State of Iowa v. Michael Alan Fry

• Court: Court of Appeals of Iowa
• Decided: April 3, 2019
• Docket: 17-2079
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-2079 Filed April 3, 2019

STATE OF IOWA, Plaintiff-Appellee,

vs.

MICHAEL ALAN FRY, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Union County, John D. Lloyd, Judge.

Michael Fry appeals his judgment and sentence for possession of

methamphetamine, third or subsequent offense, as a habitual felon. AFFIRMED.

Ronald W. Kepford of Kepford Law Firm, Winterset, for appellant.

Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee.

Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ. 2

VAITHESWARAN, Judge.

Michael Fry appeals his judgment and sentence for possession of

methamphetamine, third or subsequent offense, as a habitual felon. He contends,

“[T]he trial court erred by failing to consider [his] request for new counsel, violating

his Sixth Amendment Right to counsel.” He seeks a remand “for a determination

as to whether there was any merit to the allegations.”

Citing State v. Tejeda, 677 N.W.2d 744, 752 (Iowa 2004), the State

responds that “[e]ven if a duty to inquire existed and the court failed to do so, the

remedy is not reversal and a remand to the district court; it is simply to preserve

the error for postconviction relief.”

In Tejeda, the defendant “argue[d] the district court abridged his right to

counsel when it failed to inquire after he alleged a breakdown in communication

with his attorney and requested substitute counsel.” 677 N.W.2d at 749. After

finding a district court duty to inquire into the claimed breakdown, the court

considered the appropriate remedy. See id. at 752. The court began by noting,

“[W]e only have [the defendant’s] bare allegation that he had some communication

problems with his attorney.” Id. The allegation, the court said, “triggered a duty to

inquire on the part of the trial court, because it might indicate a greater problem

was afoot.” Id. The court found it “appropriate” to require “a more expansive

hearing, which takes into account the health of the attorney-client relationship at

trial.” Id. The court concluded, “Because the record is inadequate for us to rule

on direct appeal, we preserve Tejeda’s claim for postconviction relief.” Id.

In reaching this conclusion, the court acknowledged the defendant did not

raise his claim under an ineffective-assistance-of-counsel rubric. Id. at 753. 3

Nonetheless, the court found “the scant record” and “the availability of an adequate

remedy in postconviction” militated in favor of “affirming the judgment of conviction

without adjudicating whether [the defendant] was denied his Sixth Amendment

right to counsel” and preserving the “issue for postconviction proceedings, in which

an adequate hearing may be held and a record developed.” Id.; see also State v.

Petty, ___ N.W.2d ___, ___ (Iowa 2019).

Fry’s appeal comes to us in the same posture. The record is inadequate to

resolve his claim that he was entitled to substitute counsel either based on a

breakdown in the attorney-client relationship or because of a conflict of interest, as

he alleges. Accordingly, we affirm his judgment and sentence and preserve his

claim for possible postconviction relief.

AFFIRMED.