Travis Leftwich, Applicant-Appellant v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 13-1846
Filed January 28, 2015

TRAVIS LEFTWICH,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Clayton County, John

Bauercamper, Judge.

Travis Leftwich appeals from the district court’s denial of his petition for

postconviction relief. AFFIRMED.

Scott J. Nelson, Dubuque, for appellant.

Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, and Alan T. Heavens, County Attorney, for appellee State.

Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
2

POTTERFIELD, J.

Travis Leftwich appeals from the district court’s denial of his petition for

postconviction relief.

I. Factual and Procedural Background

On March 3, 2009, Leftwich entered Alford guilty pleas1 to one count of

third-degree sexual abuse and one count of intent to commit sexual abuse

causing bodily injury. The guilty pleas were part of a plea arrangement with the

State contingent upon the court’s acceptance wherein the terms of incarceration

for both counts would run concurrent with each other and with other separate

charges against Leftwich. Following a plea colloquy, the district court accepted

Leftwich’s submitted written Alford pleas.

Sentencing occurred on April 7, 2009. At the hearing, it came to light that

mandatory special sentencing provisions found in Iowa Code section 903B.1

(2007) would apply to Leftwich’s sentence.2 The provisions had not been

discussed during the plea colloquy, and counsel admitted to the sentencing court

he “had not previously discussed” them with Leftwich. The court permitted

1
In an Alford plea, the defendant professes innocence but makes a knowing and
voluntary determination that consent to the imposition of a sentence is in his best
interest. See State v. Burgess, 639 N.W.2d 564, 567 n.1 (Iowa 2001).
2
Iowa Code section 903B.1 provides in relevant part:
A person convicted of a class “C” felony or greater offense [under sexual
abuse provisions] . . . shall also be sentenced, in addition to any other
punishment provided by law, to a special sentence committing the person
into the custody of the director of the Iowa department of corrections for
the rest of the person’s life, with eligibility for parole . . . . The special
sentence imposed under this section shall commence upon completion of
the sentence imposed under any applicable criminal sentencing
provisions for the underlying criminal offense and the person shall begin
the sentence under supervision as if on parole.
3

Leftwich and his counsel to take a recess to discuss the provision. After the

recess, counsel explained to the court:

Your Honor, I would just note for the record that during the recess,
the defendant and I did go over the provisions of Code Section
903B.1 and confirmed that this is one of the provisions that calls for
the personal sentence provision. We reviewed the language that
would be included in the special sentence provision, and we also
reviewed appropriate sections of the Iowa Practice regarding
criminal law dealing with this provision.

He went on to explain that after conferring with counsel “Mr. Leftwich indicated

that given the circumstances, he would like to proceed with the sentencing today

knowing that the special provision will be with it.” The sentencing hearing

continued, and Leftwich took advantage of his opportunity for allocution, telling

the court, “I’m going to take my punishment. But I want the Court to know that

I’m really not a threat to anybody.” Leftwich did not discuss the imposition of the

special sentence in his allocution. Sentencing proceeded in accordance with the

plea agreement and with the additional imposition of the mandatory special

sentence.

On March 30, 2012, almost three years after he was sentenced, Leftwich

petitioned the district court for postconviction relief based on a claim of ineffective

assistance of counsel. The district court denied the petition after an evidentiary

hearing. Leftwich appeals.

II. Standard of Review

“We review ineffective-assistance-of-counsel claims de novo.” Rhoades v.

State, 848 N.W.2d 22, 26 (Iowa 2014).
4

III. Discussion

To receive postconviction relief for ineffective assistance, an applicant

must show by a preponderance of the evidence that counsel breached an

essential duty and that prejudice resulted. See Lamasters v. State, 821 N.W.2d

856, 866 (Iowa 2012) (citing Strickland v. Washington, 466 U.S. 668, 687

(1984)); Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001).

To demonstrate a breach of an essential duty, the applicant must show his

counsel’s performance, when measured against prevailing professional norms,

was “below the standard demanded of a reasonably competent attorney.”

Lamasters, 821 N.W.2d at 866.

To demonstrate prejudice, the applicant must show that “there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.” Id. The applicant’s “conclusory claim

of prejudice . . . is not a sufficient assertion of prejudice. She must show a

reasonably probability that, but for counsel’s error, she would not have entered

the plea of guilty.” State v. Myers, 653 N.W.2d 574, 579 (Iowa 2002) (citing Hill

v. Lockhart, 747 U.S. 52, 59 (1985)).

Leftwich asserts his counsel was ineffective by failing to apprise him of the

applicability of Iowa Code section 903B.1 prior to the entry of his guilty plea. He

claims “[h]ad he been fully apprised of the special sentencing provision before he

entered the Alford [p]lea, he would have had sufficient time to weigh his options

and make an informed decision, which he states would have been to go forward

with [t]rial.”
5

This court has previously held that a court’s failure to advise a defendant

of the applicability of the special sentencing provisions in Iowa Code chapter

903B gives rise to an essential duty of counsel to either correct the omission or

file a motion in arrest of judgment. See State v. Hallock, 765 N.W.2d 598, 606

(Iowa Ct. App. 2009). It is undisputed that the court failed to so advise Leftwich

before accepting his pleas. It is further undisputed that counsel neither corrected

the omission nor filed a motion in arrest of judgment. Leftwich has established

by a preponderance of the evidence that his counsel breached an essential duty.

However, we agree with the district court that Leftwich has not established

prejudice resulting from counsel’s error. The only evidence Leftwich offers to

show prejudice is his own present assertion that he would have gone to trial if he

had known about the special sentencing requirement. But his conclusory claim is

not sufficient to support a finding of prejudice. See Myers, 653 N.W.2d at 579.

The district court could only accept Leftwich’s Alford pleas because “the

record before the judge contain[ed] strong evidence of actual guilt.” State v.

Klawonn, 609 N.W.2d 515, 521 (Iowa 2000) (quoting North Carolina v. Alford,

400 U.S. 25, 37 (1970)). The strength of the record against Leftwich was not

diminished by any sentencing provisions. Leftwich’s decision to enter the Alford

plea meant that based on the record, he “intelligently conclude[ed] that his

interests require[d] entry of a guilty plea.” Id.

Though he was not made aware of special sentencing provisions until the

sentencing hearing, his attorney discussed the provision with him and gave him

the opportunity to express his reservations “if he felt that he needed to discuss it
6

further[] or do additional research.” Leftwich nevertheless elected to proceed

with sentencing.

Based upon Leftwich’s decisions to pursue a plea agreement, submit

Alford pleas, and continue with sentencing even after conferring with counsel

about the special sentencing provisions, Leftwich has failed to persuade us that

he was prejudiced by counsel’s error. We find no support in the record for his

bare assertion that he would have gone to trial. He has failed to show by a

preponderance of the evidence that he would not have entered his Alford pleas

and would not have accepted the charging and sentencing concessions in his

plea agreement.

We agree with the district court that Leftwich has failed to show prejudice.

We therefore affirm the denial of his petition for postconviction relief.

AFFIRMED.