Opinion
No. 2-332 / 01-1632.
Filed July 31, 2002.
Appeal from the Iowa District Court for Scott County, J. HOBART DARBYSHIRE, Judge.
Richard Mockmore appeals a district court ruling denying his application for postconviction relief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Arthur Adams, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Willaim E. Davis, County Attorney, and Kelly G. Cunningham, Assistant County Attorney, for appellee.
Considered by MAHAN, P.J., and ZIMMER and EISENHAUER, JJ.
Richard Mockmore appeals a district court ruling denying his application for postconviction relief. Mockmore argues (1) the district court erred in failing to find his attorney had a conflict of interest, and (2) his postconviction counsel was ineffective in failing to raise specific claims of ineffective assistance of trial and appellate counsel. We affirm.
I. Background Facts and Proceedings . In 1995, Mockmore was convicted by a jury of second and third-degree sexual abuse. He was sentenced to an indeterminate term of imprisonment not to exceed twenty-five years for second-degree sexual abuse and ten years for third-degree sexual abuse. His convictions were affirmed on appeal by this court in an unpublished decision filed October 25, 1996.
On August 26, 1999, Mockmore filed an application for postconviction relief alleging numerous claims of ineffective assistance of trial and appellate counsel. Attorney Thomas Preacher was appointed to represent him. In April 2001, Mockmore wrote to the district court requesting appointment of substitute counsel, claiming Preacher was not zealously representing him. Hearing on the request was held on June 14, 2001, however, Mockmore was unable to participate because the video link malfunctioned. Despite these technical difficulties, the court proceeded with the hearing and questioned Preacher regarding Mockmore's claims. Preacher stated he had given the case his full attention, but Mockmore disagreed with his grim assessment of the chances of success. The district court concluded Mockmore's claims were without merit and dismissed his request for new counsel. Following a hearing on the postconviction relief application, the district court concluded Mockmore had proved neither his allegations of ineffective assistance nor prejudice. Mockmore has appealed.
II. Scope of Review . Generally, an appeal from the denial of a postconviction relief application is reviewed for errors of law. Wemark v. State, 602 N.W.2d 810, 814 (Iowa 1999). Where, however, an applicant raises constitutional issues, we review "in light of the totality of the circumstances and the record upon which the postconviction court's ruling was made." Id.
III. Request for New Counsel . Mockmore contends the postconviction court erred in denying his request for new counsel without an adequate inquiry. He maintains Preacher had a conflict of interest, and the court's failure to provide him with an adequate forum to address that claim violated his Sixth Amendment right to counsel. We disagree.
We first address Mockmore's contention that our review of the court's denial of his request for substitute counsel is de novo based on his Sixth Amendment right to counsel. In Connor v. State, 630 N.W.2d 846, 848 (Iowa Ct.App. 2001), this court ruled the defendant, who claimed his attorney had a conflict of interest, was not entitled to relief based on the Sixth Amendment right to counsel because it does not apply to a state postconviction collateral attack on a criminal conviction. We concluded that a postconviction applicant's right to counsel is derived instead from Iowa Code section 822.5 (1999). Connor, 630 N.W.2d at 848. Our review of the district court's denial of a request for substitute counsel is thus for abuse of discretion. State v. Lopez, 633 N.W.2d 774, 778 (Iowa 2001).
When a defendant raises an issue of a conflict of interest in a post conviction proceeding, the district court is required to inquire into the possible conflict. Connor, 630 N.W.2d at 847. The defendant bears the burden of showing sufficient cause to warrant appointment of substitute counsel. State v. Brooks, 540 N.W.2d 270, 272 (Iowa 1995). Sufficient reasons include (1) a conflict of interest, (2) an irreconcilable conflict with the client, or (3) a complete breakdown in communications between the attorney and client. Id. The defendant must also prove prejudice unless he was outright denied counsel or can show an actual conflict of interest. Id.
In his letter to the district court dated April 11, 2001, Mockmore claimed Preacher was not taking his case seriously, and had not met with him until just ten days prior to the postconviction relief hearing. He further complained Preacher was not adequately investigating his claims there were witnesses who would rebut the victims' identification of him as the perpetrator of the alleged crimes.
We find nothing in Mockmore's letter suggesting there was a conflict of interest. Rather, the tone of the letter indicates mere frustration with Preacher's approach to the postconviction proceedings. There is no suggestion that Preacher was placed in a situation creating divided loyalties that could substantially dilute his effectiveness. Mockmore also fails to cite anything in his appellate brief indicating a conflict of interest, other than an alleged statement attributed to Preacher that "if I had been on the jury I would have convicted you myself." Assuming Preacher made this statement, it does not indicate a conflict of interest but rather frank honesty regarding Mockmore's prospects of success. This comment alone does not create a conflict of interest justifying substitution of counsel.
Mockmore also contends the postconviction court denied him a forum in which to adequately express his complaints. He maintains that when the video link to the prison malfunctioned during the hearing on his motion, the court should have rescheduled the hearing until the link was repaired.
While it may have been better practice to ensure Mockmore's participation, it is clear the district court in the present case conducted an examination of Mockmore's claims. Preacher stated that in his perspective, any problems Mockmore had with his representation were based on his dissatisfaction with his honest appraisal of the chances of success. He stated he waited to locate witnesses because they appeared to be transient people who were difficult to locate, and that if he located them too soon, they would likely disappear again. He also believed that given the minimal information Mockmore gave him, it would have been difficult to locate those witnesses in any event. Preacher additionally stated he considered hiring a private investigator, but the district court had previously informed him it would deny such a request at government expense.
We find nothing in the record indicates Preacher had a conflict of interest. Even in his June 11, 2001 letter to the court responding to its denial of his substitution request, Mockmore does not point to any particular example of a conflict. Nothing in the letter suggests further inquiry would have revealed an actual conflict or a breakdown in communications. Furthermore, by the time of the hearing on the postconviction application, Mockmore informed the court he and Preacher had "agreed to disagree on points." At the postconviction hearing, the court afforded Mockmore an opportunity to make any record he wished on the issue, but Mockmore raised no further issues concerning Preacher's representation. Mockmore has failed to prove any conflict or prejudice, and we affirm on this issue.
IV. Ineffective Assistance . Mockmore next contends that postconviction counsel was ineffective in failing to adequately advance his claims regarding ineffective assistance of trial counsel. He specifically points to three instances which Preacher should have highlighted as examples of ineffective assistance of trial counsel: (1) the late discovery of his address book, (2) the duty of trial counsel to testify on his behalf, and (3) trial counsel's failure to timely file a motion to suppress. Mockmore also contends appellate counsel was ineffective in failing to raise issues of ineffective assistance of trial counsel.
To prevail on a claim of ineffective assistance of counsel, Mockmore must show that his attorney's performance fell outside the normal range of competency and the deficient performance so prejudiced his case as to give rise to a reasonable probability that, but for counsel's alleged errors, the outcome of the proceedings would have been different. Dunbar v. State, 515 N.W.2d 12, 15 (Iowa 1994). There is a strong presumption counsel performed competently, and the claimant has the burden to prove that counsel was ineffective. Id.
Mockmore asserts trial counsel was ineffective in failing to adequately search for his black address book that was in the possession of the county attorney's office. According to Mockmore, had the book been discovered prior to trial, important witnesses may well have been located and brought to testify on his behalf. Speculation alone, however, does not satisfy the reasonable-probability-of-different-outcome test. Nims v. State, 401 N.W.2d 231, 235 (Iowa Ct.App. 1986). The address book was ultimately discovered during trial, but even at trial, Mockmore acknowledged that much of the information contained in the book was obsolete. He failed to point to any name contained in the address book that could have provided exculpatory information at his criminal trial. The record indicates trial counsel conducted an intensive search for the book. We therefore conclude Mockmore has failed to show how Preacher breached an essential duty by failing to aggressively challenge trial or appellate counsel's effectiveness on this issue, especially in light of the fact this court on direct appeal concluded there was ample evidence to support his conviction.
Mockmore also contends Preacher failed to advance the claim that trial counsel should have disqualified himself so he could testify on his behalf. Mockmore contends trial counsel had personal information about his vehicles that would have aided in his defense. The record indicates trial counsel had employed Mockmore to perform handy work, and was aware of the vehicles Mockmore used. Mockmore specifically maintains trial counsel was aware one of the vehicles leaked oil, and the vehicle identified as the one used in the commission of the alleged crimes was not the same one. Given our previous ruling on direct appeal that there was substantial evidence to support his conviction, we fail to find that any information trial counsel possessed would have changed the outcome of trial.
We likewise reject Mockmore's claim Preacher failed to properly raise the issue of trial counsel's failure to file a timely motion to suppress evidence seized from his vehicle. The district court concluded that given the victims' reports and the exigency recognized under the automobile exception to the warrant requirement, the seizure of Mockmore's car did not violate his Fourth Amendment rights. See Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419, 428 (1970).
We agree with the district court that under the circumstances, the police lawfully seized and searched Mockmore's vehicle. The seizure of the vehicle was conducted during the investigation of a crime near the time of occurrence. The victims had positively identified the car as the one used in the assaults, and the license plate was traced to Mockmore. Furthermore, Mockmore gave his consent for a search of the vehicle following its impoundment. We conclude Mockmore has failed to point to any evidence that would have been suppressed had trial counsel timely filed a motion. Postconviction counsel was not ineffective in failing to aggressively advance this issue.
Because we have rejected all claims that trial counsel was ineffective, we likewise reject all claims of ineffective assistance of appellate counsel. We therefore affirm the district court's denial of Mockmore's postconviction relief action.
AFFIRMED.