STATE OF IOWA, Plaintiff-Appellee, vs. XAVIER AMBRIC GORDON, Defendant-Appellant.
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF IOWA
No. 9-815 / 09-0461
Filed November 12, 2009
STATE OF IOWA,
Plaintiff-Appellee,
vs.
XAVIER AMBRIC GORDON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Thomas N.
Bower, Judge.
Xavier Gordon appeals contending his guilty plea lacked a factual basis.
SENTENCE VACATED AND REMANDED FOR FURTHER PROCEEDINGS.
Mark C. Smith, State Appellate Defender, and Shellie L. Knipfer, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney
General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant
County Attorney, for appellee.
Considered by Sackett, C.J., Potterfield, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
2
POTTERFIELD, J.
In August 2008, Xavier Gordon was court-ordered to reside at the
Waterloo Residential Correctional Facility. On August 29, 2008, he returned to
the facility after being out of place of assignment for some period of time. While
being served with a report that he had been out of place of assignment, Gordon
ran from the room and out the back door.
He remained at large until mid-
September 2008 and was thereafter charged with escape.
At a plea proceeding on January 22, 2009, Gordon pleaded guilty to a
class “D” felony escape.1 On February 12, he was sentenced to a term of five
years to be served consecutive to sentences in cases FECR114436 and
SRCR123078. He now appeals,2 contending the record does not establish that
he was committed to the correctional facility due to a felony conviction.
We review the defendant’s claim of error with respect to his guilty plea for
errors of law. Iowa. R. App. Proc. 6.907.
Because the district court may not accept a guilty plea without first
determining that the plea has a factual basis, “our first and only inquiry is whether
the record shows a factual basis for [Gordon’s] guilty plea to the charge” of felony
1
Iowa Code section 719.4(1) (2007) provides:
A person convicted of a felony, or charged with or arrested for the
commission 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, charge, or arrest, or from the custody of any public officer,
public employee, or any other person to whom the person has been
entrusted, commits a class “D” felony.
2
The district court did not advise Gordon that a failure to file a motion in arrest of
judgment would bar him from challenging his plea on appeal. He is therefore not subject
to usual rules of error preservation. State v. Love, 670 N.W.2d 141, 149 (Iowa 2003)
(citing State v. Oldham, 515 N.W.2d 44, 46 (1994) (stating court’s failure to comply with
Iowa R. Crim. P. 2.8(2)(d) “operates to reinstate the defendant’s right to appeal the
legality of his plea”)).
3
escape. State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). In deciding
whether a factual basis exists, we consider the entire record before the district
court at the guilty plea hearing, including any statements made by the defendant,
facts related by the prosecutor, the minutes of testimony, and the presentence
report. Id.
In order to be adjudged guilty of felony escape, the State must establish
that Gordon escaped from a facility to which he “has been committed by reason
of the [felony] conviction.” Iowa Code § 719.4(1). This record establishes that
Gordon has been convicted of a felony and that he was committed to the
Waterloo Residential Correctional Facility. However, it does not establish that
Gordon was committed to that facility “by reason of the conviction.”
Where a guilty plea has no factual basis in the record, but it is possible
that a factual basis could be shown, it is appropriate to vacate the sentence and
remand for further proceedings to give the State an opportunity to establish a
factual basis.
Schminkey, 597 N.W.2d at 792.
We therefore affirm the
conviction, vacate the sentence, and remand for further proceedings.
SENTENCE
PROCEEDINGS.
VACATED
AND
REMANDED
FOR
FURTHER
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
