KEN TOMKINS, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-289 / 06-1529
Filed June 13, 2007
KEN TOMKINS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Winneshiek County, Lawrence H.
Fautsch, Judge.
Applicant-appellant Ken Tomkins appeals from the denial of postconviction
relief. AFFIRMED.
John J. Bishop, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, and Andrew F. Van Der Maaten, County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Miller, JJ.
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SACKETT, C.J.
Ken Tomkins appeals from the district court’s denial of his application for
postconviction relief. He contends defense counsel was ineffective in allowing him
to plead guilty without a full understanding of the potential consequences. We
affirm.
Appellant was charged with several serious offenses, including a forcible
felony. Following plea negotiations, he pleaded guilty to reduced charges and was
sentenced to up to ten years incarceration. He filed an application for postconviction
relief, alleging his defense counsel was ineffective in not properly advising him of the
maximum possible punishment and telling him he probably would receive no more
than an eighteen-month sentence. Following an evidentiary hearing, the court
denied his application, finding Tomkins was not credible and he failed to prove
counsel was ineffective.
Although postconviction actions are civil proceedings reviewable for
correction of errors at law, to the extent a constitutional issue is raised, such as
ineffective assistance of counsel, our review is de novo. See Ledezma v. State, 626
N.W.2d 134, 142 (Iowa 2001). We give weight to the district court’s findings
concerning witness credibility. Iowa R. App. P. 6.14(6)(g); Taylor v. State, 352
N.W.2d 683, 687 (Iowa 1984).
Appellant claims his attorney advised him he likely faced only eighteen
months in prison and that, had he known he could be sentenced to up to fourteen
years, he would have insisted on going to trial and presenting an intoxication
defense. The record does not support his claim he was not informed of the
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maximum possible sentence. Counsel testified he advised appellant he could face
up to ten years in prison. The transcript of the plea proceeding shows the court
described the maximum sentences and explained the difference between concurrent
and consecutive.
Appellant also claims he would have insisted on going to trial and presenting
an intoxication defense had he known the maximum possible sentences. Testimony
at the postconviction hearing shows counsel fully explored the defense, including
contacting several experts, and determined appellant’s admission he remembered
certain events during the incident made a successful intoxication defense unlikely.
We conclude appellant has failed to prove counsel failed in an essential duty.
Counsel, therefore, was not ineffective. See State v. Lane, 726 N.W.2d 371, 393
(Iowa 2007) (requiring proof counsel failed in an essential duty and prejudice
resulted). We affirm the denial of appellant’s application for postconviction relief.
AFFIRMED.
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