State v. Wetzel
| Decision Date | 15 December 1971 |
| Docket Number | No. 54563,54563 |
| Citation | 192 N.W.2d 762 |
| Parties | STATE of Iowa, Appellee, v. Richard WETZEL, Appellant. |
| Court | Iowa Supreme Court |
L. Jack Degnan, Guttenberg, for appellant.
Richard C. Turner, Atty. Gen., Richard N. Winders, Asst. Atty. Gen., and Harold H. Pahlas, County Atty., for appellee.
Applicant, Richard Wetzel, appeals from trial court's denial of relief under our Postconviction Procedure Act, chapter 1276, Acts 63rd General Assembly, which became effective July 1, 1970. It is now chapter 663A, Code, 1971. We affirm the trial court but grant Wetzel a delayed appeal from his conviction and sentence for the crime of false pretenses in violation of Code section 713.1.
I. A Clayton County jury found Wetzel guilty of false pretenses and on February 2, 1968 he was sentenced to a term not to exceed seven years in the state penitentiary at Fort Madison (Lee County, Iowa). On March 1, 1968 Wetzel filed with the Clayton County district court clerk a notice of appeal which he had signed. Service thereof on the county attorney as required by Code section 793.4 was not shown. Simultaneously Wetzel filed a pauper's oath and asked for appointment of an appeal attorney. His privately employed trial counsel, L. Don Snow, had withdrawn after Wetzel's sentencing. Of this Wetzel was fully aware. On March 14 the trial court advised Attorney Snow of Wetzel's appeal and appointed Snow as appeal counsel. On May 6, 1968 this court on motion by the attorney general dismissed Wetzel's appeal for failure to comply with the provisions of Code section 793.4. Wetzel had not notified Snow of this motion until the day it was sustained. He claimed difficulty in obtaining use of the telephone at the penitentiary. Shortly thereafter Wetzel discharged Snow.
On April 14, 1969 a full evidentiary hearing was held in Lee County district court on Wetzel's application for a writ of habeas corpus. He was represented by court appointed attorney Austin J. Rashid. The findings and conclusions of the trial judge, William S. Cahill, are a part of the record here.
In his findings and conclusions Judge Cahill carefully reviewed Wetzel's contentions including he had not been afforded a speedy trial, his retained counsel was incompetent and he was represented by ineffective appeal counsel. Judge Cahill held Wetzel had failed to establish any of these contentions. Judgment was entered dismissing Wetzel's application for a writ of habeas corpus and remanded him to the custody of the warden. No appeal was taken from this judgment.
Wetzel on August 7, 1970 petitioned the United States district court for a writ of habeas corpus which was denied by Judge Roy L. Stephenson for the reason his remedy had not been exhausted in the state court. In doing so Judge Stephenson called attention to Iowa's newly enacted postconviction statutes. He also referred to the holding in Blanchard v. Brewer, 8th Cir., 1970, 429 F.2d 89, regarding newly articulated standards for determining the question of effective assistance of appeal counsel.
On August 24, 1970 Wetzel commenced this postconviction relief action in Clayton County district court seeking release from the penitentiary. L. Jack Degnan was appointed trial counsel and has served on this appeal.
On the full evidentiary hearing in the case at bar the above related facts were established by exhibits and the testimony of Snow and Wetzel. Wetzel's testimony includes: If such an allegation was made in Lee County, the evidence there did not so establish. It is undisputed the appeal was dismissed solely on the ground Wetzel had not given proper notice.
II. Faced with substantially the same record as that made in Lee County and Judge Cahill's findings and judgment, Judge Oberhausen, after citing section 8 of our postconviction act, denied defendant relief on the ground the matters raised had been finally adjudicated in the Lee County habeas corpus case.
Section 8 as pertinent here provides: '* * * Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence, or...
To continue reading
Request your trial
-
Daniels v. Iowa
...822.8] is 'clear and unambiguous . . . Relitigation of previously adjudicated issues is barred.'") (quoting State v. Wetzel, 192 N.W.2d 762, 764 (Iowa 1971)). Because Daniels exhausted his ineffective assistance of PCR counsel claim improperly—by failing to present it to the Iowa Supreme Co......
-
Herman v. Brewer, 54893
...decided adverse to him there. Ordinarily this would foreclose petitioner from raising it again here. Section 663A.8, The Code, 1971, State v. Wetzel, Iowa, 192 N.W.2d 762, filed December 15, However, section 663A.8, The Code, permits reconsideration of a once-determined ground for relief up......
-
State v. Davis
...his intention to appeal before the appeal period expired" but was without counsel to timely perfect appeal); State v. Wetzel , 192 N.W.2d 762, 764 (Iowa 1971) (allowing delayed appeal where the defendant "at all times attempted to appeal his conviction" but was unable to perfect the appeal ......
-
Rinehart v. State
...matters waived in the original trial. It was determined adversely to the petitioner-appellant therein. Horn also cites State v. Wetzel, 192 N.W.2d 762, 764 (Iowa 1971), where the court held section 663A.8 Barred relitigation of previously adjudicated issues. In Carstens v. Rans, 210 N.W.2d ......