State of Iowa v. Sefton Royd Akin ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1378
Filed May 15, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SEFTON ROYD AKIN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Buena Vista County, Charles Borth,
Judge.
A defendant appeals his conviction for third-offense public intoxication,
contending his constitutional rights were violated by the requirement he submit a
DNA sample. AFFIRMED.
Jack Bjornstad of Jack Bjornstad Law Office, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Potterfield, P.J., and Tabor and Bower, JJ.
2
TABOR, Judge.
Sefton Akin seeks to set aside his guilty plea to third-offense public
intoxication because his trial counsel allegedly failed to ensure Akin understood
the conviction required him to submit a DNA sample for the state database.
Because we cannot tell from this record whether counsel breached a duty or Akin
suffered prejudice, we affirm his conviction and preserve the claim for potential
postconviction-relief proceedings.
Akin’s guilty plea resulted from a negotiated agreement with the State. As
a result of an angry confrontation with his neighbors in May 2018, Akin faced
charges of public intoxication, third or subsequent offense, an aggravated
misdemeanor in violation of Iowa Code sections 123.46(2) and 123.91 (2018), and
assault causing bodily injury or mental illness, a serious misdemeanor in violation
of sections 708.1(2) and 708.2(2). The Buena Vista County Attorney agreed to
dismiss the assault charge in return for Akin’s plea to third-offense public
intoxication. Akin understood the prosecutor would recommend an indeterminate
two-year prison term to run concurrently with his sentences from two separate
cases.
At sentencing, the court committed Akin to the custody of the Iowa
Department of Corrections for a term not to exceed two years and further ordered:
Akins challenges that sentencing provision. He does so by claiming he
received ineffective assistance of counsel because his attorney did not advise him
3
the guilty plea “subjected [him] to a DNA sampling and inclusion in the Iowa DNA
database.”1
“We review ineffective-assistance-of-counsel claims de novo.” State v.
Straw, 709 N.W.2d 128, 133 (Iowa 2006). To prove he received ineffective
assistance, Akin must show his attorney failed to perform an essential duty and
prejudice resulted. See Dempsey v. State, 860 N.W.2d 860, 868 (Iowa 2015).
Because he alleges ineffective assistance in connection with his guilty plea, Akin
must show, but for counsel’s breach, there was a reasonable probability he would
have insisted on going to trial. See State v. Tate, 710 N.W.2d 237, 240 (Iowa
2006). It will be the rare case where a defendant can “muster enough evidence to
prove prejudice without a postconviction[-]relief hearing.” Straw, 709 N.W.2d at
138.
Akin’s complaint focuses on Iowa Code chapter 81, which requires people
convicted of felonies and aggravated misdemeanors to submit a DNA sample for
inclusion in the database managed by the Iowa Department of Public Safety
(DPS).2 Because the mandate to provide a DNA sample is aimed at “public safety,
not punishment,” our court decided a plea-taking court is not required by Iowa Rule
of Criminal Procedure 2.8(2)(b)(2) to inform a defendant of that consequence of
his guilty plea. See Mills v. State, 15-1849, 2017 WL 1733102, at *1 (Iowa Ct. App.
1
Although he raises his claim as ineffective assistance of counsel, Akin also argues on
appeal that the district court did not adequately advise him of the consequence of not filing
a motion in arrest of judgment to challenge the guilty plea. We find the written guilty plea
form satisfied Iowa Rule of Criminal Procedure 2.8(2)(d) by informing Akin he would
“forever lose” his right to challenge the plea unless he filed a motion in arrest of judgment.
2
The legislature also decided samples should be taken from an individual who receives a
deferred judgment for a felony, sexually violent predators, those found not guilty by reason
of insanity of an offense that requires DNA profiling, and juveniles adjudicated delinquent
of an offense that requires DNA profiling of an adult offender. Iowa Code § 81.2.
4
May 3, 2017) (distinguishing State v. Fisher, 877 N.W.2d 676, 684–86 (Iowa 2016),
which held license revocation was punitive in nature and thus a defendant must be
advised of that consequence when pleading guilty).
But Akin does not contend the submission of a DNA sample was a direct
consequence of his guilty plea. Instead, he insists his attorney was remiss in not
informing him that his guilty plea would result in this “intrusion” on “his bodily
integrity, liberty, and privacy rights.” Akin cites article I, sections 1, 8, and 9 of the
Iowa Constitution in support of his claim. He argues he unknowingly waived these
constitutional rights by pleading guilty to an aggravated misdemeanor. On the
prejudice prong, Akin acknowledges he must show that but for counsel’s omission,
it was reasonably probable he would not have entered the guilty plea and would
have elected to stand trial on the original charges. See State v. Carroll, 767
N.W.2d 638, 641 (Iowa 2009).
The record is not sufficiently developed for Akin to show either a breach of
duty or prejudice on direct appeal. Therefore, we affirm his conviction but preserve
the issue for possible postconviction-relief proceedings. See State v. Oberhart,
789 N.W.2d 161, 163 (Iowa 2010) (preserving claim “without regard to the ultimate
merit” and pursuant to obligation under Iowa Code section 814.7(3)); see also
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.”).
AFFIRMED.