Kime v. Brewer, 54179

• Decision Date: 15 December 1970
• Docket Number: No. 54179,54179
• Citation: 182 N.W.2d 154
• Parties: John Monroe KIME, Appellant, v. Lou V. BREWER, Warden Iowa State Pentientiary, Appellee.
• Court: Iowa Supreme Court

Page 154

182 N.W.2d 154

John Monroe KIME, Appellant, v. Lou V. BREWER, Warden Iowa State Pentientiary, Appellee.

No. 54179.

Supreme Court of Iowa.

Dec. 15, 1970.

George E. Wright of Napier, Napier & Wright, Fort Madison, for appellant.

Ray A. Fenton, County Atty., and James D. McKeon, Asst. County Atty., Des Moines, for appellee.

MOORE, Chief Justice.

We are here presented the question of whether the trial court erred in denying a prisoner's application for writ of habeas corpus based on the grounds he did not have effective assistance of counsel during and immediately after his trial and conviction.

John Monroe Kime was charged with the crime of burglary with aggravation. He was represented by his self-employed attorney, Lawrence Scalise, at his first trial in January, 1968 which resulted in a hung jury. Defendant being without funds, Scalise, an experienced trial lawyer and former Iowa Attorney General, was appointed to continue as defense counsel for the second trial in March, 1968 which resulted in a guilty verdict. On April 5, 1968 Kime was sentenced in Polk County District Court by Judge Gibson C. Holliday to a term not to exceed 50 years in the Iowa State Penitentiary at Fort Madison.

On October 14, 1969 Kime filed an application for a writ of habeas corpus under the provisions of chapter 663, Code 1966. We are not here concerned with the provisions of chapter 1276, Acts of the 63rd G.A., referred to as the uniform post-conviction procedure act which did not become effective until July 1, 1970.

A full evidentiary hearing was held on Kime's application or petition for a writ of habeas corpus after which the trial court on December 16, 1969 filed a carefully prepared review of the applicable law and these findings of fact:

'1) That the petitioner is being held in the Iowa State Penitentiary at Fort Madison, Iowa, by virtue of a mittimus directed to the warden of the penitentiary, following the entry of judgment and imposition of sentence on April 5, 1968;

'2) That the petitioner was at all times represented by competent counsel who discharged his obligation in a conscientious and meaningful manner;

'3) That petitioner's counsel gave consideration to the defenses available to the petitioner at his trial and rejected the alibi defense after carefully investigating the facts as to the petitioner's location at the time of the commission of the offense;

'4) That petitioner's counsel did not advise him that he would appeal his conviction, but advised petitioner that an appeal would be of no help to him;

'5) That the petitioner has failed to establish by the required burden of proof, the existence of jurisdictional defects which make his imprisonment illegal.'

Petitioner Kime has appealed from the trial court's order denying the requested writ. He asserts the trial court erred in finding (1) his counsel's failure to submit alibi evidence did not constitute denial of effective assistance of counsel and (2) counsel had not advised Kime and appeal of his conviction would be made.

I. The following applicable legal principles in prisoner habeas corpus cases under chapter 663, supported by many cited authorities, are recognized in State v. Kendall, Iowa, 167 N.W.2d 909, 910, 911, and Scalf v. Bennett, 260 Iowa 393, 398--400, 147 N.W.2d 860, 863, 864.

The trial court's findings in a habeas corpus action involving a state prisoner are binding upon us if supported by substantial evidence.

It is not the purpose of a habeas corpus proceeding to determine the guilt or innocence of the prisoner of the crime charged, nor to pass upon the errors in his trial, nor to retry the facts and pass upon the sufficiency of the evidence to sustain the charge. Unless there was no jurisdiction in the court, the judgment is not void and may not be collaterally attacked by habeas corpus.

Lack of effective counsel may constitute a jurisdictional defect reviewable by habeas corpus.

Under the provisions of Amendment 6, section 1 of Amendment 14 to the Constitution of the United States, and Article 1, sections 9 and 10, of the Constitution of Iowa, the accused, Kime, was entitled to effective assistance of counsel and to receive a fair trial.

'Effective' does not mean successful. It means conscientious, meaningful representation wherein the accused is advised of his rights and honest, learned and able counsel is given a reasonable opportunity to perform the task assigned to him.

Improvident strategy, bad tactics, mistake, carelessness or inexperience do not necessarily amount to ineffective assistance of counsel. Only in extreme cases where it is shown the trial as a whole was a farce and a mockery of justice will a conviction be set aside because of inadequacy of counsel.

It is presumed that a court appointed counsel for an indigent defendant acts properly.

The burden of proof is on petitioner to establish his counsel was ineffective and he did not have a fair trial.

II. Petitioner testified he told Scalise prior to trial that at the time the crime was committed he was at a movie with his girl friend with whom he was living and later they were with another woman at her home on S.E. Edison Street in Des Moines where they remained the rest of the night. The women testified they would have so testified.

Scalise testified he conferred with Kime several times prior to the first trial and that Kime first indicated he could prove he was in Arkansas at the time of the offense, about three a.m. April 2, 1967. Scalise employed an investigator who determined Kime was not in Arkansas and that Kime had not remained at the Edison Street home as later claimed by him. Kime had been convicted of a felony which Scalise stated caused him to hesitate using him as a witness.

An alleged accomplice and the victim, a Mr. Ponxs, who was shot during the burglary, both testified Kime took part in the burglary. On the first trial Mrs. Ponxs did not identify Kime as a participant.

Mr. Scalise testified that after full investigation it was his theory of defense to attack the witnesses' attempt to identify Kime and not present an albi defense. Scalise stated he felt he had been compromised by what Kime had told him about a possible alibi and it was his strategy not to offer evidence thereof.

On cross-examination, Scalise stated he did not at any time consider the use of an alibi as a result of his conversations with his client and that he would not allow Kime or anyone else to commit a crime at the time of trial.

Prior to the sentencing Judge Holliday said: 'I will ask you now for the record, are you satisfied with his (Scalise) services and his defense for you in your behalf during this last trial?' Kime answered 'Right'. He was further asked: 'Do you have any complaints as to your representation by the Court appointed attorney?' Defendant answered 'no'.

The record, only part of which we have set out, supra, clearly establishes the trial court's findings of fact numbered 2 and 3 are supported by substantial evidence. Petitioner's first assigned error is untenable.

III. Immediately, after the sentencing Judge Holliday stated: 'It is my duty to tell you you do have a right of appeal to the Supreme Court of Iowa from this trial and this sentence.

'In order to have that appeal perfected you have to cause to be served upon the County Attorney of this county a notice of appeal, and file a return of service with the Clerk of this court within 60 days from this date, or you lose your right of appeal, because the service of the notice of appeal is jurisdictional, and that has to be done.

'If you are unable to provide yourself with counsel, financially unable, for the employment of counsel and preparation of the record and proceedings, and all of what is necessary in the appeal, this Court would be required to furnish it for you.'

Before the trial court in the case at bar petitioner testified that before and after the sentencing Scalise 'indicated' he was going to file a notice of appeal.

Mrs. Johanne Kime, petitioner's mother, testified 'She asked Scalise to file an appeal and he said it wouldn't do any good. She also called him on the phone and asked him and he said it wouldn't do any good.'

Scalise testified that immediately after the sentencing Kime was upset because the judge refused his request he be sent to the men's reformatory at Anamosa rather than the men's penitentiary at which time Kime asked 'How about an appeal?' Scalise answered: 'I think it is fruitless, won't do any good.'

Scalise's testimony as abstracted in the record includes: 'Scalise said it was his judgment that it would have been a frivolous appeal. He could not then and cannot now think of any points to be raised as valid appeal points.

'Scalise said that he talked to Mrs. Kime in the courtroom and on the telephone two or three times about an appeal. He recalls her calling him twice and it is as she has testified. Scalise told her that he thought an appeal was just fruitless.'

The trial court's finding that Scalise 'did not advise him (Kime) that he would appeal his conviction, but advised petitioner that an appeal would be of no help to him' has substantial support in the record. We are bound by it.

Section 775.5, Code 1966, makes provisions for appointment of defense counsel for indigent defendants. It provides in part '* * * Such attorney need not follow the case into another county or into the supreme court unless so directed by the court at the request of the defendant, * * *.'

Kime made no request to Judge Holliday for appointment of an appeal counsel. He first asserted denial of his right to appeal in his petition for writ of habeas corpus, approximately 18 months after his sentencing.

Under his second assigned error petitioner cites and relies on Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340; Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, and Blanchard v. Brewer, 8 Cir., 429 F.2d 89. Each is clearly...