Louis Johnson, Applicant-Appellant v. State of Iowa

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 12-2216 Filed June 11, 2014

LOUIS JOHNSON, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, John D. Telleen,

Judge.

A postconviction relief applicant appeals from denial of his application.

AFFIRMED.

G. Brian Weiler, Davenport, for appellant.

Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney

General, Michael J. Walton, County Attorney, and Kelly Cunningham, Assistant

County Attorney, for appellee.

Considered by Vogel, P.J., and Doyle and Mullins, JJ. 2

MULLINS, J.

Louis Johnson appeals from denial of his postconviction-relief (PCR)

application contending the trial court erred by denying his request for substitute

counsel. In November 2009, a jury convicted Johnson of possession with intent

to deliver, possession of drug paraphernalia, and driving while barred. Prior to

trial, Johnson raised a pro se motion requesting a new attorney. The court heard

the motion and denied it. Following trial, Johnson appealed the conviction but

did not raise the court’s denial of his request for new counsel. We affirmed. See

State v. Johnson, No. 09-1895, 2010 WL 5050582, at * 2 (Iowa Ct. App. Dec. 8,

2010). Johnson filed an application for postconviction relief. At the

postconviction trial, Johnson’s counsel orally amended the application to raise

the claim that denial of his trial motion for new counsel violated Johnson’s Sixth

Amendment rights. The PCR court denied the application, and Johnson

appealed.

Generally, we review denial of an application for postconviction relief for

correction of errors at law. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa

2012). However, when the applicant asserts claims of a constitutional nature,

our review is de novo. Id. Thus, we review Johnson’s Sixth Amendment claim

de novo.

Iowa Code section 822.8 (2011) provides, with respect to applications for

postconviction relief:

Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, may not be the basis for a 3

subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.

An exception to these error preservations rules exists where the failure to raise

the claim was a result of ineffective assistance of counsel. State v. Fountain, 786

N.W.2d 260, 263 (Iowa 2010). Johnson raises no such argument here, nor does

he assert any other reason why he did not raise the claim in his direct appeal.

We find, therefore, that Johnson waived the claim and we do not address it.