from the Iowa District Court for Dubuque County, Michael J.
Scholtes appeals from the denial of his application for
D. Hallstoos of Hallstoos Law Office, LLC, Dubuque, for
J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
VAITHESWARAN, PRESIDING JUDGE.
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
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.
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
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 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
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
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).
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 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.
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 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 ...