IN THE COURT OF APPEALS OF IOWA

No. 22-0500

Filed January 11, 2023

CLYDE WINTHROP HINKLE,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Ian K. Thornhill, 

Judge.

Clyde Hinkle appeals the dismissal of his application for postconviction 

relief. AFFIRMED.

Erin Patrick Lyons of Lyons Law Firm, PLC, Waterloo, for appellant.

Brenna Bird, Attorney General, and Genevieve Reinkoester, Assistant 

Attorney General, for appellee State.

Considered by Bower, C.J., and Greer and Badding, JJ.
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BOWER, Chief Judge.

Clyde Hinkle appeals the district court’s grant of summary judgment 

dismissing his application for postconviction relief (PCR). Hinkle did not establish 

prejudice and accordingly his ineffective-assistance-of-counsel claim fails. We 

affirm.

I. Background Facts & Proceedings.

In February 2018, as part of a plea agreement Hinkle pleaded guilty to one 

count of second-degree sexual abuse and one count of lascivious acts with a child. 

The plea agreement provided the sentences for the two convictions would run 

consecutively and the State would dismiss twenty-two related charges. 

At the plea and sentencing hearing, the court explained to Hinkle how 

consecutive sentences would affect his parole eligibility and commented on the 

beneficial nature of his plea agreement. Hinkle agreed he understood and had 

authorized the plea agreement. Both the State and defense asked the court to 

follow the plea agreement. When pronouncing sentence, the court did not state 

whether the sentences were to run concurrently or consecutively, but throughout 

the hearing it repeatedly mentioned the plea agreement and the much longer 

sentence Hinkle faced had he gone to trial.

1

 Neither counsel brought the missing 

1 The court’s reasons for the sentences imposed included the plea agreement:

In assessing the sentence here I have to look at the 

opportunity to rehabilitate Mr. Hinkle, the need to protect the 

community from him and others, the nature of this offense, Mr. 

Hinkle’s previous criminal record, Mr. Hinkle’s age, education, 

employment and family circumstances, the recommendation—I don’t 

have a [presentence investigation] recommendation, so the joint 

recommendation of the attorneys per the plea agreement, the fact 

that restitution can be required—although if Mr. Hinkle’s in prison it 
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consecutive/concurrent pronouncement to the court’s attention. The written 

sentencing order issued later that day directed the sentences to run consecutive 

to each other. The order further stated, “The reason for consecutive sentences is 

the ongoing nature of the offense and the fact the Defendant agreed to consecutive 

sentences.” Hinkle did not appeal the sentence imposed. 

In May, nearly three months after sentencing, Hinkle filed a motion for 

reconsideration of sentence. See Iowa Code § 902.4 (2018). The court denied 

the motion stating, “The court’s sentence in this case was appropriate in light of 

the nature of this offense. The court deems the possibility that the Defendant will 

be rehabilitated as slight and he presents a very significant risk to society.” In 

September, Hinkle filed another motion for reconsideration of sentence and in a 

letter asked the court to run his sentences concurrently and remove the mandatory 

minimum. The court again denied the motion stating, “The court is confident that 

the sentence imposed was appropriate. Defendant’s incarceration is necessary to 

protect society from Defendant and the chance of rehabilitating Defendant is not 

sufficient to justify a shorter period of incarceration.” In October 2019, Hinkle filed 

a motion for correction of illegal sentence, alleging counsel provided ineffective 

assistance, which the court again denied.

On January 24, 2020, Hinkle filed this application for PCR, alleging a 

violation of his constitutional rights and ineffective assistance of counsel and 

claiming discovery of new material facts. The State filed a motion for summary 

judgment on all grounds. Hinkle resisted, asserting his plea counsel was 

is unlikely to be paid in any significant amount—and the victim impact 

statement I received both in writing and in the courtroom today.
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ineffective in not recognizing the court’s failure to expressly impose consecutive 

sentences in its oral pronouncement meant that, by default, it imposed concurrent 

sentences. Hinkle only resisted the summary judgment claim on the 

consecutive/concurrent question.

The district court noted Hinkle did not raise in his PCR application the issue 

of the sentencing court’s silence of oral pronouncement of consecutive or 

concurrent sentences, but it addressed the question to resolve Hinkle’s ineffectiveassistance-of-counsel claim. The district court determined “all signs point to the 

court intending a consecutive sentencing, the oral pronouncement is silent, the 

offer was for consecutive sentencing, and the written sentence specifies a

consecutive sentencing, there is no reason to find that the Court had intended a 

concurrent sentence to be imposed through its silence.” The court further found 

Hinkle failed to establish prejudice or that he would have insisted on going to trial 

on all twenty-four counts if he had known the sentences would be consecutive. 

The court held Hinkle failed to show a genuine issue of material fact on his 

ineffective-assistance-of-counsel claim that precluded summary disposition and 

granted the State summary judgment.

Hinkle appeals.

II. Standard of Review.

“We generally review a district court’s denial of an application for 

postconviction relief for errors at law. However, a PCR application alleging 

ineffective assistance of counsel raises a constitutional claim, and we review 

postconviction proceedings that raise constitutional infirmities de novo.” Sothman 
5

v. State, 967 N.W.2d 512, 522 (Iowa 2021) (internal quotation marks and citations 

omitted).

III. Analysis.

A claim of ineffective assistance of counsel requires the claimant 

demonstrate counsel failed to perform an essential duty and prejudice resulted. 

Id. “Failure to prove either prong . . . results in failure of the defendant’s ineffectiveassistance-of-counsel claim.” State v. Dalton, 674 N.W.2d 111, 119 (Iowa 2004). 

“We presume counsel acted competently but that presumption is overcome ‘if we 

find [Hinkle] has proved his counsel’s performance fell below the normal range of 

competency.’” Krogmann v. State, 914 N.W.2d 293, 306 (Iowa 2018) (citation 

omitted). To prove the prejudice prong, Hinkle must show that “the outcome of the 

[sentencing] proceeding would have been different.” State v. Fannon, 799 N.W.2d 

515, 522 (Iowa 2011) (alteration in original). 

Hinkle asserts counsel failed in their duty to recognize a discrepancy 

between the oral pronouncement of sentence and the sentencing order and he 

was prejudiced because if his counsel had notified the court of the inconsistency 

between the oral and written judgments, his sentence would have been ordered to 

run concurrently. Hinkle asserts the court’s “oral sentence imposed the sentences 

concurrently,” but this is a misstatement of the record. He relies on an argument 

that no pronouncement of concurrent or consecutive sentence presumes 

concurrent sentences—a presumption not grounded by statute or caselaw.

The district court has discretion to order sentences run consecutively or 

concurrently. Iowa Code § 901.8. When the court is imposing multiple sentences, 

it “shall publicly announce . . . whether the sentences shall be served consecutively 
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or concurrently.” Id. § 901.5(9)(c). If the court has a duty to publicly announce the 

sentences as either consecutive or concurrent, it logically follows neither is a 

presumption. The legislature knows how to create a presumption for consecutive 

or concurrent sentences and chose not to do so under the general sentencing 

statute. Compare id., and id. § 901.8 (“If a person is sentenced for two or more 

separate offenses, the sentencing judge may order the second or further sentence 

to begin at the expiration of the first or succeeding sentence.”), with id. § 908.10(2) 

(“The new sentence of imprisonment for conviction of a felony shall be served 

consecutively with the term imposed for the parole violation, unless a concurrent 

term of imprisonment is ordered by the court.”). 

We find nothing in this record supports the suggestion that had counsel 

notified the court of its omission it would have imposed concurrent sentences. At 

the sentencing hearing, the court referred to the plea agreement and the parties’ 

agreement of consecutive sentences as supporting the sentence, and the court 

indicated it would have been inclined to impose a longer continuous term of 

imprisonment if Hinkle had been convicted of all the charged crimes. In the 

sentencing order filed immediately after the hearing, the court ordered consecutive 

sentences due to the ongoing nature of the offenses and Hinkle’s agreement to 

consecutive sentences. In each of Hinkle’s three post-judgment motions seeking 

reconsideration or a change in his sentence the same court denied his requests, 

noting the risk he poses to society and his favorable plea agreement that resulted 

in a lighter sentence and expressing confidence “the sentence imposed was 

appropriate.”
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Under the unique circumstances of this case, Hinkle has failed to prove he 

was prejudiced because his counsel did not object when the court’s written order

imposed the sentence as agreed to as part of his plea agreement. His claim of 

ineffective assistance of counsel fails, and we affirm the district court’s summary 

dismissal of Hinkle’s PCR application.

AFFIRMED.