                    IN THE COURT OF APPEALS OF IOWA

                                 No. 18-1665
                             Filed April 15, 2020


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

WAYNE CORDALE BUMPUS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mary E. Howes (plea)

and Mark D. Cleve (sentencing), Judges.



      Wayne Bumpus appeals his convictions for theft and burglary. AFFIRMED.




      Thomas M. McIntee, Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney

General, for appellee.




      Considered by Bower, C.J., and Greer and Ahlers, JJ.
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BOWER, Chief Judge.

       Wayne Bumpus appeals his convictions for theft and burglary. Bumpus

claims the district court abused its discretion by denying a motion to continue the

sentencing hearing for a mental-health evaluation for possible placement in a

mental-health court program.       Bumpus also asserts his counsel provided

ineffective assistance, and the deficient assistance rendered his guilty plea

involuntary.1 Because we find the court did not abuse its discretion and Bumpus

has not established ineffective assistance of counsel, we affirm.

       I. Background Facts & Proceedings

       In April and July of 2017, a grocery store’s surveillance videos captured

images of a man loading cases of premium alcohol and other items in a grocery

cart and walking out of the store without paying. In the July incident, Bumpus

removed a lock and entered an employee-only area of the store to access the

cases of alcohol and loaded the items in a silver Chrysler 300. Officers identified

Bumpus from still-image pictures taken from the video.

       Officers surveilled Bumpus’s home and witnessed him driving the same

vehicle and parking it in a detached garage. On August 8 and 9, police obtained

and executed a search warrant for Bumpus’s home, outbuildings, and the Chrysler

300. A second search warrant was obtained for the data contained on cell phones

that had been seized during the August 9 search.          Bumpus was arrested in


1 The Iowa legislature amended Iowa Code sections 814.6 and 814.7, effective
July 1, 2019, limiting direct appeals from guilty pleas and eliminating direct-appeal
ineffective-assistance-of-counsel claims. See Iowa Code §§ 814.6–.7 (2020). The
amendments “apply only prospectively and do not apply to cases pending on July
1, 2019,” and therefore do not apply in this case. State v. Macke, 933 N.W.2d 226,
235 (Iowa 2019).
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October. In December 2017, a trial information was filed charging Bumpus with

two charges of theft in the second degree, one count of burglary in the second

degree, ongoing criminal conduct, and a habitual offender enhancement.

      On June 6, 2018, Bumpus pleaded guilty to two counts of theft in the second

degree and one count of burglary in the second degree; the remaining charge and

enhancement were dismissed. A memorandum of plea agreement was filed and

referenced during the plea hearing. Sentencing was scheduled for August 30,

almost three months later.

      At the beginning of the sentencing hearing, Bumpus’s counsel moved to

continue the sentencing hearing. Counsel asserted she had received an email

from another attorney who was attempting to get Bumpus a mental-health

evaluation and possible medication for an application for Bumpus to be accepted

in mental health court in another matter. Bumpus requested time to determine his

status with the mental health court. The prosecutor informed the court she did not

know about any other case in Scott County involving Bumpus or “in what capacity

[the other attorney] has made this application.” The prosecutor stated a desire to

proceed. The court denied the continuance and imposed sentence. Bumpus

appeals.

      II. Standard of Review

      “We generally review a district court’s denial of a motion for continuance for

an abuse of discretion.” State v. Clark, 814 N.W.2d 551, 560 (Iowa 2012). We

review ineffective-assistance-of-counsel claims de novo. Id.
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       III. Analysis

       A. Motion to continue. Bumpus contends the district court abused its

discretion in denying his motion to continue made the morning of the sentencing

hearing. The sentencing hearing had been scheduled for almost three months.

Bumpus moved to continue the hearing for an unspecified period of time to “figure

out what’s happening with the mental health court status.”

       “We review the denial by the district court of a motion for continuance for an

abuse of discretion.” State v. Artzer, 609 N.W.2d 526, 529 (Iowa 2000). “A trial

judge is required to set a date for the pronouncement of judgment and imposition

of sentence within a reasonable time after a verdict of guilty.” Id. at 531. “The

process does not contemplate unnecessary delay between the verdict of guilty and

the entry of judgment and sentence.” Id. Motions to continue are discouraged and

only granted “upon a showing of good and compelling cause.” Iowa R. Crim. P.

2.9(2). We will not disturb a denial of a continuance unless it results in injustice.

State v. Clark, 814 N.W.2d 551, 564 (Iowa 2012).

       The presentence investigation report (PSI) indicates Bumpus was

scheduled to have a psychiatric evaluation on July 17, but he did not attend. The

PSI also listed numerous intervention programs Bumpus had been afforded over

the years, including prior psychological services and substance-abuse treatment

programs. Bumpus did not assert he had a scheduled evaluation or offer evidence

of mental-health-court involvement.

       Bumpus’s motion did not demonstrate a “good and compelling cause” for

continuance. The court did not abuse its discretion in denying Bumpus’s motion

to continue sentencing. We affirm.
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        B.   Ineffective assistance of counsel.        Bumpus asserts his counsel

provided ineffective assistance in a number of ways. This includes failing to assert

his competency as a reason for the continuance, undue inducement to plead,

failing to file a motion to suppress, and failing to object to a deficiency in his plea

and colloquy.

        “To succeed on an ineffective-assistance-of-counsel claim, a defendant

must show by a preponderance of the evidence that: ‘(1) counsel failed to perform

an essential duty; and (2) prejudice resulted.’” Clark, 814 N.W.2d at 567 (citation

omitted). If either element is not established, we can affirm on appeal. Id. On a

direct appeal in which a defendant asserts ineffective-assistance claims, “[o]ur

threshold question is whether the record . . . is sufficient to resolve th[e] question.”

Macke, 933 N.W.2d at 236.

        1. Competency. Bumpus claims his counsel was ineffective by failing to

fully review Bumpus’s mental health, identify the need for an evaluation prior to the

sentencing hearing, and file an application for a competency evaluation as a

ground for the motion to continue. We do not have a sufficient record to evaluate

these claims.      Because the record is insufficient to adequately review these

assertions on direct appeal, we preserve them for possible postconviction relief.

See State v. Harris, 919 N.W.2d 753, 754 (Iowa 2018) (“If the development of the

ineffective-assistance claim in the appellate brief was insufficient to allow its

consideration, the court of appeals should not consider the claim, but it should not

outright reject it.”).

        2. Undue inducement.       Bumpus claims his guilty plea was involuntary

because counsel was ineffective and unduly induced him to take the plea deal. If
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this argument was intended to stand as a separate claim for ineffective assistance

from the others we address, it has not been sufficiently developed to allow its

consideration and we preserve it for a possible postconviction-relief proceeding.

See id.

         3. Motion to suppress. Bumpus proposes two grounds on which counsel

should have filed a motion to suppress: the search of his house was illegal because

the officers did not tell him he could refuse consent for the search and the officers

violated his Miranda rights2 by conversing with Bumpus and his paramour during

the search. “Counsel has no duty to raise an issue that has no merit.” State v.

Fountain, 786 N.W.2d 260, 263 (Iowa 2010).

         As to Bumpus’s claim that the search of his home was warrantless and

without his consent, the minutes of testimony included a copy of the search warrant

issued the day before the search. The search of Bumpus’s home was pursuant to

a valid search warrant—it was not a consent search.            Therefore, Bumpus’s

proposal that we should recognize a new per se requirement that police advise

individuals of their right to decline a search would not apply in this case. See State

v. Pals, 805 N.W.2d 767, 782 (Iowa 2011) (declining to evaluate whether such a

per se requirement should be adopted). Bumpus does not challenge the warrant

and, thus, any motion to suppress evidence obtained in the warranted search

would not have been successful.

         As to the claimed Miranda violation, Bumpus refers to his conversation with

an officer during the execution of the search warrant. Bumpus provides no facts



2   See Miranda v. Arizona, 384 U.S. 436, 444–45 (1966).
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to support the allegation that he was subject to custodial interrogation and

identifies no statements to be suppressed. Bumpus was expressly told he was not

under arrest and did not have to speak with the officers at the time the search

warrant was executed, the conversation took place in his home, and it ended when

Bumpus indicated he wanted to speak with his attorney. The circumstances of

that conversation do not establish Bumpus was in custody and entitled to Miranda

warnings. See State v. Miranda, 672 N.W.2d 753, 759 (Iowa 2003) (explaining the

objective test for whether a reasonable person would consider themselves in

custody). This ground for a motion to suppress also would have been meritless.

Consequently, counsel did not provide ineffective assistance by not filing a motion

to suppress. See Fountain, 786 N.W.2d at 263.

       4. Plea colloquy. Bumpus claims his written plea did not comply with Iowa

Rule of Criminal Procedure 2.8(2)(b)(2) and he was not informed of the

consequences of his plea before the court accepted it. Bumpus claims his counsel

was ineffective for failing to object to the court’s acceptance of the plea.

       Bumpus did not file a written plea of guilt—the memorandum of the plea

agreement was not a written plea. Bumpus entered his plea on the record at the

plea hearing. Even if Bumpus had filed a written plea, the plea colloquy on the

record is what we look to for the terms of a plea agreement and to meet the

requirements of a rule 2.8(2)(b) hearing. See Macke, 933 N.W.2d at 236–37

(noting the “controlling terms . . . are those described on the record during the plea

hearing”).

       At the plea hearing, the court expressly stated, “I have to inform you of your

maximum and minimum penalties, sir, for what you’re pleading guilty to this
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morning.” The court then discussed the maximum and minimum incarceration

period for each offense in the plea, the maximum and minimum fines, applicable

surcharges, and DNA-sample requirement. The court then stated the maximum

term of imprisonment if the sentences were run consecutively. This portion of the

colloquy occurred before the court reviewed Bumpus’s trial rights, the State’s proof

requirements, and before Bumpus answered questions about what happened to

provide a factual basis for his plea. All these discussions occurred before the court

asked Bumpus to enter his plea as to each count.

       Bumpus was informed of the full consequences of his guilty plea prior to the

court’s acceptance of that plea. Counsel did not provide ineffective assistance as

claimed.

       Accordingly, the court did not abuse its discretion in denying Bumpus’s

motion to continue, and Bumpus either has not established any of his claims of

ineffective assistance of counsel by a preponderance of the evidence or the record

is inadequate to address them.3 We therefore affirm the district court.

       AFFIRMED.




3 Because Bumpus’s claims of ineffective assistance of counsel either require
further development or have no merit, we do not address Bumpus’s claim of
“cumulative prejudice.” See State v. Clay, 824 N.W.2d 488, 501–02 (Iowa 2012).
