IN THE COURT OF APPEALS OF IOWA
No. 15-0545
Filed November 9, 2016
JEREMY D. YOCUM,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, John G. Linn,
Judge.
Applicant appeals from the denial of his application for postconviction
relief. AFFIRMED.
Thomas A. Hurd of Glazebrook, Moe & Hurd LLP., Des Moines, for
appellant.
Thomas J. Miller, Attorney General, Linda J. Hines, Assistant Attorney
General, for appellee State.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
2
MCDONALD, Judge.
In January 2011, following a guilty plea, Jeremy Yocum was convicted of
failure to appear for sentencing, in violation of Iowa Code section 811.2(8)
(2007). In 2013, Yocum filed the instant application for postconviction relief.
Yocum contended his plea counsel was ineffective in (1) failing to move to
dismiss the trial information on double-jeopardy grounds and (2) wrongly advising
Yocum his sentence for the failure-to-appear conviction would be served
concurrent with a federal prison sentence. Yocum raised two additional pro se
claims. The postconviction court denied all the claims and dismissed Yocum’s
application for postconviction relief. Yocum timely filed this appeal.
On appeal, Yocum does not raise any issue presented to and decided by
the postconviction court. Instead, he asserts an entirely new claim—his
postconviction counsel was ineffective in failing to raise the claim Yocum’s plea
counsel was ineffective in allowing Yocum to plead guilty to the offense in the
absence of a factual basis supporting the guilty plea. By way of background, in
March 2008, Yocum pleaded guilty to conspiracy to manufacture less than five
grams of methamphetamine. He was scheduled to be sentenced later in 2008,
but he absconded from the Iowa Residential Treatment Center prior to
sentencing and failed to appear for the scheduled sentencing hearing. His
conviction at issue in this appeal arises out of his failure to appear for the
sentencing hearing in 2008. Yocum now contends that there was no factual
basis for the guilty plea because his placement at the Iowa Residential Treatment
Center was not a “release pursuant to this section” within the meaning of section
811.2.
3
We first address the issue of error preservation. As a general rule, an
issue is not preserved for appellate review unless the issue was first presented to
and decided by the district court. See Meier v. Senecaut, 641 N.W.2d 532, 537
(Iowa 2002) (observing that an issue is preserved for review if it has been “raised
and decided by the district court”). One exception to this rule, however, relates to
constitutional claims of ineffective assistance of counsel. See State v. Fountain,
786 N.W.2d 260, 263 (Iowa 2010) (“Ineffective-assistance-of-counsel claims are
an exception to the traditional error-preservation rules.”). The Iowa Supreme
Court has extended this exception to include statutory claims of ineffective
assistance of postconviction counsel, concluding it is better to take a “pragmatic
approach” rather than requiring a litigant to “file a new postconviction relief action
based on ineffective assistance of postconviction relief counsel for failure to raise
the issue in the original postconviction relief proceeding.” Hannan v. State, 732
N.W.2d 45, 50 n.1 (Iowa 2007); see also Dunbar v. State, 515 N.W.2d 12, 14
(Iowa 1994) (recognizing statutory right to the effective assistance of
postconviction-relief counsel). The issue is thus available for appellate review.
To establish his claim, Yocum must establish by a preponderance of the
evidence that his postconviction counsel failed to perform an essential duty and
prejudice resulted. See State v. Straw, 709 N.W.2d 128, 133 (Iowa 2006) (citing
Strickland v. Washington, 466 U.S. 668, 687–88 (1984)). With respect to the
underlying claim regarding the ineffective assistance of plea counsel, “counsel
violates an essential duty when counsel permits defendant to plead guilty and
waive his right to file a motion in arrest of judgment when there is no factual basis
4
to support defendant’s guilty plea.” State v. Ortiz, 789 N.W.2d 761, 764 (Iowa
2010). “Prejudice is presumed under these circumstances.” Id. at 764–65.
The postconviction-relief record here is inadequate to address the
substance of the claim. At the time of the guilty plea, the district court made an
extensive record regarding the factual basis for the plea due to the district court’s
concern that placement at the Iowa Residential Treatment Center was not a
“release” within the meaning of chapter 811. Ultimately, after reviewing the
relevant file and making additional record, the district court accepted Yocum’s
guilty plea. In this appeal, the parties dispute under what authority Yocum was
placed at the treatment center pending sentencing. The placement order is
contained in the underlying criminal file and is not part of the record in this
appeal. We are thus unable to resolve the substance of the claim without resort
to speculation and conjecture. We preserve the claim for further postconviction-
relief proceedings. See Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994)
(preserving claim of ineffective assistance of postconviction counsel for further
postconviction-relief proceedings).1
1
Although our case law has preserved claims of ineffective assistance of postconviction
counsel where the record is inadequate to decide the claim on the merits, there does not
appear to be any statute authorizing preservation of such a claim for subsequent
postconviction-relief proceedings. Iowa Code section 814.7(3) authorizes the
preservation of ineffective-assistance-of-counsel claims only on direct appeal from a
“criminal proceeding.” Iowa Code § 814.7(3) (“If an ineffective assistance of counsel
claim is raised on direct appeal from the criminal proceedings, the court may decide the
record is adequate to decide the claim or may choose to preserve the claim for
determination under chapter 822.”). “[P]ostconviction relief proceedings are not criminal
proceedings, but rather are civil in nature and are triable at law to the court.” Jones v.
State, 479 N.W.2d 265, 269 (Iowa 1991) (emphasis in original omitted). Because a
postconviction-relief proceeding is a civil proceeding rather than a “criminal proceeding,”
section 814.7(3) is inapplicable here. Nonetheless, because our case law has, at least
implicitly, approved the practice, we preserve Yocum’s claim.
5
We address a final issue. Yocum raises a separate challenge in his pro
se brief. Yocum appears to challenge the legality and propriety of the conviction
and sentence on the ground that the underlying criminal charge for which he was
to be sentenced ultimately was dismissed after Yocum was convicted of federal
drug charges relating to the same conduct. Yocum’s arguments are without
merit. We can add nothing to the district court’s resolution of these claims and
adopt its findings and conclusions as our own.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.