Opinion
No. 2-301 / 00-1252.
Filed July 3, 2002.
Appeal from the Iowa District Court for Linn County, PATRICK R. GRADY, Judge.
Darrell Bolden appeals the denial of his postconviction relief application. AFFIRMED.
John Hedgecoth, Cedar Rapids, for appellant.
Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Denver Dillard, County Attorney, and Todd Tripp, Assistant County Attorney, for appellee.
Considered by SACKETT, C.J., and HUITINK and HECHT, JJ.
Darrell Bolden appeals the denial of his postconviction relief application. We affirm.
I. Background Facts and Proceedings .
Bolden was initially charged with third-degree burglary in case number FECR 10687. He was subsequently charged with another burglary count, including an habitual offender enhancement, in case number FECR 12186.
Bolden filed motions requesting the court allow him to represent himself at trial with standby counsel in both cases. Prior to granting Bolden's request, the court engaged Bolden in the following colloquy:
Q. Mr. Bolden, anything you'd like to say on behalf of any of these matters?
A. Yeah. I filed this pro se motion because I feel that there's been some things that haven't been addressed. And if my counsel and the Courts have not acknowledged the things that I've filed motions on and information to the Court, then I feel I'm in a position where I can do that and do what is necessary. So that's why I filed the motion to proceed pro se and I'm just requesting that — making the request that I be granted that so that I can address the issues that are important, you know, to me and to my — my particular set of circumstances.
. . . .
Q. So you're asking me to allow [the court appointed attorney] to withdraw from the case —
A. Yes.
Q. — and you're going to take over —
A. Exactly.
Q. — lock, stock and barrel?
A. Exactly.
. . . .
Q. You're going to pick the jury, you're going to do all — everything a lawyer would do on your behalf?
A. I wouldn't have filed the motion.
. . . .
Q. Well, let me tell you this, Mr. Bolden. I've known [the court appointed attorney] for a long time, a lot longer than you have, —
A. Yes.
Q. — and he's an excellent criminal defense lawyer. I've had him in jury trials, I've seen him in action over the years, and I simply do not understand your allegations that he's not helping you, because I'm sure that — and I don't want to get into anything that's confidential, but I'm sure he's acting in your best interests and has in the past. Now, you apparently disagree with me; is that right?
A. Yes, I do.
Q. And you want to — you want to go it alone? Is that what you're telling me?
A. Yeah.
. . . .
Q. All right. I'm going to grant your wish, Mr. Bolden.
A. Thank you.
On the morning of trial in case number FECR 10687, Bolden requested that standby counsel serve as lead counsel in case number FECR 12186, but reserved his right of self-representation in case number FECR 10687. Just prior to jury selection, Bolden withdrew his not guilty pleas and accepted a plea agreement whereby he would plead guilty to both burglary counts in exchange for the State's agreement to withdraw the habitual offender enhancement, recommend concurrent sentences, and dismiss other charges pending against Bolden. The district court accepted the resulting guilty pleas. Bolden's subsequent pro se motions to withdraw his guilty pleas and to arrest judgment were denied.
On direct appeal Bolden's court-appointed appellate counsel moved to withdraw, arguing Bolden's appeal was frivolous. Appellate counsel's motion was granted, and Bolden's direct appeal was dismissed over his resistance.
In his subsequent application for postconviction relief, Bolden argued that his guilty pleas were invalid because the trial court allowed him to represent himself without determining that he made a knowing and intelligent waiver of his Sixth Amendment right to counsel. Bolden also argued that because he didn't understand the consequences of his guilty pleas, the trial court erred in denying his motion to withdraw those pleas. Finally, Bolden challenged the effectiveness of both trial and appellate counsel. He contended that he was denied effective assistance of appellate counsel due to counsel's failure to challenge the validity of his pleas based on the court's failure to ensure he made a knowing and intelligent waiver of counsel and the court's subsequent denial of his request to withdraw those pleas. He also argued that trial counsel was ineffective in failing to depose and prepare critical witnesses for trial.
The district court denied Bolden's petition for postconviction relief finding that Bolden was unable to demonstrate that he had been prejudiced by any errors of appellate or trial counsel. The court declined to address Bolden's direct challenges to his guilty plea, finding they were not preserved for review.
On appeal Bolden reasserts his ineffective assistance of counsel claims. He does not make a reviewable challenge to the court's determination that the remaining issues were not preserved for postconviction relief. See Iowa R. App. P. 6.14(1)(c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue."); State v. Stoen, 596 N.W.2d 504, 507 (Iowa 1999) (citing Inghram v. Dairyland Mut. Ins. Co., 215 N.W.2d 239, 239-40 (Iowa 1974)) (where party's failure to comply with rules of appellate procedure requires court to assume partisan role and undertake party's research and advocacy, we will dismiss on appeal).
II. Standard of Review .
When a postconviction petitioner asserts violation of constitutional safeguards, we review de novo based on the totality of the circumstances. Hinkle v. State, 290 N.W.2d 28, 30 (Iowa 1980). A defendant receives ineffective assistance of trial or appellate counsel when (1) the defense attorney fails in an essential duty and (2) prejudice results. State v. Bugely, 562 N.W.2d 173, 178 (Iowa 1997). In order to meet the first test, one must overcome the strong presumption his attorney's actions were reasonable under the circumstances and fell within the normal range of competency. State v. Shumpert, 554 N.W.2d 250, 254 (Iowa 1996). To succeed on the second test, it must be shown that counsel's failure worked to the defendant's actual and substantial disadvantage so that a reasonable possibility exists that but for counsel's error the result would have been different. State v. Buck, 510 N.W.2d 850, 853 (Iowa 1994).
III. Ineffective Assistance of Appellate Counsel .
The State claims that Bolden's challenge to the validity of his guilty pleas is precluded by Bolden's failure to raise the issue on direct appeal. A claim which is raised for the first time on postconviction relief is barred unless sufficient reason exists for not raising it on direct appeal. Iowa Code § 822.8 (1999); Bugley v. State, 596 N.W.2d 893, 896 (Iowa 1999). Sufficient reason in this context includes ineffective assistance of appellate counsel. The dispositive issue therefore is whether Bolden received ineffective assistance of appellate counsel.
Bolden's ineffective assistance of appellate counsel theory is premised on counsel's failure to challenge the validity of his guilty pleas. As noted earlier, Bolden argues that his guilty plea was invalid because he was not adequately informed of the dangers of self-representation at trial before the court accepted his guilty plea. See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581-82 (1975); State v. Rater, 568 N.W.2d 655, 658 (Iowa 1997); see also State v. Stephenson, 608 N.W.2d 278, 282-83 (Iowa 2000) (The trial court's failure to engage the defendant in a Faretta-colloquy prior to trial necessitates reversal and a remand for a new trial.). The abrogation of this duty is presumptively prejudicial and will not be considered harmless error. State v. Cooley, 608 N.W.2d 9, 17-18 (Iowa 2000). The gist of Bolden's argument is that the duty imposed in Faretta extends to plea proceedings as well as trial, and that the foregoing colloquy was insufficient by Faretta standards. We disagree.
Contrary to Bolden's claims, we find nothing in Faretta, Cooley, or Stephenson requiring a Faretta- like inquiry before a defendant is allowed the right of self-representation in plea proceedings. The flaw in Bolden's argument is its failure to accommodate the distinction our supreme court has noted between a trial and other proceedings that do not implicate the "full dangers and disadvantages of self-representation" at trial. See Cooley, 608 N.W.2d at 15 (quoting Patterson v. Illinois, 487 U.S. 285, 299, 1085 S.Ct. 2389, 2398, 101 L.Ed.2d 261, 276-77 (1988)). The State correctly argues that the purpose of the colloquy conducted at a plea proceeding is to insure that the decision to plead guilty is knowing, intelligent, and voluntary and is not meant to inform the defendant of the pitfalls of self-representation attending the trial process. See Stano v. Dugger, 921 F.2d 1125, 1149 (11th Cir. 1991); Lewellyn v. Wainwright, 593 F.2d 15, 16 (5th Cir. 1979); State v. Cashman, 491 N.W.2d 462, 463 (S.D. 1992) (duties imposed by Faretta do not extend to guilty plea proceedings). Because the validity of Bolden's guilty plea was accordingly not subject to a meritorious challenge based on the trial court's failure to conduct an appropriate Faretta inquiry, appellate counsel did not breach an essential duty by failing to raise this issue on direct appeal. State v. Hoskins, 586 N.W.2d 707, 709 (Iowa 1998) (counsel has no duty to pursue a meritless issue). We affirm on this issue.
Bolden also argues that appellate counsel was ineffective for failing to challenge the validity of his guilty plea because Bolden did not understand that interlocutory appeals taken in these cases would be dismissed following the entry of his guilty pleas. To be valid under the Due Process Clause, a plea of guilty must be made voluntarily and intelligently, with a full understanding of the direct consequences of the plea. State v. Boone, 298 N.W.2d 335, 337 (Iowa 1980). Neither judges nor defense attorneys are required, however, to inform defendants of all indirect and collateral consequences of guilty pleas. Saadiq v. State, 387 N.W.2d 315, 325 (Iowa 1986). The distinction between direct and collateral consequences of a plea turns on whether the result represents a definite, immediate, and largely automatic effect on the range of the defendant's punishment. Id.
In addressing this issue the district court stated as follows:
[T]here is no showing that Bolden was harmed by any failure to challenge the adequacy of the plea proceeding on appeal as the colloquy showed he was adequately informed of the penalty he was facing, he received a sentencing concession and he was represented by competent counsel. The trial court did not abuse its discretion in not allowing Bolden to withdraw his pleas of guilty.
The court's findings enjoy abundant support in the record, and we adopt them as our own. Bolden is unable to show that had his appellate counsel raised this issue, the result of his appeal would have been different. Moreover, contrary to Bolden's assertions, there is not sufficient evidence in the record to demonstrate that defense counsel misinformed Bolden of the consequences of the plea. See Meier v. State, 337 N.W.2d 204, 207 (Iowa 1983) (misstatements by counsel may effect defendant's ability to make a knowing and intelligent choice). Accordingly, there is no merit in this contention, and we affirm on this issue.
IV. Ineffectiveness of Trial Counsel .
Bolden also contends that trial counsel was ineffective in failing to depose and prepare critical witnesses, resulting in Bolden's decision to plead guilty due to his belief that he was unprepared for trial. We decline to address this issue because Bolden failed to provide sufficient reason for failing to assert this claim on direct appeal. Bugley, 596 N.W.2d at 897-98. Bolden does not contend that appellate counsel was ineffective for failing to raise this issue, and states no other basis for failing to raise this claim. We also affirm on this issue.
We have carefully considered the remaining issues raised on appeal and conclude that they are either waived, see id. at 896-97, or resolved by the foregoing. The judgment of the district court is affirmed in its entirety.
AFFIRMED.