Mark Roger Scholtes v. State of Iowa ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1854
Filed June 19, 2019
MARK ROGER SCHOLTES,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Michael J.
Shubatt, Judge.
Mark Scholtes appeals from the denial of his application for postconviction
relief. AFFIRMED.
Sharon D. Hallstoos of Hallstoos Law Office, LLC, Dubuque, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
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VAITHESWARAN, Presiding Judge.
Mark Scholtes pled guilty to third-degree burglary and was sentenced to a
prison term not exceeding five years. Charges pending in another county
subsequently went to trial. A jury found Scholtes guilty of eluding and leaving the
scene of a personal-injury accident. The district court sentenced him to prison on
the eluding conviction, with the sentence to run consecutively to the sentence
imposed on the burglary conviction. See State v. Scholtes, No. 16-1967, 2017 WL
3525296, at *3 (Iowa Ct. App. Aug. 16, 2017) (affirming convictions for eluding and
leaving the scene of an accident).
Scholtes filed a postconviction-relief application challenging his conviction,
judgment, and sentence for third-degree burglary. Following an evidentiary
hearing, the postconviction court denied the application.
On appeal, Scholtes contends his plea attorney in the burglary case should
have advised him any prison sentence that might be imposed on the then-pending
eluding charge could run consecutively to the sentence for third-degree burglary.
In his view, his plea attorney was ineffective in failing to file a motion in arrest of
judgment objecting to the court’s acceptance of the burglary guilty plea and
postconviction counsel was ineffective in failing to raise the issue of plea counsel’s
ineffectiveness. See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(requiring proof of breach of an essential duty and prejudice).
The claim against postconviction counsel is easily resolved. Postconviction
counsel did in fact make a record on the advice Scholtes received about
consecutive and concurrent sentencing. Counsel questioned Scholtes and
Scholtes’ plea attorney and asked the court to consider a transcript of the plea
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proceeding on the burglary charge as well as transcripts of the trial and sentencing
proceedings on the eluding charge. The postconviction court ruled on the issue.
Because postconviction counsel raised and obtained a ruling on the precise issue
Scholtes now raises, he could not have been ineffective.
We turn to Scholtes’ claim that his plea attorney was ineffective in failing to
inform him of the possibility that a prison sentence on the eluding charge could run
consecutively to his prison sentence on the burglary conviction. At the
postconviction hearing, Scholtes’ plea attorney on the burglary charge, who also
represented him on the then-pending eluding charge, testified he told Scholtes
about this ramification. He informed Scholtes of the years in prison he would face
if he were convicted and sentenced to the maximum terms of incarceration on all
the charges and “if they would run consecutively.” He also advised Scholtes not
to plead guilty to the burglary charge while the other charges were pending. In his
words, “Mr. Scholtes insisted upon” proceeding with a guilty plea to the burglary
charge.
The postconviction court found the plea attorney’s testimony more credible
than Scholtes’ testimony. We give weight to the court’s credibility finding. See
Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
Even without the credibility determination, plea counsel’s postconviction
testimony finds support in the transcript of the plea proceeding. There, the court
asked Scholtes whether he had criminal charges pending against him “anywhere.”
Scholtes responded that he did, in Dubuque. The court then asked, “And you are
still comfortable going ahead with the plea in this case knowing that you have other
pending charges?” Scholtes responded, “Yeah.” Although the court did not inform
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Scholtes that the pending charges could result in a sentence that would run
consecutively to the prison term in the burglary case, our precedent does not
necessarily require that type of advice. Cf. State v. White, 587 N.W.2d 240, 241
(Iowa 1998) (requiring the court, in a single case involving a guilty plea to two
charges, to inform a defendant of the possibility of consecutive sentences as part
of the information about the maximum possible sentence); State v. Buchanan, No.
06-1866, 2007 WL 3087293, at *2 n.1 (Iowa Ct. App. Oct. 24, 2007) (“The facts in
this case are arguably distinguishable from those in White and [State v.] Straw[,709
N.W.2d 128, 131 (Iowa 2006)] because [the defendant] pled guilty to and was
sentenced on only one charge in this case. Accordingly, because of the
differences between the multiple charges, pleas, and sentences involved in the
cases before the district court in White and Straw and the single charge, plea, and
sentence involved in the case before the district court here, we find it unnecessary
to decide whether the holdings of White and Straw should be extended to cases
involving a single charge, plea, and sentence.”). But, even if White could be read
as requiring such advice, it was given by counsel.
Plea counsel’s postconviction testimony also finds support in the transcript
of the eluding trial. There, Scholtes’ attorney memorialized a plea agreement
Scholtes rejected, which would have recommended his sentences run
concurrently “with each other” and “with the other burglary” he was “convicted of[,]
for one five-year sentence.” Although Scholtes initially claimed not to understand
the plea offer, he later conceded counsel explained the offer to him the previous
week. He also agreed he told counsel to reject the offer and proceed to trial on
the eluding charge. Finally, Scholtes answered “[y]ep” when asked if he
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understood everything that was explained to him about the plea offer in the eluding
case. In short, Scholtes was afforded the opportunity to obtain the precise
sentence he now contends was unavailable to him—a prison sentence on the
eluding conviction that ran concurrently with the burglary sentence. He rejected
the offer.
We conclude plea counsel was not ineffective in his advice about the
possibility of consecutive sentences. We affirm the postconviction court’s denial
of Scholtes’ postconvicton-relief application.
AFFIRMED.