IN THE COURT OF APPEALS OF IOWA
No. 15-1645 Filed September 28, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
MAURICE D. DAYE, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, William A. Price,
District Associate Judge.
Maurice Daye appeals his conviction for assault causing injury, contending
the trial court abused its discretion by denying his request for substituted counsel
and asserting his trial counsel was constitutionally ineffective. AFFIRMED.
Colista K. Anglese of Hammer, Simon & Jensen, P.C., Dubuque, for
appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ. 2
POTTERFIELD, Presiding Judge.
I. Background Facts and Proceedings
Maurice Daye was arrested and charged on May 15, 2015, with domestic
abuse assault with injury, in violation of Iowa Code sections 708.2A(2)(b) and
708.1(2) (2015) and false imprisonment, in violation of Iowa Code section 710.7.
The court appointed counsel for Daye, and Daye pled not guilty on June 30,
2015.
On July 28, 2015, Daye’s counsel filed an application to conduct
depositions, which was granted by order on July 29, 2015. Likewise, Daye’s
counsel also filed a motion to produce on July 28, and the State filed a notice of
compliance on August 4, 2015. Some depositions were scheduled for August
17, 2015, and some were rescheduled to August 26.
On August 27, 2015, the court held a status conference that Daye
attended by Daye with his defense counsel. The Court stated the trial in this
matter had been set for September 2, 2015, but noted Daye had failed to attend
depositions scheduled for the day before, August 26.
At this status conference, Daye expressed to the court the breakdown in
communication he was experiencing with his defense counsel. Daye made a
request to the court for substituted counsel. The court indicated that it had
already previously denied this request:
DAYE: . . . I don’t feel comfortable with her representing me . . . I do want different representation. THE COURT: Do I look like Monty Hall, does this look like Let’s Make a Deal? DAYE: No. THE COURT: I’ve ruled on the issue of counsel. You have good counsel. 3
The court then rescheduled the trial date to September 14, 2015, which was
within the ninety-day deadline for a speedy trial so the pending depositions could
be completed. The depositions were rescheduled for September 2, 2015.
On September 2, Daye filed a written petition to plead guilty. As part of
the plea agreement, Daye agreed to plead guilty to a lesser charge of assault
causing injury, in violation of Iowa Code sections 708.1 and 708.2(2), and the
State would dismiss the false-imprisonment charge. The plea also included that
Daye would receive a twelve-month sentence, all of which was to be suspended,
and a fine, and he would be required to complete a domestic-abuse-program
class, to pay restitution, and to abide by a no-contact order. Daye also waived
his right to have a verbatim recording of his guilty plea and a formal record of his
sentencing. After accepting the guilty plea, the court scheduled sentencing.
Daye’s attorney did not file a motion in arrest of judgment, and he was sentenced
on September 22, 2015.
On September 24, 2015, Daye filed a pro se notice of an immediate
appeal. In this notice, Daye details the breakdown of his relationship with his
plea counsel and explains his guilty plea was not entered into knowingly or
voluntarily. Daye alleged his trial counsel coerced him into pleading guilty by
intimidating him, misrepresenting information to him and the court, and tricking
him. 4
II. Discussion
A. Abuse of Discretion for Denial of Substituted Counsel
Daye first claims the district court abused its discretion in denying his
motion to substitute counsel. He alleges there was a breakdown in
communication with his attorney such that he was not provided effective counsel.
He requests this court find the trial court abused its discretion resulting in
prejudice to Daye and vacate the judgment against him.
We review the grant or denial of a motion to substitute counsel for an
abuse of discretion. State v. Lopez, 633 N.W.2d 774, 778 (Iowa 2001). To
establish the court abused its discretion, Daye must show the court based its
decision “on grounds or for reasons clearly untenable or to an extent clearly
unreasonable.” Id.
The Sixth Amendment right to counsel does not guarantee a “meaningful
relationship between an accused and his counsel.” Id. (quoting Morris v. Slappy,
461 U.S. 1, 14 (1983)). To justify the granting of a motion for substitute counsel,
a defendant must show sufficient cause, which includes conflict of interest,
irreconcilable conflict, or a complete breakdown in communication between
counsel and the defendant. See id. at 778-79. Daye contends on appeal the
appointing of substitute counsel would have caused little, if any, delay in his case
since no depositions had yet been conducted and the charges had only been
pending a few months. He maintains substitute counsel could have been
appointed and become acquainted with his case fairly quickly, minimizing any
possible delays. 5
In reviewing whether to grant the motion, the district court must balance
“the defendant’s right to counsel of his choice and the public’s interest in the
prompt and efficient administration of justice.” Id. at 779 (internal citation
omitted). The court should not allow “last-minute requests to substitute counsel .
. . to become a tactic for delay.” Id. (internal citation omitted). The Iowa
Supreme Court has recognized district courts have “a duty of inquiry once a
defendant requests substitute counsel on account of an alleged breakdown in
communication” with his attorney. State v. Tejeda, 677 N.W.2d 744, 750 (Iowa
2004) (citing Lopez, 633 N.W.2d at 780).
We briefly consider the State’s position that Daye failed to preserve this
issue for our review. The State acknowledges the district court previously ruled
on the issue, and the record from the pretrial conference confirms this. Albeit
scant with detail, we find the court’s statement that it had previously ruled on the
request sufficient to have preserved it for appellate review. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (holding error is generally
preserved when the issues to be reviewed have been ruled on by the district
court).
We also consider whether the denial of substitute counsel was waived by
the guilty plea. See State v. Burgess, 639 N.W.2d 564, 567 (Iowa 2001) (noting
“[a] guilty plea freely and voluntarily entered waives all defenses and objections,
including constitutional guarantees”). An exception is made for defenses and
objections “intrinsic to the plea.” State v.
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IN THE COURT OF APPEALS OF IOWA
No. 15-1645 Filed September 28, 2016
STATE OF IOWA, Plaintiff-Appellee,
vs.
MAURICE D. DAYE, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, William A. Price,
District Associate Judge.
Maurice Daye appeals his conviction for assault causing injury, contending
the trial court abused its discretion by denying his request for substituted counsel
and asserting his trial counsel was constitutionally ineffective. AFFIRMED.
Colista K. Anglese of Hammer, Simon & Jensen, P.C., Dubuque, for
appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ. 2
POTTERFIELD, Presiding Judge.
I. Background Facts and Proceedings
Maurice Daye was arrested and charged on May 15, 2015, with domestic
abuse assault with injury, in violation of Iowa Code sections 708.2A(2)(b) and
708.1(2) (2015) and false imprisonment, in violation of Iowa Code section 710.7.
The court appointed counsel for Daye, and Daye pled not guilty on June 30,
2015.
On July 28, 2015, Daye’s counsel filed an application to conduct
depositions, which was granted by order on July 29, 2015. Likewise, Daye’s
counsel also filed a motion to produce on July 28, and the State filed a notice of
compliance on August 4, 2015. Some depositions were scheduled for August
17, 2015, and some were rescheduled to August 26.
On August 27, 2015, the court held a status conference that Daye
attended by Daye with his defense counsel. The Court stated the trial in this
matter had been set for September 2, 2015, but noted Daye had failed to attend
depositions scheduled for the day before, August 26.
At this status conference, Daye expressed to the court the breakdown in
communication he was experiencing with his defense counsel. Daye made a
request to the court for substituted counsel. The court indicated that it had
already previously denied this request:
DAYE: . . . I don’t feel comfortable with her representing me . . . I do want different representation. THE COURT: Do I look like Monty Hall, does this look like Let’s Make a Deal? DAYE: No. THE COURT: I’ve ruled on the issue of counsel. You have good counsel. 3
The court then rescheduled the trial date to September 14, 2015, which was
within the ninety-day deadline for a speedy trial so the pending depositions could
be completed. The depositions were rescheduled for September 2, 2015.
On September 2, Daye filed a written petition to plead guilty. As part of
the plea agreement, Daye agreed to plead guilty to a lesser charge of assault
causing injury, in violation of Iowa Code sections 708.1 and 708.2(2), and the
State would dismiss the false-imprisonment charge. The plea also included that
Daye would receive a twelve-month sentence, all of which was to be suspended,
and a fine, and he would be required to complete a domestic-abuse-program
class, to pay restitution, and to abide by a no-contact order. Daye also waived
his right to have a verbatim recording of his guilty plea and a formal record of his
sentencing. After accepting the guilty plea, the court scheduled sentencing.
Daye’s attorney did not file a motion in arrest of judgment, and he was sentenced
on September 22, 2015.
On September 24, 2015, Daye filed a pro se notice of an immediate
appeal. In this notice, Daye details the breakdown of his relationship with his
plea counsel and explains his guilty plea was not entered into knowingly or
voluntarily. Daye alleged his trial counsel coerced him into pleading guilty by
intimidating him, misrepresenting information to him and the court, and tricking
him. 4
II. Discussion
A. Abuse of Discretion for Denial of Substituted Counsel
Daye first claims the district court abused its discretion in denying his
motion to substitute counsel. He alleges there was a breakdown in
communication with his attorney such that he was not provided effective counsel.
He requests this court find the trial court abused its discretion resulting in
prejudice to Daye and vacate the judgment against him.
We review the grant or denial of a motion to substitute counsel for an
abuse of discretion. State v. Lopez, 633 N.W.2d 774, 778 (Iowa 2001). To
establish the court abused its discretion, Daye must show the court based its
decision “on grounds or for reasons clearly untenable or to an extent clearly
unreasonable.” Id.
The Sixth Amendment right to counsel does not guarantee a “meaningful
relationship between an accused and his counsel.” Id. (quoting Morris v. Slappy,
461 U.S. 1, 14 (1983)). To justify the granting of a motion for substitute counsel,
a defendant must show sufficient cause, which includes conflict of interest,
irreconcilable conflict, or a complete breakdown in communication between
counsel and the defendant. See id. at 778-79. Daye contends on appeal the
appointing of substitute counsel would have caused little, if any, delay in his case
since no depositions had yet been conducted and the charges had only been
pending a few months. He maintains substitute counsel could have been
appointed and become acquainted with his case fairly quickly, minimizing any
possible delays. 5
In reviewing whether to grant the motion, the district court must balance
“the defendant’s right to counsel of his choice and the public’s interest in the
prompt and efficient administration of justice.” Id. at 779 (internal citation
omitted). The court should not allow “last-minute requests to substitute counsel .
. . to become a tactic for delay.” Id. (internal citation omitted). The Iowa
Supreme Court has recognized district courts have “a duty of inquiry once a
defendant requests substitute counsel on account of an alleged breakdown in
communication” with his attorney. State v. Tejeda, 677 N.W.2d 744, 750 (Iowa
2004) (citing Lopez, 633 N.W.2d at 780).
We briefly consider the State’s position that Daye failed to preserve this
issue for our review. The State acknowledges the district court previously ruled
on the issue, and the record from the pretrial conference confirms this. Albeit
scant with detail, we find the court’s statement that it had previously ruled on the
request sufficient to have preserved it for appellate review. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (holding error is generally
preserved when the issues to be reviewed have been ruled on by the district
court).
We also consider whether the denial of substitute counsel was waived by
the guilty plea. See State v. Burgess, 639 N.W.2d 564, 567 (Iowa 2001) (noting
“[a] guilty plea freely and voluntarily entered waives all defenses and objections,
including constitutional guarantees”). An exception is made for defenses and
objections “intrinsic to the plea.” State v. Carroll, 767 N.W.2d 638, 641 (Iowa
2009). Our court previously has ruled that the denial of a motion for substitute
counsel is waived by a guilty plea, where the guilty plea explicitly confirmed 6
satisfaction with plea counsel. See State v. McCaleb, No. 15-2215, 2016 WL
4384412, at *1 (Iowa Ct. App. Aug. 17, 2016). The guilty plea here contains no
explicit affirmation of satisfaction with counsel.
We need not determine whether the motion for substitute counsel was
waived by Daye’s guilty plea because there is no adequate record to make any
determination. The record before us indicates the district court apparently ruled
at some time earlier than the August status conference on the request for
substituted counsel. However, there is no record of the motion, nor does the
record show how Daye made the request, what specific reasons he provided the
district court for the request, whether the district court made a sufficient inquiry
into Daye’s reasons for the request, or why the district court ultimately denied his
request. We have no reasonable way to discern if the district court exercised or
abused its discretion. Because it is Daye’s burden to present an adequate
record on appeal, and he failed to do so, we affirm the court’s denial of substitute
counsel. See State v. Ruiz, 496 N.W.2d 789, 791 (Iowa Ct. App. 1992) (“[A]
defendant claiming error has an obligation to provide the court with a record that
discloses the error claimed.”); see also Iowa R. App. P. 6.806 (providing
procedure for creating a record where a transcript is unavailable).
B. Ineffective Assistance of Counsel
Daye also asserts ineffective assistance of counsel for his counsel’s
failure to depose or interview witnesses and for allegedly pressuring and
frightening Daye into pleading guilty. Daye contends his trial counsel used
coercion and intimidation to force him to accept a plea deal, making the guilty
plea involuntary. He asks this court to vacate his conviction. 7
To succeed on this claim, Daye must show by a preponderance of the
evidence that “(1) trial counsel failed to perform an essential duty, and (2)
prejudice resulted from this failure.” See State v. Fountain, 786 N.W.2d 260,
265-66 (Iowa 2010) (citation omitted). Daye must prove both elements of this
test or his claim will fail. See id. at 266.
We ordinarily do not consider ineffective-assistance claims on direct
appeal. See State v. Taylor, 310 N.W.2d 174, 179 (Iowa 1981). While “[w]e
prefer to reserve such questions for postconviction proceedings so the
defendant’s trial counsel can defend against the charge . . . we depart from this
preference in cases where the record is adequate to evaluate the appellant’s
claim.” Id. (citation omitted).
We find the record before us is insufficient to address Daye’s claim of
ineffective assistance of counsel. We preserve the claim for possible future
postconviction proceedings so the record may be developed and Daye’s trial
counsel may be given the opportunity to explain herself.
III. Conclusion
We affirm the denial of substitute counsel and preserve the ineffective-
assistance claim for possible future postconviction proceedings.
AFFIRMED.