                    IN THE COURT OF APPEALS OF IOWA

                                     No. 16-0800
                               Filed January 10, 2018


ANTHONY EARL HOPKINS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Cerro Gordo County, DeDra L.

Schroeder, Judge (postconviction), and Annette L. Boehlje, District Associate

Judge (plea and sentencing).



      Anthony Hopkins appeals the dismissal of his first postconviction-relief

application. AFFIRMED.




      Thomas M. McIntee, Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee.




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

       Anthony E. Hopkins pled guilty to willful injury resulting in bodily injury. See

Iowa Code § 708.4(2) (2013). This court affirmed his judgment on direct appeal.

See State v. Hopkins, No. 14-0916, 2015 WL 1331682, at *1-2 (Iowa Ct. App. Mar.

25, 2015).

       Hopkins filed an application for postconviction relief (PCR) raising several

ineffective-assistance-of-counsel claims. Following trial, the district court denied

the application. The court also denied a post-trial motion.

       On appeal, Hopkins contends his plea attorney was ineffective in (A) failing

to ensure he understood the plea agreement and the effect of entering a guilty

plea, (B) failing to pursue or investigate a potential claim of self-defense, (C) failing

to object to an incorrect criminal history in a presentence investigation report and

a comment in the criminal history, and (D) failing to request recusal of the

sentencing judge. He also contends his PCR attorney was ineffective in failing to

address his self-defense claim by deposing the person he injured and calling that

person as a witness at the PCR trial. Hopkins was required to establish counsel

breached an essential duty and prejudice resulted. See Strickland v. Washington,

466 U.S. 668, 687 (1984).

I.     Plea Counsel

       A. Guilty Plea

       Hopkins argues his guilty plea was not knowing, intelligent, or voluntary

because he thought he was pleading guilty to other crimes with which he was

charged. On our de novo review of the record, we are unpersuaded by his

assertion.
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       The prosecutor committed the proposed plea agreement to paper. His letter

outlined the charge in the pending case as well as the proposed reduction in the

charge. The letter also outlined misdemeanor charges in other cases and the

prosecutor’s proposed reduction of those charges. Hopkins signed and initialed a

written guilty plea agreement in the pending case. In accord with the letter, the

agreement left no doubt about the pending offense, identifying it as willful injury

causing bodily injury, a Class “D” felony.

       At a plea hearing, the prosecutor explained that the plea agreement

“actually encompasse[d] three cases” but two were “already . . . taken care of.” In

the pending case, the prosecutor stated he agreed to amend the charge of willful

injury resulting in serious injury to the lesser crime of willful injury resulting in bodily

injury in exchange for Hopkins’ guilty plea.               Hopkins acknowledged his

understanding of the elements and penalties associated with the offense as well

as the rights he was giving up. He also affirmed his knowledge of other pending

charges that were not in front of the court. He described the facts underlying the

charge to which he was pleading, stated he was not subjected to promises other

than the terms of the plea agreement, and stated he was not threatened to enter

the plea agreement and was thinking clearly.

       We conclude Hopkins entered his plea knowingly, intelligently, and

voluntarily. His plea attorney did not breach an essential duty in failing to challenge

the plea on this ground.

       B. Self-Defense

       Hopkins contends his plea attorney was ineffective in failing to pursue or

investigate a potential claim of self-defense. In his view, his attorney should have
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deposed the person who was injured. Hopkins also raises this contention under

an ineffective-assistance-of-PCR-counsel rubric. We will address it in that context.

       C. PSI Report/Criminal History

       The district court sentenced Hopkins to a suspended five-year prison term,

three years of probation, a suspended fine, restitution, and a stay at a residential

correctional facility. The court ordered him to remain in custody pending his

placement at the facility but allowed him to turn himself in at the end of the day.

       On appeal, Hopkins contends his plea attorney was ineffective in failing to

object to an incorrect PSI report and criminal history. He specifically challenges a

misdemeanor assault conviction and argues the plea-taking court used his “assault

history” in ordering him placed at the residential correctional facility.

        We agree the PSI report erroneously listed the offense as “assault intent to

inflict serious injury” and Hopkins’ attorney did not object to this characterization.

We also agree Hopkins’ criminal history included the following comment: “known

to assault police officers.” But Hopkins could not establish Strickland prejudice

because he had a history of convictions for criminal mischief and interference with

official acts that reasonably could have informed the sentencing court’s decision

to place him at a residential corrections facility.

       D. Recusal

       Hopkins contends his plea attorney was ineffective in failing to “adequately

and effectively pursue sentencing before a different judge” based on an appeal in

another case. Counsel did move to recuse the judge. After considering arguments,

the district court denied the motion orally and in a written ruling.        The court

expressed doubt about authority requiring recusal “if there’s been an appeal in
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another matter involving a party.” The court also was unaware of an appeal until

it was raised in the pending proceeding and was unaware of the grounds for

appeal.

       We conclude counsel effectively raised the issue of recusal. We further

conclude there was no basis for reasonably questioning the judge’s impartiality.

See Iowa Code of Judicial Conduct Rule 51:2.11(A); State v. Millsap, 704 N.W.2d

426, 432 (Iowa 2005) (“Only personal bias or prejudice stemming from an

extrajudicial source constitutes a disqualifying factor.”). Counsel did not breach an

essential duty in the way he pursued this issue.

       Hopkins also argues recusal was required based on the judge’s review of

the erroneous portion of the PSI report and the comment in the criminal history.

Having addressed the issue in a separate division and found counsel not

ineffective in failing to challenge those items, we further conclude counsel was not

ineffective in failing to seek recusal on this basis.

II.    PCR Counsel

       Hopkins argues his PCR attorney was ineffective in failing to depose the

alleged victim or call him as a witness at the PCR trial. On our de novo review, we

disagree.

       The court of appeals mentioned self-defense in its opinion resolving

Hopkins’ direct appeal. See Hopkins, 2015 WL 1331682, at *2 n.1 (citing Hopkins’

assertion he “may have been acting in self-defense” and “intoxication is a valid

defense against a specific intent element” but stating “a valid guilty plea waives all

defenses and objections”). But the issue was raised in the context of Hopkins’

assertion that the plea lacked a factual basis. The assistant appellate defender
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who represented Hopkins on appeal conceded as much in her brief, which was

admitted as an exhibit at the PCR trial, and in her testimony at the PCR hearing.

The issue Hopkins now raises is different and is not controlled by our prior opinion.

       That said, the issue does not warrant reversal. Hopkins’ plea attorney

testified he spoke to Hopkins about the risks of pursuing a self-defense theory,

including the fact one “can only meet force with like force” and the alleged victim

“did not have a weapon.” And, the attorney informed Hopkins he would have to

admit he stabbed the alleged victim if he wished to pursue a self-defense claim.

The attorney stated, in light of these risks, Hopkins elected to enter a plea, in lieu

of risking a ten-year prison term.

       Given the strategic decision to forego a self-defense theory, the plea

attorney did not breach an essential duty in failing to depose the alleged victim. It

follows that PCR counsel did not breach an essential duty in declining to depose

that individual or call him as a witness at the PCR trial.

       We affirm the denial of Hopkins’ PCR application.

       AFFIRMED.
