State of Iowa v. Travis James Jordan

S
                  IN THE SUPREME COURT OF IOWA
                                    No. 19–1442

                 Submitted April 14, 2021—Filed May 14, 2021


STATE OF IOWA,

      Appellee,

vs.

TRAVIS JAMES JORDAN,

      Appellant.



      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Webster County, Kurt L.

Wilke, Judge.



      The   defendant         challenges     the   sentence   imposed    following

convictions on pleas of guilty, alleging the prosecutor breached the plea

agreement    by     failing    to   remain     silent   regarding   a   sentencing

recommendation. AFFIRMED.


      Christensen, C.J., delivered the opinion of the court, in which all

justices joined.



      Jesse A. Macro Jr. of Macro & Kozlowski, L.L.P., West Des Moines,

for appellant.
                                    2

      Thomas J. Miller, Attorney, Thomas J. Ogden, Assistant Attorney

General, Darren D. Driscoll, County Attorney, and Brad M. McIntyre,

Assistant County Attorney, for appellee.
                                     3

CHRISTENSEN, Chief Justice.

      The plea agreement here provided the defendant would plead guilty

to his pending charge of third-degree burglary, be released with

supervision until sentencing, and be free to argue for probation at

sentencing. Additionally, as part of the defendant’s supervised release

agreement that he signed after entering his plea, he agreed to attend all

court hearings. In exchange, the State agreed to dismiss the other pending

charge against the defendant and remain silent at sentencing. However,

the defendant absconded after the plea hearing and failed to appear for

the sentencing hearing. Following his arrest nearly seven months later,

he appeared for sentencing, where the State advocated for a prison

sentence, which the district court then imposed.

      The defendant appealed, arguing the prosecutor breached the

parties’ plea agreement by failing to remain silent at sentencing and his

trial counsel was ineffective in failing to object to this breach. The court

of appeals dismissed the appeal, concluding it lacked subject matter

jurisdiction under Iowa Code section 814.7 (2020), which requires

ineffective-assistance claims to be brought in postconviction proceedings

rather than by direct appeal. After the court of appeals issued its decision,
we issued our opinion in State v. Boldon, 

954 N.W.2d 62

(Iowa 2021), in

which we held Iowa Code section 814.7 did not preclude our review of an

alleged prosecutorial breach of a plea agreement.

Id. at 71.

On further

review, we hold we have subject matter jurisdiction and authority to

consider the defendant’s appeal and affirm the defendant’s sentence

because the defendant forfeited any rights to enforce the plea agreement

when he breached it by absconding and failing to appear at the originally-

scheduled sentencing.
                                    4

      I. Background Facts and Proceedings.

      On September 24, 2018, Fort Dodge Police Officer Jacob Naatz was

on patrol in Fort Dodge when he observed Travis Jordan walking down an

alley, seemingly going from garage to garage in the area. Officer Naatz

continued to patrol the alleys and observed Jordan walk out of a garage

with a backpack, leading Officer Naatz to stop Jordan and ask Jordan why

he was in the garage. Jordan claimed he was in the garage because he

thought it was his friend’s and he went in to go to the bathroom. The

record is unclear how Officer Naatz discovered the materials in Jordan’s

backpack, but the record shows Jordan’s backpack contained binoculars,

gloves, wrenches, a knife, and a flashlight along with Jordan’s wallet.

Officer Naatz then went into the garage and located a second flashlight on

the ground where Jordan had been standing when Officer Naatz first made

contact with him. This awoke the homeowner, who came out to talk with

Officer Naatz and informed him that the flashlight was his and had been

inside his vehicle parked in the garage. The homeowner told Officer Naatz

that Jordan had no right to be in the garage.

      Jordan was subsequently arrested and charged with burglary in the

third degree, a class “D” felony, in violation of Iowa Code sections 713.1
and 713.6A(1) (2018), and possession of burglary tools, an aggravated

misdemeanor, in violation of Iowa Code section 713.7. Jordan and the

State entered into a plea agreement, which was placed on the record

during the plea hearing on October 22. As Jordan’s counsel explained at

the hearing,

      Mr. Jordan is going to enter a guilty plea to Count I for
      burglary in the third degree. The State is agreeing to dismiss
      Count II. The parties are agreeing to release Mr. Jordan [with
      supervision by the Second Judicial District Department of
      Correctional Services] after the hearing today.
                                      5
            The recommendation of the county attorney -- the
      county attorney’s going to agree to remain silent at
      sentencing, and the defendant is free to argue for probation.
      And that’s essentially the plea agreement.

      The assistant county attorney confirmed “[t]hat is the plea

agreement reached between the parties,” and Jordan also confirmed that

was his understanding of the plea agreement. In accepting Jordan’s plea,

the district court specifically advised Jordan “to contact the Department

of Correctional Services within 48 hours [of the hearing] and sign a

contract of expectations of release agreement.” As part of this agreement

Jordan signed after the plea hearing, he agreed to “appear in Court when
required.”

      The district court set Jordan’s sentencing for November 26, but

Jordan failed to appear and a warrant was issued for his arrest. Jordan

was arrested on June 2, 2019, and his sentencing occurred on August 19.

Jordan did not have the same counsel or district court judge at sentencing

as he did during his plea hearing.        The court began the hearing by

explaining that “Mr. Jordan entered a plea of guilty to burglary in the third

degree.”     Instead of remaining silent, the assistant county attorney

advocated for a five-year term of imprisonment, stating,

      I have no witnesses or evidence, just a recommendation, and
      that recommendation matches that of the PSI that was filed
      in this case. The defendant has a long criminal history that
      includes burglary and theft cases much like the one that is
      before the Court today and also includes violent charges. He
      has been previously incarcerated four times in the State of
      Iowa. And in this case, he was set for sentencing in November
      of 2018, and as the addendum to the presentence
      investigation report states, he failed to appear at that time and
      his whereabouts were unknown from November until June
      3rd of 2019, when he was arrested. So for seven months he
      absconded. He also has other absconsions on his record from
      the past.      Given his criminal history, the unknown
      whereabouts for seven months pending sentencing after his
      plea in this matter, the State believes that for protection of the
      community from future offenses and for rehabilitation of the
      defendant, that imposition of the five-year -- the term not to
                                     6
      exceed five years is appropriate. With that, due to the
      incarceration, the State would ask that the fine and surcharge
      be suspended. There is a $125 Law Enforcement Initiative
      surcharge that would be imposed. I believe that’s the
      recommendation of the State.

Jordan’s counsel sought a suspended sentence and probation without

objecting that the State breached the plea agreement by failing to remain

silent. The district court decided to “go along with the recommendation of

the PSI and the recommendation of the State,” ordering Jordan to “be

placed with the Iowa Department of Corrections for an indeterminate term

not to exceed five years.”
      Jordan filed a timely appeal, arguing his counsel was ineffective in

failing to object to the prosecutor’s breach of the plea agreement.     We

transferred the case to the court of appeals, which concluded it must

dismiss the appeal for lack of subject matter jurisdiction under Iowa Code

section 814.7 because Jordan only raised ineffective-assistance claims.

Jordan filed an application for further review, and we granted that

application.

      II. Standard of Review.

      A defendant’s allegation of prosecutorial breach “is a species of

sentencing error.” 

Boldon, 954 N.W.2d at 70

. Thus, we review it for the
correction of errors at law. See State v. Damme, 

944 N.W.2d 98

, 103 (Iowa

2020).   “We will not reverse a sentence unless there is ‘an abuse of

discretion or some defect in the sentencing procedure.’ ”

Id. (quoting State

v.

Formaro, 

638 N.W.2d 720

, 724 (Iowa 2002)).

      III. Jurisdiction.

      The State contends we lack jurisdiction to consider Jordan’s appeal

under Iowa Code section 814.6(1)(a)(3), which establishes there is no right

of appeal from a guilty plea unless the defendant establishes “good cause.”

Iowa Code § 814.6(1)(a)(3). After the parties submitted their briefs in this
                                     7

case, we decided Damme, in which we held the good cause requirement is

satisfied “when the defendant challenges his or her sentence rather than

the guilty plea.”

Id. at 105.

Because Jordan’s challenge is to his sentence

instead of his guilty plea, he has good cause to appeal and section

814.6(1)(a)(3) does not deprive us of subject matter jurisdiction. See

id.

The State also

argues we lack subject matter jurisdiction to address

Jordan’s claim of ineffective assistance of counsel on direct appeal under

Iowa Code section 814.7 (2020), which requires ineffective-assistance

claims to be brought in postconviction proceedings rather than by direct

appeal. See Iowa Code section 814.7. We disagree. Section 814.7 does

not limit jurisdiction; it limits the authority of Iowa’s appellate courts to

resolve ineffective-assistance claims on direct appeal. See 

Boldon, 954

N.W.2d at 69

(characterizing the statute as regulating the court’s

authority); State v. Emery, 

636 N.W.2d 116

, 119 (Iowa 2001) (“[S]ubject

matter jurisdiction should not be confused with authority.” (quoting State

v. Yodprasit, 

564 N.W.2d 383

, 385 (Iowa 1997))).

      Here, we have jurisdiction, and we have the authority to resolve the

sentencing issue on direct appeal. After the parties submitted their briefs

and the court of appeals issued its decision dismissing this appeal for lack
of jurisdiction, we issued our opinion in Boldon. There, we held Iowa Code

section 814.7 did not preclude our review of an alleged prosecutorial

breach of a plea agreement because the alleged breach was a claim of

sentencing error that could be reviewed directly without being cast as an

ineffective-assistance claim. 

Boldon, 954 N.W.2d at 71

. As we explained,

“[a] prosecutor’s breach of the plea agreement at sentencing irreparably

taints the sentencing proceeding and a claim of breach is reviewable on

direct appeal even in the absence of contemporaneous objection.”

Id.
8

Consequently, Iowa Code section 814.7 is inapplicable here and does not

preclude our review of Jordan’s claim of breach.

      IV. Analysis.

      Jordan maintains the prosecutor breached the parties’ plea

agreement when the prosecutor recommended a five-year term of

imprisonment instead of remaining silent as agreed upon on the record as

part of the plea agreement reached nearly ten months earlier. Jordan

seeks specific performance of the plea agreement and does not contend he

should have been able to withdraw his plea due to the alleged breach. The

State argues it was relieved of its obligation to remain silent at sentencing

when Jordan breached the agreement by absconding and failing to appear

at his originally-scheduled sentencing hearing in November 2018.         We

agree with the State.

      The terms of a plea agreement must be mutual for the agreement to

be binding, and “[t]he State has no obligation to make available the

anticipated benefits of a plea agreement when the defendant fails to

perform his or her end of the bargain.” State v. Dudley, 

856 N.W.2d 668

,

675 (Iowa 2014). In construing a plea agreement, we look to the parties’

“justified expectations.” 

Boldon, 954 N.W.2d at 71

; see also United States
v. Rivera, 

954 F.2d 122

, 124 (2d Cir. 1992) (“We look to ‘what the parties

to this plea agreement reasonably understood to be the terms of the

agreement.’ ” (quoting Paradiso v. United States, 

689 F.2d 28

, 31 (2d Cir.

1982) (per curiam))). Implicit in the plea deal was the expectation Jordan

would show up for the sentencing hearing. See United States v. Munoz,

718 F.3d 726

, 729–30 (7th Cir. 2013) (“When Munoz fled the country and

spent nearly five years as a fugitive in Mexico, he breached what we believe

was an implied but obvious term of the plea agreement that he remain in

the country and show up for sentencing.”); 

Rivera, 954 F.2d at 124

(“[T]he
                                         9

reasonable meaning of the plea agreement is that Rivera’s failure to appear

for sentencing . . . would release the government from its obligations to

recommend a sentence reduction.”).

      As part of the parties’ agreement to release Jordan with supervision

following his plea hearing, Jordan agreed in his supervised release

contract of expectations to “appear in Court when required.”               Jordan

clearly did not fulfill his end of the bargain, as he failed to appear at his

November 2018 sentencing date and absconded for seven months with no

information on his whereabouts until he was arrested on June 3, 2019.

Consequently, the State had no obligation to abide by the plea agreement

and therefore did not breach the plea agreement because Jordan forfeited

any rights to enforce the plea agreement by breaching it first. See, e.g.,

United States v. Wells, 

211 F.3d 988

, 995 (6th Cir. 2000) (“a defendant

who breaches a plea agreement forfeits any right to its enforcement”);

Rivera, 954 F.2d at 124

(“[B]ecause [the defendant] failed to live up to his

obligation [under the plea agreement], the government was not required to

recommend a sentence reduction.              Therefore, the government did not

breach the agreement by declining to make such a recommendation.”);

United States v. Calabrese, 

645 F.2d 1379

, 1390 (10th Cir. 1981) (“It is
clear that a defendant’s failure to fulfill the terms of a pretrial agreement

relieves   the   Government   of   its       reciprocal   obligations   under   the

agreement.”); cf. 

Munoz, 718 F.3d at 730

(“No defendant could reasonably

expect that he could abscond for five years and still hold the government

to its promises under the plea agreement.”).

      Although we conclude the State did not breach the plea agreement

in this case, we do so with a cautionary admonition. Nowhere in the record

is there any acknowledgment by the sentencing court that the parties

agreed Jordan had breached the plea agreement, let alone that Jordan’s
                                     10

breach of the agreement automatically relieved the State of its agreement

obligations. Nevertheless, there is no factual dispute that a bench warrant

was issued because Jordan absconded and failed to appear at his first

sentencing in violation of his release contract, and the sentencing court

discussed Jordan’s absconding and failure to appear at his first sentencing

in issuing Jordan’s sentence. Thus, the record in this case is adequate to

determine the issue of breach as a matter of law without an evidentiary

hearing. See United States v. 

Calabrese, 645 F.2d at 1390

(“The question

of a defendant’s breach is not an issue to be finally determined unilaterally

by the government. If the pleadings reveal a factual dispute on the issue

of breach, the district court must hold a hearing to resolve the factual

issues. If the pleadings reveal no disputed factual issues, no hearing is

necessary and the court may determine the issue of breach as a matter of

law.” (citation omitted)); see also United States v. Novosel, No. 03–4190,

2004 WL 1406319

, at *4 (10th Cir. June 24, 2004) (concluding the

sentencing court’s statements about the defendant not being entitled to a

sentencing adjustment based on his failure to appear at sentencing and

absconding were adequate to indicate a judicial determination of breach

and a release of the government from its plea agreement obligations). But
that will not always be the case. Attorneys and sentencing courts should

strive to ensure any issues involving a breach of a plea agreement are

discussed on the record at the sentencing hearing to avoid the potential

need for remand and resentencing following an appeal.

      V. Conclusion.

      For the aforementioned reasons, we affirm Jordan’s sentence.

      AFFIRMED.

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