IN THE COURT OF APPEALS OF IOWA

No. 14-0024

Filed January 28, 2015

STATE OF IOWA,

Plaintiff-Appellee,

vs.

THEODORE RAY BASCOM,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Robert E. Sosalla, 

Judge.

Theodore Bascom appeals following a guilty plea to operating while 

intoxicated, asserting plea counsel was ineffective. AFFIRMED.

Webb L. Wassmer of Wassmer Law Office, P.L.C., Marion, for appellant.

Thomas J. Miller, Attorney General, Kelli Huser, Assistant Attorney 

General, Jerry Vander Sanden, County Attorney, and Nicholas Maybanks, 

Assistant County Attorney, for appellee.

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

Theodore Bascom appeals following a guilty plea to operating while 

intoxicated (OWI). He asserts his plea counsel was ineffective for advising him 

to plead guilty, which resulted in a waiver to a direct challenge to the district 

court’s denial of his motion to suppress. Given the inadequate record before us, 

particularly with regard to the order of events, we decline to address Bascom’s 

ineffective-assistance claim on direct appeal. Consequently, we preserve this 

claim for possible postconviction-relief proceedings, and we affirm his conviction.

On July 5, 2012, at approximately 8:38 a.m., Officer Roger Elder 

attempted to employ a traffic stop after observing Bascom engage in dangerous 

stunts on his motorcycle. Bascom sped away from Officer Elder, and following a 

high-speed chase, the motorcycle crashed. Bascom was taken to the hospital

and admitted to the emergency room at approximately 9:15 a.m.

Amy Engelman, M.D., was Bascom’s treating physician. Because of the 

severity of the crash and the fact Bascom was not wearing a helmet, 

Dr. Engelman determined he was suffering from a closed head injury and 

concussion. The report she was given by the emergency response personnel 

indicated Bascom was awake but exhibited confusion, and was not able to keep 

his eyes open. Dr. Engelman’s examination at the hospital confirmed Bascom 

had a concussion and closed head injury and was under the influence of alcohol. 

He was able to say his name and indicate his shoulder and chest hurt but was

not able—or declined—to respond to any further questions. For example,

Bascom did not answer questions regarding the crash, whether Dr. Engelman or 

officers posed the questions.
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Pursuant to Officer Steven Yardly’s request, Dr. Engelman signed a form 

stating she believed Bascom was incapable of consenting to a blood alcohol test 

pursuant to Iowa Code section 321J.7 (2011). At the suppression hearing, she 

testified she was not privy to any of the conversations between Officer Yardley 

and Bascom. She also stated she normally checked on her patients every half 

hour and therefore, it was possible she had not seen Bascom for twenty or thirty 

minutes prior to signing the form. 

Officer Yardly informed Bascom he was conducting an OWI investigation

and read him the implied consent form. He then requested Bascom to consent to 

a preliminary breath test (PBT). Displaying agitation and using profanity, 

Bascom refused. At some point, unclear from this record, Officer Yardly received 

the signed certification from Dr. Engleman, and a blood sample was obtained, 

which later showed a blood alcohol content of 0.114. Officer Yardly then

completed a form indicating a blood specimen had been requested at 10:50 a.m. 

On July 19, 2012, Bascom was charged with OWI, second offense, along 

with other offenses. His first trial counsel filed a motion to suppress the results of 

the blood test, asserting the State did not comply with the statute, Bascom

verbally refused the test, and it was administered two hours after Bascom’s entry 

into the hospital. Following a hearing, the district court denied the motion, and a 

trial on the minutes was scheduled. Bascom then filed a motion to substitute 

counsel, and his second trial counsel entered an appearance. Pursuant to the 

advice of counsel, Bascom pleaded guilty to OWI, second offense, in violation of 
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Iowa Code section 321J.2(2)(b).

1

 Bascom appeals his OWI conviction, arguing 

his second trial counsel breached an essential duty by advising him to plead 

guilty, thereby waiving his ability to challenge the denial of his motion to suppress 

on direct appeal.

We review ineffective-assistance-of-counsel claims de novo. State v. 

Straw, 709 N.W.2d 128, 133 (Iowa 2006). To succeed on this claim the 

defendant must prove, first, that counsel breached an essential duty and, 

second, he was prejudiced by counsel’s failure. Id. If the defendant’s claim lacks 

prejudice we may dispose of the claim on that ground alone. Id. Additionally, we 

may decide an ineffective-assistance claim on direct appeal if the record is 

adequate to address the claim otherwise, we may preserve the claim for possible 

postconviction-relief proceedings. Id. To the extent we are addressing the 

district court’s analysis of a statute, we review those claims for correction of 

errors at law. State v. Mulhenbruch, 728 N.W.2d 212, 214 (Iowa 2007).

Bascom first asserts he was not incapacitated such that he could refuse 

the administration of the test and, in fact, did refuse. Alternatively, Bascom 

argues Dr. Engelman’s certification did not comply with the statutory 

requirements, and therefore, the district court erred when denying his motion to 

suppress the results of the test.

Iowa Code section 321J.7 provides: 

A person who is dead, unconscious, or otherwise in a condition 

rendering the person incapable of consent or refusal is deemed to 

have withdrawn the consent provided by section 321J.6, and the 

 

1 He also pleaded guilty to attempt to elude as an habitual offender, in violation of Iowa 

Code sections 321.279(1) and 902.8, and driving while suspended, in violation of Iowa 

Code section 321J.21. However, he only appeals his OWI conviction.
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test may be given if a licensed physician . . . certifies in advance of 

the test that the person is unconscious or otherwise in a condition 

rendering the person incapable of consent or refusal. 

(Emphasis added.) The certification signed by Dr. Engelman stated: “[P]atient is 

conscious, but in a condition rendering them unable to give consent.” Bascom 

takes issue with the fact the form did not state he was incapable of “refusal” and 

that Dr. Engelman possibly had not seen Bascom for approximately twenty to 

thirty minutes at the time she signed the form.

We first note that, were we to address the merits of the district court’s 

order on the motion to suppress, we would need to decide if substantial evidence 

supported its conclusion Bascom was unable to consent or refuse the test. See 

State v. Weidner, 418 N.W.2d 47, 48–49 (Iowa 1988). However, the record is 

not adequate to address Bascom’s ineffective-assistance claim on direct appeal. 

This is due to the murky record with which we are presented. It is unclear what 

the timeframe was when Dr. Engelman signed the certification and when Bascom 

refused the PBT—that is, whether Dr. Engelman knew of Bascom’s refusal, and 

if so, whether that would have had any effect on whether she signed the 

certification regarding his incapacitation. Furthermore, we do not have enough 

information to address whether plea counsel’s performance breached an 

essential duty, given we have no record as to his communications with Bascom

and the decision to plead guilty rather than proceed to trial.

2 See State v. 

Truesdell, 679 N.W.2d 611, 616 (Iowa 2004) (“Ordinarily, ineffective assistance

of counsel claims are best resolved by postconviction proceedings to enable a 

 

2

In the plea bargain, the eluding charged was reduced from a “C” felony to a serious 

misdemeanor.
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complete record to be developed and afford trial counsel an opportunity to 

respond to the claim.”). Therefore, Bascom’s claim is preserved for possible 

postconviction-relief proceedings, where a more complete record may be 

established. See Straw, 709 N.W.2d at 133.

AFFIRMED.