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IN THE SUPREME COURT OF IOWA
No. 49 / 05-0146 Filed May 25, 2007 WILLIAM HANNAN, Appellant, vs. STATE OF IOWA, Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge.

Further review from a decision by the court of appeals affirming a district court's judgment denying the defendant postconviction relief. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED.

Kent A. Simmons, Davenport, for appellant.

Thomas J. Miller, Attorney General, and Sheryl A. Soich, Assistant Attorney General, for appellee.

2 CADY, Justice. In this case we must decide whether a defendant's right to counsel under our state and federal constitutions was violated and if counsel's failure to vindicate those rights resulted in ineffective assistance of counsel. We agree with the defendant that his right to counsel was violated and that his counsel rendered ineffective assistance in failing to assert his rights. I. Background Facts and Proceedings. William Hannan was charged with second-degree sexual abuse in violation of Iowa Code section 709.3 (1995). The charge followed his arrest for an incident involving his live-in girlfriend on December 12, 1996. An assistant public defender was appointed by the district court to represent Hannan. Within a week, Hannan made a request for substitute counsel which was eventually granted. Hannan then moved to continue his trial to permit substitute counsel additional time to prepare for the trial. The court continued the trial. As the new trial date approached, Hannan again moved for substitution of counsel. He indicated, among other things, he did not have confidence in his attorney's ability or motivation, and that he had major differences in opinion with his attorney on how to handle his case. The district court granted the motion. It found Hannan established "good cause for

withdrawal." The court appointed a third court-appointed attorney. Because the trial date was just over a month away, substitute counsel moved to continue the trial so he could prepare Hannan's defense. The court set the matter for a hearing. Before the hearing, Hannan moved for another substitution of counsel and the matter was set for hearing. At the conclusion of the hearing, the following exchange took place: THE COURT I'm going to move the case once more. I'm going to appoint Denis Faber. If you can't keep Mr. Faber, you represent yourself. It is that simple. If you want to be your

3 own attorney, come in and tell us so. It is like a doctor. If you want a doctor to do surgery on your lungs and he won't go in through your feet, so you want another doctor. It is probable you won't find an attorney to do the things you want to do, so odds are you will have to do them yourself from that table, representing yourself. This is your last opportunity to have an attorney to represent you. You better stick with him. If you don't, if you try to get rid of him or push him where he has to get out on ethical grounds, you will be here all by yourself and have to be your own lawyer, Mr. Hannan. That's it. (To the Court Reporter) "Order, State versus Hannan. Three attorneys have now withdrawn from representation of Mr. Hannan. Because Mr. Harmon's withdrawal is based on an ethical ground, the Court grants it. The Court has advised Mr. Hannan in court that the Court will appoint one more attorney for him and this is the last attorney. He must either get along with this attorney and not seek to have him do anything the attorney claims will violate the code of ethics or he will end up trying this case pro se and represent himself. It is now ordered that Attorney Denis Faber is appointed to represent the Defendant at public expense. . . ." Now, you have gotten Denis Faber. He is your attorney. .... He is it. From now on, you keep him or you represent yourself. THE DEFENDANT: Well, I'm just trying to defend myself, Your Honor. THE COURT: I know it and that is how you will do it. You will defend yourself if you don't keep this lawyer. The trial was continued for another month. Five days before this new trial date, Faber filed a motion to continue the trial to a later date. In his motion, Faber admitted that he was only appointed over a month earlier and that he had not had time to review the file or even meet with the defendant. The district court held a hearing on Faber's motion, granted the motion, and continued trial to February 1998. Prior to trial, Hannan learned that Faber had never tried a criminal case, and never tried any case before a jury. Because Faber was "concerned that Defendant's right to a fair trial is compromised by this circumstance," Faber made a motion to appoint co-counsel. Before the motion was ruled on, Hannan told Faber he no longer wanted his representation and would

4 prefer to represent himself. As a result, Faber filed a motion for leave to withdraw on December 30, 1997. The district court held a hearing on these motions in January. At this hearing, the following exchange took place: THE COURT: The motion [for leave to withdraw] provides that the Defendant advised Mr. Faber that he, the Defendant, no longer wishes Mr. Faber to represent him and would prefer to represent himself. Is that true, Mr. Hannan? THE DEFENDANT: Yes, sir. THE COURT: And that's yet your feeling today? THE DEFENDANT: Yeah, I don't have the money to afford the 6, 7, $8000 the attorneys want. THE COURT: This is your fourth attorney. THE DEFENDANT: Right. THE COURT: And we had a long discussion, and my last order said that four was all we had for you, that was all we'd give you, that would prove to us satisfactorily there isn't any attorney here that is going to be able to do what you want them to do. THE DEFENDANT: I'm not happy with court-appointed attorneys. THE COURT: Huh? THE DEFENDANT: I'm not satisfied with courtappointed attorneys. THE COURT: So you're either going to hire one or represent yourself? THE DEFENDANT: That's correct. THE COURT: Okay. That being the case, Mr. Faber, I'm going to grant your motion for leave to withdraw as counsel in the case. After this exchange the court explained to Faber that it was going to reappoint him to "sit at counsel table during the trial." The court then further explained what it expected of Faber as stand-by counsel. Hannan then asked several questions of the court concerning his selfrepresentation. He inquired about filing documents, jury selection, lesser included offenses, motions and witnesses, expenses, plea bargaining, and the possible verdicts that could be rendered. In response, the court also gave Hannan a brief overview of the trial procedures. Following the hearing, the court sustained the motion to withdraw and overruled the motion to appoint co-counsel. The order made it clear

5 that Hannan was proceeding pro se, and that Faber was "to serve strictly as a resource to the Defendant in terms of answering Defendant's questions." Trial commenced with Hannan representing himself. Faber was

present as stand-by counsel. At Hannan's request, Faber conducted jury selection and freely participated in arguing Hannan's pretrial motions. Hannan gave the opening and closing statements, and examined all witnesses. The jury found Hannan guilty of second-degree sexual abuse. He was sentenced to serve a term of imprisonment not to exceed twenty-five years. Pursuant to section 902.12, Hannan was required to serve at least eightyfive percent of his sentence. Hannan filed a pro se motion for new trial and a pro se motion in arrest of judgment. Both motions were based on a typographical error in the verdict form and evidence excluded at trial. These motions were denied, and Hannan appealed. The same claims in support of the posttrial motions were raised as error on appeal. Faber continued to represent Hannan on appeal. The court of

appeals affirmed the judgment and sentence. It held the district court did not abuse its discretion in excluding certain items of evidence, and the error in the verdict form did not prejudice the defendant. Hannan filed a pro se application for postconviction relief (PCR). One of the reasons advanced in his application was an "Improper waiver of right to counsel," in which Hannan stated there was "no record of where the defendant had knowingly, intelligently, and voluntarily waived his rights, to proceed pro se." The PCR court appointed an attorney to represent

Hannan. The attorney filed an amended application in April of 2003. The amended application did not assert an improper waiver of counsel due to procedural errors, although it did assert claims of ineffective assistance of

6 trial and appellate counsel. The claims of ineffective assistance of counsel, however, did not assert counsel was ineffective for failing to argue that an improper waiver of counsel occurred. The PCR court eventually denied Hannan relief, finding he had not shown how Faber had failed in performing an essential duty. Hannan appealed the decision of the PCR court and retained Kent Simmons to represent him. Simmons included the improper waiver of counsel as a ground for his ineffective-assistance-of-counsel claim, and moved for a limited remand to develop the issue. We denied the motion, but granted his request to expand the record on appeal to include the original trial proceedings. The court of appeals affirmed the decision of the PCR court without a decision under Iowa Rule of Appellate Procedure 6.24(1), (4). Hannan then petitioned this court for rehearing. We granted Hannan's petition for further review. II. Issues. "On further review, we can review any or all of the issues raised on appeal or limit our review to just those issues brought to our attention by the application for further review." Anderson v. State, 692 N.W.2d 360, 363 (Iowa 2005). In his application for further review, Hannan argues his trial, appellate, and postconviction counsel were ineffective in failing to challenge the adequacy of the defendant's waiver of counsel. He also argues his trial, appellate, and postconviction counsel were ineffective in failing to challenge the denial of his request to reinstate counsel. Finally, Hannan argues his trial, appellate, and postconviction counsel were ineffective in failing to challenge the ineffective assistance of the defendant's stand-by counsel at his original criminal trial. We choose to address Hannan's first argument.

7 III. Standard of Review and Applicable Law. We review claims of ineffective assistance of counsel de novo. State v. Williams, 574 N.W.2d 293, 300 (Iowa 1998). "To prove ineffective assistance of counsel, the appellant must show that (1) counsel failed to perform an essential duty, and (2) prejudice resulted." State v. Lane, 726 N.W.2d 371, 393 (Iowa 2007). There is a presumption the attorney acted competently, and prejudice will not be found unless there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998). IV. Preservation of Error. The State argues Hannan failed to preserve error because Iowa Code section 814.7 (2005) does not apply in this case, and Hannan failed to meet the requirements to preserve error in existence prior to the enactment of section 814.7. 1 Section 814.7 allows a defendant to raise ineffective-

assistance-of-counsel claims for the first time in PCR proceedings. Iowa Code

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