Allen Killings, Applicant-Appellant v. State of Iowa ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1123
Filed September 13, 2017
ALLEN KILLINGS,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson
(pretrial) and Lawrence P. McLellan (trial), Judges.
Allen Killings appeals the denial of his application for postconviction relief.
AFFIRMED.
Andrea K. Buffington of Ranes Law Firm, West Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney
General, for appellee State.
Considered by Doyle, P.J., Bower, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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DOYLE, Presiding Judge.
Allen Killings appeals the denial of his application for postconviction relief
(PCR). He challenges the PCR court’s ruling denying his request for
appointment of new PCR counsel, as well as the court’s determination to
combine the PCR case with Killings’s other pending PCR matter. We affirm.
I. Background Facts and Proceedings.
In 2009, Killings was found guilty of first-degree murder. See State v.
Killings, No. 09-0739, 2010 WL 3894161, at *1-2 (Iowa Ct. App. Oct. 6, 2010).
That year, Killings was also found guilty of first-degree robbery and four counts of
second-degree sexual abuse in an unrelated matter. See State v. Killings, No.
10-0858, 2011 WL 1781518, at *1 (Iowa Ct. App. May 11, 2011). We affirmed all
of his convictions on direct appeal. See Killings, 2010 WL 3894161, at *1-2;
Killings, 2011 WL 1781518, at *1.
In 2011, Killings filed an application seeking PCR in the murder case. The
matter was docketed as PCCE068339.1 Killings also filed an application seeking
PCR in the robbery/sexual abuse case. It was docketed as PCCE069818, and it
is this PCR application that is the subject of this appeal. Killings requested
counsel be appointed, and the PCR court appointed one attorney to represent
Killings in both PCR cases.
In April 2013, a month prior to the scheduled trial date in PCCE069818,
Killings filed a motion requesting new counsel be appointed in both PCR cases.
He asserted that his appointed counsel was not proceeding as Killings directed.
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This court affirmed the district court’s denial of this PCR application. See Killings v.
State, No. 15-1061, 2017 WL 1735614, at *5 (Iowa Ct. App. May 3, 2017).
3
Trial in that case was continued to December 2013, and then again to June
2014.
In April 2014, Killings filed another pro se motion requesting new counsel
be appointed to represent him. Killings’s motion expressly stated:
Note: the appointment of new counsel will not delay the
proceedings because Mr. Killings simply desires new counsel to
help him present his “pro se” case to the court in the best possible
manner—once he has filed his pro se brief. Which will be shortly
after the court does appoint new counsel.
A hearing on Killings’s motion was held, and Killings appeared telephonically.
The PCR court asked Killings to clarify the relief he sought in his motion,
summarizing: “So if I am to understand your motion correctly, Mr. Killings, you
are asking the court to allow [your appointed counsel] to withdraw, and you want
to proceed by—alone; is that right?” Killings responded, “Well, I am asking the
court to grant me another attorney just to make sure I do it right. Just to make
sure that my pro se brief is presented right in a manner to be presented to you.”
Killings also clarified that his request for appointment of new counsel was meant
to apply to both of his PCR cases. The PCR court ruled that Killings would be
allowed to proceed pro se, but his appointed counsel would be relegated to
standby counsel; no new counsel would be appointed, and the June 2014 trial
date would remain.
At some point thereafter, Killings filed a motion requesting the court
reconsider its ruling permitting him to proceed pro se, insisting that he could not
represent himself, and seeking appointment of new counsel. The PCR trial
commenced on June 30, 2014 as scheduled, and the court heard Killings’s
motion to reconsider. Killings stated:
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Your Honor, I would like you to reconsider me doing this case pro
se. I do not know how to do a pro se case. I want you to
reconsider appointing me an attorney who would help me present
the issues and preserve the issues that I would like the court to
hear.
I also would like you to reconsider doing both of these cases
at one time. I haven’t even dealt with the first case, [PCCE068339],
and getting the issues and preserving the issues that I want in that
case, let alone the [PCCE069818 case]. I haven’t even did any
work on that case, yet today [we’re] having trial on both cases.
The court denied his motion and attempted to hear Killings’s case. However,
Killings told the court he had not had time to prepare anything and that he had
not requested to proceed pro se, explaining his counsel indicated there were
issues counsel would not raise but that Killings could present those issues
himself. The court “very reluctantly” continued the trial but warned Killings this
was the last continuance of both cases, and that if he “came to the next trial and
[said he was] not ready,” the court would move forward anyway. The court
reappointed standby counsel to represent Killings in both matters. The court
advised Killings he could present any issues at the next hearing that his attorney
was not willing to raise. Trial was continued to October 2014, with PCCE069818
to be tried at the conclusion of the trial in PCCE068339.
Trial commenced in October 2014. After the trial in PCCE068339
concluded, the court heard PCCE069818 as scheduled. Killings stated he was
not prepared to go forth in that case, and he did not want his appointed counsel
to represent him. Killings admitted he knew the case was to be heard on that
date, but he claimed he was waiting on counsel to send information and provide
to him case law. The court advised Killings that the trial would go on as
scheduled, and Killings told the court he “[didn’t] have [his] stuff in front of [him].”
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Killings’s appointed counsel attempted to elicit testimony from Killings about his
claims, but Killings was unhelpful, to put it mildly. Killings stated it was too much
for him; he was confused, and his mind was still on the PCCE068339 case. The
court requested Killings explain his claims, but Killings could not or would not.
Thereafter, the PCR court entered its order denying Killings’s PCR application.
Killings now appeals the PCR court’s denial of his application, asserting
the PCR court should have appointed a new attorney to represent him and tried
the two matters separately.
II. Standard of Review.
Our review of the PCR court’s decision to deny Killings’s requests for
appointment of new PCR counsel is for an abuse of discretion. See Leonard v.
State, 461 N.W.2d 465, 469 (Iowa 1990); see also State v. Tejeda, 677 N.W.2d
744, 750 (Iowa 2004) (“The decision to grant a motion for substitute counsel is a
matter within the trial court’s discretion.”). Similarly, we also review a court’s
decision to consolidate actions for an abuse of discretion. See Johnson v. Des
Moines Metro. Wastewater Reclamation Auth., 814 N.W.2d 240, 245 (Iowa
2012); see also Iowa R. Civ. P. 1.913; State v. Johnson, 756 N.W.2d 682, 689
(Iowa 2008). An abuse of discretion occurs if the court’s discretion “is exercised
on grounds or for reasons ‘clearly untenable or to an extent clearly
unreasonable.’” Leonard, 461 N.W.2d at 469 (citation omitted).
III. Discussion.
Killings asserts the PCR court should have appointed a new attorney to
represent him and tried the two matters separately. Killings points to his
numerous complaints about his appointed counsel before the PCR court as
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justification for the appointment of new counsel. He maintains his appointed
attorney “was not communicative,” was “uncooperative,” and based on Killings’s
own testimony, he “was not prepared for the trial and had not thoroughly
discussed the issues with [his appointed attorney].” He argues the problems
were exacerbated by the attorney’s appointment to represent him in both PCR
cases and by trying both cases the same day. He also asserts the court should
have had a colloquy with him “to determine whether such waiver of his statutory
right to counsel was sufficiently voluntary and intelligent.” We are not persuaded.
PCR “proceedings are not criminal proceedings, but rather are civil in
nature.” Jones v. State, 479 N.W.2d 265, 269 (Iowa 1991). Consequently,
“[m]any of the constitutional safeguards guaranteed an individual in criminal trial
proceedings are not granted to such an individual in subsequent [PCR]
proceedings.” Id. One of the distinctions between criminal trial proceedings and
PCR proceedings is one’s constitutional right to counsel. See Fuhrmann v.
State, 433 N.W.2d 720, 722 (Iowa 1988). Specifically, defendants in criminal trial
proceedings have the right to counsel under the Iowa Constitution and the United
States Constitution. See State v. Majeres, 722 N.W.2d 179, 182 (Iowa 2006)
(citing U.S. Const. amend. VI; Iowa Const. art. I, § 10). Applicants in PCR
proceedings do not have that constitutional right. See Fuhrmann, 433 N.W.2d at
722 (“[T]he United States Supreme Court has clearly announced the right to
appointed counsel for a convicted criminal extends only to the first appeal of
right, not to a collateral appeal on a conviction that has long since become final
upon the exhaustion of the appellate process. We would construe our own
constitution likewise.” (citation omitted)).
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Iowa Code section 822.3 (2013), formerly section 663A.5, does not
expressly require the appointment of PCR counsel upon a PCR applicant’s
request. However, its language has been interpreted to mean that a PCR court
can appoint the applicant counsel at its discretion. See Jones v. State, 731
N.W.2d 388, 391 (Iowa 2007); Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994);
Leonard, 461 N.W.2d at 467-68; Fuhrmann, 433 N.W.2d at 722. The Iowa
Supreme Court has recommended that PCR counsel be appointed if it appears
that a substantial issue of law or fact may exist. See id. If PCR counsel is
appointed, that attorney is required to provide the applicant effective
representation. See Dunbar, 515 N.W.2d at 14-15. Nevertheless, the PCR court
retains the discretion of whether to remove the appointed counsel upon the
applicant’s request. See Jones, 731 N.W.2d at 391. Even in criminal matters,
where a defendant has a constitutional right to counsel, there is no guarantee of
a “‘meaningful relationship between an accused and his counsel.’” Tejeda, 677
N.W.2d at 750 (citation omitted). Moreover, requesting new counsel at the last
minute as a delay tactic is disfavored. See id.Here, Killings’s claims are based upon rights he does not have in a civil
PCR proceeding. While a trial court has a duty in a criminal matter to inquire into
assertions of a breakdown in communication between the defendant and his
appointed attorney, this duty arises to safeguard the defendant’s constitutional
right to counsel—a right a PCR applicant simply does not have. See id.;
Fuhrmann, 433 N.W.2d at 722. Thus, a breakdown of communication between a
PCR applicant and his appointed counsel does not trigger the same
constitutional protections or necessitate the same inquiry of the court—though
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the record evidences here that the PCR court did, on several occasions, inquire
into Killings’s allegations concerning his counsel and found them to be without
merit. Similarly, the PCR court had no obligation to conduct a colloquy with
Killings to determine if he voluntarily and intelligently waived the right of
representation in the PCR proceeding because Killings had no such right.
Additionally, there is no evidence or even allegations on appeal that
Killings’s PCR counsel provided ineffective assistance. See, e.g., Dunbar, 515
N.W.2d at 15 (“When complaining about the adequacy of an attorney’s
representation, it is not enough to simply claim that counsel should have done a
better job. The applicant must state the specific ways in which counsel’s
performance was inadequate and identify how competent representation
probably would have changed the outcome.” (citation omitted)). Rather, Killings
is disgruntled with the PCR court’s ruling that it would not appoint him new
counsel on the eve of the scheduled PCR trial. We do not find the court abused
its discretion in so ruling.
Though Killings later claimed he did not request to represent himself, a
review of the record makes clear that he did initially make the request. The court
was very direct with Killings during the May 2014 hearing on his motion for new
counsel in clarifying the relief Killings was requesting. The court expressly found
that the appointed attorney had communicated with Killings, contrary to Killings’s
allegations, and that it would not appoint new counsel with the trial date looming.
The court found Killings’s appointed counsel was familiar with the case and, if
Killings wanted to proceed pro se, his appointed counsel could be his standby
counsel. Thus, the court essentially gave Killings two choices at that point—
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proceed with the appointed counsel or proceed pro se with the assistance of
standby counsel.
Then, despite being told the matter would not be continued again, Killings
at the June 2014 trial made the same arguments he previously made for
appointment of new counsel. The court reappointed counsel, gave Killings a
month to sort out his issues with his counsel and file any amendments to his
application, and continued the matter. Following another written request for new
counsel, the PCR court expressly denied Killings’s request. The court explained
it found “no justifiable reason to remove [Killings’s appointed] counsel in
PCCE069818,” noting the attorney had actively prepared both PCR cases for
trial.
Yet, despite being given additional time, Killings’s presentation at the
October 2014 hearing was the same as the June 2014 hearing. He was not
prepared. He claimed he was overwhelmed and that his counsel did not help
him. He still wanted a new attorney appointed. His attorney attempted to elicit
testimony in response to Killings’s pro se filings and PCR applications, but
Killings was vague and unresponsive. Killings was given the opportunity to
present evidence at trial, but ultimately, he did not do so. We find no abuse in
the district court’s discretion to deny appointment of a new PCR counsel.
Finally, we find no abuse in the district court’s decision to try the PCR
cases consecutively on the same day. It was in the interests of judicial economy
to do so. The parties and their attorneys were the same in both matters.
Furthermore, Killings had more than ample time to prepare to try both matters on
the same day. “It is well established trial judges have considerable discretion
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over matters related to the orderly conduct of trial.” Johnson, 756 N.W.2d at 689.
We find, under the circumstances of the case, the PCR court did not abuse its
discretion to hear the cases one after the other.
IV. Conclusion.
Because we find the PCR court did not abuse its discretion in denying
Killings’s requests for the appointment of a new attorney or in hearing the two
cases consecutively, we affirm the PCR court’s ruling denying Killings’s PCR
application.
AFFIRMED.