State of Iowa v. Phillip Diamond Smith ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1901
Filed August 9, 2023
STATE OF IOWA,
Plaintiff-Appellee,
vs.
PHILLIP DIAMOND SMITH,
Defendant-Appellant.
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Appeal from the Iowa District Court for Hardin County, James A. McGlynn,
Judge.
A defendant appeals his convictions, alleging error in the district court’s
denial of his request for substitute counsel. AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Maria Ruhtenberg,
Assistant Appellate Defender, for appellant.
Brenna Bird, Attorney General, Kyle Hanson and Nick Siefert, Assistant
Attorneys General, and Kadison Roberts, Student Legal Intern for appellee.
Considered by Bower, C.J., Schumacher, J., and Mullins, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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MULLINS, Senior Judge.
Phillip Smith was charged by trial information, as amended, with second-
degree burglary, second-degree sexual abuse, and assault with intent to commit
sexual abuse. The evidentiary portion of the ensuing trial concluded in one day.
The following morning—after the parties and court completed the jury instructions
but before closing arguments—the following exchange occurred outside the
presence of the jury:
THE COURT: It’s been brought to the court’s attention that the
defendant has a matter that he wishes to assert.
Mr. Smith, do I understand that you are now requesting a
different attorney?
THE DEFENDANT: If that’s necessary, yes, sir.
THE COURT: I’m sorry, what?
THE DEFENDANT: If that’s necessary, yes, sir.
THE COURT: Why is it necessary?
THE DEFENDANT: I don’t believe I’ve been given proper
representation.
THE COURT: Okay. I asked you—We’ve had a couple
different hearings, both in regard to the proposed plea bargain, which
you turned down, and regarding your decision not to testify, and you
indicated, as I recall, that you had enough time to visit with
Mr. Olberding, your attorney, and that you were satisfied with his
services. We are now moments away from the jury coming in.
THE DEFENDANT: When was I asked that?
THE COURT: I’m sorry?
THE DEFENDANT: When was I asked this, sir?
THE COURT: We had two hearings that you participated in
where you turned down a plea agreement, where you turned the
opportunity to testify, and you stated it was your decision; that you
had enough time to visit with your attorney and, as I understood, you
were satisfied with your attorney. Now, what is your concern right
now?
THE DEFENDANT: My concern is that I was not satisfied with
my attorney. I understood the question to be was I satisfied with the
efforts as far as the plea agreement, and that’s it.
THE COURT: Okay. Well, sir, we have a jury waiting to make
a decision. I think my concern is this is just a delay tactic on your
part.
THE DEFENDANT: This is—
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THE COURT: Sir, let me talk. We are going to proceed and
have the jury decide this case. All that remains for Mr. Olberding to
do at this point is to make closing arguments to the jury and the case
will be in the jury’s hands. There will be some options. One thing
that could happen—not really an option but a possible outcome, you
might be found not guilty of all charges and set free, and then
changing attorneys becomes moot. If the jury convicts you and you
continue to believe that you were not adequately represented, there
are methods including post-conviction relief to assert ineffective
assistance of counsel.
But at this late stage of the proceeding after having these two
previous hearings with you, I’m not going to declare a mistrial, which
is what I would have to do, and send this jury home and appoint
somebody else to represent you in this case and try it all over again.
We are going to proceed and see what the verdict is going to be.
So that’s going to be my ruling. Again, if you’re not satisfied
with the outcome, then you can assert your objections to
Mr. Olberding’s representation through proceedings after the verdict.
But we are going to find out what the verdict is.
Following closing arguments, the jury found Smith guilty of lesser-included
offenses on each charge—assault causing bodily injury, third-degree sexual
abuse, and assault. The court later merged the first conviction with the second,
and Smith appealed following the imposition of sentence.
On appeal, Smith argues “the trial court erred by failing to allow [him] to be
heard regarding his request for substitute counsel.” Specifically, he complains
that, instead of conducting an inquiry into his dissatisfaction with counsel, “the
court refused to let him elaborate, assumed that [he] was referring to his decision
to refuse the plea deal and decide not to testify, and then ruled against him.”
In response, the State points out that Smith later abandoned his request for
substitute counsel. Specifically, after the jury returned its verdicts, the court
advised Smith of his right to file post-trial motions, in relation to which the following
exchange occurred:
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THE COURT: And that possibility of filing a post-trial motion
creates problems because before we gave the case to the jury,
Mr. Smith, you indicated you wanted to have a new attorney. And is
that still your request to have a new attorney?
THE DEFENDANT: No.
THE COURT: No?
THE DEFENDANT: No.
Because Smith later abandoned his request for substitute counsel, the State
submits the issue to us now waived. We agree. Cf. State v. Spencer, 519
N.W.2d 357, 359 (Iowa 1994) (noting request to proceed without counsel can be
found waived when the “defendant has abandoned his initial request to represent
himself”).
In any event, we note from the get-go that “eleventh-hour requests for
substitute counsel,” such as this one, are disfavored. State v. Boggs, 741
N.W.2d 492, 506 (Iowa 2001). And Smith only complains the court failed to inquire
about his request. Notably, the court only has a duty to inquire further into a
request for substitute counsel when it is based on a conflict of interest or a
breakdown in communication. See State v. Tejeda, 677 N.W.2d 744, 750
(Iowa 2004) (communication); State v. Lopez, 633 N.W.2d 774, 780 (Iowa 2001)
(conflict). Smith’s request was based on neither, nor was it based on an
“irreconcilable conflict” between client and counsel. See Boggs, 741 N.W.2d
at 506 (“The grounds to justify the appointment of substitute counsel include a
conflict of interest, irreconcilable conflict, or a complete breakdown in
communication between the defendant and counsel.”).
Instead, the request was based solely on Smith’s apparent dissatisfaction
with counsel. This alone is not a proper basis for granting a request for substitute
counsel. See id. (“[G]eneral frustration and dissatisfaction with defense counsel
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expressed by a defendant does not alone render counsel unable to perform as a
zealous and effective advocate.”). And any dissatisfaction Smith had with
counsel’s performance was obviously cleared up once the jury returned guilty
verdicts of lesser-included offenses on each charge, which apparently prompted
Smith to abandon his request for substitute counsel.
Lastly, Smith has not specified how he was prejudiced from the court’s
alleged error, so he is not entitled to relief. See Lopez, 633 N.W.2d at 779 (noting
“a defendant must show prejudice when the court denies a motion for substitute
counsel” except in certain circumstances not relevant here, where counsel is
denied completely or counsel has a conflict of interest).1
Finding Smith is not entitled to relief, we affirm.
AFFIRMED.
1 While irrelevant to the merits, we note that, after the verdicts were returned,
defense counsel moved to withdraw, the motion was granted, and substitute
counsel was appointed to represent Smith as to post-trial motions and sentencing.