STEPHEN C. LEONARD, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-177 / 07-1110
Filed May 6, 2009
STEPHEN C. LEONARD,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Cherokee County, David A. Lester,
Judge.
A defendant appeals the district court’s denial of his application for
postconviction relief, claiming multiple errors. AFFIRMED.
Stephen Leonard, Anamosa, pro se.
Jack Bjornstad of Bjornstad Law Office, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett and Mary Tabor,
Assistant Attorneys General, Ryan Kolpin, County Attorney, and Douglas L.
Phillips, Special Prosecutor for Cherokee County, for appellee State.
Considered by Vogel, P.J., and Vaitheswaran and Eisenhauer, JJ.
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VAITHESWARAN, J.
Stephen Leonard appeals the district court’s denial of his postconviction
relief application. He raises several challenges to a guilty plea entered fourteen
years ago.
I.
Background Facts and Proceedings
In 1995, police applied for a warrant to search Stephen Leonard’s
residence. Included in the application was a police officer’s statement that a
confidential informant told him she saw “methamphetamines” at the residence.
The record also contains a handwritten statement from the confidential informant
making no mention of methamphetamine.
Following the search, which uncovered methamphetamine and marijuana,
the State filed an information accusing Leonard of several crimes, including
possession of methamphetamine with intent to deliver and possession of less
than one ounce of marijuana with intent to deliver, a serious misdemeanor.
Supplemental minutes of testimony, filed on the same day as the information,
disclosed that a confidential informant told a police officer “there was
approximately one gram of crank at Mr. Leonard’s residence one week ago.”
Less than a week after the information was filed, Leonard signed a
“memorandum of plea agreement” agreeing to plead guilty to possession of
methamphetamine with intent to deliver and to an amended charge of
possession of more than one ounce of marijuana with intent to deliver, a class D
felony.
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In the intervening weeks, the State and defense counsel had discussions
about the confidential informant’s identity and her written statement. The written
statement was released to defense counsel and given to Leonard, who tore it up.
At a plea taking and bond reduction hearing, Leonard acknowledged a
factual basis for the methamphetamine charge, stating, “I possessed in my home
methamphetamines.” He also acknowledged he possessed them with the intent
to deliver.
With respect to the marijuana count, the prosecutor sought and
obtained approval to amend the original count to possession of more than one
ounce of the substance. The district court asked Leonard whether he objected to
the amendment. Leonard stated, “No, sir.” When the prosecutor reiterated the
assertion that the amount of marijuana was more than an ounce and specified
how the State calculated the weight, Leonard voiced no objection.
The district court entered judgment and sentence. Several months later,
Leonard filed an application for postconviction relief. He contended his attorneys
were ineffective in failing to obtain and provide him with a copy of the confidential
informant’s written statement, causing him to enter a plea without knowledge of
the material facts. He also maintained that the State withheld this exculpatory
information and the warrant was issued on the basis of faulty information. The
district court denied the application, stating that the search warrant documents
were only partially based on the confidential informant’s written statement and
were also based on the oral statements she made to the officer. The court
concluded that “the search warrant was properly issued” and “[t]he written plea of
guilty was negotiated with Mr. Leonard specifically deciding what he would plead
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guilty to.”
Leonard voluntarily dismissed his appeal from the denial of that
application.
The following year, Leonard, acting pro se, deposed the person previously
identified as the confidential informant. She initially stated that she did not recall
making any oral statements to the police officer about methamphetamine in
Leonard’s residence.
She later denied telling the officers about the
methamphetamine in his home.
Based on this deposition, Leonard filed a second application for
postconviction relief, alleging that the confidential informant “stated that she
never seen [sic] the informant’s attachment or gave any of the alleged
information attributed to her in this attachment.” His second application was filed
in 1997 and languished for approximately nine years.
In 2006, Leonard’s
attorney moved to withdraw, citing a conflict of interest. The motion was granted.
The district court scheduled an evidentiary hearing at which Leonard
represented himself.
The confidential informant testified at the hearing,
specifically acknowledging that there may have been things she talked about with
police that did not find their way into her handwritten statement.
The court
denied the second application for postconviction relief on the ground that all the
issues raised had previously been litigated. This appeal followed.
II.
Analysis
Leonard’s appellate attorney raises three grounds for reversal: (1) the
search warrant preceding the filing of charges was predicated on false
information, rendering his plea unknowing, involuntary, and unintelligent, and trial
and postconviction counsel were ineffective in failing to challenge his guilty plea
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on that basis, (2) his guilty plea to possession of more than one ounce of
marijuana with intent to deliver lacked a factual basis and trial and postconviction
counsel were ineffective in failing to raise this issue, and (3) the district court
erred in concluding that his grounds for relief were raised and rejected in prior
rulings. In a pro se filing, Leonard raises the following additional issues: (4) trial
and postconviction counsel were ineffective in failing to challenge defects in the
trial information and the court’s subject matter jurisdiction, (5) the district court
abused its discretion in failing to reappoint counsel or engage him in a colloquy
on his waiver of counsel, and (6) it is in the interest of justice to vacate his
sentence.
As a preliminary matter, the State argues that Leonard did not preserve
error on his ineffective-assistance-of-counsel claims (Claims 1, 2, and 4 above)
because he did not raise them on direct appeal from his conviction. The State
acknowledges that the law has changed on this point but maintains that “[o]nly
claims of ineffective assistance of trial counsel which are brought after July 1,
2004, are excused from this requirement.”
See Iowa Code § 814.7 (2009)
(stating ineffective-assistance-of-counsel claims need not be raised on direct
appeal to preserve them for postconviction relief proceedings).
The Iowa
Supreme Court rejected this argument in Hannan v. State, 732 N.W.2d 45, 51
(Iowa 2007), holding that the statutory provision dispensing with this requirement
applied retroactively. Therefore, we conclude error was preserved.
The State next contends that Leonard waived error on two of his
ineffective-assistance-of-counsel claims (Claims 1 and 4) by pleading guilty. See
Speed v. State, 616 N.W.2d 158, 159 (Iowa 2000) (“It is well established the
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entry of a guilty plea . . . waives all defenses and objections which are not
intrinsic to the plea itself.”). Both claims are based on Leonard’s contention that
the information supporting the search warrant was false. If this were the sole
basis of the claims, we would agree that they were waived. However, Leonard
also claims the State deliberately concealed the fact that the informant denied
telling police officers about the methamphetamine, the concealment prevented
his attorneys from knowledgeably advising him about his guilty plea, and his plea
was therefore entered unknowingly. Giving Leonard the benefit of the doubt, we
conclude he alleged sufficient facts to preclude a finding that he waived error by
pleading guilty. See State v. LaRue, 619 N.W.2d 395, 397 (Iowa 2000) (stating
claim of ineffective assistance that calls into question voluntariness of guilty plea
may be raised after plea); Zacek v. Brewer, 241 N.W.2d 41, 46 (Iowa 1976)
(noting we “resolve any doubt in favor of the applicant and treat the allegation as
one asserting a new legal basis for granting relief” (quoting Rinehart v. State, 234
N.W.2d 649, 655 (Iowa 1975)).
We will proceed to the merits of each claim.
Claim 1. The district court concluded that a claim concerning the search
warrant was raised and litigated previously. The district court is correct, as the
court in its first postconviction ruling addressed the validity of the search warrant
and the claim that it was based on false information. At that time, however, the
court did not have the benefit of the confidential informant’s deposition testimony
which, according to Leonard, establishes that the police officer concealed
pertinent information.
Leonard’s slightly nuanced claim based on this new
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information was not litigated in the first postconviction relief action. Accordingly,
we decline to rest our resolution of this claim on issue preclusion grounds. We
proceed to the merits of this claim.
It is clear from the record that Leonard did not allow his attorneys to
conduct discovery and attack the search warrant as they wished but instead
specified the terms of a plea agreement, stated he wished to plead guilty, and
stated he was sick of his lawyers.
Because it was Leonard who foreclosed
further discovery, he cannot now complain that discovery would have disclosed
police concealment or falsification of information. See State v. Rice, 543 N.W.2d
884, 888 (Iowa 1996) (“In assessing claims of ineffective assistance of counsel, a
defendant’s conduct is examined as well as that of his attorney.”).
Additionally, if Leonard’s attorneys had made an effort to question the
confidential informant before the guilty plea hearing, they likely would not have
discovered “deliberate suppression of material evidence rendering the plea
involuntary.” Zacek, 241 N.W.2d at 46. As noted, the informant stated she did
not recall telling the police officer about methamphetamine. Although she later
gave a less equivocal statement, she conceded at the postconviction relief
hearing that she might have told the officer things that were not included in her
handwritten statement.
This concession means that there is no reasonable
probability Leonard’s attorneys could have established police falsification or
concealment of information relating to the search warrant application.
See
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d
674, 698, (1984).
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Finally, the informant’s testimony eliminates any argument that Leonard’s
“plea was not knowingly, voluntarily and intelligently entered because the State
deprived him of the opportunity to make an intelligent choice among alternative
courses of action open to him.” Zacek, 241 N.W.2d at 47. Even if his attorneys
had the benefit of her testimony before Leonard pled guilty, that testimony would
not have shown that the officer falsified the search warrant application.
Therefore, the absence of that testimony did not deprive Leonard of an intelligent
choice among alternatives and did not implicate the knowingness of the plea.
For these reasons, we conclude police actions did not deprive trial and
postconviction relief counsel “of the opportunity to effectively assist” Leonard. Id.
at 53–54. We affirm the district court’s rejection of Claim 1.
Claim 2.
Leonard next claims his guilty plea to the marijuana count
lacked a factual basis and counsel was ineffective in failing to challenge it. He
specifically argues that there was no factual basis to establish that he possessed
more than one ounce of marijuana.
The district court again disposed of this claim on issue preclusion grounds.
On our review of prior rulings, we are not convinced the court previously
addressed this issue. Therefore, we will proceed to the merits.
“Where a factual basis for a charge does not exist, and trial counsel allows
the defendant to plead guilty anyway, counsel has failed to perform an essential
duty.” State v. Schminkey, 597 N.W.2d 785, 788 (Iowa 1999). Prejudice is
inherent. Id. In determining whether a factual basis existed for the guilty plea,
the reviewing court considers the entire record before the district court at the
guilty plea hearing, “including any statements made by the defendant, facts
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related by the prosecutor, the minutes of testimony, and the presentence report.”
Id.
A lab report stated 23.7 grams of marijuana were seized from Leonard’s
residence. Additionally, two marijuana cigarettes were recovered. At the plea
hearing, the prosecutor stated the following:
For the record, the lab report indicates methamphetamine of 1.28
grams, packaged for sale, and book marijuana in the amount of
23.7 grams, plus marijuana cigarettes, which, according to the
defendant, would put them at a total combined weight of more than
an ounce.
Neither Leonard nor his attorney objected to this assertion.
As the record
contains a factual basis, we conclude counsel was not ineffective in failing to
challenge this aspect of the plea.
Claim 3.
This claim, that the district court erred in finding issue
preclusion, has been addressed under the analysis of Claims 1 and 2.
Claim 4. Leonard contends counsel was ineffective in failing to challenge
the trial information. This argument is essentially a repackaged version of Claim
1. For the reasons stated in our analysis of that claim, we conclude counsel was
not ineffective in failing to file a motion to dismiss the trial information.
Claim 5. As noted, the district court granted counsel’s motion to withdraw.
The order contained the following additional statement: “The court inquired of
Mr. Leonard whether he wished to proceed pro se in this matter or have other
counsel appointed, and he requested to be allowed to proceed pro se. The court
finds that Mr. Leonard should be permitted to proceed pro se herein.”
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Leonard argues that the district court abused its discretion in failing to reappoint postconviction counsel or engage him in a colloquy of his waiver of
counsel in this case.
An indigent’s right to counsel in a postconviction proceeding is statutory in
nature, and is not based upon federal or state constitutional grounds. Wise v.
State, 708 N.W.2d 66, 69 (Iowa 2006).
An attorney need not always be
appointed to represent an indigent postconviction applicant, and such a
determination rests within the sound discretion of the district court. Id.
The record clearly establishes that Leonard wished to represent himself.
Additionally, the district court could have easily discerned that Leonard was fully
capable of self-representation.
For example, his filing seeking dismissal of
counsel contained a list of witnesses he wished to have subpoenaed, and
deposition transcripts revealed his competence in questioning witnesses. As the
prosecutor stated, Leonard “has more hours in the courtroom than I do.” Finally,
Leonard’s second postconviction relief application raised issues that only
marginally differed from the issues raised in his unsuccessful first application for
postconviction relief, a factor that is relevant in deciding whether new counsel
should be appointed. See Furgison v. State, 217 N.W.2d 613, 615 (Iowa 1974)
(“[W]hen an applicant has sought relief unsuccessfully in prior applications,
where represented by counsel, the court may consider the previous record as
reflecting on the need for counsel on a newly filed application.”) (quoting ABA
Standards, Post-Conviction Remedies § 4.4, at 66 (1968)). We conclude trial
counsel did not abuse its discretion in declining to appoint Leonard new
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postconviction counsel or engage in a colloquy with him concerning his stated
intent to represent himself.
Claim 6.
Leonard finally asserts he is entitled to have his sentence
vacated in the interest of justice. We find no basis for doing so.
AFFIRMED.
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