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 speedytrial 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-tocounsel 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.