IN THE COURT OF APPEALS OF IOWA
No. 22-0814 Filed March 29, 2023
THOMAS EDWARD JENKINS, SR., Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Tom Reidel, Judge.
Thomas Jenkins Sr. appeals the denial of his application for postconviction
relief. AFFIRMED.
Jamie Hunter of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines,
for appellant.
Brenna Bird, Attorney General, and Martha E. Trout, Assistant Attorney
General, for appellee State.
Considered by Badding, P.J., Chicchelly, J., and Mullins, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023). 2
MULLINS, Senior Judge.
Thomas Jenkins appeals the denial of his application for postconviction
relief (PCR). He argues the district court erred in denying him relief on his claims
that criminal trial counsel “was ineffective for failing to explain the possibility of
consecutive sentences and for failing to object to the State’s request for
consecutive sentences as contrary to the plea agreement.”
I. Background
In 2014, Jenkins was charged by trial information with three counts of
second-degree sexual abuse, a class “B” felony, as enhanced due to a prior
conviction for a sexually predatory offense. See Iowa Code §§ 709.3(2), 901A.2(3)
(2013).1 Pursuant to a plea agreement, Jenkins pled guilty to counts one and two
in return for the State’s dismissal of count three. The “memorandum of plea
agreement”—which was signed by Jenkins, defense counsel, and the
prosecutor—provided Jenkins “admits the incidents underlying these pleas are
separate and distinct acts,” “the plea is open as to whether the sentences run
consecutively or concurrently,” and the “State will stipulate that the sentencing
enhancement in Iowa Code section 901A.2 will not apply in this case.”
At the plea hearing, the court detailed the terms of the plea agreement,
including that the plea was “open” and “[t]he State may request that the sentences
run consecutively.” Upon questioning from the court, Jenkins acknowledged his
understanding of the plea agreement. For purposes of establishing a factual basis,
1The trial information alleged the sex acts to have occurred between October 2012 and April 2013. No substantive changes were made to sections 709.3 or 901A.2 during this timeframe. 3
Jenkins admitted he engaged in two separate sex acts with an eight-year-old child
on a single occasion during the alleged timeframe. See id. § 702.17 (defining “sex
act”).
At the sentencing hearing, the State recommended the imposition of
consecutive sentences, while the defense recommended concurrent sentences.
In his statement of allocution, Jenkins himself pleaded with the court to not impose
consecutive sentences, opining “that me doing the seventeen and a half years is
enough punishment to not reoffend.” Because there were “two separate and
distinct acts,” the court imposed consecutive sentences.
Jenkins appealed, claiming “the sentencing court abused its discretion
because it . . . relied on an erroneous belief that the acts happened ‘two separate
distinct times.’” State v. Jenkins, No. 15-0589, 2015 WL 8367810, at *3 (Iowa Ct.
App. Dec. 9, 2015). Because the “acts were committed during one occasion” and
it appeared the sentencing court was of the belief that the acts occurred during
temporally separate occasions, we vacated the sentences and remanded for
resentencing before a different judge. Id. at *5–6. On remand, the parties stood
by their prior sentencing recommendations. The district court again imposed
consecutive sentences. We affirmed, rejecting Jenkins’s claim that the district
court did not properly consider mitigating sentencing factors. See generally State
v. Jenkins, No. 16-0593, 2016 WL 6902870, at *1–2 (Iowa Ct. App. Nov. 23, 2016).
Jenkins filed his PCR application in February 2017, alleging criminal trial
counsel “failed to explain sentencing” and the prosecutor “changed term[s] of
agreement at time of sentencing.” The PCR application proceeded to trial in April
2022. 4
Jenkins testified he decided to plead guilty after criminal trial counsel
advised him the State would be pursuing a sentence of “150 years,” basically
double sentences as enhanced and stacked to reach that total. According to
Jenkins, his understanding of the plea agreement was that “[i]t was being
discussed that we were going to run it concurrent with each other.” Jenkins
recalled, the agreement would be “open,” which he just thought meant the
proceedings would be open to the public, “that people were going to be there.”
Jenkins allegedly thought the two sentences would run concurrently for a total of
twenty-five years, and he stated he did not understand any differently when the
court told him at the plea hearing that consecutive sentences could be imposed.
While he claims he was concerned after the plea hearing that his understanding of
the plea agreement would not be the result, he did not raise his concerns to
counsel. According to Jenkins, he asked his counsel at the first sentencing hearing
why the prosecutor was requesting consecutive sentences, but he could not recall
what counsel said to him in response. He opined counsel should have objected
or taken some action to undo the plea agreement.
On cross-examination, Jenkins agreed he did not want to go to trial
because, given his confession, his “prospects at trial were pretty bad.” He also
agreed pleading guilty to avoid the 150-year sentence he was potentially facing
“was a good deal.” He acknowledged he and counsel had “a long meeting” which
encompassed counsel explaining his potential exposure to 150 years in prison.
He also agreed he signed the plea agreement, and it clearly advised that the
agreement was “open” as to whether the sentences would run consecutively or
concurrently. He also agreed the court told him about the terms of the plea 5
agreement and gave him an opportunity to state he misunderstood the agreement,
but he advised the court he understood it. Nor did he say anything about his
alleged misunderstanding at either sentencing hearing.
Counsel testified that, given the evidence, including Jenkins’s recorded
confession, this was not a good case for trial. Counsel recalled the terms of the
plea agreement would leave whether the sentences were concurrent or
consecutive up to the court. Counsel testified he would have certainly explained
the terms of the plea agreement, including the open nature thereof. And counsel
stated Jenkins never told him he had any problems with the plea agreement or did
not understand it.
In its ruling, the district court found Jenkins lacking in credibility as to his
claimed misunderstanding of the plea agreement, noting his testimony “flies in the
face of the established record.” The court also rejected Jenkins’s assertion that
counsel did not inform him of the possibility of consecutive sentences, finding
counsel’s “version more credible and consistent with the established record.” As
to counsel’s failure to object to the State’s alleged breach of the plea agreement,
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IN THE COURT OF APPEALS OF IOWA
No. 22-0814 Filed March 29, 2023
THOMAS EDWARD JENKINS, SR., Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Tom Reidel, Judge.
Thomas Jenkins Sr. appeals the denial of his application for postconviction
relief. AFFIRMED.
Jamie Hunter of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines,
for appellant.
Brenna Bird, Attorney General, and Martha E. Trout, Assistant Attorney
General, for appellee State.
Considered by Badding, P.J., Chicchelly, J., and Mullins, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023). 2
MULLINS, Senior Judge.
Thomas Jenkins appeals the denial of his application for postconviction
relief (PCR). He argues the district court erred in denying him relief on his claims
that criminal trial counsel “was ineffective for failing to explain the possibility of
consecutive sentences and for failing to object to the State’s request for
consecutive sentences as contrary to the plea agreement.”
I. Background
In 2014, Jenkins was charged by trial information with three counts of
second-degree sexual abuse, a class “B” felony, as enhanced due to a prior
conviction for a sexually predatory offense. See Iowa Code §§ 709.3(2), 901A.2(3)
(2013).1 Pursuant to a plea agreement, Jenkins pled guilty to counts one and two
in return for the State’s dismissal of count three. The “memorandum of plea
agreement”—which was signed by Jenkins, defense counsel, and the
prosecutor—provided Jenkins “admits the incidents underlying these pleas are
separate and distinct acts,” “the plea is open as to whether the sentences run
consecutively or concurrently,” and the “State will stipulate that the sentencing
enhancement in Iowa Code section 901A.2 will not apply in this case.”
At the plea hearing, the court detailed the terms of the plea agreement,
including that the plea was “open” and “[t]he State may request that the sentences
run consecutively.” Upon questioning from the court, Jenkins acknowledged his
understanding of the plea agreement. For purposes of establishing a factual basis,
1The trial information alleged the sex acts to have occurred between October 2012 and April 2013. No substantive changes were made to sections 709.3 or 901A.2 during this timeframe. 3
Jenkins admitted he engaged in two separate sex acts with an eight-year-old child
on a single occasion during the alleged timeframe. See id. § 702.17 (defining “sex
act”).
At the sentencing hearing, the State recommended the imposition of
consecutive sentences, while the defense recommended concurrent sentences.
In his statement of allocution, Jenkins himself pleaded with the court to not impose
consecutive sentences, opining “that me doing the seventeen and a half years is
enough punishment to not reoffend.” Because there were “two separate and
distinct acts,” the court imposed consecutive sentences.
Jenkins appealed, claiming “the sentencing court abused its discretion
because it . . . relied on an erroneous belief that the acts happened ‘two separate
distinct times.’” State v. Jenkins, No. 15-0589, 2015 WL 8367810, at *3 (Iowa Ct.
App. Dec. 9, 2015). Because the “acts were committed during one occasion” and
it appeared the sentencing court was of the belief that the acts occurred during
temporally separate occasions, we vacated the sentences and remanded for
resentencing before a different judge. Id. at *5–6. On remand, the parties stood
by their prior sentencing recommendations. The district court again imposed
consecutive sentences. We affirmed, rejecting Jenkins’s claim that the district
court did not properly consider mitigating sentencing factors. See generally State
v. Jenkins, No. 16-0593, 2016 WL 6902870, at *1–2 (Iowa Ct. App. Nov. 23, 2016).
Jenkins filed his PCR application in February 2017, alleging criminal trial
counsel “failed to explain sentencing” and the prosecutor “changed term[s] of
agreement at time of sentencing.” The PCR application proceeded to trial in April
2022. 4
Jenkins testified he decided to plead guilty after criminal trial counsel
advised him the State would be pursuing a sentence of “150 years,” basically
double sentences as enhanced and stacked to reach that total. According to
Jenkins, his understanding of the plea agreement was that “[i]t was being
discussed that we were going to run it concurrent with each other.” Jenkins
recalled, the agreement would be “open,” which he just thought meant the
proceedings would be open to the public, “that people were going to be there.”
Jenkins allegedly thought the two sentences would run concurrently for a total of
twenty-five years, and he stated he did not understand any differently when the
court told him at the plea hearing that consecutive sentences could be imposed.
While he claims he was concerned after the plea hearing that his understanding of
the plea agreement would not be the result, he did not raise his concerns to
counsel. According to Jenkins, he asked his counsel at the first sentencing hearing
why the prosecutor was requesting consecutive sentences, but he could not recall
what counsel said to him in response. He opined counsel should have objected
or taken some action to undo the plea agreement.
On cross-examination, Jenkins agreed he did not want to go to trial
because, given his confession, his “prospects at trial were pretty bad.” He also
agreed pleading guilty to avoid the 150-year sentence he was potentially facing
“was a good deal.” He acknowledged he and counsel had “a long meeting” which
encompassed counsel explaining his potential exposure to 150 years in prison.
He also agreed he signed the plea agreement, and it clearly advised that the
agreement was “open” as to whether the sentences would run consecutively or
concurrently. He also agreed the court told him about the terms of the plea 5
agreement and gave him an opportunity to state he misunderstood the agreement,
but he advised the court he understood it. Nor did he say anything about his
alleged misunderstanding at either sentencing hearing.
Counsel testified that, given the evidence, including Jenkins’s recorded
confession, this was not a good case for trial. Counsel recalled the terms of the
plea agreement would leave whether the sentences were concurrent or
consecutive up to the court. Counsel testified he would have certainly explained
the terms of the plea agreement, including the open nature thereof. And counsel
stated Jenkins never told him he had any problems with the plea agreement or did
not understand it.
In its ruling, the district court found Jenkins lacking in credibility as to his
claimed misunderstanding of the plea agreement, noting his testimony “flies in the
face of the established record.” The court also rejected Jenkins’s assertion that
counsel did not inform him of the possibility of consecutive sentences, finding
counsel’s “version more credible and consistent with the established record.” As
to counsel’s failure to object to the State’s alleged breach of the plea agreement,
the court found counsel was under no duty to object because the State’s
recommendation did not violate the open agreement.
Jenkins appeals.
II. Standard of Review
We review a district court ruling on a PCR application raising constitutional
claims of ineffective assistance of counsel de novo. Sothman v. State, 967 N.W.2d
512, 522 (Iowa 2021). While not bound by them, “we give weight to the lower
court’s findings concerning witness credibility.” Id. (citation omitted). 6
III. Discussion
Jenkins’s claims require proof, by a preponderance of the evidence,
that (1) his counsel failed to perform an essential duty and (2) prejudice resulted.
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Lopez, 907 N.W.2d
112, 116 (Iowa 2018). We “may consider either the prejudice prong or breach of
duty first, and failure to find either one will preclude relief.” State v. McNeal, 897
N.W.2d 697, 703 (Iowa 2017) (quoting State v. Lopez, 872 N.W.2d 159, 169 (Iowa
2015)).
Jenkins first argues “his trial counsel was ineffective for failing to explain the
sentencing.” More specifically, Jenkins submits he “presented sufficient evidence
to demonstrate that he did not understand his sentencing exposure at the time he
entered into his guilty plea, and his defense counsel was ineffective in failing to
advise [him] that the State would argue for consecutive sentences.”
The plea agreement noted “[t]he plea is open as to whether the sentences
run consecutively or concurrently.” It was signed by both Jenkins and counsel,
and counsel’s signature acknowledged: “I have advised the Defendant of all
particulars set out above and all consequences thereof.” Counsel specifically
testified he would have explained all of the particulars of the plea agreement to
Jenkins, and the district court found this testimony credible. At the plea hearing,
the court detailed the terms of the plea agreement, including that the plea was
“open” and “[t]he State may request that the sentences run consecutively.” Upon
questioning from the court, Jenkins acknowledged his understanding of the plea
agreement. Jenkins did not voice any misunderstanding at either the first or
second sentencing hearings, nor in either of the appeals following the impositions 7
of sentence. His statement of allocution at the first sentencing hearing, during
which Jenkins pled for concurrent sentences instead of consecutive ones,
indicates he indeed understood.
On our review, we agree with the State and district court that Jenkins’s bare
allegations—that he did not understand the terms of the plea agreement and
counsel did not adequately explain them—are directly contradictory to the record,
do not meet a minimum threshold of credibility, do not overcome the presumption
that the record truly reflects the facts, and therefore do not entitle him to relief. See
State v. Nosa, 738 N.W.2d 658, 661 (Iowa Ct. App. 2007). Furthermore, to
demonstrate prejudice in the guilty-plea context, Jenkins was required to show
that, but for counsel’s alleged breach, he would not have pled guilty and would
have insisted on going to trial. See State v. Carroll, 767 N.W.2d 638, 641 (Iowa
2009). Jenkins essentially agreed in his testimony that going to trial was not an
option, so he did not meet his burden to show prejudice.
Turning to Jenkins’s claim that counsel was ineffective in failing to object to
the State’s recommendation for consecutive sentences as a breach of the plea
agreement, as the plea court accurately explained, the terms of the plea
agreement authorized the State to do so. See, e.g., State v. Kimbrough,
No. 22-0424, 2022 WL 17826916, at *1–2 (Iowa Ct. App. Dec. 21, 2022) (finding
a plea agreement calling for an “open sentencing” not breached because “the State
was not obligated to make any particular sentencing proposal”). As such, counsel
was under no duty to object. See State v. Frencher, 873 N.W.2d 281, 284 (Iowa
Ct. App. 2015) (“In the absence of a breach, defense counsel had no reason or
duty to object . . . .”). 8
IV. Conclusion
Finding counsel was not ineffective as alleged, we affirm the denial of
Jenkins’s PCR application.2
AFFIRMED.
2 As to Jenkins’s various complaints in his brief that counsel “conducted no discovery,” “filed no motions,” “did not prepare or file anything in support of Jenkins’s request for a concurrent sentence,” “did nothing to prepare for a contested sentencing situation,” and “failed to speak to any family or friends or investigate any mental health or substance use disorder,” none of those matters were raised as grounds for relief in Jenkins’s PCR application. Furthermore, as the State points out, “[w]hen complaining about the adequacy of an attorney’s representation, it is not enough to simply claim that counsel should have done a better job. The applicant must state the specific ways in which counsel’s performance was inadequate and identify how competent representation probably would have changed the outcome.” Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994) (internal citation omitted).