Iowa criminal lawyer: defenders call sentence 'illegal' instead of 'defective,' get appeal heard

Words matter to judges and Iowa criminal lawyers alike. Prior decisions, sometimes called precedents, also matter. A lot.

A Supreme Court appellate defender team deftly overcame a procedural hurdle called “error preservation” when they used a precedent called Luckett that allowed them to challenge an 'illegal' mandatory minimum five year prison sentence and overcome rules that require the defendant's attorney to object to lower court mistakes. Illegal sentences do not require such objections.

The Iowa Supreme Court allowed the case to proceed on that basis instead of summarily dismissing it. But in the end, the Court’s opinion, written by Justice David May, found the sentence was not truly illegal. But even getting the appeal heard was a win and created a precedent that helps overcome bars to justice for criminal defendants. Defense lawyers can at least attempt to use this decision to overcome the oft repeated criticism that trial lawyers made unforced errors that waive defendants' future appeal points.

Lawyers call appellate decisions ‘precedents’ and, if favorable to Defendants, will draw upon them to argue that all lower courts should treat our clients similarly favorably. In cases that are unfavorable, we must know about these cases so we can make counter arguments to the prosecutors who will, in the alternative, argue that the precedents are good for their respective positions. All precedents begin at the lower, trial court level. Criminal cases begin with a prosecution for a crime.

In State v. Chawech, defense lawyers argued to the Iowa Supreme Court that the lower court illegally sentenced their client to a mandatory minimum five year prison sentence without notifying him they would do so in the original charging document.

The Iowa Supreme Court opinion laid out the facts and procedure of the lower court case: prosecutors alleged the defendant pointed a handgun at a male bar patron who turned to flee. The Chawech defendant allegedly fired the pistol, grazed a male bar patron, but killed a nearby female bar patron. The State charged the Chawech defendant with first degree murder as to the woman who died, attempted murder as to the man grazed by the bullet, willful injury causing serious injury as to the man grazed by the bullet, and intimidation with a dangerous weapon as to “an assembly of people.”

Because Iowa Code § 902.7 requires the imposition of a mandatory minimum five-year prison sentence if the defendant was “in immediate possession and control of a dangerous weapon,” “displayed a dangerous weapon in a threatening manner,” or “was

armed with a dangerous weapon,” the trial court asked the jurors whether the defendant possessed, was armed with, or used a dangerous weapon and cited to Iowa Code § 902.7 in its instructions-- to which the defendant's lawyer agreed.

According to the Iowa Supreme Court, it was apparent that these jury instructions—the long list of papers the jury must read and follow to reach a decision— sought the jury’s answer to the question as to whether the Chawech defendant possessed, displayed, or was armed with a dangerous weapon. These instructions directly cited to Iowa Code § 907.2.

The Chawech defendant appealed on the basis the criminal lawsuit never alleged the code citation nor notified the defendant of its intent to seek the minimum specifically.

On appeal, the State of Iowa argued the jury instructions (to which the Chawech defendant’s own lawyer agreed) necessarily implied that the mandatory minimum five-year prison sentence contained in Iowa Code § 907.2 would apply. Because the Chawech defendant did not object to those instructions, the State argued that he waived the right to challenge them later—called a failure to “preserve error.”

To its credit, the defendant’s appellate legal team argued the Court may reverse an illegal sentence at any time even if the defendant’s lawyer goes along with it. Writing for the Court, Justice David May noted that it would, indeed, treat the Chawech’s appeal as an objection to a purportedly illegal sentence. Under Iowa error preservation rules, an illegal sentence can be challenged at any time.

In the legal game of “rock, paper, scissors,” if correctly argued, “illegal sentence” is a scissors that cuts the proverbial “paper” rule that a defendant must affirmatively and timely object to an “error” in the record of their trial and conviction.

“Because an illegal sentence is void, it may be corrected at any time, even ‘many years after the fact’ . . . regardless of whether or not it was timely appealed,” wrote Justice May.

Crucial to this argument is the acknowledgement that the Chawech defendant likely “invited” the error by agreeing to the language the Court used to interrogate the jury on the use of a dangerous weapon—presumably irrelevant unless all understood the trial court was using it to inform a later sentencing decision.

“Because an illegal sentence is void, it is subject to attack even if the defendant invited it or even specifically requested it,” the Court added.

Because the criminal lawsuit against Chawech did not include a citation to Iowa Code § 907.2 nor a specific notice that the State would be seeking the mandatory minimum five year prison sentence for possession, display, or use of a dangerous weapon during the commission of a forcible felony, the Chawech defendant argued it was illegal to later impose the mandatory minimum at sentencing after the jury found him guilty pursuant to findings he had done so. Effectively, he was denied notice of the sentencing enhancement.

The Court disagreed. While it heard the Chawech defendant’s claims that he was sentenced illegally—and didn’t immediately smack down his arguments on so-called “error preservation” grounds—it nevertheless ruled against him, finding that the State need only notify him of the “predicate facts” that matched the code section. The subtext is that it was up to him and his lawyer to discern the mandatory minimum would, indeed, apply.

“The State was not required to cite a particular statute in the [indictment]. Rather . . . it is enough for the State to include the predicate facts that trigger the mandatory minimum sentence.”

The Court supported its argument by citing to the rule on the mandatory minimum: “[t]he allegation of such use, if any, shall be contained in the indictment . . . .”

Therefore, the mandatory minimum five-year prison sentence was not an “illegal sentence” merely because the prosecutor didn’t use specifically technical language, e.g., a citation to Iowa Code § 907.2 and a specific notice that it would seek to impose the mandatory minimum, to notify the defendant of same. It was enough to allege the mere fact that he had possessed, displayed, or used a dangerous weapon.

The bottom line?

“Our error preservation rules do not bar Chawech’s argument that his mandatory minimum sentence was illegal. Even so, Chawech has not shown that this sentence was actually illegal. So we do not disturb this sentence.”

In this final round of legal rock-paper-scissors, rock bashes scissors.

David A. Cmelik Law PLC took no part in any stage of the Chawech district court proceedings nor appeal.

We are an Iowa criminal law firm. We only represent defendants charged with crimes. An entirely separate set of rule, statutes, and precedents apply to the criminal law that do not apply to other areas of the law.

For this reason, if you’re searching for “best Cedar Rapids lawyers” or the “best lawyer in Cedar Rapids,” we encourage you to narrow your search to a law firm that practices exclusively in the area of criminal law. As a Cedar Rapids criminal defense lawyer, is our solemn promise to zealously advocate for your Iowa criminal defense.