State v. Powell

• Decision Date: 21 July 2004
• Docket Number: No. 03-0161.,03-0161.
• Citation: 684 N.W.2d 235
• Parties: STATE of Iowa, Appellee, v. William Victor POWELL, Appellant.
• Court: Iowa Supreme Court

684 N.W.2d 235

STATE of Iowa, Appellee, v. William Victor POWELL, Appellant.

No. 03-0161.

Supreme Court of Iowa.

July 21, 2004.

Linda Del Gallo, State Appellate Defender, and Theresa R. Wilson, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, and Paul L. Martin, County Attorney, for appellee. STREIT, Justice.

Concerned about a potentially powerful conflict on the part of his court-appointed trial counsel, William Victor Powell repeatedly requested appointment of another attorney on his behalf. The district court and court of appeals ruled Powell's alleged conflict was too speculative to require substitution. Because the record before us shows the district court knew of a potential conflict into which it did not sufficiently inquire, we remand for a hearing on Powell's allegations.

I. Facts and Prior Proceedings

After a break-in at a convenience store in Mason City involving two cases of pilfered pseudoephedrine pills, William Powell was charged with burglary, theft, and possession with intent to manufacture a controlled substance.¹ Susan Flander, a public defender, was appointed to represent him on all three counts.

On September 25, 2002, Powell wrote the district court the following letter:

Dear Clerk of Court,

This letter is in regards to the criminal case enumerated above.

At this time I am requesting the court to substitute my court-appointed counsel for the following reasons:

1. My current counsel, public defender Susan Flander, has withheld material information from me preventing me from making intelligent and informed decisions concerning my defense. I have a right to participate in my own defense. This has created a relationship of mistrust. I can no longer tell when I can believe her or not.

2. She was defense counsel in another criminal case directly related to mine and the possibility exists this person might be called as a witness creating the possibility of a conflict of interest.

3. She was defense counsel on another case with the same circumstances.

4. I am requesting the court appoint someone outside the public defender's office. Cynthia Toos is currently defense counsel for my brother Mike Powell who also might be a defense witness.

5. I would request that the court appoint David F. Eastman of Clear Lake to represent me on a court-appointed basis.

I thank you for your time and consideration of my request. If I can be of any assistance to the court in the timely and smooth conduct of these legal proceedings it would be my privilege to do so.

Respectfully, I am

William Powell

Cerro Gordo County Jail

Powell reiterated his request for substitution of counsel a week later in an application for court-appointed counsel.

The trial court held a hearing on Powell's requests at his arraignment on October 14, 2002. At the hearing, Powell explained:

One of the counts that I'm charged with, possession with intent to manufacture, there's a possibility that one of my defense witnesses, [Ms. Flander] has represented him. In fact ... allegedly some of the material that I was charged with was found in his garage during a drug raid. Well, she defended him on his case and now she's defending me on my case and they're related and there's a possibility he'll be a defense witness in my case.... And my brother, she defended my brother. There's a possibility he's a defense witness. She defended him in a prior criminal case and he's being defended by another public defender now....

The district court denied Powell's request for substitute counsel. The court seized upon the fact Powell had only alleged a possibility of a conflict with witnesses who might be called at trial, not an actual conflict. The court pointed out the case was only two weeks old, and was confident Flander would apply to remove herself from the case if a conflict arose.

When Powell informed the court two charges had been pending for over three months, the court remarked "Well, I don't know anything about those" and did not investigate further. The court asked Flander if she had a problem under State v. Watson, 620 N.W.2d 233 (Iowa 2000), our recent Sixth Amendment conflict-of-interest case; Flander denied a problem existed. The court then said:

[W]e can have another hearing ... at a later date but for now I'm going to deny your application. If it comes to pass that these people do end up being witnesses or whatnot, then we can take another look at it.

The court entered a written order denying Powell's request for substitute counsel "at this time" because he had "failed to demonstrate any actual conflict of interest." The issue, however, was never addressed again.

Powell stipulated to a bench trial on the burglary and theft charges. In exchange, the State agreed to dismiss the possession charge and to recommend concurrent five-year sentences if Powell was convicted. Another judge found Powell guilty of burglary and theft.

At sentencing, the prosecutor initially failed to recommend concurrent terms, and the district court ordered consecutive five-year sentences. When Powell protested, neither the prosecutor nor Flander could find a copy of their agreement. The district court continued with the consecutive sentences. The court said it had "put no weight whatsoever on the State's recommendation...."

Powell appealed. Before the court of appeals, Powell argued the presiding judge (1) failed to adequately inquire into his trial counsel's alleged conflict of interest and (2) erred in imposing consecutive sentences.

The court of appeals held the district court adequately inquired into Powell's allegations of a conflict of interest. The court of appeals reasoned the district court's inquiry was sufficient because it (1) determined that there was, at the time, only a possibility of a conflict and (2) left open the possibility of further inquiry. The court of appeals vacated Powell's sentences and remanded for resentencing before a different judge, because the prosecutor did not fulfill his obligation under the plea agreement. Cf. State v. Horness, 600 N.W.2d 294, 299 (Iowa 1999)

.

On further review, Powell contends the court of appeals erred in finding the district court adequately inquired into the alleged conflict of interest on the part of his trial counsel. Based, in part, upon our decision in Watson, Powell requests we remand this case to the district court for a hearing on his claim of a conflict.

Neither party challenges the order for resentencing. We address on the conflict-of-interest matter and let stand the court of appeals' order for resentencing. See, e.g., In re Marriage of Zabecki, 389 N.W.2d 396, 401 (Iowa 1986) (acknowledging but declining to exercise discretion to consider all issues on appeal, even those not raised in an application for further review); see also Bokhoven v. Klinker, 474 N.W.2d 553, 557 (Iowa 1991)

("[W]e may review any or all of the issues initially raised on appeal... whether or not they are specifically brought to our attention in the applications for further review.").

II. Standard of Review

In Pippins v. State, we recently explained our standard of review where a defendant alleges a conflict of interest implicating the right to counsel:

A determination of whether a conflict exists is a mixed question of law and fact. Because this is a claim of a Sixth Amendment violation, our review is de novo. Whether the facts show an actual conflict of interest or a serious potential for conflict is a matter for trial court discretion, and we find an abuse of that discretion only when a party claiming it shows the discretion was exercised on grounds or for reasons clearly untenable or to an extent clearly unreasonable.

661 N.W.2d 544, 548 (Iowa 2003) (citations and internal quotation omitted). Elsewhere we have stated "[a] ground or reason is untenable when it is not supported by substantial evidence or when it is based on an erroneous application of the law." Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).

III. The Merits

A. A Potential Conflict of Interest

The question before us is whether the district court abused its discretion when it denied Powell's request for substitute counsel after he alleged his attorney had a conflict of interest. Our analysis is squarely governed by State v. Watson, 620 N.W.2d 233 (Iowa 2000), our recent conflict-of-interest case. After surveying recent Sixth Amendment right-to-counsel jurisprudence, in Watson we stated:

A trial court has the duty sua sponte to inquire into the propriety of defense counsel's representation when it knows or reasonably should know that a particular conflict exists. If an actual conflict existed and the trial court knew or should have known of the conflict, yet failed to make inquiry, reversal is required. If the record on appeal shows only the possibility of a conflict, then the case must be remanded for a determination as to whether an actual conflict existed and/or whether the defendant made a valid waiver of his right to independent counsel. If, on remand, an actual conflict is found, prejudice is presumed and reversal is mandated.

620 N.W.2d at 238 (citations and internal quotations omitted); see also Mickens v. Taylor, 535 U.S. 162, 166-76, 122 S.Ct. 1237, 1240-46, 152 L.Ed.2d 291, 300-07 (2002)

.

What is a "conflict of interest"?

A conflict of interest places a defense attorney in a situation inherently conducive to divided loyalties. The phrase "conflict of interest" denotes a situation in which regard for one duty tends to lead to disregard of another; where the lawyer's representation of one client is rendered less effective by reason of his representation of another client; or where it becomes a lawyer's duty on behalf of one client to contend for that which his duty to another client would require him to oppose.

Pippins, 661 N.W.2d at 549 (quoting State v. Turner, 218 Neb. 125, 354 N.W.2d 617, 622 (1984)); see id., 661 N.W.2d at 549 (conflict...