                    IN THE COURT OF APPEALS OF IOWA

                                  No. 18-2203
                               Filed April 1, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ELMER SCHECKEL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Fayette County, Richard D. Stochl,

Judge.



      Elmer Scheckel appeals following his Alford plea to third-degree fraudulent

practice. CONVICTION AFFIRMED AND REMANDED.



      John J. Sullivan of Sullivan Law Office, P.C., Oelwein, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.



      Considered by Bower, C.J., Ahlers, J., and Gamble, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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GAMBLE, Senior Judge.

      Elmer Scheckel appeals following his Alford plea to third-degree fraudulent

practice.1 We affirm.

      Scheckel argues he received ineffective assistance of counsel2 because he

claims counsel permitted him to plead guilty without a factual basis to support the

plea.3 We review ineffective-assistance claims de novo. State v. Straw, 709

N.W.2d 128, 133 (Iowa 2006).        Generally, ineffective-assistance claims are




1  We recognize Iowa Code section 814.6 (2019) was recently amended to prohibit
most appeals from guilty pleas. See 2019 Iowa Acts ch. 140, § 28. In State v.
Macke, however, our supreme court held these amendments “apply only
prospectively and do not apply to cases pending on July 1, 2019.” 933 N.W.2d
226, 235 (Iowa 2019). Because this appeal was pending on July 1, 2019, the
amendments “do not apply” to this case. See id.
2 Iowa Code section 814.7 was recently amended to provide in pertinent part: “An

ineffective assistance of counsel claim in a criminal case shall be determined by
filing an application for postconviction relief” and “shall not be decided on direct
appeal from the criminal proceedings.” See 2019 Iowa Acts ch. 140, § 31. In
Macke, however, our supreme court held the amendment “appl[ies] only
prospectively and do[es] not apply to cases pending on July 1, 2019.” 933 N.W.2d
at 235. Because this appeal was pending on July 1, 2019, the amendments “do
not apply” to this case. See id.
3 Several times over the pendency of this case, the district court stated Scheckel

elected to proceed pro se with stand-by counsel available. But Scheckel never
waived his right to counsel through the constitutionally required colloquy, so his
right to effective counsel remained. Cf. Hannan v. State, 732 N.W.2d 45, 52–53
(Iowa 2007). Essentially, Scheckel and defense counsel engaged in a hybrid-
representation relationship over most of this case. See State v. Dawson, No. 18-
0862, 2019 WL 5792566, at *2 n.2 (Iowa Ct. App. Nov. 6, 2019) (“Hybrid
representation is when a defendant partially represents himself but also has the
benefit of counsel.”). But with respect to the plea proceedings, counsel actively
represented Scheckel, and Scheckel relied on counsel throughout the plea
process. Because Scheckel’s conduct reasonably appears to have waived any
purported invocation of his right to self-representation, we conclude he was
represented by counsel during the plea proceedings for purposes of Scheckel’s
ineffective-assistance claim. Cf. State v. Spencer, 519 N.W.2d 357, 359 (Iowa
1994).
                                           3

preserved for postconviction relief so the record can be fully developed. Id. But

when the record is adequate, the claim may be resolved on direct appeal. Id.

       To succeed on his ineffective-assistance claim, Scheckel must prove by a

preponderance of the evidence that counsel failed to perform an essential duty

and constitutional prejudice resulted. State v. Walker, 935 N.W.2d 874, 881 (Iowa

2019). “Because the test for ineffective assistance of counsel is a two-pronged

test, [Scheckel] must show both prongs have been met.” Nguyen v. State, 878

N.W.2d 744, 754 (Iowa 2016). If Scheckel cannot prove either prong, we need not

address the other. See id.

       In substance, Scheckel does not challenge the factual basis supporting the

charge for third-degree fraudulent practice. Instead, he highlights a scrivener’s

error; the charging instrument, plea agreement, and judgment order cited the

incorrect subsection to Iowa Code section 422.25 (2013).

       Scheckel was convicted of fraudulent practice in the third degree, in

violation of Iowa Code section 714.8(10). Section 714.8(10) provides a person is

guilty of fraudulent practice by doing “any act expressly declared to be a fraudulent

practice by any other section of the Code.” Section 422.25(5) provides:

       A person or withholding agent required to supply information, to pay
       tax, or to make, sign, or file a deposit form or return required by this
       division, who willfully makes a false or fraudulent deposit form or
       return, or willfully fails to pay the tax, supply the information, or make,
       sign, or file the deposit form or return, at the time or times required
       by law, is guilty of a fraudulent practice.

Section 422.25(5) expressly defines failure to pay taxes as a fraudulent practice

as required by section 714.8(10). While this is the offense Scheckel pled to, the

charging instrument, plea agreement, and judgment order mistakenly referred to
                                          4


subsection (1) of section 422.25 (discussing the statute of limitations) instead of

subsection (5).

       Nevertheless, the record contains a sufficient factual basis to find Scheckel

committed fraudulent practice because he failed to pay his taxes. And it was

apparent from the plea colloquy that Scheckel was aware he was pleading to third-

degree fraudulent practice because he failed to pay his taxes. Moreover, the

written plea provided,

       I understand that in order to establish my guilt the State would have
       to prove beyond a reasonable doubt all of the following elements of
       the offense of Fraudulent Practice in the third degree, an aggravated
       misdemeanor: That in Fayette County, on or about the dates alleged
       in the trial information, I was a person required to supply information,
       to pay tax or to make, sign, or file a tax return as required by the Iowa
       Department of Revenue and I willfully failed to pay such tax, supply
       the information, or to make, sign, or file a tax return at the time
       required by law.
               I plead guilty because I know I am guilty. I did the following
       to commit this crime, in Fayette County, on or about the dates
       alleged in the trial information, I was a person required to supply
       information, to pay tax or to make, sign, or file a tax return as
       required by the Iowa Department of Revenue and I willfully failed
       to pay such tax, supply the information, or to make, sign, or file a
       tax return at the time required by law.

       We conclude counsel was not ineffective for failing to object to the factual

basis. The reference to subsection (1) of section 422.25 is merely a scrivener’s

error that can be corrected by entry of a nunc pro tunc order. See State v. Hess,

533 N.W.2d 525, 527 (Iowa 1995) (“An error is clerical in nature if it is not the

product of judicial reasoning and determination. . . . [W]hen the record

unambiguously reflects that a clerical error has occurred, we will direct the district

court to enter a nunc pro tunc order to correct the judgment entry.”). Therefore,

we affirm Scheckel’s conviction for third-degree fraudulent practice and remand
                                          5


for entry of a nunc pro tunc order to correct the cited code subsection from

section 422.25(1) to section 422.25(5).

       Scheckel also raises several pro se issues on appeal.4 However, Scheckel

waived “constitutional challenge[s] that would undermine [his] conviction” by

pleading guilty.   See State v. Mann, 602 N.W.2d 785, 789 (Iowa 1999).

Nonetheless, there are five claims a defendant may bring on appeal following a

guilty plea. See State v. LaRue, 619 N.W.2d 395, 397 (Iowa 2000) (providing a

defendant may (1) challenge the sufficiency of the trial information or facial

constitutional vagueness of the relevant statutes; (2) claim his plea was

uninformed or involuntary; (3) assert a double jeopardy claim; (4) challenge the

sentencing statute; or (5) claim counsel was ineffective).

       We addressed a portion of Scheckel’s ineffective-assistance claim above.

The record is not sufficiently developed to address on direct appeal Scheckel’s

claim that counsel was ineffective by providing incorrect information. This claim is

preserved for postconviction-relief proceedings.        To the extent Scheckel

challenges the sufficiency of the trial information, he fails. The trial information

substantively charged a criminal offense. The district court correctly overruled

Scheckel’s motions to dismiss.




4  Iowa Code section 814.6A(1) was recently enacted to prohibit defendants from
filing pro se supplemental briefs. See 2019 Iowa Acts ch. 140, § 30. Although our
supreme court has not squarely addressed this change, this court has applied the
reasoning from Macke, 933 N.W.2d at 227–28, and determined it does not apply
to appeals filed prior to July 1, 2019. See, e.g., State v. Levy, No. 18-0511, 2020
WL 567696, at *1 n.1 (Iowa Ct. App. Feb. 5, 2020); State v. Syperda, No. 18-1471,
2019 WL 6893791, at *12 (Iowa Ct. App. Dec. 18, 2019); State v. Purk, No. 18-
0208, 2019 WL 5790875, at *7 n.8 (Iowa Ct. App. Nov. 6, 2019).
                                         6


       To the extent Scheckel challenges the plea itself, he waived any challenges

by failing to file a motion in arrest of judgment. Cf. State v. Delacy, 907 N.W.2d

154, 158–59 (Iowa Ct. App. 2017) (noting a plea may only be challenged through

a motion in arrest of judgment so long as the defendant is informed of this

requirement or through a claim of ineffective assistance of counsel).

       To the extent Scheckel claims the district court erred in “not charging the

prosecution with perjury and malicious prosecution,” his claim has no merit. The

county attorney or the attorney general, not the district court, has the authority to

commence or prosecute legal actions in the State’s name.           See Iowa Code

§ 331.756(1). Further, the record reveals no grounds for any such charge.

       Therefore, we affirm Scheckel’s conviction and remand for entry of a nunc

pro tunc order correcting the judgment entry to reflect Scheckel’s conviction of

fraudulent practice in the third degree in violation of Iowa Code sections 422.25(5),

714.8(10), and 714.11.

       CONVICTION AFFIRMED AND REMANDED.
