State of Iowa v. Louis Lee Cubbage, Jr.

IN THE COURT OF APPEALS OF IOWA

No. 23-1181
Filed May 8, 2024

STATE OF IOWA,
Plaintiff-Appellee,

vs.

LOUIS LEE CUBBAGE, JR.,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Jackson County, Meghan Corbin,

Judge.

A defendant appeals his sentence for driving while barred. SENTENCE

VACATED AND REMANDED FOR RESENTENCING.

Leah Patton of Patton Legal Services, LLC, Ames, for appellant.

Brenna Bird, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.

Considered by Tabor, P.J., and Badding and Buller, JJ.
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BADDING, Judge.

Louis Cubbage entered a written guilty plea to driving while barred pursuant

to a plea agreement with the State that also addressed an unrelated charge for

willful injury causing serious injury in a different case number. The combined plea

agreement, which was filed in both cases, provided:

1. FECR021892: Plead to lesser included Willful Injury, a
class D felony.
a. Open plea—parties may argue for sentence.
2. AGCR022121: Plead to Driving While Barred
a. Parties may argue sentence but in any event shall
run concurrently to above.

At a sentencing hearing on both charges, the district court sentenced

Cubbage to prison for indeterminate terms of five years for the reduced willful-

injury charge and two years for driving while barred. The court ran the sentences

concurrently to one another and imposed the minimum fines on each.

Cubbage separately appealed his sentences.1 In the companion appeal

decided today, we vacated his sentence on the willful-injury charge and remanded

for resentencing.2 See State v. Cubbage, No. 23-1156, 2024 WL _____ (Iowa Ct.

1 The supreme court denied a motion that Cubbage filed in this case to consolidate

the two appeals because the motion was not filed in the other case and there was
no indication the attorney representing Cubbage in that appeal agreed with it.
2 The dissent asserts that by referencing this other appeal, we have “reach[ed]

outside this record and into another case number” and relied on “outside-the-
record material.” We disagree for three reasons. First, as we stated above, the
parties’ plea agreement and Cubbage’s written guilty plea contained both district
court case numbers and were filed in each case. Those documents are properly
in the record before us. See Iowa R. App. P. 6.801(a). Second, the district court
considered both charges at the same hearing and that transcript is also part of this
record. See Iowa R. App. P. 6.801(b). Third, our appellate courts often rely on
decisions in companion appeals from separate cases. See, e.g., 33 Carpenters
Constr., Inc. v. Cincinnati Ins. Co., 939 N.W.2d 82, 84–85 (Iowa 2020) (noting the
validity of an assignment contract entered into by the same residential contractor
in a separate appeal was void “[f]or the reasons set forth in that opinion”); State v.
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App. May 8, 2024). In this appeal, Cubbage claims the court abused its discretion

“when it failed to state the basis for the driving while barred prison sentence and

declined to suspend the fine.” He asks that we “vacate his sentence and remand

for resentencing in front of a different judge.”

The State asserts that Cubbage only has good cause to appeal the fine that

was imposed because the parties agreed to a concurrent sentence. But in a

recently decided case, our supreme court clarified “that a criminal defendant

appealing a guilty plea may raise additional issues once they get their foot in the

door with a discretionary sentence that establishes ‘good cause.’” State v. Jones,

Schuler, No. 07-0954, 2009 WL 2951543, at *1 (Iowa Sept. 4, 2009) (reversing
defendant’s conviction for the same instructional error raised and decided in co-
defendant’s companion case); State v. Nelson, No. 06-1714, 2008 WL 2097586,
at *1 (Iowa May 2, 2008) (reversing a district court ruling denying a motion to
suppress a search warrant based on the reasoning in a co-defendant’s case
challenging the same search warrant); Kotlers v. Iowa Dep’t of Transp., 589
N.W.2d 733, 735 (Iowa 1999) (remanding case to district court for an order
dismissing a petition for judicial review because of the result reached in a
companion appeal decided the same day); Palensky v. Story Cnty. Bd. of
Adjustment, No. 22-0249, 2023 WL 3335322, at *3–4 (Iowa Ct. App. May 10, 2023)
(adopting the “same analysis and conclusion in this case as we reached” in a
companion case on several issues); State v. Hanson Gales, No. 22-0795, 2023
WL 3335992, at *1 (Iowa Ct. App. May 10, 2023) (affirming sentences imposed at
a multi-case sentencing hearing for the reasons provided in the companion cases);
Sibley State Bank v. Braaksma, No. 17-1002, 2018 WL 3472042, at *2 (Iowa Ct.
App. July 18, 2018) (affirming district court’s grant of summary judgment on the
bank’s replevin petition “for the same reasons we set out in the companion appeal”
from property owners’ foreclosure appeal); State v. Wise, No. 04-0548, 2005
WL 599969, at *1 (Iowa Ct. App. Mar. 16, 2005) (vacating conditional concurrent
sentence for driving while barred and remanding for resentencing “[f]or the reasons
stated in the companion case”); see also Huffey v. Lea, 491 N.W.2d 518, 519
(Iowa 1992) (taking judicial notice of the appellate decision on a will contest
between the same parties in an appeal from dismissal of an action for tortious
interference with a bequest). But see State v. Washington, 832 N.W.2d 650, 655–
56 (Iowa 2013) (noting the “general rule is that it is not proper for the court to
consider or take judicial notice of the records of the same court in a different
proceeding without an agreement of the parties” and denying appellant’s motion
for appellate judicial notice of other district court files (citation omitted)).
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No. 22-2057, 2024 WL 1296261, at *2 (Iowa Ct. App. Mar. 27, 2024) (citing State

v. Rutherford, 997 N.W.2d 142, 146 (Iowa 2023)); see also State v. Wilbourn, 974

N.W.2d 58, 66 (Iowa 2022) (“We decline to parse or bifurcate the specific

sentencing errors alleged when determining good cause.”). In addition, while the

parties agreed the sentence for driving while barred would be concurrent with the

willful-injury sentence, they did not agree what those sentences would be. The

State sought incarceration, while Cubbage asked for suspended sentences with

probation. We accordingly find good cause for Cubbage’s appeal of this

discretionary sentence. See State v. Damme, 944 N.W.2d 98, 105 (Iowa 2020)

(finding an appellant has good cause to appeal a sentence when the imposed

sentence was neither mandatory nor agreed to as part of a plea bargain).

With that good-cause finding, we conclude that Cubbage’s sentence for

driving while barred should be vacated and this case remanded for resentencing

with the companion case. As our supreme court explained in State v. Vandermark,

When a defendant is sentenced for multiple offenses and a
portion of the sentence is vacated, we may vacate the invalid part
without disturbing the rest of the sentence. We are not, however,
required to do so and may remand for resentencing even if the
sentences are severable. Remand for resentencing is appropriate
when the district court considered the sentences to be
interconnected.

965 N.W.2d 888, 895 (Iowa 2021) (quotation marks and internal citations omitted);

see also State v. Simmons, No. 12-0566, 2013 WL 1749737, at *4 (Iowa Ct. App.

Apr. 24, 2013) (remanding for resentencing based on disposition of a separate,

unconsolidated case on appeal “[b]ecause the sentencing scheme underlying both

appeals was inextricably entwined”).
5

By imposing concurrent sentences, without much mention of the driving-

while-barred conviction, we conclude the district court considered the sentences

to be interconnected. We accordingly vacate Cubbage’s sentence for driving while

barred without further opinion and remand for resentencing in front of a different

judge. See Iowa Ct. R. 21.29(1)(a), (e).

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

Tabor, P.J., concurs; Buller, J., dissents.
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BULLER, Judge (dissenting).

In my view, the majority opinion decides an unbriefed issue by reaching

outside this record and into another case number. In doing so, the majority opinion

functionally overrules an order from the supreme court and—in my estimation—

applies inapposite case law. I dissent on each of these bases.

Cubbage’s brief alleges the district court abused its discretion by selecting

prison instead of probation when ordering a sentence consecutive to another case

number. The State’s brief contends only the fine is properly before us because

Cubbage negotiated a concurrent sentence and got exactly that. But rather than

decide the briefed issue, the majority—without prompting by either party—

reverses based on our disposition in Cubbage’s other case, which he appealed in

a separate case number. I would not decide this unbriefed issue. See, e.g., City

of Davenport v. Seymour, 755 N.W.2d 533, 545 (Iowa 2008) (“This court is not a

roving commission that offers instinctual legal reactions to interesting issues that

have not been raised or briefed by the parties . . . .”).

I suspect one reason the issue wasn’t briefed is because the lawyers

recognized it relied on a case number outside this appeal. See Iowa R. App.

P. 6.801 (defining the record on appeal). No one asked us to take judicial notice

of Cubbage’s other case and we are prohibited from doing so absent stipulation.

See State v. Washington, 832 N.W.2d 655–56 (Iowa 2013). Cubbage moved to

consolidate the appeals before transfer to our court, and the supreme court denied

his motion. Yet the majority effectively makes an end-run around the supreme

court’s order—treating the appeals as consolidated in all but name. I decline this

uninvited departure from principles of appellate jurisdiction.
7

Although the majority does not directly address its reliance on outside-the-

record material above the line, it quotes the remedy analysis from State v.

Vandermark, 965 N.W.2d 888, 895 (Iowa 2021). Using this case, the majority

seems to conclude we may grant relief on combined sentencing hearings—

whether appealed jointly or not. One of the problems with taking decretal language

from the remedy section of another opinion is that we may miss crucial nuances of

a particular case’s appellate posture.

There are two clear distinctions between Vandermark and this appeal. First,

Vandermark appealed all of his sentences in a single case number. We noted the

multiple case numbers and that he appealed “his sentences” (plural) in our court’s

opinion. See State v. Vandermark, No. 19-2112, 2021 WL 210972, at *1 (Iowa Ct.

App. Jan. 21, 2021), aff’d in part, vacated in part, 965 N.W.2d 888. And, to the

extent the majority directs us to look outside the record of this appeal, the electronic

docket confirms Vandermark’s notice of appeal listed all three case numbers.

Cubbage, on the other hand—to use the majority’s phrasing—“separately

appealed his sentences.” And only his misdemeanor case is listed on the notice

of appeal. Second, because Vandermark appealed all three case numbers, his

case did not involve a denied motion to consolidate, as seen from the procedural

discussion in our court’s and the supreme court’s opinions. See id. at *1–2. In

short, there are material distinctions between the appellate posture of the cases.

In a footnote, the majority recites cases that reference the legal analysis of

companion cases. But those cases are all some flavor of explaining the court was

deploying the same legal reasoning we used in another decision—in other words,

as shorthand, like a case citation, rather than repeating a lengthy analysis. That’s
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not what the majority is doing here: the reference to Cubbage’s companion case

isn’t to shorthand the legal analysis (to say we are doing something “for the same

reasons” we set forth elsewhere), but instead to establish a factual basis for

reversal (to reverse despite finding no error here, based on the disposition of the

other appeal). Our law does not countenance the majority’s sua sponte reversal.

I dissent from the majority’s application of Vandermark’s remedy analysis

and the reasoning deployed to get there.