CourtListener 4494529•State of Iowa v. Seth Anthony Hankins
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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.
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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-
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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).
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“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.
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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.
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