IN THE COURT OF APPEALS OF IOWA
No. 17-1719
Filed November 21, 2018
TRAVIS HOPPE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Andrew B. Chappell,
Judge.
Travis Hoppe appeals from the district court’s denial of his application for
postconviction relief. AFFIRMED.
Anne K. Wilson of Anne K. Wilson Law Office, PLLC, Hiawatha, for
appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
2
VAITHESWARAN, Presiding Judge.
Travis Hoppe was arrested and charged with first-degree theft in connection
with the removal of concrete forms1 from a Cedar Rapids parking lot. See Iowa
Code § 714.2(1) (2014). Hoppe pled guilty to the charge. The district court
sentenced him to a prison term not exceeding ten years, suspended the term, and
placed him on probation.
Hoppe appealed. This court affirmed his conviction and preserved “his
ineffective-assistance-of-counsel claim for postconviction-relief proceedings.”
State v. Hoppe, No. 14-2096, 2015 WL 5965596, at *1 (Iowa Ct. App. Oct. 14,
2015).
Hoppe filed a postconviction-relief application alleging, “There is video
evidence that shows this is far f[r]om a first-degree theft.” Following an evidentiary
hearing at which Hoppe did not appear, the postconviction court denied the
application. Hoppe appealed.
I. Ineffective Assistance – Plea Counsel
Hoppe contends his plea attorney was ineffective in failing to adequately
investigate the value of the stolen concrete forms, rendering his plea unknowing
and unintelligent and lacking in a factual basis. Hoppe must prove deficient
performance and prejudice. See Strickland v. Washington, 466 U.S. 668, 687
(1984). Where there is no factual basis, prejudice is presumed. State v.
Schminkey, 597 N.W.2d 785, 788 (Iowa 1999).
1
These aluminum molds are used in construction projects to pour concrete into specific
shapes.
3
Our de novo review of the record reveals the following facts. On the day
the trial information was filed, the victim witness coordinator filed a statement of
pecuniary damages incurred by the concrete company that owned the forms. The
statement listed the value of the stolen property as $32,872. The minutes of
testimony, also filed the same day, stated that a representative of the concrete
company would testify, “The value of these concrete forms was approximately
$50,000.”
At the plea hearing, the district informed Hoppe the crime included an
element “that the property had a value of more than $10,000.” Hoppe said he
understood. The court then asked Hoppe, “[D]o you agree, Mr. Hoppe, that the
value of the property was more than $10,000?” Hoppe answered, “Yes.” He also
confirmed the substantial accuracy of the minutes of testimony.
At an originally-scheduled sentencing hearing, Hoppe stated he had not
been afforded an opportunity to view videos of the crime scene. The district court
reset the sentencing hearing and the prosecutor stated, “[T]he evidence will be
available for him to look at any time.”
At the reset sentencing hearing, Hoppe asked to withdraw his plea based
on an insurance settlement he believed controverted the “value” element of the
crime. The prosecutor informed the court that the “missing property [was] valued
at approximately $117,000,” the concrete company received an insurance
payment of “$84 thousand and change,” and “the State filed a pecuniary damage
statement for the remainder of $32,872.”
The sentencing court treated Hoppe’s request to withdraw the plea as a
timely motion in arrest of judgment. The court concluded Hoppe’s challenge to the
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value element was “a false issue” and his plea appeared “to have been voluntarily
and intelligently made and made in compliance with the case law and court rules
that underline those and that there is a factual basis for it.” The court conceded
“there may be a dispute as to what actual restitution is owed” but found no “grounds
to set aside the plea.”
At the postconviction-relief hearing, Hoppe’s plea attorney testified he
received statements of the missing inventory’s value and he turned the materials
over to Hoppe. He stated,
On many occasions, I explained to Mr. Hoppe what the elements of
a theft in the first degree charge were and that specifically one of the
elements that would be required to be proven by the State was that
the value of the items taken had to exceed $10,000. And that was
explained . . . prior to the plea proceeding. It was explained at the
time of the plea proceeding by both myself and by the Judge.
Counsel also testified he advised Hoppe that it did not matter what he “received
for compensation for the items that [he] scrapped or sold. It was the value of those
items . . . at the time that they were taken” that was important.
We conclude plea counsel did not breach an essential duty in failing to
challenge the value element of first-degree theft.
II. Ineffective Assistance – Postconviction Counsel
Hoppe next takes issue with his postconviction attorney’s effectiveness.
The attorney sought to introduce a letter from the concrete company’s insurer to
support the proposition that the stolen property did not exceed $10,000 in value.
The postconviction court sustained an objection to the exhibit for lack of
foundation. Hoppe now argues, “It was a breach of an essential duty for counsel
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to not secure a witness that could lay a foundation for the proposed evidence.” We
choose to resolve the issue on prejudice grounds.
The letter, which was included in the record as a proposed exhibit, listed the
subrogation amount on the insurance claim as $84,526.75, well over the “more
than $10,000” figure necessary for a first-degree theft conviction. In addition, an
attachment to the document stated “total $33,620 stolen on camera.” In light of
these figures, there is no reasonable probability of a different outcome had counsel
obtained a foundational witness and succeeded in admitting the document. See
Petithory v. State, No. 07-0520, 2008 WL 2200058, at *3 (Iowa Ct. App. May 29,
2008).
III. Denial of Motion for Continuance
Hoppe contends the postconviction court abused its discretion in denying
his attorney’s motion to continue the proceeding in light of his absence. See State
v. Artzer, 609 N.W.2d 526, 529 (Iowa 2000) (setting forth standard of review). He
acknowledges his presence was not constitutionally mandated but asserts, “The
court should have allowed a continuance to provide post-conviction counsel the
opportunity to ascertain [his] whereabouts and intentions on appearing.”
On the day of the hearing, Hoppe’s attorney informed the court that, while
“trying to track [Hoppe] down” for the hearing, he learned there was an
“outstanding warrant for his arrest on probation violations.” Counsel stated, “So
I’m left under the assumption, I guess, that he is not here because he’s aware that
he has a warrant for his arrest and is choosing not to attend based upon the fact
that he doesn’t want to be arrested.”
In denying the motion, the district court reasoned as follows:
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At this point, the Court finds that even assuming Mr. Hoppe is not
here because he knows about the warrant for his arrest and he is
avoiding being served with the warrant for his arrest and knowing
that he is not at least in the custody of the Linn County Jail, the Court
finds there is not good cause to grant the motion to continue at this
time.
We conclude the court acted within its discretion in denying the continuance
motion.
We affirm the district court’s denial of the postconviction-relief application.
AFFIRMED.