John Roger Shepherd, Applicant-Appellant v. State of Iowa ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0536
Filed July 6, 2017
JOHN ROGER SHEPHERD,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Ian K. Thornhill,
Judge.
The applicant appeals the district court’s refusal to reinstate his application
for postconviction relief after it was dismissed for lack of prosecution.
AFFIRMED.
Geneva L. Williams of Williams Law Office, P.L.L.C., Cedar Rapids, for
appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., Bower, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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GOODHUE, Senior Judge.
John Roger Shepherd’s postconviction-relief action was dismissed by
application of Iowa Rule of Civil Procedure 1.944(2). Shepherd sought
reinstatement under rule 1.944(6), but reinstatement was denied by the trial
court. Shepherd appeals from the denial of his petition for reinstatement. We
affirm.
I. Background Facts and Proceedings
On March 19, 2008, Shepherd filed for postconviction relief, challenging
his 2006 conviction for a third or subsequent offense of operating while
intoxicated. By Shepherd’s own account, as stated in his brief, a series of
thirteen attorneys had been appointed to represent him, and all but the last one
had withdrawn, primarily at the request of Shepherd. Again by Shepherd’s own
account, thirteen motions to continue had been requested and granted. Relief
from the automatic dismissal under rule 1.944(2) had been regularly granted until
the August 10, 2015 dismissal notice was sent and the dismissal date arrived.
At the time the notice was sent, the matter was set for trial on
September 24, 2015. Ryan Tang, Shepherd’s counsel at the time, requested the
September 24 trial date be continued. Tang requested the continuance,
asserting he had made many attempts to contact Shepherd but Shepherd had
only recently responded and, because of new information, Shepherd
communicated to Tang that additional time to prepare was necessary. The
motion to continue did not request relief from rule 1.944(2). The court granted
the motion to continue but stated good cause warranting a continuance had not
been provided and further stated, “The court does not have the judicial resources
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on the date currently set for trial to try this case as scheduled and for that reason
alone the court grants petitioner’s motion to continue trial.” On October 8, 2015,
a trial scheduling order was filed setting the matter for trial on September 1,
2016. By operation of rule 1.944(2), the matter was dismissed on January 8,
2016.
Tang filed a motion for reinstatement on January 20, 2016. The motion
did not allege or assert the matter was dismissed as the result of oversight,
mistake, or other reasonable cause. Tang appeared by telephone, but Shepherd
did not appear. Tang asserted that he had mailed a notice of the hearing to
Shepherd but it had come back. He further asserted he would have tried to call
Shepherd but believed he did not have either a valid address or current
telephone number. The court refused to reinstate Shepherd’s postconviction-
relief claim. Shepherd asserts that his postconviction counsel was ineffective
and also asserts that the court abused its discretion in denying the application for
reinstatement.
II. Error Preservation
An exception to the traditional error preservation rule exists when a claim
of ineffective assistance of counsel is asserted. State v. Fountain, 786 N.W.2d
260, 263 (Iowa 2010).
III. Standard of Review
When a constitutional issue, such as a claim of ineffective assistance of
counsel is invoked, the matter is reviewed de novo. Lamasters v. State, 821
N.W.2d 856, 862 (Iowa 2012). When a matter has been dismissed as a result of
oversight, mistake, or other reasonable cause, reinstatement is to be granted.
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Iowa R. Civ. P. 1.944(6). Otherwise, reinstatement is within the discretion of the
court. Id. An abuse of discretion exists only when the grounds or reasons are
clearly untenable or to an extent clearly unreasonable. State v. Long, 814
N.W.2d 572, 576 (Iowa 2012).
IV. Discussion
To prevail on a claim of ineffective assistance of counsel, the claimant
must prove by a preponderance of the evidence that: (1) counsel failed to
perform an essential duty and (2) prejudice resulted. Ledezma v. State, 626
N.W.2d 134, 142 (Iowa 2001). For prejudice to be present requiring relief, there
must be a determination that but for the ineffective assistance there is a
reasonable possibility that the result would have been different. Id. at 145.
Counsel failed to request relief from the automatic dismissal contained in
rule 1.944(2). Such a failure has been held to not only constitute a breach of an
essential duty but to also constitute a structural error effecting the entire
proceeding. Lado v. State, 804 N.W.2d 248, 251 (Iowa 2011). When there is a
structural error in the proceeding, there is no need to prove that there is a
reasonable probability the result would have been different absent ineffective
assistance of counsel. Id. at 253. A structural error occurs when the error is not
simply an error in a legal proceeding but an error that effects “the framework
within which the trial proceeds.” Id. at 252. Such an error takes place when
counsel is completely denied, actually or constructively, at a crucial stage of a
proceeding. Id. When counsel has been specifically advised by the court that
the case is subject to rule 1.944, no timely motion to obtain relief from the rule is
filed, and no motion to reinstate is filed, a structural error exists. Id. at 252-53.
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In the Lado case, structural error was held to exist, but it presented a
factual situation which can be easily differentiated from the case under
consideration. In the case at hand, counsel did file a motion for reinstatement,
and it is the denial of that motion that has been appealed. Secondly, the court
considering the continuation of the September 24, 2015 trial date stated
succinctly that good cause did not exist to continue the trial date. The court did
not advise counsel relief from rule 1.944 must be obtained or the matter would be
dismissed, as in Lado, but to the contrary implied such relief would not be
granted. The State had objected to the continuance of the trial date and also
objected to the motion for reinstatement. There is no reason to think the trial
court would have once again granted relief from a rule 1.944 dismissal, even if a
request had been made. Generally, counsel is not considered ineffective for
failing to pursue what would be a fruitless endeavor. State v. Brubaker, 805
N.W.2d 164, 171 (Iowa 2011).
Furthermore, Shepherd’s failure to advise counsel of his current location
or a method for counsel to contact him both before the September 24 trial date,
as well as before the motion to reinstate was to be heard, indicate a lack of
interest or cooperation with his counsel and at least suggested Shepherd had
abandoned his case. Finally, Shepherd’s suggestion of an additional or new
defense immediately prior to the September 24 trial date also indicates his lack of
interest or cooperation with counsel. In assessing claims of ineffective
assistance of counsel, misconduct of the party is examined, as well as that of his
attorney. State v. Rice, 543 N.W.2d 884, 888 (Iowa 1996).
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Rule 1.944(6) permits the court to reinstate a case in its discretion when
none of the specified exceptions have been established. In exercising its
discretion, the court must consider whether the plaintiff or his counsel has shown
reasonable diligence in pursuing the case for trial. O’Brien v. Mullapudi, 405
N.W.2d 815, 819 (Iowa 1987). The court’s reasons for not granting
reinstatement are within the court’s discretion and are not untenable or clearly
unreasonable. When a case reflects a pattern of delaying, the denial of a
discretionary reinstatement is appropriate. Id. Considerable discretion is
accorded trial courts when considering reinstatement of a case dismissed under
rule 1.944(2). Werkmeister v. Kroneberger, 262 N.W.2d 295, 296 (Iowa 1978).
Regardless of whether counsel was or was not ineffective, there is no
reasonable probability that in the absence of his failure the result would have
been different. In ruling on the motion to reinstate, the court stated,
But it seems to me whether we call this an automatic
dismissal for just want of prosecution because it’s been around for
eight years and hasn’t gone or whether we call this a hearing on
whether you should get relief from that—the dismissal as if you had
timely filed beforehand, I don’t see any reason to keep this case
around. It’s been drug out for this many years.
This statement, plus the order granting the continuance of the September 24,
2015 trial date, make it clear that an application to suspend the automatic
dismissal of rule 1.944(2) would have been denied even if timely made.
The motion to reinstate Shepherd’s case was denied within the discretion
of the trial court and its action in doing so is affirmed.
AFFIRMED.