State v. See

• Decision Date: 21 May 1986
• Docket Number: No. 85-1278,85-1278
• Citation: 387 N.W.2d 583
• Parties: STATE of Iowa, Appellee, v. Dennis Keith SEE, Appellant.
• Court: Iowa Supreme Court

Page 583

387 N.W.2d 583

STATE of Iowa, Appellee, v. Dennis Keith SEE, Appellant.

No. 85-1278.

Supreme Court of Iowa.

May 21, 1986.

Jane A. Harlan, Newton, for appellant.

Thomas J. Miller, Atty. Gen., Brent R. Appel, Deputy Atty. Gen., and John E. Billingsley, Co. Atty., for appellee.

Peter Cohen, Washington, D.C., for amicus curiae National Legal Aid & Defender Assn.

Considered by REYNOLDSON, C.J., and HARRIS, CARTER, WOLLE, and LAVORATO, JJ.

WOLLE, Justice.

Defendant, an indigent for whom counsel was appointed by the court, contends the prosecution should not have had a voice in the determination of the fees to be paid his court-appointed attorney. The trial court denied defendant's several-pronged challenge to the county attorney's participation in the hearing on counsel's fee application. We affirm, finding neither a constitutional infirmity nor breach of legal ethics in the fee-setting procedure.

The background facts of this case exemplify the procedure we have previously prescribed for determining reasonable fees to be paid court-appointed counsel. See State v. Iowa District Court, 286 N.W.2d 22, 25 (Iowa 1979); Furey v. Crawford County, 208 N.W.2d 15, 18 (Iowa 1973). Defendant was charged with operating a motor vehicle while intoxicated in violation of Iowa Code section 321.281 (1983), and the court appointed an attorney to represent him after he made a satisfactory showing of indigency. Defendant's court-appointed attorney represented him in connection with his arraignment, pretrial motions, plea of guilty, and sentencing on the charge. The attorney then submitted to the court a claim for attorney fees, supported by an itemized statement of the services performed. A copy was provided to the county attorney, and the county attorney requested a hearing on the fee application, because he objected to several items listed on the claim.

In response to the county attorney's request for a hearing, defendant's counsel applied to the court for an injunction prohibiting any involvement by the county attorney in the hearing on her application for fees. She also requested injunctive relief preventing the county attorney from participating in any future proceeding concerning compensation to be paid court-appointed counsel. After two separate evidentiary hearings were held, defendant's application for an injunction was denied. The district court considered the county attorney's objections before setting the amount counsel was to be paid, and neither defendant, his attorney or the State challenges the amount determined to be reasonable.

Defendant contends that his constitutional rights to counsel and to equal protection of the law were violated by the county attorney's involvement in the hearings which resulted in an order establishing reasonable compensation for his court-appointed attorney. He also argues that the procedure used for determining reasonable compensation violated two provisions of the Iowa Code of Professional Responsibility. We first address the constitutional issues, then defendant's concern about legal ethics.

I. Effective assistance of counsel.

The sixth and fourteenth amendments to the United States Constitution afford criminal defendants the right to effective assistance of counsel. Defendant contends that the county attorney's involvement in the procedure for determining his counsel's attorney fees constituted both a per se violation of his right to effective assistance of counsel and also a violation based on the specific facts of this case. In resolving these constitutional issues we undertake an independent evaluation of the totality of the circumstances shown in the evidentiary record. Nichol v. State, 309 N.W.2d 468, 470 (Iowa 1981); Cosgrove v. State, 304 N.W.2d 184, 185 (Iowa 1981).

Defendant first contends that the county attorney's participation in setting of fees blights the representation of all indigent criminal defendants in Iowa and constitutes a per se constitutional violation. He argues:

Involvement of the prosecuting attorney in fee setting for court-appointed defense attorneys as practiced in Jasper County violates the constitutional rights of all indigent defendants. It institutionalizes a system in which the prosecuting attorney exercises de facto supervision over the work of defense attorneys. A defense attorney dependent upon the good will of the prosecutor in order to be paid promptly and in the amount requested can hardly be described as independent.

The United States Supreme Court has recognized that a per se violation of the right to effective counsel may exist even though counsel is available, if "the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial." United States v. Cronic, 466 U.S. 648, -"-"-"-", 104 S.Ct. 2039, 2047, 80 L.Ed.2d 657, 668 (1984). The Court has found a per se violation where there has been a total denial of representation by counsel, Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 799 (1963), a substantial breakdown in the adversary system, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), or denial of counsel at a critical stage of the trial, Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (right to counsel during recess while defendant testifying); Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (right to have counsel give summation); Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961) (right to assistance of counsel when testifying).

Defendant cites Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), to support his contention that the involvement of the county attorney in fee-setting so infected the attorney-client relationship as to deprive him of an independent and loyal attorney. In Glasser defendant's court-appointed attorney failed to cross-examine a prosecution witness who linked defendant to the crime, then also failed to object to inadmissible evidence. The Court found that those omissions resulted from counsel's attempt to diminish the jury's perception of the guilt of a codefendant whom the attorney was also representing. 315 U.S. at 72-"75, 62 S.Ct. at 465-"67, 86 L.Ed. at 700-"02. The Court reversed Glasser's conviction, stating that counsel's "struggle to serve two masters [could not] seriously be doubted." Id. at 75, 62 S.Ct. at 467, 86 L.Ed. at 702.

In Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333, 347 (1980), the Court concisely summarized its Glasser holding:

[A] defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief. But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.

(Citations omitted.)

The principles of Glasser and Cuyler concerning per se sixth amendment violations do not benefit defendant in this case, because defendant's counsel faced no conflict of interest and did not actively represent conflicting interests. Defendant's counsel represented neither multiple defendants nor prosecution witnesses, circumstances commonly creating conflicts. See Nichol v. State, 309 N.W.2d at 470. Defendant's attorney was not forced to choose one client over another; neither was counsel forced to weigh personal, pecuniary concerns against the client's best interests. Defendant's counsel was entitled to receive reasonable compensation for representing defendant, and the county attorney's participation in the fee-setting process did not diminish that right in any way.

Iowa Code section 815.7 (1983) provides:

An attorney appointed by the court to represent any person charged with a crime in this state shall be entitled to a reasonable compensation which shall be the ordinary and customary charges for like services in the community to be decided in each case by a judge of the district court....

The district court is itself an expert on the issue of reasonable attorney fees. Parrish v. Denato, 262 N.W.2d 281, 285 (Iowa 1978). In several cases we have explained in detail what factors the court may properly consider in determining the amount that will fairly and reasonably compensate court-appointed defense counsel. See e.g., Coonrad v. Van Metre, 362 N.W.2d 197, 199-"200 (Iowa 1985); Walters v. Herrick, 351 N.W.2d 794, 797 (Iowa 1984); Hulse v. Wifvat, 306 N.W.2d 707, 709-"12 (Iowa 1981). In Hulse we said:

In exercising its independent judgment [to determine the extent of reasonably necessary services], the court must put itself in the position of a reasonable attorney at the time the services were undertaken. The court must recognize the high standard of diligence and preparation which is demanded of counsel in criminal cases and all of the relevant facts and circumstances in the individual case.

306 N.W.2d at 710. Even though the county attorney may participate in the fee-setting process, for reasons clearly...