Krogmann v. State

• Decision Date: 22 June 2018
• Docket Number: No. 15-0772,15-0772
• Citation: 914 N.W.2d 293
• Parties: Robert KROGMANN, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

914 N.W.2d 293

Robert KROGMANN, Appellant,

v.STATE of Iowa, Appellee.

No. 15-0772

Supreme Court of Iowa.

Filed June 22, 2018

Angela L. Campbell of Dickey & Campbell Law Firm, PLC, Des Moines, for appellant.

Thomas J. Miller, Attorney General, Martha A. Trout and Robert H. Sand, Assistant Attorneys General, and John Bernau, County Attorney, for appellee.

APPEL, Justice.

In this case, we consider whether Robert Krogmann, a severely mentally ill defendant charged with attempted murder and willful injury causing serious injury in connection with an attack on his former girlfriend, is entitled to a new trial after the State limited his access to his personal funds by freezing his assets prior to trial.Krogmann claims the order freezing his assets was illegal and imposed for an improper purpose.He also contends the asset freeze adversely impacted his ability to defend himself by, among other things, preventing him from posting bond, inhibiting his ability to select his counsel of choice, limiting the number of phone calls he could afford to make from jail, and preventing him from hiring a jury consultant to assist his defense.The State asserts Krogmann had sufficient access to resources to pay for competent defense counsel through a court-approval process.The State further contends Krogmann can make no showing of prejudice.

Krogmann filed an application for interlocutory appeal of the freeze order, which we denied.A jury subsequently convicted Krogmann of attempted murder and willful injury causing serious injury.We affirmed his conviction on appeal.State v. Krogmann(Krogmann I ), 804 N.W.2d 518, 520(Iowa2011).On direct appeal, we declined to address Krogmann’s claims regarding the legality of the freeze order as they were not preserved.Id. at 523–25.His postconviction-relief (PCR) application and this appeal therefrom followed.For the reasons expressed below, we affirm in part and vacate in part the decision of the court of appeals, reverse the district court’s judgment, and remand with instructions to vacate Krogmann’s convictions and order a new trial.

I.Background Facts and Proceedings.

A.Introduction.On March 13, 2009, Krogmann shot his former girlfriend, Jean Smith, after Smith ended their relationship.The attack was brutal.Krogmann, armed with a pistol, entered Smith’s home to talk to her about their relationship.After some discussion, Krogmann shot Smith three times, pausing after each shot.He refused to call 911 at the time of the shooting despite pleas from Smith.Krogmann allowed Smith to speak to her mother on the phone, which instigated a chain of events leading to police and paramedics arriving at Smith’s residence.

Krogmann was quickly apprehended and charged with attempted murder in violation of Iowa Code section 707.11(2009) and willful injury causing serious injury in violation of Iowa Code section 708.4(1).Bond was initially set at $750,000 cash only.Smith survived the attack but endured extensive hospitalization, a long period of rehabilitation, and permanent injuries.

B.Order Freezing Assets.On March 24, 2009, the Delaware County Attorney, John Bernau, filed an application for an order freezing all of Krogmann’s assets on behalf of the State.At the time, Krogmann had more than $3,000,000 in assets, most of which was farmland.The one-page application stated in its entirety,

COMES NOW Delaware County Attorney, John W. Bernau, and in support of the State’s Application for Order states:

1.On March 23, 2009, the undersigned filed a Trial Information in the above-captioned matter charging the DefendantRobert Krogmann with the offenses of Attempted Murder and Willful Injury.

2.The victim of the Defendant’s offenses, Jean Smith, has suffered severe life altering injuries that will require approximately six to eight weeks initial hospitalization with unknown amounts of after care and treatment.

3.The victim’s expenses associated with her hospitalization and after care are, and will be, sizeable.

4.The Defendant, if convicted, will be required to reimburse the victim for all out of pocket expenses associated with her hospitalization and after care as part of court-ordered restitution.Additionally, it is likely that the Defendant will be subject to civil litigation regardless [of] what happens in his criminal matter.

5.It is believed that the Defendant has a number of assets that he may attempt to sell or transfer to avoid his financial obligations to the victim of his offenses.It is therefore appropriate and necessary that the Court enter an Order freezing all of Defendant’s assets which he owns personally or jointly with others unless application is made to the Court and good cause shown why the subject asset should be sold or transferred prior to criminal and/or civil restitution being established.

WHEREFORE, the State of Iowa prays that the Court will enter an Order freezing all of Defendant’s assets unless and until such time as Defendant makes application to the Court for the sale or transfer of an asset and is able to establish good cause why the asset should be transferred or sold prior to the establishment of criminal and/or civil restitution.

Notably, the application did not cite any authority for the total asset freeze or include any factual basis to support the assertion that Krogmann "may attempt to sell or transfer [his assets] to avoid his financial obligations."

The application contained a certificate of service stating it had been served on David Nadler, Krogmann’s attorney of record at the time, by first-class mail on March 24, 2009, but the address listed on the application for Nadler is crossed out with an "X."Underneath the crossed out certificate of service is a notation stating, "Re-mailed on 3–30–09."

On March 30, the date the application was remailed to Nadler, the district court, without a hearing, entered an order granting the asset freeze and requiring Krogmann to make an application to the court prior to sale or transfer of any asset.The order provided,

The State’s Application for Order filed March 24, 2009, is granted.All of the Defendant’s assets shall be frozen.The Defendant shall make application to the Court for the sale or transfer of an asset at which time the Court will determine whether good cause has been shown to grant the application.

Like the asset-freeze application, the order granting the freeze did not cite any authority or legal basis for the asset freeze.

Nadler received the order granting the asset freeze before he saw the application requesting it.Although the court had already entered the order, Nadler filed a resistance to the asset-freeze application on April 2, arguing "the State has cited no authority for [the asset freeze] nor does any exist."On April 28, Nadler filed an application for interlocutory relief, which we denied on May 26.

While Krogmann’s application for interlocutory appeal was pending, he filed a motion to reduce the $750,000 bond amount.Following our denial of interlocutory relief and after holding a hearing, the district court raised the bond amount to $1,000,000 cash only on June 1.

Due to being incarcerated and the asset freeze, Krogmann voluntarily applied for the appointment of a conservator to manage his assets.On April 13, the probate court approved the application, declaring Krogmann "is incapacitated and will be unable to carry on his business and make decisions and transactions for the foreseeable future."The probate court directed the appointed conservator to adhere to the asset-freeze order entered in Krogmann’s criminal case "and make application to the Court for authority to sell or transfer any assets other than in the normal course of the farming operation where the transfer is made for good and valuable consideration."

C.Applications Submitted to the Probate Court Pursuant to Freeze Order.Pursuant to the freeze order, Krogmann, through his conservator, applied to the probate court to expend his assets.The county attorney and the victim were able to review each application and allowed to, and did, object to Krogmann’s requests to use his own assets.

On June 15, Krogmann’s conservator applied to the probate court to mortgage farmland to raise the funds necessary to post bond.The victim, citing her high past and future medical expenses, resisted the application, which the probate court denied on June 20.

On September 3, Krogmann’s conservator applied to the probate court to obtain funds of $500 per month for jail amenities, toiletries, and phone cards to make phone calls from jail.The State, asserting the request was "unreasonable and excessive," resisted the application, which the probate court denied on September 21.

On several occasions, Krogmann’s conservator applied to the probate court for payment of attorney fees in connection with the criminal proceeding.Although payment was sometimes delayed,¹ the probate court approved use of Krogmann’s assets to pay for his criminal defense attorneys and some defense expenses.²

On October 16, Krogmann’s conservator, pursuant to Krogmann’s criminal defense attorney’s³ request for an additional $12,000—$4000 to $8000 of which was earmarked for a jury consultant—asked the probate court whether it was necessary to file another application for additional funds or if the court could authorize the additional $12,000 without another application.⁴In an order entered on October 20, the probate court found "the request [for additional funds] is appropriate in light of the delineated necessities."However, because the request was not submitted as a motion "and other individuals have previously objected to disbursements from this conservatorship,"the court postponed authorizing the funds until the conservator provided notice of the intended disbursement "to all interested parties" and the court received any timely objections.The State objected to funds for a jury consultant, arguing a jury consultant "is considered a luxury rather than a necessity."On October 30...