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) , Judge s

.

Alan Lucas appeals from judgment and sentence entered upon his

co nviction 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 Attorney s General, and Joseph Nehring, Student Legal Intern
, for appellee.

Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.2

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 Octo ber trial, he was
charged with failure to appear

— t he t rial i nformation allege d that on or about the
22nd day of October, 2013, d efendant unlawfully and willfully failed to appear for
a court proceeding in Linn County District Court in connection with a cha rge
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 d efendant 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 hom e to Wisconsin because his son was allegedly involved in a ca r accident and was hospitalized in t he 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. The3

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 figh t extradition. They will all testify to further facts and details regarding this case.
Additional minutes of testimony provide:
[An officer of the] L inn County Sheriff ’ s Office , Cedar Rapids, Iowa, will testify that he is a sworn deputy sheriff assign ed 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 priso ners 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 witn ess will testify to further facts and details concerning this case.
Lucas stipulated to a trial on the minutes. T he district court found Lucas
guilty as charged. Lucas filed a motion in arrest of judgment, asserting he was
challenging his ongoing

- crimi nal

- 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 the4

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 cas e. 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 wh ere 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. S o 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 con current 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

co nviction of ongoing criminal conduct.5

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 consid er 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. Suffici

ency. There is no question Lucas was required to be present at
his felony trial. See Iowa R. Cr im . 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 Luca s 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.)6

The email acknowled ges 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. ”);

S tate 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 w hat 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) f ailing to object to the minutes of

2 The minutes of testimony state the ticket was for October 24, 2014, rather t han 2013. But both parties acknowledge this is an apparent typographical error because October 24, 2014, would not be a Thursday.7

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. B iddle
, 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 statut es 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 exte nt 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) (sta ting “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
a ppreciate yo ur constitutional position, sir. You don ’ t have to not8

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 p rotected 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 as sert 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 doe sn ’ 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 f or 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.