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 firs t
- 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. Potterf ield 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 Cri minal 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 Spe edy 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, 2 009 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 dismissal s

. 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 n otice of place of imprisonment and request “for a final disposition.”

4 Iowa R ule of Crim inal P rocedure 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. S ee S tate 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. S ee S tate v. Fagan , No. 2

- 575, 2002 WL 1842415 , at * 1 (Iowa Ct. App. Aug. 14, 2002). This
court affirmed his conviction, concludin g, 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 ro bbery. At that time, the D epartment 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 p rescribed 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 alr eady 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

. ” H e urged that the judgment against him was void because his S ixth A mendment right to counsel had been violated when he was not appointed counsel prior to si gning 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 b e vacated at any time i f it is void.” He also suggested a void judgment i s 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 r equest for a r estitution h earing 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 f iled a motion to enlarge , arguing the district court had misunderstood his argument. The district court denied the motion explaining that “[t]he fact the c ourt did not grant [his] requested relief does not mean the c ourt did not understand the issues.”
F agan now appeals. 8

6 Pursuant to Iowa R ule of Crim inal P roced ure 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 I mplicit 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. S ee S lycord v. Garrett , No. 13

- 1192, 2014 WL 17 14955 , a t * 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

. T he 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 Mo ines. 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 R ule of App ellate P rocedure 6.905(2)(b)(3) prescribes that the appendix shall contain relevant portions of the pleadings. Here the district court stated in its o rder: “ For the reasons set out in the State’s r esistance , the c ourt 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 speci fically 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. 21.1 1 . Parties’ compliance with appellate rules of procedure promotes judicial6

For the first time o n appeal , t he 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. ” T he 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 app eal, 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)

. W e therefore proceed to address the merits of Fagan’s right to counsel and speedy trial arguments.
III

. Di scussion

. 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 consti tution 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 m istakes . T his 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 20 02). 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 inv olved 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 “paperw ork” was presented to Fagan by Illinois correctional authorities. Our
record does reflect that Fagan sign ed a hand

- written , pro - se demand for speedy trial under the IAD in which he state d: “ Now Comes [ Fagan ] , pro se pursuant to Agreement on Detainers Sect ion 730 ILCS 513

- 8.9 h ereby 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. ”
F agan asserts his right to assist ance 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 d efendant is entitled to counsel at every “critical stage” of the prosecution against defendant).8

We are hamst rung 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 dis position of charges. Iowa appellate
courts ha ve not addressed th e 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 inca rcerated 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 prop osition 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 proceedi ngs which implicates the defendant’s right to court

- appointed counsel at public expense. ( I nternal 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 C ourt of Montgom ery 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. R h ay , 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 rig ht 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. C laim ing 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 applie d

. 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 Fa gan’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 W e also n ot e 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 (8 th 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 56 9, 570 , 479 N.Y.S.2d 275, 278 (2 d Dep ’ t 1984) (listing cases) ; s ee 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 deadlin e stated in section 821.1(3)(a), and he asserts the10

that has already been decided. S ee S tate v. Ragland , 812 N.W.2d 654, 658 (Iowa 2012). W e decline to revisit Fagan’s speedy

- trial argument under the IAD. Although “the law of the case doctrine is not without exceptions,” we find n one 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.