IN THE COURT OF APPEALS OF IOWA
No. 16-0901 Filed March 8, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
CHAD JOSEPH MOELLER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark J. Smith (guilty
plea) and Paul L. Macek (sentencing), Judges.
A defendant appeals the judgment entered upon his guilty plea to
possession of heroin with intent to deliver. AFFIRMED.
Courtney T. Wilson of Gomez May L.L.P., Davenport, for appellant.
Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ. 2
TABOR, Judge.
Chad Moeller appeals the judgment entered on his guilty plea to
possession of heroin with intent to deliver, in violation of Iowa Code section
123.401(1)(c) (2016). Moeller alleges a denial of counsel in violation of the Sixth
Amendment. Because our record is insufficient to resolve Moeller’s claim, we
affirm his conviction but preserve the denial-of-counsel issue for postconviction-
relief proceedings.
On January 27, 2016, Davenport police officers arrested Moeller after
discovering heroin, methamphetamine, and marijuana on his person and in his
vehicle. At his initial appearance the next day, the district court appointed
counsel for Moeller. About three weeks later, on February 17, Moeller filed a
pro se motion for new counsel, alleging a “breakdown in the attorney-client
relationship in that [the attorney] refuses to respond in any form of
communication with the Defendant through mail, phone or in person.” Moeller
specified that his attorney had “neglected to follow through on legal issues,”
including “but not limited to motions for bond reduction and discovery requests.”
Moeller alleged this failure prevented his counsel from effectively representing
him and that continued representation “would violate the Iowa Rules of
Professional Conduct.” Hours later, the State filed a trial information charging
Moeller with possession with intent to deliver heroin, methamphetamine, and
marijuana.
The next day, February 18, Moeller, through counsel, filed a motion for
bond reduction, a written arraignment, and a plea of not guilty. Moeller also filed
a pro se “motion to produce.” The district court denied Moeller’s motion for new 3
counsel the following day, finding Moeller’s “court-appointed counsel shall confer
with him and determine whether this motion should be set for hearing.
Defendant’s Motion for New Counsel is denied until and unless Defendant’s
counsel has it set for hearing.” Reasoning Moeller was “represented by court-
appointed counsel and should work through him,” the court denied Moeller’s
motion to produce in an order filed shortly thereafter.
Neither Moeller nor his attorney requested the motion for new counsel be
scheduled for a hearing, and on March 15, 2016, Moeller entered into a plea
agreement with the State, pleading guilty to possession of heroin with intent to
deliver in exchange for the dismissal of the other possession charges.1 At the
plea hearing, the district court did not question Moeller about his previous motion
for new counsel but did ask generally whether Moeller was “satisfied with the
advice and counsel” his attorney had provided him. Moeller responded in the
affirmative.
The court accepted Moeller’s guilty plea and sentenced him to a period of
incarceration not to exceed ten years. Moeller now appeals his conviction.
Because the district court’s failure to inquire into Moeller’s request for new
counsel implicates the Sixth Amendment, our review is de novo. See State v.
Tejeda, 677 N.W.2d 744, 749 (Iowa 2004). Moeller contends he was denied the
effective assistance of counsel in the underlying proceedings.2 To prove this
1 Moeller also pled guilty to an unrelated charge of willful injury resulting in bodily injury, in violation of Iowa Code section 708.4, as a part of the plea agreement. The State agreed the sentences would run concurrently. 2 We recognize Moeller frames the question as ineffective assistance of counsel for not requesting a hearing on the motion to substitute counsel after the court’s February 19 order. But the appellee’s brief filed by the State addresses the district court’s conditional denial of Moeller’s pro se motion. We opt to address the claim under Tejeda. 4
claim, he must demonstrate both that his trial counsel failed to perform an
essential duty and that his counsel’s failure resulted in prejudice. See id. at 754.
We generally preserve ineffective-assistance claims for postconviction
proceedings because preservation “allows the defendant to make a complete
record of the claim, allows trial counsel an opportunity to explain his or her
actions, and allows the trial court to rule on the claim.” See State v. Shanahan,
712 N.W.2d 121, 136 (Iowa 2006). We do so regardless of our estimation of the
claim’s “potential viability.” See State v. Johnson, 784 N.W.2d 192, 198 (Iowa
2010); see also State v. Roby, No. 16-0191, 2016 WL 4384979, at *2 (Iowa Ct.
App. Aug. 17, 2016) (preserving for postconviction relief and noting “we may not
rule on the merits of a claim without an adequate record or penalize [defendant]
for inadequate briefing of the claim on direct appeal”). Only if we find additional
development of the record is unnecessary to decide the claim will we address it
on direct appeal. See Shanahan, 712 N.W.2d at 136.
We find the current record is inadequate to resolve Moeller’s claim. In
Tejeda, 677 N.W.2d at 751, our supreme court affirmed that district courts have a
duty of inquiry once a defendant requests new counsel due to an alleged
communication breakdown. The court acknowledged not all grievances raised
by a defendant require a hearing, but if a defendant makes a “colorable
complaint”—alleging “a severe and pervasive conflict” or “such minimal
contact . . . that meaningful communication was not possible”—the court’s duty to
inquire is activated. Tejeda, 677 N.W.2d at 752 (citation omitted). We conclude
Moeller’s pro se motion for new counsel, which alleged a complete lack of
communication with his attorney and lodged specific complaints about his 5
counsel’s performance, presented a colorable complaint and triggered the district
court’s duty of inquiry. See State v. Lowe, No. 15-0402, 2016 WL 902888, at *1,
*4 (Iowa Ct. App. Mar. 9, 2016) (finding defendant’s motion alleging his attorney
failed to communicate with him or “build a defense” for his trial sufficient to trigger
the court’s duty of inquiry). As in Tejeda, the district court failed to inquire into
the matter, instead shifting its duty to Moeller’s attorney. See 677 N.W.2d at 751.
Because the court made no inquiry, we cannot determine whether Moeller’s
alleged difficulties with his attorney rose to the level of a complete breakdown in
communications denying him the right to counsel.3 We preserve Moeller’s claim
for a potential postconviction-relief proceeding in which a record can be
developed to determine if he was denied his Sixth Amendment right to counsel.
AFFIRMED.
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IN THE COURT OF APPEALS OF IOWA
No. 16-0901 Filed March 8, 2017
STATE OF IOWA, Plaintiff-Appellee,
vs.
CHAD JOSEPH MOELLER, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Scott County, Mark J. Smith (guilty
plea) and Paul L. Macek (sentencing), Judges.
A defendant appeals the judgment entered upon his guilty plea to
possession of heroin with intent to deliver. AFFIRMED.
Courtney T. Wilson of Gomez May L.L.P., Davenport, for appellant.
Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ. 2
TABOR, Judge.
Chad Moeller appeals the judgment entered on his guilty plea to
possession of heroin with intent to deliver, in violation of Iowa Code section
123.401(1)(c) (2016). Moeller alleges a denial of counsel in violation of the Sixth
Amendment. Because our record is insufficient to resolve Moeller’s claim, we
affirm his conviction but preserve the denial-of-counsel issue for postconviction-
relief proceedings.
On January 27, 2016, Davenport police officers arrested Moeller after
discovering heroin, methamphetamine, and marijuana on his person and in his
vehicle. At his initial appearance the next day, the district court appointed
counsel for Moeller. About three weeks later, on February 17, Moeller filed a
pro se motion for new counsel, alleging a “breakdown in the attorney-client
relationship in that [the attorney] refuses to respond in any form of
communication with the Defendant through mail, phone or in person.” Moeller
specified that his attorney had “neglected to follow through on legal issues,”
including “but not limited to motions for bond reduction and discovery requests.”
Moeller alleged this failure prevented his counsel from effectively representing
him and that continued representation “would violate the Iowa Rules of
Professional Conduct.” Hours later, the State filed a trial information charging
Moeller with possession with intent to deliver heroin, methamphetamine, and
marijuana.
The next day, February 18, Moeller, through counsel, filed a motion for
bond reduction, a written arraignment, and a plea of not guilty. Moeller also filed
a pro se “motion to produce.” The district court denied Moeller’s motion for new 3
counsel the following day, finding Moeller’s “court-appointed counsel shall confer
with him and determine whether this motion should be set for hearing.
Defendant’s Motion for New Counsel is denied until and unless Defendant’s
counsel has it set for hearing.” Reasoning Moeller was “represented by court-
appointed counsel and should work through him,” the court denied Moeller’s
motion to produce in an order filed shortly thereafter.
Neither Moeller nor his attorney requested the motion for new counsel be
scheduled for a hearing, and on March 15, 2016, Moeller entered into a plea
agreement with the State, pleading guilty to possession of heroin with intent to
deliver in exchange for the dismissal of the other possession charges.1 At the
plea hearing, the district court did not question Moeller about his previous motion
for new counsel but did ask generally whether Moeller was “satisfied with the
advice and counsel” his attorney had provided him. Moeller responded in the
affirmative.
The court accepted Moeller’s guilty plea and sentenced him to a period of
incarceration not to exceed ten years. Moeller now appeals his conviction.
Because the district court’s failure to inquire into Moeller’s request for new
counsel implicates the Sixth Amendment, our review is de novo. See State v.
Tejeda, 677 N.W.2d 744, 749 (Iowa 2004). Moeller contends he was denied the
effective assistance of counsel in the underlying proceedings.2 To prove this
1 Moeller also pled guilty to an unrelated charge of willful injury resulting in bodily injury, in violation of Iowa Code section 708.4, as a part of the plea agreement. The State agreed the sentences would run concurrently. 2 We recognize Moeller frames the question as ineffective assistance of counsel for not requesting a hearing on the motion to substitute counsel after the court’s February 19 order. But the appellee’s brief filed by the State addresses the district court’s conditional denial of Moeller’s pro se motion. We opt to address the claim under Tejeda. 4
claim, he must demonstrate both that his trial counsel failed to perform an
essential duty and that his counsel’s failure resulted in prejudice. See id. at 754.
We generally preserve ineffective-assistance claims for postconviction
proceedings because preservation “allows the defendant to make a complete
record of the claim, allows trial counsel an opportunity to explain his or her
actions, and allows the trial court to rule on the claim.” See State v. Shanahan,
712 N.W.2d 121, 136 (Iowa 2006). We do so regardless of our estimation of the
claim’s “potential viability.” See State v. Johnson, 784 N.W.2d 192, 198 (Iowa
2010); see also State v. Roby, No. 16-0191, 2016 WL 4384979, at *2 (Iowa Ct.
App. Aug. 17, 2016) (preserving for postconviction relief and noting “we may not
rule on the merits of a claim without an adequate record or penalize [defendant]
for inadequate briefing of the claim on direct appeal”). Only if we find additional
development of the record is unnecessary to decide the claim will we address it
on direct appeal. See Shanahan, 712 N.W.2d at 136.
We find the current record is inadequate to resolve Moeller’s claim. In
Tejeda, 677 N.W.2d at 751, our supreme court affirmed that district courts have a
duty of inquiry once a defendant requests new counsel due to an alleged
communication breakdown. The court acknowledged not all grievances raised
by a defendant require a hearing, but if a defendant makes a “colorable
complaint”—alleging “a severe and pervasive conflict” or “such minimal
contact . . . that meaningful communication was not possible”—the court’s duty to
inquire is activated. Tejeda, 677 N.W.2d at 752 (citation omitted). We conclude
Moeller’s pro se motion for new counsel, which alleged a complete lack of
communication with his attorney and lodged specific complaints about his 5
counsel’s performance, presented a colorable complaint and triggered the district
court’s duty of inquiry. See State v. Lowe, No. 15-0402, 2016 WL 902888, at *1,
*4 (Iowa Ct. App. Mar. 9, 2016) (finding defendant’s motion alleging his attorney
failed to communicate with him or “build a defense” for his trial sufficient to trigger
the court’s duty of inquiry). As in Tejeda, the district court failed to inquire into
the matter, instead shifting its duty to Moeller’s attorney. See 677 N.W.2d at 751.
Because the court made no inquiry, we cannot determine whether Moeller’s
alleged difficulties with his attorney rose to the level of a complete breakdown in
communications denying him the right to counsel.3 We preserve Moeller’s claim
for a potential postconviction-relief proceeding in which a record can be
developed to determine if he was denied his Sixth Amendment right to counsel.
AFFIRMED.
Doyle, J., concurs; Potterfield, P.J., partially dissents.
3 We disagree with the State’s contentions that the district court properly allowed Moeller and his attorney to “work things out rather than prolonging the process by appointing substitute counsel” and that we can assume Moeller’s complaints were resolved because he confirmed during the plea colloquy he was satisfied with the advice of his attorney. At no point did the district court ask about the allegations in Moeller’s motion for new counsel. And we are not convinced Moeller’s general affirmation he was satisfied with the advice of his counsel at the plea hearing eliminated the need to assure that any breakdown in the relationship with counsel did not render the plea unknowing or involuntary. See Lowe, 2016 WL 902888, at *2, *4 (preserving claim even after defendant “agreed he had a ‘full and fair opportunity’ to meet with his attorney and discuss his case and any possible defense” and indicated he was satisfied with his attorney’s services at the plea hearing). 6
POTTERFIELD, Presiding Judge. (concurring in part and dissenting in part)
I dissent in part; I would decide the claim on direct appeal. The
appellant’s argument on appeal is ineffective assistance of counsel for failing to
request a hearing on his request for substitute counsel. Moeller does not
contend the court’s response to his request was inadequate, and the majority’s
opinion that the court erred addresses an issue not raised.
Even if Moeller raised the issue, I would find that the court’s directing
counsel to inquire of her client regarding a request for new counsel is sufficient
inquiry under State v. Tejeda on this record. 677 N.W.2d 744, 751–52 (Iowa
2004). Almost immediately following the defendant’s request, a trial information
was approved, a motion to produce was filed and a plea agreement was
reached. A hearing on a defendant’s request puts at risk the client’s privilege of
confidentiality or a revealing of potential defense strategy. The court can only
safely proceed by leading questions to the defendant. Assigning counsel to this
role can be an effective first step.
The majority discounts the defendant’s affirmative response to the inquiry
at the time of the plea concerning satisfaction with representation. Under our
case law, a defendant’s assertions at the time of plea are considered to be
significant when evaluating the plea procedures. I see no reason why a
defendant’s answer that he is satisfied with counsel should not also be credited.
Counsel stated on the record at the plea proceeding that he and Moeller “have
spoken about this at great length” with no contradiction from Moeller. The
majority’s decision to preserve the issue for potential postconviction relief is 7
overkill. Moeller had opportunities to complain about his counsel but did not do
so. I agree with the State that he cannot prove prejudice.