                    IN THE COURT OF APPEALS OF IOWA

                                      No. 17-1719
                               Filed November 21, 2018


TRAVIS HOPPE,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Andrew B. Chappell,

Judge.



      Travis Hoppe appeals from the district court’s denial of his application for

postconviction relief. AFFIRMED.



      Anne K. Wilson of Anne K. Wilson Law Office, PLLC, Hiawatha, for

appellant.

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

General, for appellee State.



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

         Travis Hoppe was arrested and charged with first-degree theft in connection

with the removal of concrete forms1 from a Cedar Rapids parking lot. See Iowa

Code § 714.2(1) (2014). Hoppe pled guilty to the charge. The district court

sentenced him to a prison term not exceeding ten years, suspended the term, and

placed him on probation.

         Hoppe appealed. This court affirmed his conviction and preserved “his

ineffective-assistance-of-counsel claim for postconviction-relief proceedings.”

State v. Hoppe, No. 14-2096, 2015 WL 5965596, at *1 (Iowa Ct. App. Oct. 14,

2015).

         Hoppe filed a postconviction-relief application alleging, “There is video

evidence that shows this is far f[r]om a first-degree theft.” Following an evidentiary

hearing at which Hoppe did not appear, the postconviction court denied the

application. Hoppe appealed.

I.       Ineffective Assistance – Plea Counsel

         Hoppe contends his plea attorney was ineffective in failing to adequately

investigate the value of the stolen concrete forms, rendering his plea unknowing

and unintelligent and lacking in a factual basis.      Hoppe must prove deficient

performance and prejudice. See Strickland v. Washington, 466 U.S. 668, 687

(1984). Where there is no factual basis, prejudice is presumed.              State v.

Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).




1
 These aluminum molds are used in construction projects to pour concrete into specific
shapes.
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       Our de novo review of the record reveals the following facts. On the day

the trial information was filed, the victim witness coordinator filed a statement of

pecuniary damages incurred by the concrete company that owned the forms. The

statement listed the value of the stolen property as $32,872. The minutes of

testimony, also filed the same day, stated that a representative of the concrete

company would testify, “The value of these concrete forms was approximately

$50,000.”

       At the plea hearing, the district informed Hoppe the crime included an

element “that the property had a value of more than $10,000.” Hoppe said he

understood. The court then asked Hoppe, “[D]o you agree, Mr. Hoppe, that the

value of the property was more than $10,000?” Hoppe answered, “Yes.” He also

confirmed the substantial accuracy of the minutes of testimony.

       At an originally-scheduled sentencing hearing, Hoppe stated he had not

been afforded an opportunity to view videos of the crime scene. The district court

reset the sentencing hearing and the prosecutor stated, “[T]he evidence will be

available for him to look at any time.”

       At the reset sentencing hearing, Hoppe asked to withdraw his plea based

on an insurance settlement he believed controverted the “value” element of the

crime. The prosecutor informed the court that the “missing property [was] valued

at approximately $117,000,” the concrete company received an insurance

payment of “$84 thousand and change,” and “the State filed a pecuniary damage

statement for the remainder of $32,872.”

       The sentencing court treated Hoppe’s request to withdraw the plea as a

timely motion in arrest of judgment. The court concluded Hoppe’s challenge to the
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value element was “a false issue” and his plea appeared “to have been voluntarily

and intelligently made and made in compliance with the case law and court rules

that underline those and that there is a factual basis for it.” The court conceded

“there may be a dispute as to what actual restitution is owed” but found no “grounds

to set aside the plea.”

       At the postconviction-relief hearing, Hoppe’s plea attorney testified he

received statements of the missing inventory’s value and he turned the materials

over to Hoppe. He stated,

       On many occasions, I explained to Mr. Hoppe what the elements of
       a theft in the first degree charge were and that specifically one of the
       elements that would be required to be proven by the State was that
       the value of the items taken had to exceed $10,000. And that was
       explained . . . prior to the plea proceeding. It was explained at the
       time of the plea proceeding by both myself and by the Judge.

Counsel also testified he advised Hoppe that it did not matter what he “received

for compensation for the items that [he] scrapped or sold. It was the value of those

items . . . at the time that they were taken” that was important.

       We conclude plea counsel did not breach an essential duty in failing to

challenge the value element of first-degree theft.

II.    Ineffective Assistance – Postconviction Counsel

       Hoppe next takes issue with his postconviction attorney’s effectiveness.

The attorney sought to introduce a letter from the concrete company’s insurer to

support the proposition that the stolen property did not exceed $10,000 in value.

The postconviction court sustained an objection to the exhibit for lack of

foundation. Hoppe now argues, “It was a breach of an essential duty for counsel
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to not secure a witness that could lay a foundation for the proposed evidence.” We

choose to resolve the issue on prejudice grounds.

         The letter, which was included in the record as a proposed exhibit, listed the

subrogation amount on the insurance claim as $84,526.75, well over the “more

than $10,000” figure necessary for a first-degree theft conviction. In addition, an

attachment to the document stated “total $33,620 stolen on camera.” In light of

these figures, there is no reasonable probability of a different outcome had counsel

obtained a foundational witness and succeeded in admitting the document. See

Petithory v. State, No. 07-0520, 2008 WL 2200058, at *3 (Iowa Ct. App. May 29,

2008).

III.     Denial of Motion for Continuance

         Hoppe contends the postconviction court abused its discretion in denying

his attorney’s motion to continue the proceeding in light of his absence. See State

v. Artzer, 609 N.W.2d 526, 529 (Iowa 2000) (setting forth standard of review). He

acknowledges his presence was not constitutionally mandated but asserts, “The

court should have allowed a continuance to provide post-conviction counsel the

opportunity to ascertain [his] whereabouts and intentions on appearing.”

         On the day of the hearing, Hoppe’s attorney informed the court that, while

“trying to track [Hoppe] down” for the hearing, he learned there was an

“outstanding warrant for his arrest on probation violations.” Counsel stated, “So

I’m left under the assumption, I guess, that he is not here because he’s aware that

he has a warrant for his arrest and is choosing not to attend based upon the fact

that he doesn’t want to be arrested.”

         In denying the motion, the district court reasoned as follows:
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      At this point, the Court finds that even assuming Mr. Hoppe is not
      here because he knows about the warrant for his arrest and he is
      avoiding being served with the warrant for his arrest and knowing
      that he is not at least in the custody of the Linn County Jail, the Court
      finds there is not good cause to grant the motion to continue at this
      time.

We conclude the court acted within its discretion in denying the continuance

motion.

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

      AFFIRMED.
