Kime v. Brewer, 182 N.W.2d 154

Kime v. Brewer

182 N.W.2d 154

Iowa

1970

Check Treatment

*1 KIME, Appellant, Monroe John BREWER, State Warden Iowa

Lou V. Appellee. Pentientiary,

No. 54179. of Iowa. 15, 1970.

Dec.

“1) petitioner That being held in the Iowa State Penitentiary at Fort Madi- son, Iowa, by virtue of a mittimus directed to the warden of the penitentiary, follow- ing entry of judgment and imposition George Wright Napier, Napier E. of & April 5, sentence on Madison, Wright, appellant. Fort for “2) petitioner That the was at all times Fenton, Ray County Atty., A. and James represented competent counsel who dis- McKeon, D. County Atty., Asst. Des charged obligation his in a conscientious Moines, appellee. and meaningful manner; “3) petitioner’s That gave counsel MOORE, Chief Justice. sideration to the defenses available to the question presented are here We petitioner at his trial rеjected the alibi denying in court erred whether the trial defense after carefully investigating the of habeas prisoner’s application for writ facts as petitioner’s to the location at the did not grounds he corpus based on the time of the offense; commission of the during counsel assistance of have effeсtive “4) petitioner’s That counsel did not ad- convic- trial and immediately his vise him that he his convic- tion. tion, but petitioner advised an would be charged him; of no help Kime was Monroe John aggravation. burglary with the crime of “5) That petitioner has failed to es- self-employed by his represented He was tablish by burden proof, Scalise, at his first attorney, Lawrence existence defects in a which resulted January, trial in which make his imprisonment illegal.” being without hung jury. Defendant Scalise, funds, experienced trial Petitioner Kime appealed has from the General, Attorney trial and former Iowa court’s order denying requested counsel pointed to continue defense writ. He asserts the trial court erred in March, finding in which re- the second (1) his counsel’s failure to submit 5, guilty April sulted in a verdict. On alibi evidence did not constitute denial of County was sentenced in Polk 1968 Kime effective assistance of counsel and (2) Holliday Judge C. counsel District Court Gibson had not advised Kime an years in the his a term not to excеed 50 conviction would be made. Penitentiary at Fort Madison. Iowa State following applicable I. The legal princi- ples prisoner corpus habeas cases under 14, appli- October 1969 Kime filed On chapter supported by many cited au- corpus under cation for a writ of habeas thorities, recognized are in State v. Ken- provisions chapter 1966. Code dall, 909, 910, 911, 167 N.W.2d provi- are not here concerned with the We Bennett, Scalf 398-400, 260 Iowa chapter Acts of the sions 63rd G. 860, 863, 147 N.W.2d 864. A., post-convic- as the uniform referred to procedure tion act which did become findings trial court’s in a ha- July effective until 1970. corpus involving prison beas action а state er are binding upon supported us if by sub A evidentiary hearing full held stantial evidence. application petition Kime’s for a writ of corpus after which the trial court carefully pre- December 1969 filed a purpose not the of a habeas pared applicable review of the law corpus proсeeding guilt to determine the findings these : of fact prisoner innocence of the of the crime he conferred upon the errors Scalise testified with Kime pass

charged, nor to upon pass prior times to the first trial and trial, retry facts and several nor to to sustain that Kime first indicated he could sufficiency of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the evidence was in at the time of of- jurisdic- there was no Arkansas charge. Unless m, fense, April court, about three a. judgment not void tion in the *3 employed by investigator who de- may collaterally attacked ha- Scalise not and termined Kime not in Arkansas and corpus. beas had Kime not remained at the Edison may effective counsel con Lack of by home as later claimed Street him. defect reviewable stitute a felony Kime had been convicted of a which corpus. using stated caused him to Scalise hesitate him aas witness. provisions of Amendment Under section 1 of Amendment to the Consti- accomplice victim, alleged An and the a tution of the and Article Ponxs, during Mr. who was shot the bur- and of the sections 9 Constitution glary, testified part both Kime took in the accused, Kime, was entitled to burglary. On the first trial Mrs. Ponxs effective assistance of counsel and to re- identify participant, did Kime a not ceive a fair trial. Mr. Scalise testified that after in- full theory it vestigation was his of defense to “Effеctive” does not mean success attempt identify attack the witnesses’ conscientious, meaningful ful. It means present Kime and not an albi defense. representation wherein the is accused ad he compro- Scalise stated he felt had been honest, of his rights vised and learned and mised had what Kime told him about a given оpportu able counsel is a reasonable possible alibi it strategy and was his not to nity to perform assigned the task to him. offer evidence thereof. tactics, mis- Improvident strategy, bad cross-examination, stated he inexperience do Scalise On take, carelessness use of time consider the assistancе not at ineffective necessarily amount to conversations with where a result of his cases alibi as Only extreme in he not allow a and that would his client a whole it is the trial as shown crime at anyone else to commit a a Kime or will mockery justice a farce and inadequacy time of trial. aside because of be set viction of counsel. Holliday sentencing Judge Prior to record, you now for the “I will ask said: appoint presumed a court serv- (Scalise) with his you are satisfied indigent ed acts counsel for an defendant you your in behalf ices his defense for and properly. Kime answered during this last trial?” you “Right”. asked: “Do He was further petition proof The burden of is your representa- any complaints as have ineffective to establish his counsel was attorney ?” by' tion the Court he fair did not have a trial. “no”. Defendant answered told II. Petitioner testified record, part only of which we have prior that at the time the Scalise out, supra, clearly the trial set establishеs committed at a movie crime was he was findings court’s of fact numbered girl with his with liv friend whom was Pe- supported by are substantial evidence. they ing and later were another wom assigned error untenable. titioner’s first is an at her home S.E. Edison Street Immediately, sentencing they III. Des Moines where remained the rest my duty Holliday night. Judge stated: “It they The womеn testified appeal to you you tell would have testified. have so Court of Iowa from this trial The trial court’s finding that Scal sentence. this ise “did not advise (Kime) him that he his conviction, but advised “In order have that perfected petitioner that an appeal would be of no you to cause upon have to be served hеlp to him” has substantial support in the County Attorney county of this record. We are bound it. file a return of service with of this Clerk days within 60 775.5, Section Code provi- makes date, your right lose appointment sions for of defense counsel because the service of the notice of indigent defendants. provides It “ jurisdictional, and that has tо be done. * * * part Such need not follow the case into another county or into provide yourself are “If unable to *4 the supreme court unless so directed counsel, unable, financially for court at the request defendant, of the preparation of employment of counsel and n : n n » proceedings, and and оf record all necessary appeal, what is made request Kime no Judge Holliday to would be to furnish it for you.” appointment appeal of an counsel. He Before the trial court in the case at bar first asserted appeal denial his to petitioner testified that before and after petition in his corpus, writ habeas sentencing Scalise “indicated” he was approximately 18 months after his sentenc- going appeal. to file notice of ing. mother, Kime, petitioner’s Mrs. Johanne assigned petition- his second error Under to asked file an

testified Scalise “She Rodriquez United v. er cites and relies on any good. do peal аnd he said it wouldn’t 23 L. phone called on also him She 340; California, v. Anders 386 Ed.2d it wouldn’t asked and he said do him S.Ct. 87 good.” Brewer, Cir., Blanchard v. 8 429 F.2d clearly factually distinguishable Each is immediately after testified that Scalise Rodriquez had been the case at bar. sentencing upset Kime was because appeal be tak- told his counsel an would judge request his he be sent to the refused give attempt or a notice en and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍reformatory men’s at Anamosa rather than open was Anders appeal in court made. In penitentiary men’s at which time Kime did attorney appointed was appeal?” asked “How about an Scalise a letter later filed give thereоf and notice fruitless, “I think answered: it is won’t In “no merit found”. Blanchard stating any good.” defendant an assured prop- perfected give but not testimony Scalise’s as abstracted in the appeal. er record said includes: it was his “Scalise judgment that it would have been a frivo- record our satisfaction appeal.

lous shows He could not then and cannot capa- diligently, conscientiously and Scalise now any points think of to be raised as petition- bly represented petitioner and that appeal points. valid deni- failed meet his burden to “Scalise said that he talked Mrs. al of effective counsel. Kime in the courtroom and on the telе- phone two or three times appeal. about an Affirmed. He recalls her calling him twice and it as she has testified. Scalise told her that All except concur RAWLINGS Justices

he thought an appeal just BECKER, fruitless.” JJ., who dissent.

158 States, supra, F.2d Wil (dissenting).

RAWLINGS, Justice States, Cir., 1968, 402 liams United v. reasoning agree with the Being unable ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍548; Wainwright Simpson, 5 F.2d majority opinion, III in Division Cir., 1966, Distinctions 360 F.2d 307. reached, respectfully dissent. I and result gross negligence or simple between counsel, part of or between retained I to Blanchard v. refer At the outset counsel, or or between active Brewer, F.2d 89. passive negligence or part on the sen- convicted had been Blanchard state are immaterial. counsel’s Whether dismissed thereafter court This tenced. gross conduct is classified excusa attorney failed the trial because negligence ble or whether the state’s ac up- In opposing serve notice tivity passive classified as active is request for a holding petitioner’s irrelevant, since appellee in either сase out-of-time granted an writ, unless he has been denied complete effective and first observed the federal appellate review through no fault of his page 90: Compare, own. Shipman Gladden, Or., 1969, 453 (notice P.2d 921 erred the court contends “Iowa served on opposing counsel but time as- effective denied appellee was holding ly filed) with Williams v. United *5 of counsel’s because of counsel sistance supra, 402 (where F.2d 548 counsel did re- notice the comply failure not even appellate commence proceed State that 793.4 quirements § ings). Shipman, In his de- way contributed in no Iowa of Oregon page stated at 925 of 453 P. Iowа specifically, More nial of 2d: on the misconduct only gross maintains com- counsel, aas such retained part of “ perform simple failure to ‘The e. an to commence plete failure procedure timely filing a ap- notice of 1969, Cir., States, 5 United g., Atilus v. peal is not the “effective” assistance of coercion 694, or affirmative 406 F.2d required counsel by Powell v. Alabama forcing man a part of the state 55, 45, 53 158], 77 L.Ed. S.Ct. [287 Ford g., e. right of abandon diligent nor advocacy by 1965, 137, 138 N.W.2d State, 258 Iowa v. 738, v. California Anders [386 of due denial an effective constitute S.Ct. failure The 493]. defend- requiring criminal by a process timely ap- counsel to file a notice of appellate review. relinquish ant to peal requested after he has been or but counsel’s erroneous argued that agreed to is incompetence do so as a Iowa’s attempted service good-faith matter of proc- law and denial of due suffi- acquiescence are not mere therein equally ess. This is true whеther process of due basis violation cient negligent appointed counsel has been situation.” in this factual The retained. discrimination” “invidious is not between rich who can hire guid- following pertinent is this And id. counsel and poor for whom counsel ing statement: appointed, must be but between those failure circumstances “Under сertain represented who are by competent coun- is denial of effec perfect appeal sel and those whose counsel to be Cir., Gavin, 1 counsel. Leventhal v. tive grossly incompetent negli- or culpably See, also, Entsmin 396 F.2d ” gent.’ ger 386 U.S. v. Indeed, Also, by Atilus failure 18 L.Ed.2d 501. defendant, claiming his attor- appointed 406 F.2d retained counsel com give ney erroneously failed simple steps appeal is mence appellate delayed sought benefit of a process. peal, blatant denial of due Atilus v. course, hearing Attendant was held at review. “Of this time the time for questions filing appeal which time asked and expired. these were notice of had lawyer: answers given defendant’s problem “Our here arises from the “ any ‘You recollect that had fact that the status the relationship versation with whatsoever about between Atilus and his trial counsel [Atilus] question appealing ? his case difficult to determine at the time when of appeal expired. The “ ‘A. I think he indicated at the time had not asked the court to be relieved trial that he wanted to any further representation of Ati- and was appealing. interested in lus; he had not expressly ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍notified his “ client that he was withdrawing ‘Q. it was from the Is it not true case; nor had he notified he in- him that sentenced that after he was court would not carry aрpellant’s out expressed or that dicated that he wanted to * * wish to file a notice of appeal if asked he could ? “ Then, in granting requested relief I ‘A. believe that true. Atilus, the said, court in part, pages at “ ‘Q. appeal for You never filed 696-698: him, ? “This court has dealt repeatedly with “ No, we had some ‘A. but extensive problem presented when either court correspondence regarding appeal. Do privately counsel or engaged ” you want go me to into ?’ charged, counsel is following conviction sentence, with having pro- failed then page found 696: vide the effective aid to which the Su- was a correspondence “Thе first such preme Court, beginning with *6 Johnson 26, 1964, aft- days six dated March letter Zerbst (1938), 304 U.S. 58 S.Ct. sen- appellant’s conviction 1019,82 1461 L.Ed. has every said feder- made no word was In this letter tence. ally tried person accused is entitled. lawyer stat- concerning appeal. The begin “We with several princi- basic to see not able sorry ed T am that I was рles. The first of every these is Rai- that to going before back you left person convicted has an absolute can to to that I everything ford. I will do appeal. Coppedge v. United to everything do get you parole, and to 369 82 S.Ct. 8 L.Ed.2d 21.” you are take care of while business there.’ enclosed (emphasis power added.) attorney which letter “ ^[*] ^[*] ^[*] lawyer requested event, that sign Atilus undisputed so “In evidence lawyer might collect his fee. The in this record indicates that counsel who appeal expired time to on March 30th. highest duty owed the man which one response e., No was made Atilus another, lawyer owes i. that request sign that power client, he thе broad discharge obligation. failed to that attorney contained in the simple letter of March He step failed take the of fil- However, in subsequent ing 26th. letters of a notice appeal, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍although request- 8th, April 2nd April so, lawyer re- ed do and failed to notify his cli- peated request that power of at- ent taking was not stеp this so n torney signed. Finally in the letter the latter protect could his interests 8th, April dated enclosed a either calling on the court for protec- power second sign tion under him to the Federal Rules as an indi- said, help you gent, T cannot until requesting the clerk to enter the this.’ on his behalf while he conduct counsel. Such additional

sought that the requirement

clearly violates aid’ 'effective afforded

accused proceedings.” stage of

this vital dissent, support of this

Additionally, in Blanchard, su- cited the cases