State of Iowa v. Emmanuel Terrill Pledge

IN THE COURT OF APPEALS OF IOWA

No. 21-1748
Filed September 21, 2022

STATE OF IOWA,
Plaintiff-Appellee,

vs.

EMMANUEL TERRILL PLEDGE,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Nicholas L. Scott,

District Associate Judge.

Emmanuel Pledge appeals his sentence in a criminal conviction that was to

run consecutively to the not-yet-imposed sentence of a different conviction.

CONVICTIONS AFFIRMED, SENTENCES VACATED, AND REMANDED FOR

RESENTENCING.

Mark C. Meyer, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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VAITHESWARAN, Presiding Judge.

We must decide whether the imposition of consecutive sentences under the

unique circumstances of this case was illegal.

I. Background Proceedings

Emmanuel Pledge pled guilty to domestic abuse (enhanced) in case

number FECR140949. The agreement stated the sentence would run concurrently

with the sentence in another case. The agreement said nothing about a third case,

numbered, AGCR141183, or about consecutive sentencing with the sentence in

AGCR141183.

On the same day, Pledge pled guilty to operating a motor vehicle without

the owner’s consent in case number AGCR141183. That plea agreement stated

the sentence would be “consecutive to FECR140949.”

Sentence in AGCR141183 was imposed the same day. The sentence ran

consecutively to the yet-to-be-imposed sentence in FECR140949, which was not

entered until eleven days later.

Pledge filed a pro se notice of appeal. His trial attorney moved to withdraw,

citing a breakdown in the attorney-client relationship. The district court granted the

motion.

Meanwhile, the supreme court remanded the case for appointment of

appellate counsel. The district court named an attorney to represent Pledge on

appeal. On its own motion, the supreme court then questioned “whether it has

jurisdiction over this appeal.” The court directed the parties to address the issue.

The case was transferred to the court of appeals for disposition.
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II. Jurisdiction

Iowa Code section 814.6A(1) (2021) states, “A defendant who is currently

represented by counsel shall not file any pro se document, including a brief, reply

brief, or motion, in any Iowa court.” Pledge was represented by counsel when he

filed his pro se notice of appeal.

Pledge points to recent precedent authorizing delayed appeals under

similar circumstances. See State v. Newman, 970 N.W.2d 866, 868–69 (Iowa

2022); State v. Jackson-Douglass, 970 N.W.2d 252, 254–55 (Iowa 2022), reh’g

denied (Mar. 10, 2022); State v. Davis, 969 N.W.2d 783, 785–88 (Iowa 2022). The

State counters that Pledge “did not really show an intent to appeal, and

consequently a delayed appeal should not be granted in this case.”

The supreme court has permitted a pro se appeal to go forward where a

defendant “expressed a good faith intent to appeal before the appeal deadline but

failed to timely perfect the appeal due to state action or circumstances beyond his

control.” Davis, 969 N.W.2d at 787. Pledge timely filed what he styled a “Notice

of Appeal.” Although the notice did not make reference to the sentences that are

the subject of this appeal, his trial attorney had the ability to rectify the omission by

filing a supplemental notice of appeal. Indeed, the pro se notice was received by

counsel and cited in his motion to withdraw. No supplemental notice was filed

before the district court granted the withdrawal motion. See Jackson-Douglass,

970 N.W.2d at 255 (“[P]lea counsel’s failure to file a notice of appeal after the

defendant unequivocally expressed an intent to do so is a circumstance outside

the defendant's control and serves as grounds for allowing delayed appeal.”). We

conclude the appellate courts have jurisdiction over the appeal.
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III. Imposition of Consecutive Sentences

Pledge argues, “Iowa Code section 901.8 does not allow [a] judge to impose

a sentence to run consecutive with a sentence that (1) has not been earlier

imposed nor (2) is contemporaneously imposed.” The State concedes “there was

a procedural error in the imposition of the sentences” but raises several procedural

hurdles to consideration of the merits.

First, the State argues, “despite the error,” the appeal should be dismissed

because the appeal implicates Pledge’s guilty plea and “an agreed to sentence,”

and he failed to establish good cause for an appeal from a guilty plea, as required

by Iowa Code section 814.6(1)(a)(3). The State rests its argument on State v.

Damme, 944 N.W.2d 98, 105 (Iowa 2020). There, the supreme court held that

“good cause exists to appeal from a conviction following a guilty plea when the

defendant challenges his or her sentence rather than the guilty plea.” Damme,

944 N.W.2d at 105. The State suggests that the holding is limited to circumstances

where the defendant “received a discretionary sentence that was neither

mandatory nor agreed to as part of her plea bargain.” Id. (emphasis added).

“Here,” the State argues, “Pledge agreed to the imposition of his current sentences

as part of his plea agreement,” foreclosing reliance on the holding of Damme. See

State v. Riley, No. 19-1317, 2021 WL 1662419 at *1–2 (Iowa Ct. App. Apr. 28,

2021) (noting the defendant “agreed to the imposition of consecutive sentences as

part of his plea agreement,” precluding a finding of good cause to appeal). While

the State’s argument has some appeal, Damme contains the following additional

language: “A sentencing error invariably arises after the court has accepted the

guilty plea. This timing provides a legally sufficient reason to appeal
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notwithstanding the guilty plea.” Damme, 944 N.W.2d at 105 (emphasis added).

And, after Damme, the court expressed a reluctance “to parse or bifurcate the

specific sentencing errors alleged when determining good cause.” State v.

Wilbourn, 974 N.W.2d 58, 66 (Iowa 2022). Pledge’s challenge falls within the

interstices of Damme and Wilbourn. Pledge is not challenging the plea agreement

providing for a consecutive sentence. He is challenging the timing of the imposition

of a consecutive sentence. We conclude the timing issue constitutes a sufficient

basis for appealing the sentence.

The State next contends, “even if this Court were to find that [Pledge] can

meet the good cause requirement . . . Iowa Rule of Criminal Procedure

2.25(a) . . . does ‘not allow challenges to sentences that, because of procedural

errors, are illegally imposed.’” This is not such a case. Cf. State v. Heard, 934

N.W.2d 433, 446 (Iowa 2019) (stating the defendant’s challenge to procedural jury

instruction requirements was “not an attack on an illegal sentence”); Tindell v.

State, 629 N.W.2d 357, 359–60 (Iowa 2001) (concluding the court’s “failure to

reaffirm the guilty plea” was not a claim of illegal sentence). Pledge contends the

imposition of a consecutive sentence with a yet-to-be-imposed sentence was

illegal. His argument may be raised on appeal.

The State finally argues “Pledge implicitly waived the very error he alleges”

by failing to “complain that the sentencing of the FECR140949 conviction was

being done on a different date.” We are not persuaded. Pledge agreed to have

the sentences in the two cases run consecutively. The sentence in AGCR141183

was imposed; the sentence in FECR140949 was not. And when the sentence in

FECR140949 was ultimately imposed, the order made no mention of running it
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consecutively to the sentence in AGCR141183. Pledge did not have to complain

about the court’s scheduling to pursue his challenge to the imposition of

consecutive sentences. We proceed to the merits.

Pledge asserts “[t]here is no authority in Section 901.8 for a judge to order

[his] first sentence to be served consecutive to the second or further sentence. He

continues, “[u]nder Section 901.8, for consecutive sentences to be validly imposed,

the second sentence imposed, the FECR case, would have to provide for

consecutive sentences, and it did not.” Finally, he “asserts that if he is

resentenced, the double jeopardy protections prevent him from receiving a longer

sentence than the two-year suspended sentence (not consecutive) that could have

been legally imposed in the AGCR case and no longer than the two-year

suspended sentence that was imposed in the FECR case.” The State reprises its

contention that “Pledge’s complaint lies with the procedure by which the court

imposed it” and, “[b]ecause his sentence was not illegal, his claim . . . must fail.”

Having addressed the State’s argument, we proceed to Pledge’s contentions.

Iowa Code section 901.8 states in pertinent part, “If a person is sentenced

for two or more separate offenses, the sentencing judge may order the second or

further sentence to begin at the expiration of the first or succeeding sentence.”

Here, there was no second or further sentence at the time consecutive sentencing

was ordered. See State v. Liendo, No. 10-0920, 2011 WL 446550, at *3 (Iowa Ct.

App. Feb. 9, 2011) (“We agree with [the defendant’s] contention that the court

cannot order a sentence to run concurrently with a sentence that has neither been

earlier imposed nor is contemporaneously imposed.”). And, when the second

sentence was imposed, the order made no mention of running it consecutively to
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the sentence in AGCR141183. Finally, the plea in the AGCR case did not bind the

court to accept consecutive sentencing.

We conclude a remand for resentencing is required. We are left with

Pledge’s contention that double-jeopardy principles limit the court to imposing

concurrent sentences. “The Double Jeopardy Clause of the Fifth Amendment to

the United States Constitution provides that no person shall “be subject for the

same offence to be twice put in jeopardy of life or limb.” State v. Naujoks, 637

N.W.2d 101, 113 (Iowa 2001). “This clause protects against successive

prosecutions after acquittal or conviction.” Id. Pledge’s case does not implicate

successive prosecutions. Cf. id. (concluding a nunc pro tunc order changing

findings of guilt for third-degree burglary to findings of guilt for second-degree

burglary violated the Double Jeopardy Clause). The case requires the exercise of

discretion to determine whether the sentence in FECR140949 should run

consecutively to the sentence in AGCR141183. We remand for resentencing in

light of that question.

CONVICTIONS AFFIRMED, SENTENCES VACATED, AND REMANDED

FOR RESENTENCING.