                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0885
                               Filed June 15, 2016


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ALAN LEE LUCAS,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Linn County, Paul D. Miller (trial)

and Christopher L. Bruns (sentence), Judges.



       Alan Lucas appeals from judgment and sentence entered upon his

conviction for failure to appear. AFFIRMED.




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

Appellate Defender, Des Moines, for appellant.

       Thomas J. Miller, Attorney General, and Jean C. Pettinger and Tyler J.

Buller, Assistant Attorneys General, and Joseph Nehring, Student Legal Intern,

for appellee.



       Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
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DANILSON, Chief Judge.

          Alan Lucas appeals from judgment and sentence entered upon his

conviction for failure to appear. Because there is substantial evidence to support

the conviction and the court did not abuse its discretion in imposing sentence, we

affirm.

I. Background Facts and Proceedings.

          Alan Lucas was charged with ongoing criminal conduct. The first day of

trial was Monday, October 21, 2013, and Lucas was in attendance. On Tuesday,

October 22, Lucas was not present. On Wednesday, October 23, 2013, a jury

found Lucas guilty of ongoing criminal conduct.

          As a consequence of Lucas’s absence from the October trial, he was

charged with failure to appear—the trial information alleged that on or about the

22nd day of October, 2013, defendant unlawfully and willfully failed to appear for

a court proceeding in Linn County District Court in connection with a charge

which constituted a felony offense, in violation of Iowa Code section 811.2(8)

(2013). Minutes of testimony indicate there would be testimony that:

          [O]n or about October 21, 2013, the defendant herein, Alan Lee
          Lucas, was being tried on felony charges of Ongoing Criminal
          Conduct and Theft in the First Degree in State v. Alan Lee Lucas,
          Linn County cause number FECR94149. The trial on these felony
          offenses proceeded as scheduled on October 21st but, on the
          following day, the defendant failed to appear and the trial
          proceeded in his absence. The defendant was found guilty of both
          offenses by a Linn County jury on October 23, 2013. The
          defendant communicated by e-mail with his attorney, Mike
          Lahammer, on the second day of trial claiming he had to go home
          to Wisconsin because his son was allegedly involved in a car
          accident and was hospitalized in the state of Wisconsin. However,
          when the matter was further investigated it was learned that the
          defendant had purchased a one-way ticket for an air flight to India
          which was scheduled to leave on Thursday, October 24, 2014. The
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      defendant was apprehended and arrested at a residence in
      Kenosha, Wisconsin, and was eventually extradited back to the
      state of Iowa after the defendant failed in his attempt to fight
      extradition. They will all testify to further facts and details regarding
      this case.

      Additional minutes of testimony provide:

               [An officer of the] Linn County Sheriff’s Office, Cedar Rapids,
      Iowa, will testify that he is a sworn deputy sheriff assigned to the
      transportation division of the Linn County Sheriff’s Office. He will
      testify regarding his major responsibilities and duties in the
      transportation division which include, on occasion, traveling to other
      states to provide transportation for prisoners taken into custody on
      warrants of arrest issued in Linn County matters. He will testify that
      on or about March 3, 2014, he was assigned to transport the
      defendant herein, Alan Lee Lucas, from Kenosha, Wisconsin, to
      Linn County after the defendant had been arrested in their
      jurisdiction on a warrant of arrest that had been issued when the
      defendant, Alan Lee Lucas, failed to appear for his second day of
      trial in connecting with criminal charges filed in Linn County cause
      number FECR # 94149. This witness will testify to further facts and
      details concerning this case.

      Lucas stipulated to a trial on the minutes. The district court found Lucas

guilty as charged. Lucas filed a motion in arrest of judgment, asserting he was

challenging his ongoing-criminal-conduct conviction in federal court, which he

“believe[s] . . . will be held to be invalid,” and would warrant a reversal of the

instant charge. The court denied that motion.

      At sentencing, the State recommended that a five-year term of

incarceration be imposed.      The State also recommended that the term be

consecutive to the sentences on previous convictions in “recognition that when

you fail to appear for your trial as ordered, that’s a serious offense that goes to

the very heart of the integrity and authority of the justice system.”         Lucas’s

attorney argued for imposing a term concurrent to the other sentences.             In

allocution, despite the district court’s attempt to have Lucas focus on the
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sentencing issue, Lucas offered a lengthy explanation of his going to Wisconsin,

including that his son had injured his wrist and needed to seek medical attention,

and that Lucas needed to pick up “documentation” to be presented to the court

and then was hampered in returning by bad weather. Lucas stated, “I told my

attorneys and I text messaged with the attorney that morning and said—before

trial and said, I’m late. There is a snowstorm between Cedar Rapids. Go back to

the facts of the case. Go back to that and look at the weather report.” In short, “I

wasn’t fleeing. The circumstances could be interpreted that way, but I wasn’t

fleeing.” After some time he also stated:

      I was not caught on the run. I was picked up at my own driveway
      where I had to take care of a need in my neighborhood and then
      was preparing to drive here.
             If my son who was 17 at the time was here, he’d tell you
      that’s exactly what happened and he’d bring the doctor’s report
      from that morning that we had to go to the insta-care for his wrist.
      He would testify to that. I let that go.
             So my saying is take this into consideration.            The
      circumstances could look bad, but if you punish me for that, I’m not
      fleeing. I never intended to flee. I’ve always intended to hit this
      head-on and now I’m actually feeling like I’m being punished for
      saying that I should—I’m defending myself and on top of that, even
      questioning the jurisdiction and qualifications of the underlying
      case.

Lucas asked the court to impose concurrent sentence, if any, and to postpone

sentencing to allow the federal court to rule on his unspecified challenge.

      The district court sentenced Lucas to a five-year term of imprisonment,

which was to be served consecutively to the sentence imposed upon his

conviction of ongoing criminal conduct.
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       Lucas appeals, contending there is insufficient evidence to sustain the

conviction, trial counsel was constitutionally defective, and the court abused its

discretion in imposing consecutive sentences.

II. Scope and Standard of Review.

       We review sufficiency-of-the-evidence claims for correction of errors at

law. State v. Neiderbach, 837 N.W.2d 180, 190 (Iowa 2013).

                    In reviewing challenges to the sufficiency of
             evidence supporting a guilty verdict, courts consider
             all of the record evidence viewed in the light most
             favorable to the State, including all reasonable
             inferences that may be fairly drawn from the
             evidence. We will uphold a verdict if substantial
             record evidence supports it.
       State v. Romer, 832 N.W.2d 169, 174 (Iowa 2013) (citation
       omitted).
             “We review claims of ineffective assistance of counsel de
       novo.” State v. Rodriguez, 804 N.W.2d 844, 848 (Iowa 2011).

State v. Showens, 845 N.W.2d 436, 439-40 (Iowa 2014).

III. Discussion.

       A. Sufficiency. There is no question Lucas was required to be present at

his felony trial. See Iowa R. Crim. P. 2.27(1).1 There also is no question that he

did not attend the second day of his trial, Tuesday, October 22, 2013. The

minutes of testimony state Lucas emailed his attorney that he had to return to

Wisconsin because his son was involved in a car accident and was hospitalized.


1
 Rule 2.27(1) provides:
               In felony cases the defendant shall be present personally or by
       interactive audiovisual closed circuit system at the initial appearance,
       arraignment and plea, unless a written arraignment form as provided in
       rule 2.8(1) is filed, and pretrial proceedings, and shall be personally
       present at every stage of the trial including the impaneling of the jury and
       the return of the verdict, and at the imposition of sentence, except as
       otherwise provided by this rule.
(Emphasis added.)
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The email acknowledges that Lucas understood his absence required

explanation. See State v. Johnson, 770 N.W.2d 814, 824 (Iowa 2009) (“We have

defined ‘willfully’ as a voluntary or intentional violation of a known legal duty.”);

State v. Tippett, 624 N.W.2d 176, 177 (Iowa 2001) (noting that if a defendant

“acted with knowledge that his conduct was unlawful,” then his conduct was

“willful” (citation omitted)). The minutes of testimony state, however, that it was

learned Lucas had purchased a one-way ticket for a flight to India that was

scheduled to leave on Thursday, October 24.2 These circumstances support the

inference Lucas’s failure to appear at his criminal trial was willful.

       We decline Lucas’s suggestion that the failure of the minutes of testimony

to identify his bail conditions support his claim that there was insufficient

evidence to support his conviction. No matter what his bail conditions, Lucas

was required to appear for his entire trial. See Iowa Code § 811.2 (stating the

order for release from custody is “pending judgment or entry of a deferred

judgment”). The district court could infer Lucas was released under some sort of

bail conditions by Lucas’s ability to travel to Wisconsin absent an escape from

custody.

       There is substantial evidence to support the conviction.

       B. Effective counsel. Lucas contends trial counsel was ineffective in (1)

failing to assert Lucas’s right to attorney-client privilege with respect to the

information shared by his trial counsel in the ongoing-criminal-conduct case

(about the email as to his absence); and (2) failing to object to the minutes of

2
 The minutes of testimony state the ticket was for October 24, 2014, rather than 2013.
But both parties acknowledge this is an apparent typographical error because October
24, 2014, would not be a Thursday.
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testimony about the one-way ticket as being from a person without first-hand

knowledge.     We preserve these claims for possible postconviction relief

proceedings as the record is inadequate to address them. See State v. Biddle,

652 N.W.2d 191, 203 (Iowa 2002) (“Generally, we do not resolve claims of

ineffective assistance of counsel on direct appeal. Rather, we preserve such

claims for postconviction relief proceedings, where an adequate record of the

claim can be developed and the attorney charged with providing ineffective

assistance may have an opportunity to respond to defendant’s claims.” (citations

omitted)).

       C. Sentence was not an abuse of discretion.        A sentence imposed in

accordance with applicable statutes will be overturned only for an abuse of

discretion or the consideration of inappropriate matters. State v. Formaro, 638

N.W.2d 720, 724 (Iowa 2002). An abuse of discretion will be found only when a

court acts on grounds clearly untenable or to an extent clearly unreasonable. Id.

“The court is not permitted to arbitrarily establish a fixed policy to govern every

case.” State v. Lathrop, 781 N.W.2d 288, 299 (Iowa 2010) (citations omitted);

accord State v. McKeever, 276 N.W.2d 385, 387 (Iowa 1979) (stating “each

[sentencing] decision must be made on an individual basis”).

       Lucas contends the court’s sentence “reveals a fixed policy regarding the

imposition of a consecutive sentence for failure to appear offenses.” The record

does not support that claim.     The district court gave adequate and rational

reasons for the imposition of consecutive sentences in this case:

             I deem the opportunity to rehabilitate this Defendant to not
       be particularly significant. He has been very recalcitrant. I
       appreciate your constitutional position, sir. You don’t have to not
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      show up for your criminal trial to preserve your constitutional
      issues. You can challenge the results of the trial, which would be
      the normal way of doing it.
              I feel that the community needs to be protected from further
      offenses by the Defendant and I am moved in large part by the
      nature of this offense. We urge people to use the system and not
      misuse the system. To use the system here, you certainly could
      challenge, as you are, through appealing your underlying
      conviction.
              You can file ancillary action in the federal court and
      challenge whether there is jurisdiction and ask the trial court to
      intervene when you think there isn’t. But if you do all that, you still
      need to appear for your criminal trial.
              ....
              Again, I recognize you have a right to appeal your other case
      and you have a right to challenge that in federal court if you so
      choose. You’re exercising those rights and I certainly don’t
      begrudge you doing that. You have a right to assert whatever
      constitutional or other legal arguments you wish.
              And maybe those will be found to be founded arguments, but
      even if you unravel the underlying case, that doesn’t change the
      fact that you were supposed to appear for your trial. One case
      doesn’t topple just because the other case topples, because you’re
      still required to appear for the trial even if you argue that the trial
      shouldn’t be taking place or that you’re innocent.
              . . . With regard to the consecutive sentences, my primary
      reason for ordering consecutive sentences in this case is really
      twofold. I don’t think the Defendant really shows any remorse.
      This is a totally separate criminal occurrence from the original
      offenses. It has to do with the trial of those offenses, but nothing to
      do with the underlying facts of those offenses.
              And in addition, as Mr. Vander Sanden argued, I think it is
      important that we set the appropriate precedent here. There is a
      reason we have a statute that makes it a felony to not appear for
      your felony trial. It’s because you’re supposed to appear for a
      felony trial.

The court’s reasoning does not reveal a fixed policy.

      Because there is substantial evidence to support the conviction and the

court did not abuse its discretion in imposing sentence, we affirm.

      AFFIRMED.
