Opinion
No. 3-594 / 03-0430
Filed September 10, 2003
Appeal from the Iowa District Court forBlack Hawk County, James C. Bauch and Bruce B. Zager, Judges.
Oliver Lee Lewis appeals from his conviction and sentence, following a guilty plea, to second-degree burglary and domestic abuse assault causing bodily injury. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and Robert Ranschau, Assistant Appellate Defender, for appellant.
Oliver L. Lewis, Fort Dodge, appellant pro se.
Thomas J. Miller, Attorney General, Sharon Hall, Assistant Attorney General, Thomas Ferguson, County Attorney, and Jill Dashner, Assistant County Attorney, for appellee-State.
Considered by Sackett, C.J., Miller, J., and Harris, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
The question here is whether the trial court, when imposing criminal sentence, abused its discretion when it refused to hold a further hearing on the defendant's complaints about his counsel. We reject the contentions and affirm.
There was certainly nothing amiss in the proceeding, held December 19, 2002, in which defendant Oliver Lee Lewis pled guilty to second-degree burglary and domestic abuse assault causing bodily injury. See Iowa Code § 713.1; 708.2(A)(2)(b) (2001). There was careful, even painstaking, compliance with Iowa Rule of Criminal Procedure 2.8(2)(b). Among other things, Lewis acknowledged having ample time to discuss the case with his counsel and assuring the court he was satisfied with his representation. The court was also careful to detail the necessity of a timely (within forty-five days) motion in arrest of judgment in order to challenge the guilty plea, and the consequences (waiver) if a timely motion was not filed. See Iowa R.Crim.P. 2.24(3)( a)-( b); Iowa R.Crim.P. 2.8(2)( d); State v. Hawk, 616 N.W.2d 527, 530 (Iowa 2000). No such motion was filed within the required forty-five day period.
It was not until February 21, 2003, that Lewis registered any complaint about his counsel, and then it was in the form of a pro se hand-written document asserting several complaints. Lewis's sentencing, before another judge, took place later on February 21. At that time Lewis, referring to his document as a motion in arrest of judgment, cited "ineffective assistance" as his reason. Lewis stated his counsel "wasn't representing him in an orderly fashion," and he felt counsel could look at "more evidence." Lewis stated he wanted to take "his plea back." The court denied the motion as untimely. Lewis expressed no other complaints about his counsel before or after counsel proceeded with a sentencing recommendation. Three days later Lewis filed an "arrest of judgment motion" seeking vacation of his sentence because he disagreed with its terms. It was also denied as untimely.
I. Lewis argues his tardy motion required a suspension of the proceedings and a separate hearing on whether a conflict existed between him and his counsel. See State v. Lupez, 633 N.W.2d 774, 779 (Iowa 2001). We think not. Lewis's tardy claim came as a last minute request more than forty-five days after his plea and on the day of his sentencing. Even then his only complaint was the vague assertion that counsel "could have done" more. The court had no reason to suspect Lewis claimed a real conflict with his counsel. The import was only an expression of regret that he had pled guilty. Lewis's plea was clearly voluntary. He freely admitted the details of his crime and even now offers no hint of a claim of innocence. His conflict is not with his trial counsel but with the consequences of his criminal conduct.
II. In his separate pro se brief Lewis generally asserts his conviction should be set aside under Sixth Amendment grounds of ineffective assistance of counsel. Lewis does not suggest how he was actually prejudiced by his counsel's representation. We cannot believe the trial court would have ruled differently if his counsel had acted as Lewis preferred. If we were to assume there was some professional failure, the ineffectiveness claim still fails for want of prejudice. See State v. Martin, 587 N.W.2d 606, 609 (Iowa Ct.App. 1998).