                    IN THE COURT OF APPEALS OF IOWA

                                    No. 14-0578
                                Filed April 27, 2016


CHARLES C. HORNE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Marsha M.

Beckelman (postconviction trial and sentencing) and Thomas L. Koehler (plea

hearing), Judges.



      Charles Horne appeals the district court’s denial of his postconviction-

relief application. AFFIRMED.




      Thomas J. Viner of Viner Law Firm, P.C., Cedar Rapids, for appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       Charles Horne was charged with several crimes in connection with an

apartment break-in, forced sex, and missing items. He entered Alford1 pleas to

third-degree sexual abuse, first-degree burglary, and two counts of second-

degree robbery. The district court accepted the pleas and sentenced him to a

total prison term not exceeding fifty-five years, subject to mandatory minimum

terms of seventy percent on the ten-year robbery counts. The court ordered the

sentences to run consecutively. According to Horne’s attorney, Horne filed a pro

se notice of appeal. There is no record of this appeal.

       Horne subsequently filed a postconviction-relief application. The district

court denied the application following an evidentiary hearing. On appeal, Horne

(1) raises ineffective-assistance-of-counsel claims and (2) challenges the district

court’s imposition of consecutive sentences.

I.     Ineffective Assistance of Counsel

       Horne contends his trial attorney was ineffective in (A) failing to challenge

his competency or “reduced mental ability,” (B) pressuring him to plead guilty,

and (C) failing to perfect an appeal. To prevail, Horne must show (1) counsel

breached an essential duty and (2) prejudice resulted. Strickland v. Washington,

466 U.S. 668, 687 (1984). Our review is de novo. See Ennenga v. State, 812

N.W.2d 696, 701 (Iowa 2012).

       A. Mental Competency. Horne contends “[n]o pretrial efforts were made

to determine if [he] was competent to stand trial, or was mentally unable to


1
 See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding an “express admission of
guilt . . . is not a constitutional requisite to the imposition of [a] criminal penalty”).
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participate in his defense.” In his view, his attorney had an obligation to raise

“either avenue as a defense or mitigating factor.”

      Generally, a competency evaluation is required if information in the record

would lead a reasonable person to believe there is a substantial question of the

defendant’s competence. See Jones v. State, 479 N.W.2d 265, 270 (Iowa 1991);

see also Iowa Code § 812.3 (2013) (requiring a preliminary allegation of specific

facts showing the “defendant is suffering from a mental disorder which prevents

the defendant from appreciating the charge, understanding the proceedings, or

assisting effectively in the defense”). The record does not contain this type of

information.

      The only evidence of a mental disorder was Horne’s testimony that he was

a “slow learner” and in “special education” as a child.      Despite this learning

disability, Horne showed an understanding of the plea proceedings.             For

example, when the court asked him to admit he committed a sex act, he

demurred, stating “[n]ot like that.” The court responded, “You don’t wish to admit

that it was done by force or against the will of the victim then, is that correct?”

Horne responded, “Yes, sir.”

      Notably, Horne’s attorney circumvented Horne’s limited ability to read and

write by reading orders to him and explaining key matters in person or by

telephone.     While the attorney acknowledged Horne “had some trouble with

understanding the severity of the case,” Horne “did know going in that the plea

bargain that he agreed to was going to result in a substantial amount of prison

time for him,” and “[h]e understood that and he agreed to that.”
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       We conclude counsel did not breach an essential duty in failing to seek a

competency hearing or otherwise challenge Horne’s “reduced mental ability.”

Horne cannot prevail on this ineffective-assistance-of-counsel claim.

       B. Guilty Plea. Horne contends his attorney “pressured [him] to plead

guilty.” This is essentially a claim that his plea was involuntary. See State v.

Speed, 573 N.W.2d 594, 597 (Iowa 1998).

       Horne’s own testimony at the postconviction hearing belies this assertion.

When the prosecutor asked him whether his attorney told him he could not go to

trial, Horne responded, “Well, he said it would be in my best interest not to go.”

When the prosecutor repeated the question, Horne again answered, “No, he

didn’t say I could not go. He said it would be in my best interest not to go and so

many reasons why I shouldn’t go.”

       Horne’s    testimony    reinforced       the   attorney’s   statements   that   he

“encouraged” Horne to take the plea and would “never have said [he] could not”

go to trial. The attorney explained the “last thing” he “wanted to see” was Horne

“get a 100-year prison sentence.” In the attorney’s view, the plea deal gave

Horne “a shot at parole in the relatively near future” and “a shot at a life” once he

was released.

       We conclude counsel did not coerce Horne into taking the plea.

Accordingly, this ineffective-assistance-of-counsel claim fails.

       C. Direct Appeal.      Horne contends his attorney “failed to perfect [an]

appeal or explain [his] rights to appeal.” In his view, “The prejudicial effect . . . is

that [he] did not have the opportunity for a direct appeal of the sentence for

abuse of discretion.” The postconviction court rejected this prejudice argument
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on the ground that “Horne has not sufficiently shown that anything was done

improperly at the sentencing such that an appeal would even be warranted.” We

agree with this conclusion.

       The sentencing court clearly explained the sentences, the mandatory

minimum terms on the two robbery counts, the reasons for the sentences, and

the reason the court was rejecting Horne’s request to have the sentences run

concurrently rather than consecutively. Even if counsel had perfected an appeal

of the sentence, there is no reasonable probability the appellate court would have

found an abuse of discretion in the imposition of the sentence. Accordingly, this

ineffective-assistance-of-counsel claim fails.

II.    Sentencing

       Horne contends the district court abused its discretion in imposing

consecutive sentences. See State v. August, 589 N.W.2d 740, 744 (Iowa 1999)

(setting forth standard of review).       He asserts the sentencing transcript

“contain[s] no reference to [his] education, background, employment, ties to the

community, or likelihood of recidivism,” the court “made no findings as to how the

sentence was appropriate for [him] and how it would either protect or benefit the

community,” and “the Court did not recite sufficient reasons for making the

sentences consecutive.”

       Horne does not contend the sentence is illegal, which would allow him to

bypass our error-preservation rules and raise the challenge at any time. See

Tindell v. State, 629 N.W.2d 357, 360 (Iowa 2001) (“[A] claim of procedural error

is not a claim of illegal sentence, and therefore, it is precluded by our normal

error-preservation rules.”); State v. Wilson, 294 N.W.2d 824, 824-25 (Iowa 1980)
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(noting no statement of reasons was given for sentence but concluding rule

allowing illegal sentences to be raised at any time did not include challenge to

this procedural defect); State v. Means, No. 11-0492, 2012 WL 3195975, at *3

(Iowa Ct. App. Aug. 8, 2012) (stating claim that sentencing court failed to

articulate reasons for consecutive sentences was a challenge to how the

sentence was imposed rather than a challenge to the actual sentence and could

not be raised at any time); see also State v. Bruegger, 773 N.W.2d 862, 870-71

(Iowa 2009) (broadening the definition of an “illegal sentence” to encompass

“claims that the court lacked the power to impose the sentence or that the

sentence itself is somehow inherently legally flawed, including claims that the

sentence is outside the statutory bounds or that the sentence itself is

unconstitutional” but citing list of sentencing challenges still subject to error-

preservation rules). Accordingly, Horne has not preserved error, and we decline

to review his sentence directly. However, our discussion of Horne’s ineffective-

assistance-of-counsel claim relating to counsel’s failure to perfect an appeal

essentially resolves his sentencing challenge.

       We affirm the district court’s denial of Horne’s postconviction-relief

application.

       AFFIRMED.
