MICHAEL DERMOT KEARY, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-266 / 08-0599
Filed May 29, 2009
MICHAEL DERMOT KEARY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Polk County, Carla Schemmel,
Judge.
Michael Keary appeals from the district court’s ruling denying his
application for postconviction relief. AFFIRMED.
Leanne M. Striegel-Baker of Booth Law Firm, Osceola, for appellant.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant
Attorney General, John Sarcone, County Attorney, and Frank Severino, Assistant
County Attorney, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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POTTERFIELD, J.
Michael Keary appeals from the district court’s denial of his application for
postconviction relief. We affirm.
A jury convicted Keary of eleven counts of sexual abuse in the third
degree. Ten of the counts involved a thirteen-year-old girl, who was the daughter
of Keary’s girlfriend: Keary lived with his girlfriend and her daughter. One count
involved the fourteen-year-old niece of Keary’s girlfriend. After trial and before
sentencing, Keary filed a pro se motion for new trial and alleged numerous
instances of ineffective assistance of trial counsel. The district court appointed
substitute counsel and scheduled a full evidentiary hearing on Keary’s
allegations.
Against the advice of his substitute counsel, Keary insisted on
addressing the issues regarding trial counsel’s conduct as part of the hearing.
Trial counsel testified at the hearing, as did Keary. The district court determined
that trial counsel had provided constitutionally effective representation and
denied the motion for new trial. The court ruled:
[Trial counsel’s] performance was well beyond any standards
required of him. He properly and fairly represented Mr. Keary in
this matter. I don’t think there is anything that he could have done
that would have changed the result of this trial. [Trial counsel] was
faced with a situation where he had a defendant that was charged
with multiple counts of sexual abuse against a 13- and 14-year-old
girl. That while the defendant was not in custody, which means and
not under arrest, there was no reason to have given him any type of
Mirandizing in that telephone conversation, as far as this Court is
concerned. Any motion to suppress would have been to no avail
and frivolous . . . .
[Trial counsel] is faced with a situation where his client, a
client, made admissions to the police officer that pretty much went
hand-in-hand with what the State’s evidence was . . . . The
testimony of the victim was very clear that they were separate
incidents that occurred in separate locations in the family—in the
family home. And as indicated on the tape itself, and again today,
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Mr. Keary was asked the question as to how many times he had
sexual—and I’m paraphrasing—sexual conduct or encounters of
sex acts with the 13-year-old involved in this case, and has
indicated—again, I’m paraphrasing. He said something to the
effect, and the jury heard this, that—“That’s maybe the most difficult
or toughest question you have asked me yet in terms of answering
how many times this occurred, but when I—when I try to think of
the number of condoms that were used, I would estimate it at about
a hundred times . . . .
This is the kind of case that [trial counsel] was faced with
with the defendant, and he did the best job that he could possibly
do, as far as this Court is concerned, under the totality of the
circumstances. I don’t think—I can’t think of anything he could
have done that would have changed the result of this case.
The trial court also rejected Keary’s claims of prosecutorial misconduct and of
insufficiency of the evidence, and sentenced Keary. The district court later filed a
supplemental ruling on Keary’s pre-sentencing application for postconviction
relief, finding trial counsel exceeded the standards of competence, and that any
different conduct would not have changed the outcome of the trial. The supreme
court dismissed Keary’s direct appeal from his convictions as frivolous.
Keary filed a pro se application for postconviction relief, including twenty
allegations of ineffective assistance of trial counsel, a challenge to the taperecorded interview with law enforcement, an Eighth amendment claim, a claim
that the child witness was emancipated, and a claim that the children should
have been charged as participants in the crimes. Counsel was appointed and an
amended application for postconviction relief was filed. The amended application
alleged two grounds upon which relief was sought: (1) Keary was denied
effective assistance of trial counsel because counsel failed “to clarify the
differences between Counts 2-10 . . . . Had [the victim] been 14, the crime would
not have been a forcible felony, and this could have drastically reduced
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Petitioner’s sentence”; and (2) “the conviction or sentence is otherwise subject to
attack upon grounds of alleged error formerly available under common law.” At
the hearing, Keary’s postconviction counsel argued the first claim noted above
only. Keary, pro se, presented argument on each of the additional claims in his
pro se application. The district court denied Keary’s application and Keary now
appeals.
In this appeal, Keary asserts that the district court erred in not making
specific findings as to each of his pro se claims, in violation of Iowa Code section
822.7 (2007), which provides in part: “The court shall make specific findings of
fact, and state expressly its conclusions of law, relating to each issue presented.”
Keary and his postconviction counsel specifically asked the district court to rule
on each of his pro se issues. However, the district court did not address each
issue in its ruling, and Keary did not file a motion to expand the court’s findings.
Thus, as the State contends, these pro se claims were not preserved for review.
State v. Ashburn, 534 N.W.2d 106, 109 (Iowa 1995) (concluding issues must be
presented to and passed upon by trial court to be raised and adjudicated on
appeal).
Keary claims that postconviction counsel was ineffective in failing to file a
post-trial motion asking the court to make those specific findings, thus allowing
our review. The State contends that postconviction counsel was not required to
advocate for Keary’s pro se claims, acknowledging that this dilemma results from
the “pitfalls of allowing hybrid representation.” We agree.
As noted in Gamble v. State, 723 N.W.2d 443, 446 (Iowa 2006), and
Leonard v. State, 461 N.W.2d 465, 468 (Iowa 1990), a postconviction relief
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applicant may be represented by counsel and also proceed as his own counsel.
The applicant may raise additional issues pro se and demand full consideration
of all claims raised—both by counsel and pro se. The district court allowed
Keary to present evidence and argument on his pro se claims. See Jones v.
State, 731 N.W.2d 388, 392 (Iowa 2007).
Both Keary and his trial counsel
testified at the first hearing before the trial judge. Trial counsel again testified,
and Keary presented argument on each of his pro se claims in the postconviction
trial. However, when the postconviction court failed to make individual findings of
fact and conclusions of law on each of the pro se claims, Keary was required to
preserve error on those issues by requesting expanded or additional rulings.
Iowa R. Civ. Proc. 1.904(2); see State Farm Mut. Auto. Ins. Co. v. Pflibsen, 350
N.W.2d 202, 206-07 (Iowa 1984) (“It is well settled that a rule [1.904(2)] motion is
essential to preservation of error when a trial court fails to resolve an issue,
claim, defense, or legal theory properly submitted to it for adjudication.”).
We have said that we do not utilize a deferential standard when persons
choose to represent themselves. “The law does not judge by two standards, one
for lawyers and the other for lay persons. Rather, all are expected to act with
equal competence. If lay persons choose to proceed pro se, they do so at their
own risk.” Metropolitan Jacobson Dev. Venture v. Bd. of Review, 476 N.W.2d
726, 729 (Iowa Ct. App. 1991); accord In re Estate of DeTar, 572 N.W.2d 178,
180 (Iowa Ct. App. 1997); Kubik v. Burk, 540 N.W.2d 60, 63 (Iowa Ct. App.
1995).
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Because Keary did not preserve error on these claims, we will not address
them.
AFFIRMED.
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