State of Iowa v. Shawn Patrick Shelton ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0555
Filed July 21, 2021
STATE OF IOWA,
Plaintiff-Appellee,
vs.
SHAWN PATRICK SHELTON,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lucas County, Terry Rickers, Judge.
A defendant challenges the denial of his motion for new trial. WRIT
SUSTAINED IN PART; ANNULLED IN PART; AND REMANDED.
Peter Stiefel (until withdrawal) and Fred Stiefel, Victor, for appellant.
Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant
Attorney General, for appellee.
Considered by Vaitheswaran, P.J., May, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
2
BLANE, Senior Judge.
Shawn Shelton was convicted of first-degree murder and attempt to commit
murder in 1990. Twenty-six years later, he filed a motion for new trial based on
newly discovered evidence that a witness, the co-defendant, recanted his trial
testimony. After the district court ruled on Shelton’s motion for new trial, he
appeals, raising numerous issues, including that the court failed to give him notice
of the hearing on his motion for new trial and prevented him from presenting
evidence from additional witnesses. We treat Shelton’s challenge as a petition for
writ of certiorari. We find the court failed to give adequate notice of the hearing as
required by Iowa Rule of Criminal Procedure 2.24(2)(a) and then ruled on the
motion, so we sustain the writ. We will also address other issues presented to us
that are appropriate under certiorari.
I. FACTS AND PRIOR PROCEEDINGS
In 1990, a jury convicted Shelton of first-degree murder and attempt to
commit murder. See Shelton v. State, No. 08-1962, 2011 WL 441932, at *2 (Iowa
Ct. App. Feb. 9, 2011). Ivan Swigart testified for the State at Shelton’s trial. On
direct appeal, the supreme court reversed for trial error, and Shelton was retried
and convicted.1 Id. Shelton was sentenced to life in prison. Id. His second direct
appeal was dismissed as frivolous. Id.1Swigart testified at Shelton’s first trial. After the remand, Swigart refused to testify
at Shelton’s second trial. The State was permitted to offer the transcript of
Swigart’s testimony from the first trial, so Swigart was not subject to additional
cross-examination.
3
In 1992, Shelton filed an application for postconviction relief (PCR). Id. The
PCR court denied the first application. Id. On appeal, we set out the underlying
facts of the case:
In the early morning hours of July 3, 1989, applicant, Shawn Shelton,
and Ivan Eugene Swigart were leaving a party in Chariton, Iowa.
Upon exiting town they observed a pickup truck behind them that
they believed was following them. Shelton pulled his vehicle over to
the side of the road hoping the pickup would drive by. Instead the
pickup stopped along side of him and the occupants, Terry Allen
Masters and Dwight Kennedy, inquired whether Shelton needed
assistance. Shelton asked Masters and Kennedy “what the f*** is
your problem” and told them to stop following him. Shelton then sped
off throwing gravel at Masters’[s] truck. Shelton proceeded down the
highway until he reached a gravel road. He turned onto the gravel
road in an attempt to lose Masters and Kennedy. When Masters and
Kennedy proceeded past the gravel road turn off, Shelton turned his
vehicle around and proceeded back to the main highway. On his
way back to the highway, Shelton again encountered Masters and
Kennedy driving in the opposite direction down the gravel road. The
vehicles seemed to engage in a game of “chicken” with Shelton
swerving at the last minute toward the ditch. Masters and Kennedy
proceeded down the gravel road as Shelton backed his vehicle out
of the ditch and brought it to a stop in the roadway.
Shelton then removed a disassembled shotgun from behind
his seat, put it together and loaded it. Shelton told his passenger,
Swigart, “we have to kill them before they kill us.” Swigart took the
shotgun and exited the vehicle taking position in the rear. Masters
and Kennedy by this time had turned around on the gravel road to
head back toward Shelton. As they approached the Shelton vehicle,
Masters and Kennedy observed Swigart with the gun. Masters
slowed his vehicle and began to back up slowly. Masters and
Kennedy both ducked below the dash board with Masters peaking
above the dash to guide the vehicle backwards. Swigart fired the
gun hitting Masters’[s] windshield just above the dash board. The
bullet struck Masters on the left side of the face, killing him instantly.
Swigart returned to the cab of Shelton’s pickup truck stating
“let’s get the hell out of here” and Shelton proceeded to drive back
toward the highway. On the way back, Shelton informed Swigart that
they had to return to the scene in order to retrieve the shotgun shells
because they had their fingerprints on them and they needed to
make sure that both occupants were dead. When they reached
Masters’[s] pickup truck, Shelton took the gun from Swigart and fired
three more times at the pickup truck. Swigart reached inside the
Masters vehicle to turn off the headlights. They picked up some of
4
the shells and then left the scene. They turned off their headlights
and headed in the opposite direction of the highway because they
had seen another vehicle traveling down the gravel road toward
them.
Id. at *1–2. We affirmed denial of postconviction relief on appeal. Id. at *10–11.
Shelton then filed a federal petition for writ of habeas corpus that was
ultimately unsuccessful. See Shelton v. Mapes, 821 F.3d 941, 948 (8th Cir. 2016).
In 2016, Shelton filed a motion for a new trial in the original criminal case
based on newly discovered evidence. He alleged that while talking with Swigart in
prison in 2015, Swigart confessed the State gave him favorable treatment in
exchange for testifying against Shelton, even though he denied this being the case
when he testified at Shelton’s first trial. And Shelton further asserts he found a
record that Swigart told a psychiatrist that he put together the shotgun, not Shelton,
evidence Shelton claims proves he did not intend to kill Masters and Kennedy.
Shelton’s motion was followed by several years of pre-hearing litigation,
including Shelton’s waiver of counsel, appointment of standby counsel,
appointment of a special master, motion to amend his motion for new trial,2 and
other proceedings. On May 3, 2018, the court entered the following order:
The court determines that an evidentiary hearing should be
set wherein the court hears testimony from co-defendant Ivan
Eugene Swigart wherein he verifies the details of the allegations
contained in his affidavit dated June 16, 2015. At the same hearing,
the court will inquire of Mr. Swigart as to whether or not he waives
any attorney-client privilege insofar as to defendant Shawn Shelton’s
previous attempts to depose attorney Elwood Johnson and insofar
as defendant Shelton seeks access to any other privileged
information contained in co-defendant Swigart’s files or records.
2The motion to amend was based upon an investigation report by Lucas County
Deputy Herbert Muir (the Muir report) of certain wet spots on the road at the crime
scene that Shelton asserts is exculpatory.
5
The defendant, through his standby counsel, and counsel for
the State shall contact the rural case coordinator within 14 days and
obtain a one-day hearing date that will allow the defendant and his
co-defendant to be transported to the Lucas County Courthouse for
the evidentiary hearing. The court will allow defendant Shelton to
examine co-defendant Swigart regarding the allegations contained
in Swigart’s affidavit. The State will then be allowed to cross-
examine Swigart.
For security purposes, Shelton and Swigart shall NOT be
allowed any in-person communication with each other while they are
in Lucas County or while they are being transported to and from
Lucas County.
The hearing should be scheduled to commence within 60
days of the date of this order.
On May 9, the court then entered the following order:
After conferring with the parties and counsel, the court sets an
evidentiary hearing on July 6, 2018 at 9:30 a.m. The court shall hear
testimony from Ivan Eugene Swigart at that time. After hearing Mr.
Swigart’s testimony, the court will hear arguments on the defendant’s
motion to amend his motion for new trial. Following those arguments
the court will consider any other pending unresolved motions.
The court held the hearing on July 6. At the start of the hearing, before
Swigart’s testimony, Shelton discussed with the court whether Shelton was going
to ask Swigart questions. Shelton then made the following statement: “I do have
questions for Mr. Swigart. However, those questions for Mr. Swigart will come at
the motion for new trial with other evidence that I have.” A short time later, Shelton
stated: “I’ve already put on the record my objections to this evidentiary hearing
because this is not my evidentiary hearing. I didn’t want this hearing.” During the
examination of a witness, the county attorney objected, stating “[w]e’re not here
today to try the motion for new trial.” After Shelton had concluded, the court asked
the county attorney whether he had any witnesses to present. He replied: “No,
Your Honor. It did not appear to be at this time that there was, other than Mr.
Swigart’s testimony, that we were going to present evidence.”
6
During the hearing, the court also stated that it “wasn’t intending that we
were going to have a full-fledged trial on the motion to amend.” The court
proceeded to address pending motions and concluded by stating:
But I’m going to provide both sides an opportunity to further brief the
issue of whether or not, based on the timing of this evidence whether
or not, it’s permissible for the court to consider it at this stage twenty
plus years after the original trial and whether or not the new
evidence, other than Mr. Swigart’s testimony—I’m going to set that
as a separate issue—assuming that the other allegations in the
amendment for new trial are true, would they rise to the level
justifying a new trial or not? And also because of the timing of Mr.
Swigart’s affidavit and testimony today, I want some detailed briefing
and case authority as to whether or not the timing of these
recantations and disclosures should affect the weight of Mr.
Swigart’s testimony and, again, whether or not it would rise to the
level of justifying a new trial. I’m going to give the parties thirty days
from today, which would be August 6, to file these briefs. Is there
anything else for the record before we adjourn for today?
[COUNTY ATTORNEY]: No, your Honor.
THE DEFENDANT: I maintain my objection with regards to
this hearing today. Other than that, no.
On February 4, 2019, the district court filed its ruling and order denying
Shelton’s motion for new trial.3 Shelton moved to amend and enlarge, and the
court denied the motion. Shelton filed two post-hearing motions for appointment
3 On February 4, the court also filed an order denying the following motions filed
by Shelton: (1) motion to reschedule hearing filed on July 12, 2018; (2) motion to
amend court order filed on July 23, 2018; (3) motion to stay briefing schedule filed
on July 23, 2018; (4) request for order filed on July 23, 2018; (5) motion to strike
plaintiff’s brief filed on August 15, 2018; (6) request for orders filed on August 15,
2018; (7) motion for partial judgment and application for new trial filed on
September 17, 2018; (8) motion to amend order and motion to stay filed on
September 19, 2018; (9) motion or appointment of standby counsel filed on
October 11 and 25, 2018; and (10) motion for change of venue filed on November
9, 2018. These rulings were filed seven months after the deadline for briefs
following the hearing.
7
of counsel, which the court denied. Shelton then filed a notice of appeal. We treat
Shelton’s notice of appeal as a petition for writ of certiorari.4
II. SCOPE OF REVIEW
“A writ of certiorari is limited to triggering review of the acts of an inferior
tribunal on the basis the inferior tribunal exceeded its jurisdiction or otherwise
acted illegally.” Crowell v. State Pub. Def., 845 N.W.2d 676, 682 (Iowa 2014).
4 There is a preliminary question of this court’s jurisdiction to hear the case.
First, the State argues the motion was only available to Shelton more than
two years after final judgment if he could show good cause for the delay. See Iowa
R. Crim. P. 2.24(2) (providing a motion for new trial based on “important and
material evidence in the defendant’s favor since the verdict, which the defendant
could not with reasonable diligence have discovered and produced at trial,” must
be made “within two years after final judgment, but . . . may be considered
thereafter upon a showing of good cause”). The court did not make a good-cause
finding. Nonetheless, it ruled on the motion, so its finding that good cause justified
the delay may be implied in doing so. In any case, the State failed to challenge
this ground below.
Next, both parties agree Shelton has no statutory right to appeal from denial
of a motion for new trial made after the final decision in the criminal case. See
Iowa Code § 814.6(1)(a) (2019) (providing a right of appeal exists from “[a] final
judgment of sentence” except in limited circumstances); James v. State, 479
N.W.2d 287, 290 (Iowa 1991) (holding appeal is not an “inherent or constitutional
right” (citing Boomhower v. Cerro Gordo Cnty. Bd. of Adjustment, 163 N.W.2d 75,
76 (Iowa 1969))). Shelton’s paths to appellate review are through writ of certiorari
or discretionary review. See Iowa R. App. P. 6.107; Iowa Code § 814.6(2). In an
unpublished disposition of our court, State v. Anderson, No. 14-1767, 2016 WL
3272143, at *3 (Iowa Ct. App. June 15, 2016), we considered whether a similar
matter was appealable and concluded a petition for writ of certiorari was the proper
form of review.
Now, to obtain discretionary review, Shelton has to show the district court
order raises “a question of law important to the judiciary and the profession.” Iowa
Code § 814.6(2)(e). We do not believe Shelton’s case reaches that standard. See
State v. LePon, No. 18-0777, 2019 WL 2369887, at *6 (Iowa Ct. App. June 5,
2019.)
To obtain a writ of certiorari, the party must claim the judge “exceeded the
judge’s jurisdiction or otherwise acted illegally.” Iowa R. App. P. 6.107(1)(a).
Shelton asserts various legal errors of the district court, so we exercise jurisdiction
over this matter as if the notice of appeal were a petition for writ of certiorari. We
thus consider the arguments as presented. See Anderson, 2016 WL 3272143, at
*3.
8
Once the appellate court “exercises its discretionary power to grant certiorari, we
engage in review of the action of the inferior tribunal and either sustain or annul it.”
Id. Thus, our review is for error at law.
III. ANALYSIS
A. Notice and Hearing on Motion for New Trial
Shelton contends he was denied notice and a hearing on his motion for new
trial. As one of the procedural steps in seeking a new trial, the court must “giv[e]
the parties notice and an opportunity to be heard.” Iowa R. Crim. P. 2.24(2)(a).
Shelton does not raise this as a constitutional claim, so our review is for errors at
law. Crowell, 845 N.W.2d at 682.
Notice means “[l]egal notification required by law or agreement, or imparted
by operation of law as a result of some fact” or “[t]he condition of being so notified,
whether or not actual awareness exists.” Notice, Black’s Law Dictionary (11th ed.
2019). In an analogous situation where notice and hearing is statutorily required,
our court found that when the notice did not identify a specific issue to be
considered at the hearing, the notice was deficient. Silva v. Emp. Appeal Bd., 547
N.W.2d 232, 235 (Iowa Ct. App. 1996) (finding notice was plainly deficient in its
failure to reference issue addressed at hearing). Shelton does not argue he was
not provided notice of a hearing. Rather, he argues the notice did not advise the
parties that the court would address his substantive motion—his motion for new
trial. The order indicated the court would hold a hearing. But based upon this
record, we must agree that the notice was deficient as to the subject of the hearing.
Reading the May 3 and May 9 orders together, it is evident that the district
court was not scheduling a hearing on Shelton’s motion for new trial. Both Shelton
9
and the county attorney expressed their understanding at the hearing that it was
not the hearing on Shelton’s new trial motion. The May 3 order also indicated that
the court would inquire into matters that concerned additional discovery Shelton
was seeking—whether Swigart would waive the attorney-client privilege so that
Shelton could depose Swigart’s criminal defense attorney, as well as review
privileged records and files presumably within the attorney-client privilege.5 Since
one of the purposes of the July 6 hearing was in regard to further discovery being
sought by Shelton, it is illogical that that hearing being scheduled was to be the
final hearing on the motion for new trial.
As for an opportunity to be heard, Shelton contends the court failed to hold
a hearing on his motion. He insists the July 2018 hearing was not on the merits of
his motion but held for the purpose of allowing Swigart to testify on the allegations
in his affidavit and for the court to rule on the motion to amend. This is borne out
by the May 3 and May 9 orders that set out the reason the court wanted to schedule
the hearing and the order then setting that hearing. The court held the hearing,
but neither Shelton nor the county attorney understood or accept it to be the merits
hearing on the motion for new trial. About a week afterward, Shelton filed a
“request to schedule hearing” on his new trial motion. On July 13, Shelton’s
standby counsel filed a “report” with the court asserting Shelton had not presented
evidence at the July 6 hearing as “it was not the hearing upon the motion for new
trial.” Numerous other filings by both Shelton and the county attorney following the
5Upon review of the record of the July 6 hearing, we find neither of these discovery
matters were addressed.
10
July 6 hearing indicate they did not consider that hearing to be the full hearing on
the motion for new trial. On February 4, 2019, the court denied the motion for new
trial and also all pending motions filed since the hearing—a total of eleven post-
hearing motions—including the request to schedule hearing on the motion for new
trial.
The court’s May 9 order said “[f]ollowing those arguments the court will
consider any other pending unresolved motions.” As the record shows, Shelton
was prolific in filing motions that required the court’s attention. To say that this
comment in the order included the motion for new trial would be a stretch.
Comments by the prosecutor as well as the court’s own comments at the
conclusion of the hearing indicate that the motion for new trial was not within the
scope of the July 6 hearing. Shelton identifies in his brief six additional witnesses
and evidence he would have presented for the hearing on his motion for new trial.6
The State argues that Shelton could have subpoenaed the additional
witnesses, taken the stand himself, and offered additional documents but did not.
But this argument presupposes that the order setting the hearing put Shelton on
notice that his motion for new trial was to be addressed at that hearing. As we
concluded above, those orders did not do so. Neither Shelton nor the county
attorney believed the hearing on July 6 was on the motion for new trial. Shelton’s
failure to present all of his witnesses and evidence in support of his motion for new
6 In addition to Swigart, Shelton called two witnesses at the July 6 hearing. One
was former Lucas County Deputy Herbert Muir and the other was his former
standby counsel, Michael Adams. Their testimony dealt with a discovery issue and
the motion for leave to amend and not the motion for new trial.
11
trial at the July 6 hearing cannot be faulted when the orders did not provide
adequate notice.
We conclude that the hearing on July 6 was not the hearing on Shelton’s
motion for new trial required by the rule and that the district court prematurely
issued a final ruling.7 We must sustain the writ and remand for the final Rule
2.24(2)(a) hearing on the motion for new trial. We also set aside the court’s
February 4, 2019 Ruling and Order on Shelton’s motion for new trial. We make no
determination of Shelton’s motion for new trial on the merits. Since the judge who
has been handling this case has already issued a ruling, although this does not
trigger disqualification under Iowa Court Rule 51:2.11, upon remand the judge may
consider recusal in order to avoid any appearance of impropriety under Rule
51:1.2. See Taylor v. State, 632 N.W.2d 891, 895-96 (Iowa 2001).
B. Motion to Amend Motion for New Trial
On December 11, 2017, Shelton filed a motion to amend his motion for new
trial.8 On May 3, 2018, the court ordered: “The defendant’s motion to amend his
motion for new trial will be considered on the same date of the evidentiary hearing
wherein the court will hear testimony from Ivan Eugene Swigart.” In its May 9
order, the court set the motion to amend for hearing on July 6. Following the July
6 hearing, that same date the court filed an order: “The court also directs the parties
7 Iowa Court Rule 51:2.6(A): “A judge shall accord to every person who has a legal
interest in a proceeding, or that person’s lawyer, the right to be heard according to
law.”
8 This motion is identified in the docket as “1st Amendment to Application for New
Trial.” Attached to the document were Appendix 1, 2 and 3. The State resisted
the amendment as well as Appendix 3 and filed an additional objection on July 5,
2018.
12
to address whether or not the defendant’s motion to amend his motion for new trial
should be granted.” The briefs were to be filed by August 6 and both Shelton and
the county attorney complied.
On February 4, the court filed two separate orders. One was the ruling and
order denying the motion for new trial. That ruling does not mention the motion to
amend the motion for new trial and does not contain any analysis of the issues
raised in Shelton’s motion to amend. The second order listed various motions that
the court was denying, including the specific dates those motions were filed.9 This
order does not identify the motion to amend and particularly any motion filed on
December 11, 2017, the EDMS filing date of the motion. From our thorough review
of the trial court docket, it appears to us that the court never granted or denied
Shelton’s application to amend the motion for new trial, and did not rule on the
issues raised in the proposed amendment.
In this appeal, Shelton asserts the district court abused its discretion by
denying his motion to amend his motion for new trial to add claims related to the
Muir report. We agree, if the court ruled, our review of such ruling would be for an
abuse of discretion. See Struve v. Struve, 930 N.W.2d 368, 375 (Iowa 2019).
However, we cannot find the district court ever ruled on the motion. On appeal,
our court does not consider issues not ruled upon by the trial court and not
preserved for our review. State v. Bynum, 937 N.W.2d 319, 324 (Iowa 2020)
(“Issues not raised before the district court, including constitutional issues, cannot
9 See footnote 3.
13
be raised for the first time on appeal.” (quoting State v. McCright, 569 N.W.2d 605,
607 (Iowa 1997))).
At best, it could be said that the court denied the amendment by implication
when it ruled on the motion for new trial and did not address any issues in the
proposed amendment. However, since we have set aside the ruling and remand
for compliance with Rule 2.24(2)(a), the court will be holding a full hearing on the
motion for new trial. The district court should first rule on the motion to amend. If
granted, the court may then address the merits of the issues raised by the
amendment. Thus, we do not find the court acted illegally and annul the writ on
this issue.
C. Waiver of Counsel
Under our certiorari review, we find it appropriate to address whether the
court acted illegally in only appointing Shelton standby counsel. Shelton contends
the district court failed to secure from him a valid waiver of counsel. Shortly after
he began this action, Shelton declined the assistance of counsel and proceeded
with standby counsel. In State v. LePon, under similar circumstances, we
assumed without deciding that the new-trial movant had a constitutional right to
counsel. No. 18-0777, 2019 WL 2369887, at *10 (Iowa Ct. App. June 5, 2019).
Shelton bases his claim on the statutory provisions of Iowa Code chapter 815
(2016) and Iowa Rules of Criminal Procedure 2.24 and 2.28. Rule 2.28 provides
[e]very 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.
14
The State responds that the current proceedings are not within the band of
“every stage of the proceedings” between initial appearance through appeal
because they are on a motion for new trial brought more than two years after final
judgment. Our supreme court has recognized a right to counsel in post-appeal
hearings such as challenging a restitution order or proceedings to correct an illegal
sentence. See State v. Alspach, 554 N.W.2d 882, 884 (Iowa 1996); State v.
Dudley, 766 N.W.2d 606, 618 (Iowa 2009). Here, as in LePon, we have an attack
on a judgment and conviction brought after the final appeal decision and based on
newly discovered evidence. 2019 WL 2369887, at *10. So, we will continue to
assume but not decide that there is a right to counsel in these circumstances.
We next ask whether Shelton knowingly, intelligently, and voluntarily waived
his right to counsel and conclude he did. When “relinquish[ing] . . . many of the
traditional benefits associated with the right to counsel,” the accused must do so
“knowingly and intelligently.” Faretta v. California, 422 U.S. 806, 807 (1975). And
the request made by the defendant must be clear and unequivocal. Id. The State
bears the burden of showing a valid waiver. State v. Rater, 568 N.W.2d 655, 660
(Iowa 1997). It must be “voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion, or deception.” Berghuis
v. Thompkins, 560 U.S. 370, 382 (2010). And intelligent in the sense that the
defendant “knows what he is doing and his choice is made with eyes open.” Tovar
v. Iowa, 541 U.S. 77, 88 (2004).
Shelton does not describe how his waiver was either involuntary or
unintelligent, he only complains the court did not engage in an extended colloquy
with him. He notes the supreme court has “endorsed” the use of an eleven-
15
question colloquy. See State v. Jones, No. 19-0494, 2020 WL 3264377, at *4
(Iowa Ct. App. June 17, 2020). But “the extent of a trial court’s inquiry may vary
depending on the nature of the offense and the background of the accused.” State
v. Cooley, 608 N.W.2d 9, 15 (Iowa 2000). And we require less rigorous warnings
in the plea stage of criminal proceedings than in the trial stage. See State v.
Majerus, 722 N.W.2d 179, 182 (Iowa 2006). So it makes sense that even less
rigorous warning is required in the post-judgment, -appeal, -postconviction-relief,
and -habeas context. By this time, Shelton was already well aware of the hazards
noted in any plea colloquy: “the nature of the charges, the statutory offenses
included within them, the range of allowable punishments thereunder, possible
defenses to the charges and circumstances in mitigation thereof, and all other facts
essential to a broad understanding of the whole matter.” Cooley, 608 N.W.2d at
15. He was already aware because the criminal proceeding concluded decades
before and he is currently serving life in prison.
In addition, Shelton has represented himself in these matters before. Still,
he filed a motion stating he was “acting on his own behalf,” and citing Faretta. The
court appointed counsel anyway, and Shelton responded with another motion to
“represent[] himself consistent with the principles” of Faretta. The court then
entered an order warning Shelton against self-representation but indicated if he
chose to proceed, he “must acknowledge that his waiver of counsel is both
knowing and voluntary” by signing the attached “waiver of attorney.” Shelton
refused to sign, but the form contained the typical waiver-of-counsel warnings that
would have occurred in an on-the-record waiver colloquy. Shelton declined to sign
but continued to insist on representing himself. At the next hearing, though, he
16
agreed to standby counsel and proceeded from there. The court did not engage
in any extensive on-the-record colloquy with Shelton. But Shelton would have
been aware of the hazards of self-representation through the court’s prior warning,
his prior criminal trial, PCR, and habeas proceedings and appeals. He received
and refused to sign the waiver form containing the relevant warnings. He filed
multiple motions insisting that he did not want full counsel appointed but wanted to
represent himself citing Faretta. He accepted standby counsel throughout these
proceedings. We think the duty upon the court was lessened under these
circumstances and Shelton was acting on his own free and deliberate choice and
made that decision with eyes open. Shelton did not waive counsel involuntarily or
unknowingly.
Our determination here that the court did not act illegally regarding
appointment of counsel is limited to the time period up to Shelton’s appeal, which
we are now addressing as a certiorari action. On this issue, we annul the writ. We
note that Shelton again filed a request for appointment of counsel on October 11
and 25, 2018, which the court denied by one of its orders on February 4, 2019.
Shelton filed a motion to enlarge, which the court ruled on March 1, 2019, and
explained the reason for not granting Shelton appointed counsel.10 Since we are
10 The order states:
The defendant’s motion to amend and enlarge the court order
denying appointment of trial counsel is denied. The defendant has
steadfastly declined the appointment of counsel, and he has instead
only consented to assistance from standby counsel. Defendant was
represented by standby counsel at the hearing held on July 6, 2018.
It was after that hearing that the court was contemplating whether or
not the defendant’s evidence and arguments in favor of a new trial
could possibly be sustained. After the court performed additional
research based on the record and transcripts from the defendant’s
17
remanding for further proceedings on the motion for new trial, the issue of court-
appointment of counsel is no longer moot, and the court should address the
motion.
We do not find it appropriate under our certiorari review to address any of
the other issues Shelton raises.
We sustain the writ as to the notice and hearing on Shelton’s motion for new
trial, and annul the writ on the motion to amend the motion for new trial and
appointment of counsel issues.11
WRIT SUSTAINED IN PART; ANNULLED IN PART; AND REMANDED.
trial and retrial it became apparent that the defendant’s motion would
not succeed despite his additional theories and contentions.
Consequently, the defendant’s request for yet another attorney to
assist him was moot.
11 Shelton raises additional claims in his pro se supplemental proof and reply briefs
filed July and December 2020. We are precluded from considering these
arguments because Shelton is represented. See State v. Thompson, 954 N.W.2d
402, 415 (Iowa 2021); see also Iowa Code § 814.6A (effective July 1, 2019).