information was filed September
28, 2000, and trial commenced on July 9, 2001.
                                             3


       untried indictments, informations or complaints within the State [of
       Iowa].” An Iowa jury found him guilty of first-degree robbery.

State v. Fagan, No. 10-0660, 2011 WL 768826, at *1 (Iowa Ct. App. Mar. 7,

2011) (internal footnotes omitted). He was sentenced to “an indeterminate term,

the maximum length of which shall not exceed twenty-five years.” Id.

       Fagan appealed, arguing there was insufficient evidence to support the

verdict and that he was rendered ineffective assistance of counsel. See State v.

Fagan, No. 2-575, 2002 WL 1842415, at *1 (Iowa Ct. App. Aug. 14, 2002). This

court affirmed his conviction, concluding, among other things, that his speedy

trial rights were not violated. Id. at *3.

              Following sentencing, Fagan was returned to Illinois to
       complete his prison sentence there. He was then sent back to Iowa
       to begin serving his sentence for first-degree robbery. At that time,
       the Department of Corrections . . . determined Fagan was subject
       to the mandatory minimum sentence required by the versions of
       Iowa Code sections 902.12 and 903A.2(1)(b) (2001) in effect when
       he was originally sentenced.

Fagan, 2011 WL 768826, at *1 (internal footnote omitted). Fagan challenged the

determination. Id.

       On appeal, this court addressed the legality of the sentence and

concluded the sentence was illegal because the court failed to impose the

mandatory minimum sentence prescribed by Iowa Code section 902.12. Id. at

*1-*3. The court vacated the illegal sentence, and it remanded the case to the

district court for imposition of the mandatory minimum sentence under sections

902.12 and 903A.2. Id. at *3. This court also rejected Fagan’s argument that the

IAD prevented the court from vacating his original sentence and substitution a

new harsher sentence. Id. at *2-*3.
                                              4


              On remand, Fagan again raised the same IAD challenge he
       raised on appeal. The district court declined to address the issue,
       reasoning that Fagan “had [his] day in court on appeal with this
       issue.” The court resentenced Fagan in accordance with section
       902.12.

State v. Fagan, No. 11-1659, 2012 WL 3860649, at *1 (Iowa Ct. App. Sept. 6,

2012) (internal footnote omitted).        Fagan appealed and raised the same IAD

challenge that he had raised in the previous appeal that was decided against

him.   Id.     Pursuant to the law of the case doctrine, this court declined to

reconsider an issue that had already been decided. Id. This court affirmed the

district court’s remand decision sentencing Fagan to a prison term of twenty-five

years, with a mandatory minimum of seven-tenths of the maximum sentence

under section 902.12. Id.

       II. Present Appeal.

       On March 14, 2013, Fagan filed with the district court a pro se document

entitled “Void Judgment.” He urged that the judgment against him was void

because his Sixth Amendment right to counsel had been violated when he was

not appointed counsel prior to signing the IAD papers in 2001.5 He also asserted

the judgment against him was void because he had not been brought to trial

within the ninety-day time period prescribed in Iowa Rule of Criminal Procedure

2.33. Fagan further argued that “[a] judgment may be vacated at any time if it is

void.” He also suggested a void judgment is analogous to an illegal sentence,

“as an illegal sentence is one not permitted by statute thus making it void,” citing

to State v. Wiese, 201 N.W.2d 734, 737 (Iowa 1972) (noting “a trial court does



       5
           Fagan also filed a request for a restitution hearing on March 25, 2013.
                                               5


not exhaust its jurisdiction until a valid judgment is entered”).6                 The State

resisted, responding only to the merits of Fagan’s right-to-counsel and speedy-

trial claims. The timeliness of Fagan’s filing was not challenged by the State.

       Considering the matter solely on the parties’ filings, the district court

deemed Fagan’s “Void Judgment” filing to be a motion to correct an illegal

sentence and denied it on the merits “[f]or the reasons set out in the State’s

Resistance.”7 Fagan then filed a motion to enlarge, arguing the district court had

misunderstood his argument. The district court denied the motion explaining that

“[t]he fact the court did not grant [his] requested relief does not mean the court

did not understand the issues.”

       Fagan now appeals.8


       6
           Pursuant to Iowa Rule of Criminal Procedure 2.24(5)(a), “[t]he court may correct
an illegal sentence at any time.”
         7
           The court also denied Fagan’s request for restitution hearing. This denial is not
a subject of the present appeal.
         8
           Implicit in our rules of appellate procedure is that parties include legible
documents in the appendix. We have previously stressed the importance of providing
legible materials in the appendix. See Slycord v. Garrett, No. 13-1192, 2014 WL
1714955, at *3 n.3 (Iowa Ct. App. April 30, 2014). Here, pages of the most critical
document to this appeal, Fagan’s “Void Judgment” filing, are unreadable because of
some defect in the copying process during production of the appendix. The document
retrieved from the district court file is perfectly legible. Non-electronic district court files
are easily accessible to those judges who office in the Judicial Branch Building, but
these materials are not readily available to those judges who office outside of Des
Moines. Ensuring that material included in the appendix is legible effectively makes that
material readily and equally accessible to all judges on the panel considering the
appeal—whether they office in Des Moines or elsewhere.
         Additionally, Iowa Rule of Appellate Procedure 6.905(2)(b)(3) prescribes that the
appendix shall contain relevant portions of the pleadings. Here the district court stated
in its order: “For the reasons set out in the State’s resistance, the court finds [Fagan’s
‘Void Judgment’ filing] to correct illegal sentence is without merit.” Although a copy of
the State’s resistance to Fagan’s request for restitution hearing is included in the
appendix, the State’s resistance to Fagan’s void judgment claim is not, even though it is
specifically cited in the State’s brief. Again, this court had to resort to retrieving this
critical document from the district court file.
         This court’s mandate is to justly decide a high volume of appeals. See Iowa Ct.
R. 21.11. Parties’ compliance with appellate rules of procedure promotes judicial
                                           6


       For the first time on appeal, the State argues that “[b]ecause this is a

challenge to Fagan’s underlying conviction, not his sentence, it cannot be raised

at any time and should not be addressed by this [c]ourt.” The State’s argument

comes too late in the game.

       [O]ne party should not ambush another by raising issues on appeal,
       which that party did not raise in the district court. To that end, we
       hold that we will not consider a substantive or procedural issue for
       the first time on appeal, even though such issue might be the only
       ground available to uphold a district court ruling.

DeVoss v. State, 648 N.W.2d 56, 63 (Iowa 2002). We therefore proceed to

address the merits of Fagan’s right to counsel and speedy trial arguments.

       III. Discussion.

       A. Right to Counsel.

       Fagan asserts a violation of his right to counsel as assured by the Sixth

Amendment of the federal constitution and article I, section 10 of the Iowa

Constitution.   We review constitutional claims de novo.           State v. Pals, 805

N.W.2d 767, 771 (Iowa 2011). In making our determination we consider the

totality of the circumstances. See id.

       Central to Fagan’s argument on appeal is that we should interpret the

Iowa Constitution to afford more protection than the federal constitution regarding

the right to counsel in the circumstances presented here. This argument was not




efficiency, thus aiding this court in doing its work to meet that mandate. With full
implementation of EDMS and electronic appellate filing, the appendix may well go the
way of the dinosaur. But until then, parties’ compliance with current rules governing the
preparation of appendices is imperative.
        We all make mistakes. This court has made its share. All we suggest is that the
parties exercise a little more care in producing their appendices.
                                         7


articulated to the district court. We will not consider an argument raised for the

first time on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002).

       Fagan’s right-to-counsel argument to the district court was summarized in

his motion to enlarge as follows:

               [Fagan] does not argue denial of appointed counsel in Illinois
       while awaiting return to Iowa under [the IAD], Iowa Code section
       821 . . . . His argument is a complete denial of any counsel,
       whatsoever, during the period in which Illinois correctional
       authorities brought IAD paperwork to him (and convinced him to
       sign this paperwork) caused the signing of said paperwork to be
       void, as it involved waivers of a Constitutional magnitude.
       Essentially, causing the entirety of the IAD within the matter to be
       void and, therefore, making all provisions under it a nullity.

Not being a part of the record before us, we have not a clue what IAD

“paperwork” was presented to Fagan by Illinois correctional authorities.        Our

record does reflect that Fagan signed a hand-written, pro-se demand for speedy

trial under the IAD in which he stated: “Now Comes [Fagan], pro se pursuant to

Agreement on Detainers Section 730 ILCS 513-8.9 hereby request for a final

disposition of all detainers based on untried indictments, informations or

complaints within the state and jurisdiction of said court: . . . [Fagan] demands a

speedy trial.”

       Fagan asserts his right to assistance of counsel was violated when

presented IAD papers outside the presence of counsel and that his pro se waiver

under the IAD “cannot possibly be described as voluntary.” Fagan argues it was

a “critical stage” of the prosecution against him when he was presented with IAD

papers, and he therefore had a right to counsel at that time.         See State v.

Majeres, 722 N.W.2d 179, 182 (Iowa 2006) (holding defendant is entitled to

counsel at every “critical stage” of the prosecution against defendant).
                                        8


      We are hamstrung by a dearth of law on this issue. The statute provides

no requirement of counsel, and Fagan does not cite any controlling case

authority for the proposition that he was entitled to counsel prior to making a

request pursuant to the IAD for a final disposition of charges. Iowa appellate

courts have not addressed the right-to-counsel issue in regard to the IAD. The

State cites to two other jurisdictions that have found there is no constitutional

right to counsel when a detainer is filed against an incarcerated defendant. The

Colorado Court of Appeals held in People v. Evans, 971 P.2d 229, 232 (Colo. Ct.

App. 1998):

             The benefits and protections of the IAD are statutory and not
      of constitutional dimension. We are not aware of any authority for
      the proposition that a defendant has a right to court-appointed
      counsel to assist in perfecting any statutory rights accorded by the
      IAD. We therefore conclude that the filing of a detainer against an
      incarcerated defendant is not a critical stage of the proceedings
      which implicates the defendant’s right to court-appointed counsel at
      public expense.

(Internal citation omitted.) Similarly, the Court of Criminal Appeals of Tennessee

held in State v. Tyson, 603 S.W.2d 748, 752 (Tenn. Crim. App. 1980):

             There is no authority for the Criminal Court of Montgomery
      County, Tennessee to compel . . . authorities [in Kentucky, where
      the defendant was incarcerated,] to provide counsel for the
      [defendant] prior to his decision whether to execute documents
      required by the [Interstate Compact [on Detainers]. In [Hystad v.
      Rhay, 533 P.2d 409, 414-15 (Wash. Ct. App. 1975), the
      Washington Court of Appeals] rejected the claim that the Sixth
      Amendment requires the appointment of counsel to contest
      extradition or transfer under the Detainer Act. . . . There is no
      constitutional right to counsel at this early stage of an Interstate
      Compact on Detainers case. Our legislature has provided no
      statutory authority for appointment of counsel in a sister state.
      There was no right to counsel prior to execution of the request
      form.
                                            9


We are not persuaded by Fagan’s attempt to distinguish these cases from his

own.9

        Finding no authority for the proposition that Fagan was entitled to counsel

prior to requesting a final disposition of charges in Iowa under the IAD, we

decline to adopt Fagan’s argument.          We therefore conclude Fagan’s pro se

invocation of his rights under the IAD was not void.

        B. Speedy Trial.

        By demanding a speedy trial pursuant to the IAD, Fagan waived his

ninety-day right to a speedy trial under Iowa Rule of Criminal Procedure 2.33(2)

and consented to the longer IAD speedy trial deadline. Claiming his invocation of

the IAD was void because he was not afforded assistance of counsel when

presented with IAD forms, Fagan argues the shorter rule 2.33(2) speedy-trial

deadline therefore applied. The State not having met the rule 2.33(2) deadline,

Fagan contends his conviction is void. Having found no merit to Fagan’s right-to-

counsel argument, we necessarily reject Fagan’s speedy-trial argument.

        This court previously decided Fagan was tried well within the IAD 180-day

deadline.10 Fagan, 2002 WL 1842415, at *3. We will not reconsider an issue


        9
          We also note that in extradition cases, close cousins to IAD cases, “[i]t is well
settled that extradition proceedings are not considered criminal proceedings that carry
the sixth amendment guarantee of assistance of counsel.” See Chewning v. Rogerson,
29 F.3d 418, 421 (8th Cir. 1994) (listing cases). Further, “it has been consistently held
that the extradition process is not a critical stage of a criminal proceeding and the
constitutional right to counsel does not attach thereat.” People v. Morton, 104 A.D.2d
569, 570, 479 N.Y.S.2d 275, 278 (2d Dep’t 1984) (listing cases); see also State v.
Falcon, 494 A.2d 1190, 1194 (Conn. 1985) (“[M]ost courts in other jurisdictions have
held that even proceedings contesting extradition are not a ‘critical stage’ in the
prosecution requiring the presence of counsel.”) (same).
        10
           For the first time on appeal, Fagan suggests the applicable IAD deadline
appears to be the 120-day speedy trial deadline set forth in Iowa Code section
821.1(4)(c), not the 180-day deadline stated in section 821.1(3)(a), and he asserts the
                                           10

that has already been decided. See State v. Ragland, 812 N.W.2d 654, 658

(Iowa 2012). We decline to revisit Fagan’s speedy-trial argument under the IAD.

Although “the law of the case doctrine is not without exceptions,” we find none of

the exceptions are applicable here. Id.

       IV. Conclusion.

       For the above-stated reasons, we affirm the district court’s denial of

Fagan’s request for relief.

       AFFIRMED.




120-day deadline was violated. We will not consider an argument raised for the first time
on appeal. See Meier, 641 N.W.2d at 537.
