Mark Roger Scholtes v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: June 19, 2019
• Docket: 18-1854
• Status: Published

Opinion

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. 2

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 3

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 4

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 5

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.