IN THE COURT OF APPEALS OF IOWA
No. 22-0915 Filed September 13, 2023
STATE OF IOWA, Plaintiff-Appellee,
vs.
KELVIN DEVELL WILLFORM, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Emily Dean,
District Associate Judge.
The defendant appeals his conviction for operating while intoxicated, first
offense. AFFIRMED.
Mark C. Meyer, Cedar Rapids, for appellant.
Brenna Bird, Attorney General, and Benjamin Parrott, Assistant Attorney
General, for appellee.
Considered by Greer, P.J., and Schumacher and Badding, JJ. 2
SCHUMACHER, Judge.
Kelvin Willform appeals his conviction for operating while intoxicated, first
offense. He argues he received ineffective assistance of counsel, which resulted
in his jury-trial waiver not being knowing and voluntary. He also asserts that the
trial court abused its discretion in denying his request for the appointment of new
counsel during trial. Willform’s ineffective-assistance-of-counsel claim cannot be
raised on direct appeal, and the trial court did not abuse its discretion in denying
his request for new counsel. Accordingly, we affirm.
I. Background Facts & Prior Proceedings
Willform was stopped by Des Moines County Sheriff’s Deputy Kolton Atkins
after the deputy received a report of an intoxicated driver. Deputy Atkins smelled
the odor of alcohol on Willform’s breath and observed that Willform’s eyes were
watery and bloodshot. He also noted that Willform’s pupils were dilated and
Willform was slurring his words. Deputy Atkins testified that Willform admitted to
having “a drink while coming from town.” Willform later denied making this
concession.
Deputy Atkins performed the horizontal gaze and nystagmus test. Willform
had difficulty following Deputy Atkins’s instructions during the test. Willform failed
this test, scoring six out of six clues indicating intoxication. No other field sobriety
tests were performed.1 Willform was arrested and transported to the Des Moines
County jail. At the jail, Deputy Atkins asked Willform to submit to a breath test.
1 Deputy Atkins did not perform two other field sobriety tests, the nine-step walk-
and-turn test and the one-leg stand test, as Willform informed the deputy that he had a previous back injury and surgery. The deputy testified that he did not feel it was safe for Willform to perform these two other tests. 3
Willform was uncooperative, and Deputy Atkins eventually concluded Willform was
refusing to submit to the test.
Willform was charged with operating while intoxicated, first offense, in
violation of Iowa Code section 321J.2 (2021). On the morning of the trial, with
potential jurors already summoned to the courthouse, Willform waived his right to
a trial by jury. This waiver was supported by a signed document, and the court
conducted a colloquy to confirm Willform’s waiver was intelligent, knowing, and
voluntary. After the court explained the consequences of a jury waiver, Willform
again confirmed that he wished to waive his right to trial by jury. Willform’s attorney
advised the court that although he had counseled his client against a waiver,
Willform had made the decision to waive his right to a jury. The court accepted the
waiver.
After Willform’s counsel began his opening statement, Willform interjected
and asked the judge for appointment of new counsel: “Your honor, I see the
railroad here so I’m going to fire him and I’m going to go ahead and ask for new
appointment of counsel . . .” Willform stated he was personally unprepared for trial
and that he felt his attorney was not capable of representing him. The court denied
that request. Willform’s attorney then requested to withdraw. The court denied
the motion. Following the bench trial, Willform was convicted. He was sentenced
to serve forty-eight hours in the Des Moines County Jail and ordered to pay a fine
of $1250. Willform filed this timely appeal.
II. Ineffective Assistance of Counsel
Willform raises the waiver of jury trial as an ineffective-assistance-of-
counsel claim. Such claims cannot be addressed on direct appeal and are 4
preserved for postconviction relief. Iowa Code § 814.7 (2023) (“An ineffective
assistance of counsel claim shall be determined by filing an application for
postconviction relief . . . . [T]he claim shall not be decided on direct appeal from
the criminal proceedings.”). We are unable to address Willform’s claim of
ineffective assistance of counsel in this direct appeal.
We note that Willform re-packages this claim in his reply brief as a “free-
standing” claim. But “[w]e generally will not consider issues raised for the first time
in a reply brief in an appeal.” State v. Shackford, 952 N.W.2d 141, 147–48 (Iowa
2020). As a result, we do not consider Willform’s claim of inadequate jury-trial
waiver as a free-standing claim raised for the first time in his reply brief. We turn
to Willform’s remaining challenge to the trial court’s denial for new counsel.
III. Standard of Review
The denial of a request for substitute counsel is reviewed for abuse of
discretion. State v. Lopez, 633 N.W.2d 774, 778 (Iowa 2001). Abuse of discretion
is established by a showing that “‘the court exercised the discretion on grounds or
for reasons clearly untenable or to an extent clearly unreasonable.’” Id. (quoting
State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)).
IV. Request for New Counsel
Willform argues that there was a breakdown in attorney-client
communications and that the trial court failed to make the necessary inquiry into
those allegations; instead, simply finding no breakdown and denying Willform’s
request.
The Sixth Amendment provides criminal defendants the right to counsel, but
“[t]he Sixth Amendment right to counsel does not guarantee a ‘meaningful 5
relationship between an accused and his counsel.’” Lopez, 633 N.W.2d at 778
(quoting Morris v. Slappy, 461 U.S. 1, 14 (1983)). Although, when a defendant
requests substitute counsel, generally the court has a duty of inquiry. State v.
Tejeda, 677 N.W.2d 744, 750 (Iowa 2004).
There is an adequate inquiry when “the presiding judge, when apprised of
a potential breakdown in communication, personally ask[s] the defendant at a
hearing to explain the nature of the communication problem.” Id. at 751. At the
same time, “[w]hen the defendant provides no reason to believe that such a
breakdown has occurred, a court does not abuse their discretion in denying the
request for substitute counsel.” State v. Hunziker, No. 20-0086, 2022 WL 108623,
at *10 (Iowa Ct. App. Jan. 12, 2022).
Additionally, in making a request “[t]he defendant must show the grounds
to justify substitute counsel.” State v. Boggs, 741 N.W.2d 492, 506 (Iowa 2007).
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IN THE COURT OF APPEALS OF IOWA
No. 22-0915 Filed September 13, 2023
STATE OF IOWA, Plaintiff-Appellee,
vs.
KELVIN DEVELL WILLFORM, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Des Moines County, Emily Dean,
District Associate Judge.
The defendant appeals his conviction for operating while intoxicated, first
offense. AFFIRMED.
Mark C. Meyer, Cedar Rapids, for appellant.
Brenna Bird, Attorney General, and Benjamin Parrott, Assistant Attorney
General, for appellee.
Considered by Greer, P.J., and Schumacher and Badding, JJ. 2
SCHUMACHER, Judge.
Kelvin Willform appeals his conviction for operating while intoxicated, first
offense. He argues he received ineffective assistance of counsel, which resulted
in his jury-trial waiver not being knowing and voluntary. He also asserts that the
trial court abused its discretion in denying his request for the appointment of new
counsel during trial. Willform’s ineffective-assistance-of-counsel claim cannot be
raised on direct appeal, and the trial court did not abuse its discretion in denying
his request for new counsel. Accordingly, we affirm.
I. Background Facts & Prior Proceedings
Willform was stopped by Des Moines County Sheriff’s Deputy Kolton Atkins
after the deputy received a report of an intoxicated driver. Deputy Atkins smelled
the odor of alcohol on Willform’s breath and observed that Willform’s eyes were
watery and bloodshot. He also noted that Willform’s pupils were dilated and
Willform was slurring his words. Deputy Atkins testified that Willform admitted to
having “a drink while coming from town.” Willform later denied making this
concession.
Deputy Atkins performed the horizontal gaze and nystagmus test. Willform
had difficulty following Deputy Atkins’s instructions during the test. Willform failed
this test, scoring six out of six clues indicating intoxication. No other field sobriety
tests were performed.1 Willform was arrested and transported to the Des Moines
County jail. At the jail, Deputy Atkins asked Willform to submit to a breath test.
1 Deputy Atkins did not perform two other field sobriety tests, the nine-step walk-
and-turn test and the one-leg stand test, as Willform informed the deputy that he had a previous back injury and surgery. The deputy testified that he did not feel it was safe for Willform to perform these two other tests. 3
Willform was uncooperative, and Deputy Atkins eventually concluded Willform was
refusing to submit to the test.
Willform was charged with operating while intoxicated, first offense, in
violation of Iowa Code section 321J.2 (2021). On the morning of the trial, with
potential jurors already summoned to the courthouse, Willform waived his right to
a trial by jury. This waiver was supported by a signed document, and the court
conducted a colloquy to confirm Willform’s waiver was intelligent, knowing, and
voluntary. After the court explained the consequences of a jury waiver, Willform
again confirmed that he wished to waive his right to trial by jury. Willform’s attorney
advised the court that although he had counseled his client against a waiver,
Willform had made the decision to waive his right to a jury. The court accepted the
waiver.
After Willform’s counsel began his opening statement, Willform interjected
and asked the judge for appointment of new counsel: “Your honor, I see the
railroad here so I’m going to fire him and I’m going to go ahead and ask for new
appointment of counsel . . .” Willform stated he was personally unprepared for trial
and that he felt his attorney was not capable of representing him. The court denied
that request. Willform’s attorney then requested to withdraw. The court denied
the motion. Following the bench trial, Willform was convicted. He was sentenced
to serve forty-eight hours in the Des Moines County Jail and ordered to pay a fine
of $1250. Willform filed this timely appeal.
II. Ineffective Assistance of Counsel
Willform raises the waiver of jury trial as an ineffective-assistance-of-
counsel claim. Such claims cannot be addressed on direct appeal and are 4
preserved for postconviction relief. Iowa Code § 814.7 (2023) (“An ineffective
assistance of counsel claim shall be determined by filing an application for
postconviction relief . . . . [T]he claim shall not be decided on direct appeal from
the criminal proceedings.”). We are unable to address Willform’s claim of
ineffective assistance of counsel in this direct appeal.
We note that Willform re-packages this claim in his reply brief as a “free-
standing” claim. But “[w]e generally will not consider issues raised for the first time
in a reply brief in an appeal.” State v. Shackford, 952 N.W.2d 141, 147–48 (Iowa
2020). As a result, we do not consider Willform’s claim of inadequate jury-trial
waiver as a free-standing claim raised for the first time in his reply brief. We turn
to Willform’s remaining challenge to the trial court’s denial for new counsel.
III. Standard of Review
The denial of a request for substitute counsel is reviewed for abuse of
discretion. State v. Lopez, 633 N.W.2d 774, 778 (Iowa 2001). Abuse of discretion
is established by a showing that “‘the court exercised the discretion on grounds or
for reasons clearly untenable or to an extent clearly unreasonable.’” Id. (quoting
State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)).
IV. Request for New Counsel
Willform argues that there was a breakdown in attorney-client
communications and that the trial court failed to make the necessary inquiry into
those allegations; instead, simply finding no breakdown and denying Willform’s
request.
The Sixth Amendment provides criminal defendants the right to counsel, but
“[t]he Sixth Amendment right to counsel does not guarantee a ‘meaningful 5
relationship between an accused and his counsel.’” Lopez, 633 N.W.2d at 778
(quoting Morris v. Slappy, 461 U.S. 1, 14 (1983)). Although, when a defendant
requests substitute counsel, generally the court has a duty of inquiry. State v.
Tejeda, 677 N.W.2d 744, 750 (Iowa 2004).
There is an adequate inquiry when “the presiding judge, when apprised of
a potential breakdown in communication, personally ask[s] the defendant at a
hearing to explain the nature of the communication problem.” Id. at 751. At the
same time, “[w]hen the defendant provides no reason to believe that such a
breakdown has occurred, a court does not abuse their discretion in denying the
request for substitute counsel.” State v. Hunziker, No. 20-0086, 2022 WL 108623,
at *10 (Iowa Ct. App. Jan. 12, 2022).
Additionally, in making a request “[t]he defendant must show the grounds
to justify substitute counsel.” State v. Boggs, 741 N.W.2d 492, 506 (Iowa 2007).
This can include a complete breakdown in communication between the defendant
and counsel, as Willform alleges here. See id. “‘[T]o prove a total breakdown in
communication, a defendant must put forth evidence of a severe and pervasive
conflict with his attorney or evidence that he had such minimal contact with the
attorney that meaningful communication was not possible.’” Tejeda, 677 N.W.2d
at 752 (quoting United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002)).
Willform has not presented such evidence.
At trial, Willform initiated his request for new counsel by interrupting his
attorney’s opening statement. When he did so, he provided little additional basis
for his complaint beyond asserting that he was unprepared and that he felt his
attorney was not qualified to represent him in this OWI case. Although a complete 6
breakdown in communication supports substitution, general dissatisfaction and
frustration with counsel does not:
The focus of the inquiry is not on the defendant’s relationship with his or her attorney, but “the adequacy of counsel in the adversarial process.” In reality, “a person accused of a crime is often genuinely unhappy with an appointed counsel who is nevertheless doing a good job.” Thus, not all criticism lodged by a defendant against defense counsel requires new counsel.
Boggs, 741 N.W.2d at 506 (quoting United States v. Barrow, 287 F.3d 733, 738
(8th Cir. 2002)). To this point, the court found that Willform’s counsel was
“probably the most seasoned defense attorney” in the sub-district, and counsel
stated that he had several times attempted to contact Willform by phone to no avail
and had set a meeting that Willform did not attend.
We also highlight that “[t]he court has considerable discretion whether to
grant substitute counsel, and eleventh-hour requests for substitute counsel are
generally disfavored.” Id. Although a court has a duty to conduct an inquiry into a
request for substitute counsel, courts are not required to “conduct a hearing every
time a dissatisfied defendant lodges a complaint about his attorney.” Tejeda, 677
N.W.2d at 751. In fact, the court needs to balance the defendant’s rights to counsel
and the public’s interest in the prompt and efficient administration of justice, and
“[t]he court should not permit a defendant to manipulate the right to counsel to
delay or disrupt the trial.” Lopez, 633 N.W.2d at 779. Further, “the court should
not allow ‘last-minute requests to substitute counsel . . . to become a tactic for
delay.’” Id. (quoting United States v. Swinney, 970 F.2d 494, 499 (8th Cir. 1992)).
And Willform would still have to demonstrate that he was prejudiced by the
denial of his request for new counsel: “A defendant must ordinarily show prejudice, 7
unless he has been denied counsel or counsel has a conflict of interest.” State v.
Brooks, 540 N.W.2d 270, 272 (Iowa 1995). “[P]rejudice governing the denial of
substitute counsel is recognized when ‘counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.’” Boggs, 741 N.W.2d at 507
(quoting Bell v. Cone, 535 U.S. 685, 696 (2002)). Willform has not demonstrated
prejudice. Willform’s counsel conducted extensive cross-examination of witnesses
and addressed the facts that Willform now argues may have resulted in his
acquittal by a jury. Finding no abuse of discretion, we affirm.
AFFIRMED.