Clyde Winthrop Hinkle v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 22-0500
Filed January 11, 2023

CLYDE WINTHROP HINKLE,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Ian K. Thornhill,

Judge.

Clyde Hinkle appeals the dismissal of his application for postconviction

relief. AFFIRMED.

Erin Patrick Lyons of Lyons Law Firm, PLC, Waterloo, for appellant.

Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.

Considered by Bower, C.J., and Greer and Badding, JJ.
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BOWER, Chief Judge.

Clyde Hinkle appeals the district court’s grant of summary judgment

dismissing his application for postconviction relief (PCR). Hinkle did not establish

prejudice and accordingly his ineffective-assistance-of-counsel claim fails. We

affirm.

I. Background Facts & Proceedings.

In February 2018, as part of a plea agreement Hinkle pleaded guilty to one

count of second-degree sexual abuse and one count of lascivious acts with a child.

The plea agreement provided the sentences for the two convictions would run

consecutively and the State would dismiss twenty-two related charges.

At the plea and sentencing hearing, the court explained to Hinkle how

consecutive sentences would affect his parole eligibility and commented on the

beneficial nature of his plea agreement. Hinkle agreed he understood and had

authorized the plea agreement. Both the State and defense asked the court to

follow the plea agreement. When pronouncing sentence, the court did not state

whether the sentences were to run concurrently or consecutively, but throughout

the hearing it repeatedly mentioned the plea agreement and the much longer

sentence Hinkle faced had he gone to trial.1 Neither counsel brought the missing

1 The court’s reasons for the sentences imposed included the plea agreement:
In assessing the sentence here I have to look at the
opportunity to rehabilitate Mr. Hinkle, the need to protect the
community from him and others, the nature of this offense, Mr.
Hinkle’s previous criminal record, Mr. Hinkle’s age, education,
employment and family circumstances, the recommendation—I don’t
have a [presentence investigation] recommendation, so the joint
recommendation of the attorneys per the plea agreement, the fact
that restitution can be required—although if Mr. Hinkle’s in prison it
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consecutive/concurrent pronouncement to the court’s attention. The written

sentencing order issued later that day directed the sentences to run consecutive

to each other. The order further stated, “The reason for consecutive sentences is

the ongoing nature of the offense and the fact the Defendant agreed to consecutive

sentences.” Hinkle did not appeal the sentence imposed.

In May, nearly three months after sentencing, Hinkle filed a motion for

reconsideration of sentence. See Iowa Code § 902.4 (2018). The court denied

the motion stating, “The court’s sentence in this case was appropriate in light of

the nature of this offense. The court deems the possibility that the Defendant will

be rehabilitated as slight and he presents a very significant risk to society.” In

September, Hinkle filed another motion for reconsideration of sentence and in a

letter asked the court to run his sentences concurrently and remove the mandatory

minimum. The court again denied the motion stating, “The court is confident that

the sentence imposed was appropriate. Defendant’s incarceration is necessary to

protect society from Defendant and the chance of rehabilitating Defendant is not

sufficient to justify a shorter period of incarceration.” In October 2019, Hinkle filed

a motion for correction of illegal sentence, alleging counsel provided ineffective

assistance, which the court again denied.

On January 24, 2020, Hinkle filed this application for PCR, alleging a

violation of his constitutional rights and ineffective assistance of counsel and

claiming discovery of new material facts. The State filed a motion for summary

judgment on all grounds. Hinkle resisted, asserting his plea counsel was

is unlikely to be paid in any significant amount—and the victim impact
statement I received both in writing and in the courtroom today.
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ineffective in not recognizing the court’s failure to expressly impose consecutive

sentences in its oral pronouncement meant that, by default, it imposed concurrent

sentences. Hinkle only resisted the summary judgment claim on the

consecutive/concurrent question.

The district court noted Hinkle did not raise in his PCR application the issue

of the sentencing court’s silence of oral pronouncement of consecutive or

concurrent sentences, but it addressed the question to resolve Hinkle’s ineffective-

assistance-of-counsel claim. The district court determined “all signs point to the

court intending a consecutive sentencing, the oral pronouncement is silent, the

offer was for consecutive sentencing, and the written sentence specifies a

consecutive sentencing, there is no reason to find that the Court had intended a

concurrent sentence to be imposed through its silence.” The court further found

Hinkle failed to establish prejudice or that he would have insisted on going to trial

on all twenty-four counts if he had known the sentences would be consecutive.

The court held Hinkle failed to show a genuine issue of material fact on his

ineffective-assistance-of-counsel claim that precluded summary disposition and

granted the State summary judgment.

Hinkle appeals.

II. Standard of Review.

“We generally review a district court’s denial of an application for

postconviction relief for errors at law. However, a PCR application alleging

ineffective assistance of counsel raises a constitutional claim, and we review

postconviction proceedings that raise constitutional infirmities de novo.” Sothman
5

v. State, 967 N.W.2d 512, 522 (Iowa 2021) (internal quotation marks and citations

omitted).

III. Analysis.

A claim of ineffective assistance of counsel requires the claimant

demonstrate counsel failed to perform an essential duty and prejudice resulted.

Id. “Failure to prove either prong . . . results in failure of the defendant’s ineffective-

assistance-of-counsel claim.” State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004).

“We presume counsel acted competently but that presumption is overcome ‘if we

find [Hinkle] has proved his counsel’s performance fell below the normal range of

competency.’” Krogmann v. State, 914 N.W.2d 293, 306 (Iowa 2018) (citation

omitted). To prove the prejudice prong, Hinkle must show that “the outcome of the

[sentencing] proceeding would have been different.” State v. Fannon, 799 N.W.2d

515, 522 (Iowa 2011) (alteration in original).

Hinkle asserts counsel failed in their duty to recognize a discrepancy

between the oral pronouncement of sentence and the sentencing order and he

was prejudiced because if his counsel had notified the court of the inconsistency

between the oral and written judgments, his sentence would have been ordered to

run concurrently. Hinkle asserts the court’s “oral sentence imposed the sentences

concurrently,” but this is a misstatement of the record. He relies on an argument

that no pronouncement of concurrent or consecutive sentence presumes

concurrent sentences—a presumption not grounded by statute or caselaw.

The district court has discretion to order sentences run consecutively or

concurrently. Iowa Code § 901.8. When the court is imposing multiple sentences,

it “shall publicly announce . . . whether the sentences shall be served consecutively
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or concurrently.” Id. § 901.5(9)(c). If the court has a duty to publicly announce the

sentences as either consecutive or concurrent, it logically follows neither is a

presumption. The legislature knows how to create a presumption for consecutive

or concurrent sentences and chose not to do so under the general sentencing

statute. Compare id., and id. § 901.8 (“If a person is sentenced for two or more

separate offenses, the sentencing judge may order the second or further sentence

to begin at the expiration of the first or succeeding sentence.”), with id. § 908.10(2)

(“The new sentence of imprisonment for conviction of a felony shall be served

consecutively with the term imposed for the parole violation, unless a concurrent

term of imprisonment is ordered by the court.”).

We find nothing in this record supports the suggestion that had counsel

notified the court of its omission it would have imposed concurrent sentences. At

the sentencing hearing, the court referred to the plea agreement and the parties’

agreement of consecutive sentences as supporting the sentence, and the court

indicated it would have been inclined to impose a longer continuous term of

imprisonment if Hinkle had been convicted of all the charged crimes. In the

sentencing order filed immediately after the hearing, the court ordered consecutive

sentences due to the ongoing nature of the offenses and Hinkle’s agreement to

consecutive sentences. In each of Hinkle’s three post-judgment motions seeking

reconsideration or a change in his sentence the same court denied his requests,

noting the risk he poses to society and his favorable plea agreement that resulted

in a lighter sentence and expressing confidence “the sentence imposed was

appropriate.”
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Under the unique circumstances of this case, Hinkle has failed to prove he

was prejudiced because his counsel did not object when the court’s written order

imposed the sentence as agreed to as part of his plea agreement. His claim of

ineffective assistance of counsel fails, and we affirm the district court’s summary

dismissal of Hinkle’s PCR application.

AFFIRMED.