State of Iowa v. Michael Alan Fry

IN THE COURT OF APPEALS OF IOWA
No. 17-2079
Filed April 3, 2019
STATE OF IOWA,
Plaintiff-Appellee,
vs.
MICHAEL ALAN FRY,
Defendant-Appellant.
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Appeal from the Iowa District Court for Union County, John D. Lloyd, Judge.
Michael Fry appeals his judgment and sentence for possession of
methamphetamine, third or subsequent offense, as a habitual felon. AFFIRMED.
Ronald W. Kepford of Kepford Law Firm, Winterset, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney
General, for appellee.
Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, Judge.
Michael Fry appeals his judgment and sentence for possession of
methamphetamine, third or subsequent offense, as a habitual felon. He contends,
“[T]he trial court erred by failing to consider [his] request for new counsel, violating
his Sixth Amendment Right to counsel.” He seeks a remand “for a determination
as to whether there was any merit to the allegations.”
Citing State v. Tejeda, 677 N.W.2d 744, 752 (Iowa 2004), the State
responds that “[e]ven if a duty to inquire existed and the court failed to do so, the
remedy is not reversal and a remand to the district court; it is simply to preserve
the error for postconviction relief.”
In Tejeda, the defendant “argue[d] the district court abridged his right to
counsel when it failed to inquire after he alleged a breakdown in communication
with his attorney and requested substitute counsel.” 677 N.W.2d at 749. After
finding a district court duty to inquire into the claimed breakdown, the court
considered the appropriate remedy. See id. at 752. The court began by noting,
“[W]e only have [the defendant’s] bare allegation that he had some communication
problems with his attorney.” Id. The allegation, the court said, “triggered a duty to
inquire on the part of the trial court, because it might indicate a greater problem
was afoot.” Id. The court found it “appropriate” to require “a more expansive
hearing, which takes into account the health of the attorney-client relationship at
trial.” Id. The court concluded, “Because the record is inadequate for us to rule
on direct appeal, we preserve Tejeda’s claim for postconviction relief.” Id.
In reaching this conclusion, the court acknowledged the defendant did not
raise his claim under an ineffective-assistance-of-counsel rubric. Id. at 753.
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Nonetheless, the court found “the scant record” and “the availability of an adequate
remedy in postconviction” militated in favor of “affirming the judgment of conviction
without adjudicating whether [the defendant] was denied his Sixth Amendment
right to counsel” and preserving the “issue for postconviction proceedings, in which
an adequate hearing may be held and a record developed.” Id.; see also State v.
Petty, ___ N.W.2d ___, ___ (Iowa 2019).
Fry’s appeal comes to us in the same posture. The record is inadequate to
resolve his claim that he was entitled to substitute counsel either based on a
breakdown in the attorney-client relationship or because of a conflict of interest, as
he alleges. Accordingly, we affirm his judgment and sentence and preserve his
claim for possible postconviction relief.
AFFIRMED.