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State of Iowa v. Jason Donald Hilbert ( 2019 )


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  •                     IN THE COURT OF APPEALS OF IOWA
No. 18-1849
Filed June 5, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JASON DONALD HILBERT,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan,
District Associate Judge.
Jason Donald Hilbert appeals his sentence after pleading guilty to theft in
the fourth degree. AFFIRMED.
Kevin Hobbs, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee.
Considered by Vogel, C.J., and Mullins and Bower, JJ.
2
VOGEL, Chief Judge.
In April 2018, Jason Donald Hilbert was charged with third-degree theft after
taking approximately $600 from his employer. He pled guilty to a lesser-included
offense, fourth-degree theft, and was sentenced to a one-year term of
incarceration, to run consecutively with his “parole matter.” On appeal, he raises
two ineffective-assistance-of-counsel claims.
Hilbert first discusses potential due process issues involving his guilty plea
and sentencing. He admits he failed to file a motion in arrest of judgment within
the specified time period and thus, may only challenge his guilty plea as an
ineffective-assistance claim. See Iowa R. Crim. P. 2.24(3)(a) (“A defendant’s
failure to challenge the adequacy of a guilty plea proceeding by motion in arrest of
judgment shall preclude the defendant’s right to assert such challenge on
appeal.”).
Normally, we review challenges to guilty pleas for correction of errors at law.
State v. Fisher,
    877 N.W.2d 676
    , 680 (Iowa 2016). However, when such challenge
is raised as an ineffective-assistance claim, our review is de novo. State v. Delacy,
    907 N.W.2d 154
    , 157 (Iowa Ct. App. 2017). To prevail on an ineffective-assistance
claim, the applicant must show counsel failed to perform an essential duty and
such failure resulted in prejudice. State v. Straw,
    709 N.W.2d 128
    , 133 (Iowa 2006)
(citing Strickland v. Washington,
    466 U.S. 668
    , 687–88 (1984)).
In order to establish the first prong of an ineffective-assistance claim,
the defendant must show that trial counsel’s performance was
outside the range of normal competency. This task is not an easy
one as “there is a strong presumption trial counsel’s conduct fell
within the wide range of reasonable professional assistance.”
3
State v. Graves,
    668 N.W.2d 860
    , 881 (Iowa 2003) (quoting DeVoss v. State,
    648 N.W.2d 56
    , 64 (Iowa 2002)); see also State v. Oetken,
    613 N.W.2d 679
    , 683 (Iowa
2000) (“To rebut this presumption defendant must present an affirmative factual
basis establishing inadequate representation.”).       The defendant must also
establish he or she was prejudiced by counsel’s inadequate representation and
demonstrate “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Ledezma v. State,
    626 N.W.2d 134
    , 145 (Iowa 2001) (quoting Strickand,
    466 U.S. at 694
    ). While Hilbert
discusses potential issues involving his guilty plea and sentence, he fails to
articulate how his counsel’s performance was inadequate and fails to establish
prejudice. Because no cognizable claim has been raised, we find Hilbert has failed
to prove any due process violations that would support his first ineffective-
assistance claim.
Next, Hilbert asserts counsel was ineffective by improperly advising him that
he could serve his sentence in prison rather than county jail. “If an ineffective-
assistance-of-counsel claim is raised on direct appeal from the criminal
proceedings, 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 (citing
    Iowa Code § 814.7
    (3) (2005)). Hilbert concedes this claim should be
preserved because the record is not developed. The State agrees. Therefore, we
preserve this claim for possible postconviction relief, “where a full evidentiary
hearing may be had and where counsel will have an opportunity to respond to
defendant’s charges.” State v. Coil,
    264 N.W.2d 293
    , 296 (Iowa 1978); see also
State v. Truesdell,
    679 N.W.2d 611
    , 616 (Iowa 2004) (“Ordinarily, ineffective
4
assistance of counsel claims are best resolved by postconviction proceedings to
enable a complete record to be developed and afford trial counsel an opportunity
to respond to the claim.”).
AFFIRMED.