Blum v. State, 92-1198

• Decision Date: 28 October 1993
• Docket Number: No. 92-1198,92-1198
• Citation: 510 N.W.2d 175
• Parties: Anthony Francis BLUM, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Court of Appeals

Page 175

510 N.W.2d 175

Anthony Francis BLUM, Appellant, v. STATE of Iowa, Appellee.

No. 92-1198.

Court of Appeals of Iowa.

Oct. 28, 1993.

Linda Del Gallo, State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Martha E. Boesen, Asst. Atty. Gen., Virginia Barchman, Asst. Atty. Gen., and Kevin H. Clefisch, County Atty., for appellee.

Considered by OXBERGER, C.J., and HAYDEN and SACKETT, JJ.

HAYDEN, Judge.

Petitioner Anthony Francis Blum appeals a district court's denial of his application for postconviction relief from his conviction, pursuant to a guilty plea, of second-degree murder. There was no direct appeal of Blum's conviction.

Blum was charged with first-degree murder on March 22, 1988. The case was assigned to Judge George Stigler. Jury selection for the case began on October 2, 1989, in Clayton County. Blum pleaded guilty to second-degree murder that evening. Attorney Joseph Bitter represented Blum.

On October 10, 1989, Blum filed a motion to withdraw his guilty plea and motion in arrest of judgment. Attorney Bitter continued to represent Blum during the hearing on these motions. Judge Stigler also presided over the hearing on the posttrial motions.

At the hearing Blum claimed he had pleaded guilty because he feared the jury would not treat him fairly and felt intimidated by the court's statements. Blum alleged the judge had stated no plea bargain agreements would be allowed once the jury was sworn and advised Blum to accept a plea bargain. Blum alleged a prospective juror was allowed to say three times he was guilty during jury selection. Blum believed the jury would not be impartial in view of the juror's statement. The judge stated he did not believe a juror had made such a statement. During the hearing the judge requested Bitter make a professional statement as to whether such a statement had been made during jury selection. Bitter stated he did not think the juror expressed an opinion regarding Blum's guilt or innocence.

Blum also claimed the judge had made statements which intimidated him. Blum alleged the judge taking the plea made the following statement to him while the parties were discussing a plea bargain: "You'll either walk or you'll go away for a long time, and I advise you to take this last plea bargain and there will be no more." At the posttrial hearing the judge denied he made such statement. The judge insisted Bitter make a professional statement as to this allegation as well. The judge stated: "Again, Mr. Bitter, I'm going to insist that you give us your professional statement as to what I did or did not do." Bitter testified contrary to Blum's claims. He stated he did not recall the judge making such statement and did not think the judge made any comments about whether Blum would walk. Bitter stated, however, the judge had made a statement, which was off the record, if Blum was going to enter a plea, he had to enter one before the end of the day.

The district court denied Blum's motion to withdraw his guilty plea. The court sentenced Blum to a maximum term of imprisonment not to exceed fifty years. There was no direct appeal of Blum's conviction.

In September 1990 Blum sought postconviction relief. In his application Blum contended: (1) the district court's personal feelings toward him affected its discretion in overruling his motions, and (2) Bitter assumed a role adverse to him during the posttrial hearing when Bitter made professional statements which contradicted his allegations of misconduct. The postconviction court found sufficient reasons existed as to why the issues raised were not raised on direct appeal. The court then considered the merits of Blum's application and denied relief.

Blum appeals, raising two issues. First Blum contends the postconviction court erred in holding the district court properly overruled his motion to withdraw his guilty plea. Second Blum argues his counsel rendered ineffective assistance by assuming a position adverse to Blum at the hearing on the motion to withdraw guilty plea and motion in arrest of judgment.

Postconviction relief proceedings stand as an action at law, triable to the court and generally are reviewed only on error. Overton v. State, 493 N.W.2d 857, 858 (Iowa 1992) (citation omitted); Fouts v. State, 365 N.W.2d 38, 39 (Iowa App.1985) (citation omitted). When the applicant alleges a constitutional violation, however, this court will make its own evaluation of the totality of the circumstances under which the postconviction ruling was made. Gordon v. State, 480 N.W.2d 265, 267 (Iowa App.1991) (citation omitted). The transcripts of the plea proceeding and the hearing on the motions to withdraw the guilty plea and in arrest of judgment were admitted into evidence in the postconviction hearing. The jury selection process was not recorded.

In a postconviction relief proceeding, the applicant has the burden to prove by a preponderance of the evidence a claim of ineffective assistance of counsel. Kellogg v. State, 288 N.W.2d 561, 563 (Iowa 1980). A presumption exists counsel is competent. Sims v. State, 295 N.W.2d 420, 423 (Iowa 1980). The ultimate test is whether under the entire record and totality of the circumstances counsel's performance was within the range of normal competency. Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980); Munz v. State, 382 N.W.2d 693, 697 (Iowa App.1985). When a defendant relies on a specific act or omission to prove ineffective assistance of counsel, two conditions must be satisfied: (1) counsel failed to perform an essential duty, and (2) prejudice resulted from counsel's failure. Greiman v. State, 471 N.W.2d 811, 814 (Iowa 1991); Snethen v. State, 308 N.W.2d 11, 14 (Iowa 1981).

A postconviction proceeding, however, is not the appropriate forum to raise new issues that have not been properly preserved. Washington v. Scurr, 304 N.W.2d 231, 234-35 (Iowa 1981). Blum's claim of ineffective assistance of counsel can only be presented in a postconviction proceeding if he establishes by a preponderance of the evidence (1) sufficient reason or cause for not having raised the issue on direct appeal, and (2) prejudice resulting from alleged errors. Collins v. State, 477 N.W.2d 374, 376 (Iowa 1991); see Whitfield v. State, 453 N.W.2d 536, 537 (Iowa App.1990); Iowa Code § 822.8 (1993).

Blum argues sufficient reason exists why this issue was not raised in direct appeal. He contends Bitter failed to appeal Blum's conviction. The postconviction court specifically held: "The court does not find that Attorney Bitter was ineffective by failing to file a notice of appeal. The timing of the communications [between Blum and Bitter regarding a possible appeal], however, provide sufficient reason or cause for not having raised the issue of ineffective assistance of counsel on appeal." We adopt this finding as our own and address the merits of Blum's claims.

Blum argues his trial attorney rendered ineffective assistance, and he challenges the voluntariness of his guilty plea. Both claims are based on prejudicial statements allegedly made by a juror and the judge. We determine all of Blum's allegations of misconduct go to the issue of whether he received a fair hearing on his motions to withdraw and in arrest of judgment. We determine Blum did not receive a fair hearing due to ineffective assistance of counsel and actions and statements of the presiding judge.

Blum contends his trial attorney, Joseph Bitter, rendered ineffective assistance by assuming a position adverse to him at the hearing on his motions to withdraw his guilty plea and in arrest of judgment. Blum claims his attorney became his adversary when the attorney made professional statements which directly contradicted Blum's allegations of juror and judicial misconduct. Blum alleges three incidents of juror and judicial misconduct: (1) a juror was allowed to state during jury selection Blum was guilty, (2) the judge taking the guilty plea advised Blum to take a plea bargain, and (3) the judge taking the plea stated he would not allow Blum to enter a plea after the jury was sworn.

The hearing on Blum's motions to withdraw his guilty plea and in arrest of judgment centered upon Blum's allegations of juror and judicial misconduct. During the hearing the presiding judge insisted Blum's attorney make professional statements regarding Blum's allegations of juror and judicial misconduct. A professional statement "is a technique, used as a matter of convenience and practical necessity, to establish a record of matters peculiarly within the knowledge of an attorney." State v. Brewer, 247 N.W.2d 205, 212 (Iowa 1977). The statement has the effect of an affidavit. Id. (citations omitted). The judge also made statements as to his recollection of the events. The statements from Blum's attorney and the judge contradicted Blum's allegations of prejudicial misconduct. Blum contends the conduct of his attorney and the judge resulted in ineffective assistance. Blum requests a new hearing on his motion to withdraw his guilty plea.

First we consider the actions or...