Lucas D. Lankford v. State of Iowa

                    IN THE COURT OF APPEALS OF IOWA

                                     No. 19-0802
                               Filed October 21, 2020




      Appeal from the Iowa District Court for Webster County, James M. Drew,


      In this postconviction-relief (PCR) appeal, Lucas Lankford contends both

his plea counsel and PCR counsel were ineffective. AFFIRMED.

      Jessica M. Donels of Parrish Kruidenier Dunn Boles Gribble Gentry Brown

& Bergmann L.L.P., Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.

      Considered by Doyle, P.J., and Mullins and Greer, JJ.

DOYLE, Presiding Judge.

        In this postconviction-relief (PCR) appeal, Lucas Lankford contends his

guilty plea was not knowingly and voluntarily given because of plea counsel’s

ineffective assistance. He also contends his plea counsel was ineffective in other

ways. And he contends his PCR counsel was ineffective. After a de novo review,

see Lamasters v. State, 

821 N.W.2d 856

, 862 (Iowa 2012), we find no merit to

Lankford’s arguments that his guilty plea was not knowing and voluntary. His other

contentions concerning plea counsel were not raised before or decided by the PCR

court and are therefore not preserved for our review. Because the record is

inadequate to allow us to decide whether PCR counsel breached a duty and

whether prejudice resulted, we cannot resolve this new claim on appeal. We affirm

the PCR court’s order denying Lankford relief.

   I.      Facts and Prior Proceedings.

        Lankford was charged with five counts of second-degree sexual abuse,

three counts of incest, and one count of sexual exploitation of a minor for acts

involving his child over a long period. Some of the acts were video recorded.

Lankford entered into a plea deal with the State. He pled guilty to two counts of

second-degree sexual abuse, a class “B” felony, in violation of Iowa Code section

709.3(1)(b) and (2) (2013); one count of sexual exploitation of a minor, a class “C”

felony, in violation of Iowa Code section 728.12(1); and one count of incest, a class

“D” felony, in violation of Iowa Code section 726.2. His sentences were set to run

consecutively, as described in the joint sentencing recommendation that was part

of the plea agreement.

          After he pled guilty, Lankford appealed claiming the sentencing court

abused its discretion by failing to give proper consideration to factors other than

the nature of the offenses. State v. Lankford, No. 16–1152, 

2017 WL 1405912

, at

*1 (Iowa Ct. App. Apr. 19, 2017). We affirmed.

Id. at *2.

          Lankford applied for PCR in September 2017, asserting his plea counsel

was ineffective. During his PCR trial in July 2019, Lankford claimed his plea

counsel failed to advise him properly on the mandatory-minimum requirements

related to his class “B” felonies.

          After trial, the PCR court concluded that Lankford failed to meet his burden

of proof. The court found plea counsel’s testimony credible and that plea counsel

advised Lankford of the consequences of the plea agreement. The court denied

Lankford’s application. Lankford now appeals, arguing both his plea counsel and

PCR counsel provided ineffective assistance.

   II.       Standard of Review

          Appellate courts review PCR proceedings for errors at law, while claims of

ineffective assistance of counsel are reviewed de novo. Ledezma v. State, 

626 N.W.2d 134

, 141 (Iowa 2001). When exercising a de novo review, “we give weight

to the lower court's findings concerning witness credibility.”

Id. III.


          A. Ineffective Assistance of Plea Counsel.

          Lankford’s plea counsel did not move in arrest of judgment to challenge the

plea. “A defendant’s failure to challenge the adequacy of a guilty plea proceeding

by motion in arrest of judgment shall preclude the defendant’s right to assert such

challenge on appeal.” Iowa R. Crim. P. 2.24(3)(a). But failure to move in arrest of

judgment “does not bar a challenge to a guilty plea if the failure to file a motion in

arrest of judgment resulted from ineffective assistance of counsel.” State v. Straw,

709 N.W.2d 128

, 133 (Iowa 2006). So Lankford claims his plea counsel gave

ineffective assistance resulting in a plea that was not knowing or voluntary.

       To prevail on a claim of ineffective assistance of counsel, the applicant must

show both breach of an essential duty and prejudice. Strickland v. Washington,

466 U.S. 668

, 687 (1984); 

Ledezma, 626 N.W.2d at 142

. “To establish the first

prong, the applicant must [show] the attorney performed below the standard

demanded of a reasonably competent attorney.” 

Ledezma, 626 N.W.2d at 142


“Thus, we measure the attorney’s performance against ‘prevailing professional

norms.’” Id. (quoting 

Strickland, 466 U.S. at 688


       “Due process requires the defendant enter his guilty plea voluntarily and


Straw, 709 N.W.2d at 133

. “If a plea is not intelligently and voluntarily

made, the failure by counsel to file a motion in arrest of judgment to challenge the

plea constitutes a breach of an essential duty.” State v. Philo, 

697 N.W.2d 481


488 (Iowa 2005).

       To satisfy the prejudice prong in the context of a guilty plea, a “defendant

must show that there is a reasonable probability that, but for counsel’s errors, he

or she would not have pleaded guilty and would have insisted on going to trial.”

State v. Myers, 

653 N.W.2d 574

, 578 (Iowa 2002) (emphasis omitted) (quoting Hill

v. Lockhart, 

474 U.S. 52

, 59 (1985)).

       At the beginning of the PCR trial, Lankford’s counsel claimed Lankford’s

plea counsel was ineffective by not properly evaluating the case and by advising

Lankford to take a plea agreement that required “a very onerous prison sentence.”

In addressing Lankford’s claim, the PCR court stated:

      The court accepts as credible [plea counsel]’s testimony that he
      advised the applicant of the consequences of the plea agreement for
      two reasons. The first is that it borderlines on the absurd to believe
      that an experienced criminal defense attorney such as [plea counsel]
      would have failed to do such a thing. Second, if he had failed to do
      so, surely the applicant would have protested when the terms of the
      plea agreement and the related consequences were clearly stated,
      more than once, at his plea change hearing by the prosecutor and
      the judge.

We agree. When evaluating the evidence, “we give weight to the lower court’s

findings concerning witness credibility.” Taylor v. State, 

352 N.W.2d 683

, 687

(Iowa 1984).

      During the PCR trial, plea counsel gave these answers to support his

position that Lankford had the best deal he could get and that he engaged in a

thorough conversation with Lankford, including calculating as to when he thought

Lankford would be released:

      A. [T]here was some reluctance to accept the deal . . . . And
      ultimately they decided to take the offer because they didn’t think
      they would get a better result if they took it to trial.
              Q. Do you recall any discussions about the practical impact
      on Mr. Lankford about how old he would be when he would be
      eligible for parole or any conversations of that nature? A. Well, I
      believe he pled to two class “B” felonies with a seventeen-and-a-half-
      year minimum on each. They were going to run consecutive, so
      that’s thirty-five years. So yes, I’m sure we calculated it. And I recall
      seeing an email just before we—just before the hearing today saying
      he would get out when he was seventy or something like that. But
      I’m sure we made the calculations as to when we thought he would
      be released.

      And when Lankford was questioned about discussing his plea deal with his

plea counsel, his testimony revealed that he did talk about the benefit of not going

to trial. His plea counsel also testified that he had no confidence that a judge would

have granted Lankford a better deal than he was offered. As part of the agreement,

the State agreed to not refer his case to federal authorities for federal prosecution

of manufacturing child pornography. His plea counsel thought that Lankford could

face a life sentence for child pornography because of the content he recorded.

The next answer provides a clearer picture:

               Q. Did—other than dismissing the state counts, did [the
       prosecutor] make any other concessions concerning this case?
       A. She agreed not to refer it to federal authorities. It was her belief
       that the videotape would constitute child pornography. It would be
       categorized as child pornography that could potentially end up as a
       —or require—I don’t know about require a lifetime offense, but it
       could have been a lifetime federal offense in [the prosecutor]’s
       opinion. I don’t recall that I researched that issue. I took her word
       for it. But that really didn’t matter too much to me. You know, the
       charges that I was dealing with were sufficient. And I believe they
       dismissed some “B” felonies that would require a seventeen-and-a-
       half-year minimum. If this case went to trial and a [child] had to
       testify, I don’t have any confidence that a judge would have given him
       any better offer than what we got—any better sentence than what we—
       than what resulted in plea negotiations.

Plea counsel was sure he discussed with Lankford the minimums on the class “B”

felonies and how old Lankford would be when eligible for parole. Plea counsel

also testified,

       My belief was if Mr. Lankford just pled guilty without any agreement,
       that the judge, any judge, would run at least two or three of those
       counts consecutive to each other and—and maybe all of them. But
       yes. The ongoing and consistent nature and just the very purposeful,
       knowing purpose of it—not saying this very well—but it was just so—
       it was just so purposeful and—and there were videotapes. So it was
       no—there was no doubt in my mind that a judge was going to run
       some of these counts consecutive and possibly all of them.

Lankford testified,

              Q. And do you recall meeting with Mr. McCarville to discuss
       the plea? A. Yes, I do.

               Q. And you also remember discussing the strengths and
       weaknesses of your case with Mr. McCarville? A. Yes, I do.
               Q. Okay. And did you have discussions with Mr. McCarville at
       that time about the plea agreement? A. Yes, sir.
               Q. Okay. And at that time did he explain to you what the actual
       offer was? A. I don’t recall.
               Q. Regardless— A. I think he did.

       We find Lankford entered his plea knowingly and voluntarily. His plea

attorney did not breach an essential duty in failing to challenge the plea on this


       The mountain of evidence stacked against Lankford is overwhelming. Plea

counsel’s testimony only reinforces our belief that any reasonable plea counsel

would have also provided similar advice to Lankford. We find no persuasive

grounds to find that but for the alleged ineffective assistance of Langford’s trial

counsel, Lankford would have not pled guilty and would have insisted on going to

trial. So Lankford also fails on the prejudice prong.

       For the first time on appeal, Lankford raises a raft of new complaints against

his plea counsel. He contends plea counsel was ineffective “when he rushed the

plea proceeding despite clear evidence that Lankford may not have understood

his agreement with the State.” He claims his plea counsel did not pursue mitigating

evidence in support of concurrent sentencing. He maintains the court offered him

up to a month for the continuation of the plea and sentencing hearing, and rather

than use that time, plea counsel rushed Lankford back to court within forty-eight

hours to plead guilty. And besides rushing him, Lankford asserts that his plea

counsel advised him to forgo the use of a presentence investigation report “which

could have provided mitigating evidence regarding Lankford’s mental health.”

Lastly, he complains plea counsel submitted no mitigating evidence at sentencing.

       The PCR court had no chance to consider the new issues Lankford now

raises on appeal. And the PCR court did not address or rule on any of these new

claims. Error is not preserved. See Meier v. Senecaut, 

641 N.W.2d 532

, 537

(Iowa 2002) (“It is a fundamental doctrine of appellate review that issues must

ordinarily be both raised and decided by the district court before we will decide

them on appeal.”). Our error preservation rules exist to ensure a record of some

form is available for the appellate court to review. See Thomas A. Mayes &

Anuradha Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives

on Present Practice, 55 Drake L. Rev. 39, 48 (2006). Because an ineffective-

assistance-of-counsel claim requires an evaluation of counsel’s actions in the

context of a reasonably competent attorney, the court needs evidence for the

standard of a reasonably competent attorney. We therefore decline to address

those arguments for the first time on appeal.

       B. Ineffective Assistance of PCR Counsel.

       Lankford contends that his PCR counsel failed to effectively represent him

in several respects. He claims his PCR counsel failed to develop the record in not

using discovery procedure and in not introducing testimony of his family members

or evidence of his schizophrenia or mental capacity. Lankford also claims that his

PCR counsel was ineffective in failing to pursue an independent Iowa constitutional

claim for ineffective assistance of counsel.

       Because the record is inadequate to allow us to decide whether PCR

counsel breached a duty and whether prejudice resulted, we cannot resolve this

new claim on appeal. See State v. Harris, 

919 N.W.2d 753

, 754 (Iowa 2018) (“If

the development of the ineffective assistance claim in the appellate brief was

insufficient to allow its consideration, the court of appeals should not consider the

claim, but it should not outright reject it.”), see also Goode v. State, 

920 N.W.2d 520

, 526 (Iowa 2018). The proper mechanism for resolving claims of ineffective

assistance of PCR counsel raised for the first time on appeal is for an applicant to

file a separate PCR application in the district court. See

id. IV.


         We affirm the denial of Lankford’s PCR application.

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