                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-1436
                                  Filed May 2, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

SETH ANTHONY HANKINS,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, William A. Price, District

Associate Judge.



       The defendant claims trial counsel was ineffective for allowing him to plead

guilty to eluding without a factual basis and for failing to competently advocate for

him during sentencing.      AFFIRMED IN PART, SENTENCE FOR ELUDING

VACATED, AND REMANDED WITH DIRECTIONS.



       R. Ben Stone of Parrish Kruidenier Dunn Boles Gribble Gentry Brown &

Bergmann L.L.P., Des Moines, for appellant.

       Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant

Attorney General, for appellee.



       Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
                                         2


POTTERFIELD, Judge.

       Seth Hankins appeals from his convictions and sentences for eluding,

leaving the scene of an accident where a serious injury occurred, and third-degree

fraudulent practice.     Hankins maintains trial counsel provided ineffective

assistance when he allowed Hankins to plead guilty to the crime of eluding without

a factual basis to support the plea.      He also maintains trial counsel acted

ineffectively at sentencing by failing to competently advocate for him “after highly

emotional victim impact statements.”

I. Background Facts and Proceedings.

       According to the minutes of evidence, on April 1, 2017, Hankins drove an

automobile away from a marked police car at a high rate of speed after the police

car turned on its lights and sirens. Hankins’s vehicle eventually collided with two

other vehicles, resulting in serious injuries to civilians in those vehicles. Hankins

then fled on foot and was not immediately apprehended.               A subsequent

investigation into the identity of the driver uncovered Hankins’s alleged perjury and

fraud related to the sale of the car he had been driving.

       Hankins was charged with serious injury by a vehicle, eluding, and leaving

the scene of an accident where a serious injury occurred. In a separate trial

information, Hankins was also charged with perjury; fraudulent practice in the

second degree, a “D” felony; and fraudulent practice in the third degree, an

aggravated misdemeanor.

       Hankins entered written guilty pleas to eluding and leaving the scene of an

accident where a serious injury occurred. He also entered a guilty plea to third-
                                        3


degree fraudulent practice. Per an agreement, the State dismissed the remaining

charges.

      The court accepted each of Hankins’s guilty pleas.

      At the sentencing hearing, the court heard three victim-impact statements

from women who were involved in the collision with Hankins’s vehicle. The State

recommended the court sentence Hankins to three two-year terms of incarceration

and run the terms consecutive to each other.

      The court sentenced Hankins to a term of incarceration of 365 days for

eluding.   Additionally, Hankins received a suspended two-year sentence for

leaving the scene of an accident where a serious injury occurred and a suspended

two-year sentence for fraudulent practice in the third degree. The two suspended

sentences were ordered to run consecutively.

      Hankins appeals.

II. Discussion.

      A defendant is not required to raise a claim of ineffective assistance on

direct appeal. Iowa Code § 814.7(2) (2017); see State v. Straw, 709 N.W.2d 128,

133 (Iowa 2006). If a defendant chooses to raise the claim on direct appeal, “we

may decide the record is adequate to decide the claim or may choose to preserve

the claim for postconviction proceedings.” Straw, 709 N.W.2d at 133. “We review

ineffective-assistance-of-counsel claims de novo.” Id.

      To establish a claim of ineffective assistance, Hankins has the burden to

demonstrate (1) his trial counsel failed to perform an essential duty and (2) this

failure resulted in prejudice. Id. Both must be proved by a preponderance of the

evidence. Id.
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       A. Factual Basis.

       Hankins maintains trial counsel provided ineffective assistance when he

allowed Hankins to plead guilty to eluding without a factual basis to support the

plea. “Where a factual basis for a charge does not exist, and trial counsel allows

the defendant to plead guilty anyway, counsel has failed to perform an essential

duty.”1 State v. Gines, 844 N.W.2d 437, 441 (Iowa 2014) (quoting Schminkey, 597

N.W.2d at 788). “Prejudice is inherent in such a case.” Id. Thus, our only inquiry

here is whether the record shows a factual basis for the guilty plea itself. Id. In

determining whether a factual basis exists, “we consider the entire record before

the district court at the [time the guilty plea was accepted], including any

statements made by the defendant, facts related by the prosecutor, the minutes of

[evidence], and the presentence report.” Schminkey, 597 N.W.2d at 788.

       As pertinent here, a person is guilty of eluding when:

       The driver willfully fails to bring the motor vehicle to a stop or
       otherwise eludes . . . a marked official law enforcement vehicle that
       is driven by a uniformed peace officer after being give a visual and
       audible signal . . . and in doing so exceeds the speed limit by twenty-
       five miles per hour or more.

Iowa Code § 321.279(2) (emphasis added).

       Hankins maintains nothing in the record supports the determination that the

officer in the vehicle was wearing a uniform. We agree. In the minutes of evidence,

the chasing trooper, Tyson Underwood, indicates that he pursued Hankins in his



1
 The State urges us to require Hankins to prove “there is a reasonable probability that,
but for counsel’s errors, he or she would not have pleaded guilty and would have insisted
on going to trial” in order to establish prejudice. Straw, 709 N.W.2d at 138 (citing Hill v.
Lockhart, 474 U.S. 52, 59 (1985)). But we are bound by our supreme court precedent,
providing that “[p]rejudice . . . is inherent” when counsel allows a defendant to plead guilty
where no factual basis exists. See State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).
                                          5


“marked patrol car” while his lights and sirens were activated. Similarly, Hankins

written statement on the petition to plead guilty states, “[I]n Polk County on March

31/April 1, 2017 I was driving a car, I was speeding and when the officer in a

marked car turned on his lights, I sped away going faster than the posted speed

limit by 25 mph.” The record is silent regarding whether Trooper Underwood was

wearing a uniform at the time. Thus, we conclude trial counsel provided ineffective

assistance by allowing Hankins to plead guilty to the charge on this record. See,

e.g., State v. Schroeder, No. 07-1991, 2008 WL 3916457, at *2 (Iowa Ct. App.

Aug. 27, 2008) (vacating eluding charge and remanding for further proceedings).

       “Where a guilty plea has no factual basis in the record” and “it is possible

that a factual basis could be shown, it is . . . appropriate merely 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. However, if the State

is unable to establish the factual basis for the eluding charge, the district court

should vacate each of Hankins’s three convictions and “return the State to the

position it had before the plea agreement.”2 Gines. 844 N.W.2d at 442.

       B. Sentencing.

       Hankins maintains trial counsel provided ineffective assistance by “failing to

competently advocate for [Hankins] after highly emotional victim impact




2If this occurs, the State may:
         reinstate any charges or sentencing enhancements dismissed from the
         [trial] information[s] in contemplation of the plea agreement, file any
         additional charges supported by the available evidence, and proceed
         against [Hankins] on all charges and sentencing enhancements contained
         in the [trial] informations and on any new charges it wishes to file.
Gines, 844 N.W.2d at 442.
                                              6


statements made it obvious effective advocacy was necessary and essential.” He

also maintains counsel was ineffective for failing “to advise him to provide a

forthright and sincere apology at the time of his personal allocution to the court.”

         Hankins concedes that the record on direct appeal is inadequate for us to

assess this claim; he asks that we preserve it for determination in a postconviction-

relief hearing.3 Because Hankins has not asked us to resolve his claim on direct

appeal and acknowledges further development of this issue is necessary, we

preserve the claim. See State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010); see

also Iowa Code § 814.7(1) (providing that a claim need not be raised on direct

appeal in order to preserve it for postconviction-relief purposes).

         AFFIRMED IN PART, SENTENCE FOR ELUDING VACATED, AND

REMANDED WITH DIRECTIONS.




3
    The State agrees the record is not adequate for our review on direct appeal.
