State of Iowa v. Michael Lamar Wells ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0984
Filed August 16, 2017
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL LAMAR WELLS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, William P. Kelly,
Judge.
Michael Wells appeals the district court’s denial of his motion to correct an
illegal sentence and denial of his application for court-appointed counsel. WRIT
ANNULLED.
Mark C. Smith, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Blane, S.J.
takes no part.
2
MULLINS, Judge.
In 2012, Michael Wells pled guilty to one count of attempted murder, two
counts of willful injury causing serious injury, and one count of possession of a
firearm as a felon. He was sentenced to consecutive terms of imprisonment for
all four counts, for a total sentence of fifty years. Wells did not directly appeal his
conviction, but in 2014, he filed a pro se motion to correct an illegal sentence,
asserting the two willful injury counts should merge with the attempted murder
conviction. The district court appointed counsel to represent Wells upon Wells’s
application. The State resisted the motion, asserting the case of State v. Clark,
475 N.W.2d 193, 193–96 (Iowa 1991), held willful injury was not a lesser-
included offense of attempted murder so the counts do not merge. On the day of
the hearing on the motion, Wells, through appointed counsel, withdrew his
motion, and the court conducted a colloquy with Wells to determine the
withdrawal of the motion was knowing and voluntary.
On March 15, 2016, Wells filed a second pro se motion to correct an
illegal sentence that was identical to the first motion. He again applied for the
appointment of counsel. On May 31, 2016, the district court denied both the
motion to correct an illegal sentence, citing Clark, 475 N.W.2d at 196, and denied
the application for the appointment of counsel, concluding a motion to correct an
illegal sentence is not a “critical stage” of the trial proceeding.
Wells filed a notice of appeal,1 and the district court appointed appellate
counsel to represent him on appeal. Wells asserts on appeal the district court
1
As an initial matter, the State asserts Wells did not have a right to appeal the district
court’s denial of his motion to correct an illegal sentence and any review of the district
3
should have appointed him counsel to represent him on his motion to correct an
illegal sentence and the court should not have denied his motion without a
hearing.
I. Appointment of Counsel
Wells asserts he has a statutory right to the appointment of counsel for his
motion to correct an illegal sentence. In support of his position, he cites Iowa
Rule of Criminal Procedure 2.28(1) and Iowa Code section 815.10(1) (2016).
Rule 2.28(1) provides, in part:
Every defendant, who is an indigent person as defined in
Iowa Code section 815.9, is entitled to have counsel appointed to
represent the defendant at every stage of the proceedings from the
defendant’s initial appearance before the magistrate or the court
through appeal, including probation revocation hearings, unless the
defendant waives such appointment.
Likewise, section 815.10(1) provides, in part:
The court, for cause and upon its own motion or upon
application by an indigent person or a public defender, shall appoint
the state public defender’s designee pursuant to section 13B.4 to
represent an indigent person at any stage of the criminal . . .
proceedings or on appeal of any criminal . . . action in which the
indigent person is entitled to legal assistance at public expense.
Wells claims his motion to correct an illegal sentence is necessarily a stage of
the “criminal proceeding.”
court’s decision in this case must come by way of a petition for writ of certiorari or
application for discretionary review. We agree the proper form of review of a district
court’s ruling on a motion to correct an illegal sentence is by certiorari or discretionary
review. See State v. Propps, 897 N.W.2d 91, 97 (Iowa 2017). However, Wells’s failure
to seek the proper form of review is not fatal to his claim. “[I]f a case is initiated by a
notice of appeal, but another form of review is proper, we may choose to proceed as
though the proper form of review was requested by the defendant rather than dismiss
the action.” Id. (citing Iowa R. App. P. 6.108). We treat Wells’s notice of appeal and
brief as a petition for writ of certiorari, and we grant the writ.
4
Rule 2.28(1) notes an indigent defendant is entitled to appointed counsel
at every stage of the criminal proceeding “from the defendant’s initial appearance
before the magistrate or the court through appeal.” (Emphasis added.) A motion
to correct an illegal sentence is not a “stage” between the initial appearance and
appeal. Such a motion can only come after judgment and sentence has been
entered, and in this case, the motion was filed four years after the appeal period
had expired. Section 815.10(1) is similarly worded to permit the appointment of
counsel at any stage of the proceeding or appeal. It does not provide for
appointment of counsel for post-appeal period motion practice.
Wells also asserts he is constitutionally entitled to appointed counsel
under the Federal and Iowa Constitutions. See U.S. Const. amend. VI (“In all
criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.”); Iowa Const. art. I, §10 (“In all criminal
prosecutions, . . . the accused shall have a right . . . to have the assistance of
counsel.”). The State asserts Wells did not preserve error on his constitutional
claims. Assuming, without deciding such claims are preserved, we have
previously held there is no constitutional right to have counsel appointed for a
motion to correct an illegal sentence. See State v. Cohrs, No. 14-2110, 2016 WL
146526, at *2–3 (Iowa Ct. App. Jan. 13, 2016). We see no reason to depart from
that position in this case.
Wells next contends another provision of article I, section 10 of the Iowa
Constitution confers a right to the appointment of counsel when it states: “In all
criminal prosecutions, and in cases involving the life, or liberty of an individual the
accused shall have a right . . . to have the assistance of counsel.” (Emphasis
5
added.) Because his motion pertains to his liberty interest in not being confined
to prison longer than statutorily authorized, he asserts he is entitled to counsel for
his motion to correct an illegal sentence.
However, the “cases involving the life, or liberty of an individual” clause
was added to the constitution in 1857 in response to the Fugitive Slave Act to
give escaped slaves the right to a trial in Iowa. See In re Johnson, 257 N.W.2d
47, 54 (Iowa 1977) (“No one can doubt from the convention record that the
disputed language was added to art. I [section] 10 in an effort to nullify the
Fugitive Slave Act by giving persons accused as escaped slaves the right to jury
trial in Iowa.”). But see State v. Young, 863 N.W.2d 249, 279 (Iowa 2015) (“But
the ‘cases’ language of article I, section 10 has broader application than the
immediate problem it was designed to ameliorate. While it may be that the
‘cases’ language amounts to constitutional support for a right to counsel in
qualifying civil contexts, it also strongly suggests that if a right to counsel exists in
civil cases in which ‘liberty’ is involved, it also must exist in criminal prosecutions
in which ‘liberty’ is also at stake.”). At this point, the “cases” language in article I,
section 10 has not been extended to confer a state constitutional right to counsel
for motions to correct an illegal sentence, and we decline to do so here.
Finally, Wells claims he is constitutionally entitled to the appointment of
counsel based on due process and fundamental fairness. Wells concedes that
appointment of counsel under this argument is done on a case-by-case basis
where the accused makes a “colorable” claim and the reasons for the claim are
“complex or otherwise difficult to develop or present.” See Pfister v. Iowa Dist.
Ct., 688 N.W.2d 790, 795–96 (Iowa 2004) (“[W]hen the circumstances of a
6
particular case meet the standard set forth in Gagnon [v. Scarpelli, 411 U.S. 778
(1973)], due process requires that counsel be appointed to represent indigent
parolees.”). Assuming without deciding that due process under the Federal or
Iowa Constitutions would permit the appointment of counsel when a defendant
makes a “colorable” claim that is “complex” or “difficult to develop or present” in a
motion to correct an illegal sentence, no such complex colorable claim existed
here.
Wells’s claim is based on his belief that the double jeopardy clause
requires the willful injury convictions to merge into the attempted murder
conviction.2 This merger argument has been rejected by the Iowa Supreme
Court in Clark, 475 N.W.2d at 195–96:
“[W]e see nothing to prevent the State from charging and convicting
an individual for both attempting to murder and, at the same time,
willfully injuring a victim. Application of the legal elements test
plainly demonstrates that willful injury is not a lesser-included
offense of attempted murder. No reason appears to depart from
the legal elements test in the present case just because both
offenses arise out of the same course of conduct by the defendant.
Neither the opinions of the Supreme Court nor pertinent Iowa
statutory law compels a contrary result in the context of a single
criminal prosecution. No violation of the defendant’s claimed rights
under the double jeopardy clause occurred.
In light of the controlling precedent on the issue Wells raised in his motion to
correct an illegal sentence, we conclude it was not an abuse of discretion for the
district court to deny Wells the assistance of counsel for his motion.
2
While Wells cited the case of State v. Velez, in his motion to correct an illegal
sentence, he made no claim the two willful injury convictions violated the Double
Jeopardy Clause as a double punishment for the same offense. 829 N.W.2d 572, 584
(Iowa 2013) (finding no Double Jeopardy violation based on the defendant’s guilty pleas
to two counts of the same offense); see also State v. Love, 858 N.W.2d 721, 726 (Iowa
2015) (Mansfield, J., concurring) (“When the instructions permit the jury to convict the
defendant twice of the same offense (or of an offense and a lesser included offense)
based on the same conduct, and two guilty verdicts are returned, merger must follow.”).
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II. Hearing
Wells also faults the district court for summarily rejecting his motion
without providing him a hearing. Wells contends there were complex legal and
factual issues that required an evidentiary hearing. As noted above, in light of
the controlling precedent that willful injury is not a lesser-included offense of
attempted murder, see Clark, 475 N.W.2d at 195–96, there is no indication a
hearing, evidentiary or otherwise, would have been of any benefit to Wells. 3 See
State v. Poulson, No. 11-1340, 2012 WL 1864790, at *2 (Iowa Ct. App. May 23,
2012) (denying claim for a hearing on a motion to correct an illegal sentence
where defendant “has not indicated what, if anything, would have been gained by
a hearing on his motion”); see also State v. Gonzales, 718 N.W.2d 304, 309
(Iowa 2006) (holding that to conduct an evidentiary hearing in response to a
defendant’s motion to dismiss the trial information “only wastes valuable judicial
resources that the court can use for other matters requiring such a hearing”).
Because Wells’s motion, based on the assertion that his willful injury convictions
should merge with his attempted murder conviction as a lesser-included offense,
was strictly a legal—rather than evidentiary—determination, which was resolved
by controlling precedent, we conclude the district court was not required to hold a
hearing on Wells’s motion to correct an illegal sentence.
WRIT ANNULLED.
3
In his appellate brief, Wells notes his motion cited the cases of Velez, 829 N.W.2d at
584, and State v. Ross, 845 N.W.2d 692, 706 (Iowa 2014), in support of his motion and
those cases involve complex factual merger issues. However, both of those cases
pertain to convictions for multiple counts of the same offense, not the merger of the
conviction for one offense into the conviction for a separate offense. In his motion, Wells
did not challenge the legality of his sentence for the two counts of willful injury.