Snyder v. State, 59766

• Decision Date: 22 February 1978
• Docket Number: No. 59766,59766
• Parties: Dale L. SNYDER, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 574

262 N.W.2d 574

Dale L. SNYDER, Appellant, v. STATE of Iowa, Appellee.

No. 59766.

Supreme Court of Iowa.

Feb. 22, 1978.

Richard T. Heiderscheit, Lansing, for appellant.

Richard C. Turner, Atty. Gen., Thomas A. Evans, Jr., Asst. Atty. Gen., and Calvin R. Anderson, County Atty., for appellee.

Considered by MOORE, C. J., and MASON, RAWLINGS, REES and UHLENHOPP, JJ.

MOORE, Chief Justice.

Petitioner appeals denial of his application for postconviction relief following a full and complete evidentiary hearing. He contends he is entitled to postconviction relief because he was deprived of his right to appeal when this court permitted his trial counsel to proceed with his appeal over his objections and subsequently entered a Rule 16 frivolous appeal order. The trial court found he failed to meet his burden of proving this contention by a preponderance of the evidence. We affirm.

This appeal is an outgrowth of extended trial and appellate proceedings arising from a shooting incident in May 1973. Petitioner Dale Snyder was originally charged with assault with intent to commit murder in violation of Code section 690.6. Shortly after his arrest Attorney James Mellick was appointed defense counsel. Ultimately petitioner was tried, convicted and sentenced for the crime charged. On appeal we reversed and remanded for new trial because trial court erroneously tendered additional instructions to the jury outside the presence of defendant in contravention of Code section 777.19. See State v. Snyder, Iowa, 223 N.W.2d 217.

After the case was remanded to district court, Attorney Mellick was again appointed as defense counsel. Prior to time set for retrial, the county attorney filed a second charge of assault with intent to commit murder arising from the same incident supporting the original charge.

At this point, the county attorney, petitioner and his counsel commenced lengthy plea negotiations. By Friday, May 16, 1975 a tentative agreement was reached but Attorney Mellick requested the formal arraignment be delayed over the weekend to permit a full evaluation of the plea bargain package by his client.

On May 20, 1975 the arraignment was held before the Honorable C. W. Antes. At a lengthy plea proceeding Judge Antes fully complied with the standards and guidelines set out in Brainard v. State, Iowa, 222 N.W.2d 711 and State v. Sisco, Iowa, 169 N.W.2d 542. The plea bargain was fully explained. Petitioner pled guilty to two counts of assault with intent to commit a felony, namely, manslaughter, in violation of section 694.5 and one count of going armed with intent in violation of section 695.1. The court, consistent with the plea bargain recommendation, thereafter imposed three five year sentences to be served consecutively. Petitioner was subsequently incarcerated in the State Penitentiary at Fort Madison.

On May 27, 1975 Attorney Mellick, although he had not been appointed as appellate counsel, filed a notice of appeal. Soon thereafter he sent a letter to petitioner at the penitentiary advising him he was preparing to proceed with a Rule 16 appeal. On July 1, 1975 Mellick made application to withdraw as counsel as contemplated by the rule and submitted a supporting memorandum showing the frivolity of the appeal in compliance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493. Subsequently an affidavit was filed showing these papers had been served on petitioner.

On June 20, 1975 Snyder filed a pro se notice of appeal with the district court and moved for appointment of counsel; he specifically requested that James Mellick not be appointed. On July 9 the district court ruled it was without jurisdiction to consider the application. This application and order then were forwarded to this court.

On July 15, 1975 petitioner filed a pro se "notice of appeal and request for different counsel" with the Supreme Court clerk. In the application he stated he intended to raise "ineffective assistance of counsel" on the appeal and that the appeal filed by Mellick was completely unauthorized.

On August 18, 1975 this court permitted Attorney Mellick to withdraw, found the appeal to be frivolous and dismissed it under Rule 16.

Snyder filed a pro se application for postconviction relief on January 20, 1976. Counsel was appointed and the application amended to allege that the original guilty pleas were not voluntarily, knowingly and intelligently entered, that he was deprived of counsel at a critical stage of the criminal proceeding and that the appeal by Attorney Mellick was unauthorized. The State resisted the application.

The case proceeded to trial in April 1976. As will be discussed infra the testimony of petitioner Snyder and Attorney Mellick was in conflict in several respects.

The court filed well-prepared findings of fact and conclusions of law on July 6, 1976 and entered an order denying the application for postconviction relief. This appeal followed.

I. Petitioner has alleged violation of constitutional safeguards and thus we make our own independent evaluation of the whole record under which the postconviction court's ruling was made. Cleesen v. State, Iowa, 258 N.W.2d 330, 331; Long v. Brewer, Iowa, 253 N.W.2d 549, 552. However, the burden of proof is on petitioner to establish the facts asserted by a preponderance of the evidence. Code section 663A.7; Cleesen v. State, supra; Watts v. State, Iowa, 257 N.W.2d 70, 71.

The thrust of petitioner's assignments of error raised here is essentially that the postconviction court erred in dismissing his application because it held the direct appeal taken by defendant's original trial counsel, which was later dismissed under Rule 16, was an adequate and proper appeal that was binding on him.

Attorney Mellick carefully observed the pertinent provisions of our Supreme Court Rule 16 (now R.App.Pro.104) after he arrived at his decision of frivolity. That rule provides:

"(a) If counsel appointed to represent a convicted indigent defendant in an appeal to this court is convinced after conscientious investigation of the trial transcript that the appeal is frivolous and that he cannot, in good conscience, proceed with the appeal he may ask this court in writing to withdraw. This request must be accompanied by a brief referring to anything in the transcript that might arguably support the appeal.

"(b) Prior to filing any request to withdraw from an appeal counsel shall advise his client in writing of the decision as to frivolity accompanied by a copy of counsel's application and brief and attach to the request return showing service thereof. Counsel's notice to his client shall further advise him that if he agrees with counsel's decision and does not desire to proceed further with the appeal, defendant shall within thirty days from service of this application and brief clearly and expressly communicate such desire in writing, signed by him, to this court.

"(c) Receipt of such communication shall result in the appeal being forthwith dismissed.

"(d) Counsel's notice to his client shall further advise him that in the event he desires to proceed with the appeal he shall within the time above provided give like communication to this court, raising any points he chooses; this court will then proceed, after a full examination of all the proceedings, to decide whether the appeal is wholly frivolous. If it so finds, it may grant counsel's request to withdraw and dismiss the appeal.

"(e) In order to protect his client's rights, counsel desiring to withdraw shall within the time permitted by Rule 15.2 make application in the manner provided by that Rule for extension of time in which a printed abstract of the record may be filed in the event such record is required as hereinafter provided.

"(f) However, if this court finds the legal points arguable on their merits, and therefore not frivolous, it may grant counsel's request to withdraw and will prior to submission of the appeal afford the indigent the assistance of new counsel to be appointed by the trial court, who shall file a printed record, brief and argument. The brief shall urge any errors counsel believes to be meritorious after a conscientious examination of the record. Counsel shall also inform this court in the brief of the points his client urges and otherwise see that the case is reviewed in accordance with the rules relative to criminal appeals.

"(g) Defendant's failure to communicate to this court within the time provided in this Rule or any extension thereof his disagreement with counsel's decision that the appeal is frivolous, or of defendant's desire to proceed with the appeal, shall be deemed an election by him to agree with counsel's decision.

"(h) Failure to file the record or any argument within the time specified in Rule 15.2 or any extension thereof shall result in dismissal of defendant's appeal with prejudice. (Court Order July 10, 1967; amended by Court Order October 8, 1970)"

The United States Supreme Court sanctioned this expedient procedure for disposing of frivolous appeals in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493, 498 where it held:

"The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be...