Walker v. Brewer, 54764
| Decision Date | 09 September 1971 |
| Docket Number | No. 54764,54764 |
| Citation | 189 N.W.2d 605 |
| Parties | Kenneth F. WALKER, Appellant, v. Lou V. BREWER, Warden Iowa State Prison, Appellee. |
| Court | Iowa Supreme Court |
George E. Wright, Fort Madison, for appellant.
Richard C. Turner, Atty. Gen., Richard N. Winders, Asst. Atty. Gen., Michael M. Phelan, and Sidney E. Drake, Deputy Lee County Attys., for appellee.
Kenneth F. Walker, petitioner in a habeas corpus action, appeals from the trial court's denial of the writ. Walker had been sentenced by the Black Hawk district court to the state penitentiary for a term of 25 years following his plea of guilty to the charge of robbery with aggravation contrary to section 711.2, The Code. June 2, 1970, Walker filed petition for writ of habeas corpus in the Lee district court. Following an evidentiary hearing in which petitioner was represented by court-appointed counsel the writ was denied.
Walker asserts three grounds as a basis for his contention the court erred in denying his petition. He asserts being, (1) denied assistance of competent and effective counsel during pre-trial proceedings and on appeal, (2) misinformed as to matters of law by this court-appointed counsel when he was advised that he could be sentenced to 65 years if he didn't plead guilty and was, therefore, coerced into a guilty plea and (3) denied his right to an appeal.
Walker was arrested October 13, 1969, in Waterloo and charged with robbery with aggravation. The next day Stephen Peterson, a Waterloo attorney, was appointed as counsel for him. Peterson represented Walker before the magistrate and at arraignment. Walker says when Peterson did not come to see him at the jail for some period of time, he, Walker, asked the Black Hawk district court to appoint new counsel. This was done and from that time L. Don Snow, another Waterloo attorney, and Peterson served as attorneys for Walker through the sentencing stage.
December 16, Walker appeared in court with Mr. Snow, withdrew his earlier plea of not guilty and did himself enter a plea of guilty to the charge of robbery with aggravation.
The following is a portion of the transcript of the proceeding before Judge Blair C. Wood of the Black Hawk district court at the plea stage:
January 5, 1970, sentence was imposed under section 711.2. The code section follows:
February 13, petitioner perfected an appeal to this court.
February 19, Victor N. Kennedy, also a Waterloo attorney, was appointed to prosecute the appeal.
March 4, Kennedy filed application under supreme court rule 16 for permission to withdraw as Walker's counsel on appeal asserting in substance the appeal was frivolous and he could not in good conscience proceed further in the matter. Walker was notified of Kennedy's decision as to frivolity and specifically informed of the necessity to communicate to the Iowa Supreme Court his desire to proceed further with the appeal in the event he did not agree with counsel's decision. Walker received the notice but did not communicate to this court a desire to proceed further.
Pertinent parts of rule 16 of this court, based on the mandate in Anders v. California, 386 U.S. 738, 744--745, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493, 498, are set out, infra.
April 30, this court permitted Kennedy to withdraw from further participation in the appeal and after full examination of the proceedings and study of the record made an independent determination the appeal was Frivolous, without merit and should be dismissed. It was so ordered.
Walker alleged in his June 2 petition for the writ he was restrained by respondent, warden of the state penitentiary, pursuant to a mittimus issued by the Black Hawk district court; that his detention was illegal for the reason (a) he was denied effective counsel during his pretrial proceedings (b) his plea was the result of duress produced by being misinformed by his attorneys as to matters of law which denied him due process and (c) he was denied assistance of competent and effective counsel in connection with his appeal.
June 8, the Lee district court appointed George G. Wright to act as attorney for Walker in connection with the evidentiary hearing on his petition for the writ. The case had been set for June 10 but was continued to afford Mr. Wright opportunity to prepare for trial.
September 23, after Wright advised the court he was prepared to proceed, the matter was set for hearing commencing October 12. At the conclusion of the proceeding that day the matter was continued until October 19 to permit Walker to offer testimony of witnesses who were unable to attend October 12. At the continued hearing the matter was completed and submitted. The ruling under attack in this appeal was filed October 26.
Walker testified his attorneys, Peterson, Snow and Kennedy, told him before he entered his guilty plea in the event he entered a not guilty plea and trial was necessary, 'he would get 65 years.' Petitioner maintains the attorneys, 'told him he would be charged with being an habitual criminal.' They said once he got 25 years it was just a matter of record for an additional 40 years to be added for being an habitual criminal which makes 65 years.'
At the time of these alleged conversations in addition to the charge of robbery with aggravation, Walker was also charged with being an habitual criminal. We set out the Code section involved:
Walker admitted on cross-examination he had been convicted of three felonies, breaking and entering in 1961 or 1962, armed robbery in 1962 or 1963 and assault with intent to commit great bodily injury in 1967. Walker estimated he had been convicted of four felonies, including the three just mentioned, but denied being convicted of three concurrent charges in 1968 of breaking and entering or robbery.
The petitioner explained the habitual criminal charge was dismissed after he entered his plea of guilty to robbery with aggravation 'as part of the deal made if he plead guilty.'
Walker's sister was the other witness offered by petitioner. She testified she recalled Snow saying if her brother plead guilty there was a chance the habitual criminal charge would be dropped. But if he didn't and there was a trial they would 'give him habitual and he would get up to 65 years.' The sister did not recall ever having met Mr. Peterson and said she talked to Kennedy for the first time after her brother's plea of guilty. She was present at only one of the conferences between Snow and her brother.
The respondent offered Mr. Snow as a witness who had been admitted to practice in Iowa in 1959 after graduating from University of Iowa law school. Snow had served one term as first assistant to the Black Hawk county attorney. He estimated he had represented more than a hundred defendants in criminal trials during his practice.
Snow testified that after he was assigned as Walker's counsel, he had from eight to ten conferences with petitioner. Walker's relatives were present at six to eight of these meetings. Although Peterson was not present at all conferences, he attended most. He discussed with Walker possible defenses, talked with the prosecutor about possible solutions and interviewed witnesses who had been prosecutors at the time of the disposition of the felonies involved in the habitual criminal charge as to their ability to identify Walker. Snow was satisfied the State was prepared to prove, without difficulty, the habitual charge and...
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