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State of Iowa v. Myron Tomar Powell

February 13, 2013

STATE OF IOWA, PLAINTIFF-APPELLEE,
v.
MYRON TOMAR POWELL, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Scott County, Mark D. Cleve (Guilty Plea), Nancy S. Tabor (Motion for Adjudication of Law), Gary D. McKenrick (Motion in Arrest of Judgment, Motion to Dismiss), and Marlita A. Greve (Trial on Habitual Offender Status and Renewed Challenges to Guilty Plea, Sentencing), Judges.

The opinion of the court was delivered by: Bower, J.

Myron Powell appeals from the judgment and sentence entered following his guilty plea to escape as a habitual offender. AFFIRMED.

Considered by Doyle, P.J., and Mullins and Bower, JJ. Tabor, J., takes no part.

Myron Powell appeals from the judgment and sentence entered following his guilty plea to escape from custody, in violation of Iowa Code section 719.4(1) (2009), enhanced as a habitual offender under sections 902.8 and 902.9(3). Powell contends the district court erred in denying his motion in arrest of judgment and renewed challenges to his guilty plea. Upon our review, we find the record contradicts Powell's claim of confusion about the nature of the offense charged and an ample factual basis supports his plea. Accordingly, we affirm.

I. Background Facts and Proceedings.

In August 2009, Myron Powell was residing at the Davenport Residential Correctional Facility as a condition of parole on a 2003 felony conviction.*fn1 At 7:15 p.m. on August 27, 2009, Powell clocked off work from a Sonic restaurant. At approximately 9:00 p.m., officers from the facility observed Powell driving a motor vehicle. At 10:00 p.m., Powell called the facility and said he was near a Shell gas station. When questioned about the location of the station, Powell became angry. Powell was told to return to the facility, which he did. There, Powell argued with an officer and refused to fully cooperate with two breath tests, which registered the presence of alcohol. Powell became belligerent and refused to go to his room as ordered. Powell then walked out of the facility and did not return. He was arrested more than one week later in Des Moines, driving a stolen vehicle while under the influence of alcohol.

The State charged Powell with escape from custody, in violation of Iowa Code section 719.4(1), a class "D" felony, enhanced as a habitual offender under sections 902.8 and 902.9(3). The escape charge set forth in the trial information accused Powell of committing:

COUNT 1:

ESCAPE OR ABSENCE FROM CUSTODY (CHARGED W/ FEL)

The said Myron T. Powell on or about the 27th day of August 2009, in the County of Scott, and State of Iowa: did, after being committed to an institution under the control of the Iowa Department of Corrections or a community based correctional facility due to a felony conviction, knowingly and voluntarily absent himself from a place where he is required to be, in violation of section 719.4(1) of the Code of Iowa. (Class D Felony)

Section 719.4 defines the crimes of "escape or absence from custody." Although the trial information set forth the proper code subsection for felony escape, the language tracked a combination of the felony and misdemeanor escape statutory provisions. Specifically, subsection one defines felonyescape and states it applies to any person who has been convicted of a felony "who intentionally escapes, or attempts to escape, from a detention facility, community-based correctional facility, or institution to which the person has been committed by reason of the conviction." Iowa Code § 719.4(1); see also State v. Wagner, 596 N.W.2d 83, 86 (Iowa 1999). Subsection three defines misdemeanor escape and states it applies to any person "who has been committed to any institution under the control of the Iowa Department of Corrections, to a community-based correctional facility, or to a jail or correctional institution, who knowingly and voluntarily is absent from a place where the person is required to be." Iowa Code § 719.4(3).

In October 2011, Powell filed a motion for adjudication of law points, challenging his status as a habitual offender. The motion also stated that "the alleged actions of the defendant, if true, would result in a charge of escape constituting a serious misdemeanor."

In November 2011, Powell appeared before the court and pleaded guilty to escape in violation of section 719.4(1), a class "D" felony charge. At the outset of the plea proceeding, defense counsel acknowledged Powell was charged with "the crime of escape, a Class D felony charge, and the State has also made an allegation asking the Court to consider habitual sentencing." Powell expressed his dismay that he was not being charged with misdemeanor escape and that he was being charged as a habitual offender. The court explained to Powell that the crime charged "involves prosecutorial discretion" and stated it would allow Powell to confer with defense counsel if needed. Defense counsel further explained Powell's dismay with the State's refusal to drop the habitual offender enhancement, and requested to bifurcate the proceedings for a trial on the habitual offender status; the State agreed. However, Powell stated he wanted to go forward with the guilty plea for the felony escape charge.

The district court explained to Powell that he was being charged with escape as a class "D" felony, and recited section 719.4(1). The court then explained to Powell that, as an element to that charge, the State was required to prove Powell "intentionally escaped or attempted to escape" from the work release facility. Powell stated August 27, 2009, was the day "I escaped from the work release center." Defense counsel questioned Powell whether he voluntarily made himself absent from the work release facility, to which he answered in the affirmative. The court asked Powell whether he had read the minutes of ...


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