Opinion
No. 3-881 / 01-1204.
Filed January 14, 2004.
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge.
Applicant appeals the district court's denial of his postconviction relief application. REVERSED AND REMANDED.
Patrick Kelly, Bettendorf for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, William Davis, County Attorney, and Kelly Cunningham, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Robert Connor appeals the district court's denial of his postconviction relief application claiming the district court did not conduct an adequate inquiry into a possible conflict of interest between Connor and his postconviction relief counsel and he was entitled to representation by counsel during the district court's inquiry into the possible conflict. Because the district court failed to conduct the required inquiry into the possible conflict of interest as ordered by this court, we reverse and remand with further instructions.
Background Facts. Connor plead guilty to two counts of third-degree sexual abuse, one count of second-degree kidnapping, and one count of criminal gang participation. Connor did not directly appeal from the conviction or sentence but filed a petition for postconviction relief alleging ineffective assistance of counsel and several other claims. The district court dismissed the application as to all allegations except ineffective assistance of counsel. Connor claimed that because he filed an ethics complaint about his postconviction relief counsel, Thomas Preacher, further representation would be a conflict of interest and requested other counsel. Relief was subsequently denied and Connor appealed. This court reversed and remanded to the district court with instruction to make the required inquiry into a possible conflict of interest. See Connor v. State, 630 N.W.2d 846, 849 (Iowa Ct. App. 2001).
Preacher was Connor's fourth attorney in the postconviction relief process.
On remand, the district court without hearing found no conflict of interest based on a letter it received from the Board of Professional Ethics and Conduct, indicating that the complaint was dismissed. The district court reasoned that an evidentiary hearing regarding the ethical complaint would serve no useful purpose and denied relief. Connor appeals.
Scope of Review. The Sixth Amendment right to counsel does not apply in postconviction cases. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640, 671 (1991). However, once counsel is appointed the applicant has a right to effective assistance of counsel. Iowa Code § 822.5 (1999); Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994). Representation is presumed competent and a defendant has the burden to prove by a preponderance of the evidence that counsel was ineffective. Dunbar, 515 N.W.2d at 15. It is reasonable that counsel be free from any conflict of interest. Connor, 630 N.W.2d at 848.
Discussion. Connor claims the district court did not conduct an adequate inquiry into the possible conflict of interest created by Connor's filing of an ethics complaint against his postconviction relief counsel. The State claims there was no need for the district court to inquire further after learning the board dismissed the complaint.
Connor filed the ethics complaint on January 2, 2000. The record does not indicate the substance of that complaint. Hearing was held on the postconviction relief application on January 6, 2000. At the hearing, Connor informed the court of the ethics complaint and his assertion that it was a conflict of interest for his attorney to proceed. Connor's attorney, Thomas Preacher, also made record of his motion to withdraw alleging the postconviction relief claim to be frivolous. The district court, with the motion under advisement, proceeded with the hearing despite the alleged conflict of interest. In its ruling dated January 24, 2000, the district court denied Connor's application for postconviction relief. The Board of Professional Ethics and Conduct dismissed the complaint against Preacher on March 15, 2000, after a determination that there was no indication of any improper conduct by counsel.
In Connor v. State, 630 N.W.2d 846, 849 (Iowa Ct. App. 2001), this court concluded,
The record shows Connor filed an ethics complaint against Preacher and that he attempted to relate the facts of the complaint to the district court but was denied the opportunity to do so. The State argues that the specific ethics claim Connor made does not appear on the record and that Connor's allegations are vague. But nowhere in the record can we find even the facts upon which the complaint was lodged. The district court erred in failing to inquire into the alleged conflict. We reverse and remand to the district court with instruction to make the required inquiry and to rule accordingly. We do not suggest what that ruling should be.
On remand, and without evidentiary hearing or inquiry into the exact nature of the ethical complaint or Preacher's ability to represent Connor further, the district court summarily denied relief based on the dismissal of the ethics complaint by the Board.
We conclude the district court failed to conduct the necessary inquiry into the possible conflict of interest. The record is still devoid of any facts related to the complaint. The Board's decision regarding Connor's complaint is not definitive of whether a conflict existed at the time of the hearing. The inquiry should focus on Preacher's motion to withdraw, the specific allegations of Connor's apparent retaliatory ethics complaint, and whether a conflict of interest resulted between Connor and Preacher at the time of the postconviction hearing. We again remand to the district court to conduct the required inquiry into whether these actions created a conflict of interest and if so whether different counsel should have been appointed.
REVERSED AND REMANDED.