IN THE COURT OF APPEALS OF IOWA
No. 13-1450
Filed October 14, 2015
G. BRIAN WEILER,
Plaintiff-Appellee,
vs.
STATE PUBLIC DEFENDER,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Paul L. Macek,
Judge.
The State Public Defender appeals the district court’s order approving the
appointment of appellate counsel, G. Brian Weiler. REVERSED.
Adam Gregg, State Public Defender, Samuel P. Langholz, former State
Public Defender, and Julie Miller, Assistant State Public Defender, for appellant.
G. Brian Weiler, Davenport, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
2
VOGEL, Presiding Judge.
The State Public Defender appeals the district court’s ruling approving the
appointment of G. Brian Weiler as a defendant’s appellate counsel. The State
Public Defender asserts Weiler’s appointment was contrary to Iowa Code section
814.11 (2011). We conclude that, because the State Appellate Defender was not
first appointed and consequently was not given the opportunity to represent the
defendant or to notify the court it was unable to handle the case, Weiler’s
appointment was contrary to section 814.11. We therefore reverse the order of
the district court.
On November 27, 2012, the Iowa District Court for Scott County appointed
Weiler to serve as appellate counsel for Keith Hansen, who had been convicted
of conspiracy to commit a nonforcible felony.1 On May 6, 2013, Weiler submitted
a compensation claim to the State Public Defender for his work on Hansen’s
appeal, which was denied on May 16, 2013, for noncompliance with Iowa Code
section 814.11. The denial stated: “It does not appear that the State Appellate
Defender was appointed first and either declined the case or withdrew.” The
State Public Defender also cited Iowa Code section 13B.4(4)(c)(2)(d) as
authority.2 In an effort to rectify the conceded procedural error, Weiler, on behalf
1
No written application appears in the record on appeal, and the briefs do not indicate
there was such an application prior to the November 27, 2012 appointment. We note
the lack of an application, or one that is not brought to the attention of the State
Appellate Defender, does not give State Appellate Defender the opportunity to accept
the case.
2
This section states the State Public Defender may deny a fee claim: “If the claimant
was appointed contrary to section 814.11 or 815.10, or the claimant failed to comply with
section 814.11, subsection 7, or section 815.10, subsection 5.” Iowa Code
§ 13B.4(4)(c)(2)(d).
3
of Hansen, filed a written application for appointment of appellate counsel on
June 4, seeking to have the appointment retroactively effective.
Weiler sought review of the State Public Defender’s denial of his claim
pursuant to his rights under Iowa Code section 13B.4(4)(d), which allows “the
claimant [to] seek review of any action or intended action denying or reducing
any claim by filing a motion with the court.” On June 27, 2013, an unreported
hearing was held in the district court. Weiler submitted a posthearing brief, as
allowed by the court, but the State Public Defender did not. On July 17, 2013,
the district court—noting the order appointing Weiler was conceivably made “in
error”—nonetheless found Weiler’s appointment valid, allowing Weiler to then
pursue payment of his compensation claim. The State Public Defender appeals
the court’s order.
We review a ruling on the validity of an attorney’s appointment, as part of
a fee-dispute action, for correction of errors at law. Iowa R. App. P. 6.907; see
also Phelps v. State Pub. Defender, 794 N.W.2d 826, 827 (Iowa Ct. App. 2010).
In the context of statutory interpretation: “If the statutory language is plain and the
meaning clear, we do not search for legislative intent beyond the express terms
of the statute.” State Pub. Defender v. Iowa Dist. Ct. for Johnson Cnty., 663
N.W.2d 413, 415 (Iowa 2003) (internal citation omitted).
Iowa Code section 814.11(2) states: “If the appeal involves an indictable
offense or denial of postconviction relief, the appointment shall be made to the
state appellate defender unless the state appellate defender notifies the court
that the state appellate defender is unable to handle the case.” Iowa Code
§ 814.11(2) (emphasis added).
4
Pursuant to this code section, the district court is required to first appoint
the State Appellate Defender—which then gives it the option to represent the
defendant on appeal—unless the State Appellate Defender “notifies the court” it
is “unable to handle the case.” See id. Thus, before another attorney may be
appointed to represent an indigent defendant, there must be compliance with the
statutory procedure. See id. This language is clear and unambiguous, and
consequently, these are the terms that govern Weiler’s application for
appointment. See State Pub. Defender, 663 N.W.2d at 415. However, this was
not the sequence that was followed before Weiler proceeded to represent
Hansen on appeal. Therefore, Weiler’s appointment was contrary to Iowa Code
section 814.11(2), and the State Public Defender had the authority to deny his
compensation claim pursuant to Iowa Code section 13B.4(4)(c)(2)(d).
As an alternative basis for allowing the appointment, the district court
reasoned, and Weiler argues on appeal, that Iowa Code section 814.11(7) grants
the district court independent authority to appoint appellate counsel for an
indigent defendant. This subsection states:
An attorney who has been retained or has agreed to represent a
person on appeal and subsequently applies to the court for
appointment to represent that person on appeal because the
person is indigent shall notify the state public defender of the
application. Upon the filing of the application, the attorney shall
provide the state public defender with a copy of any representation
agreement, and information on any moneys earned or paid to the
attorney prior to the appointment.
Iowa Code § 814.11(7).
We do not agree with Weiler’s interpretation of this subsection, as statutes
must be read in context. See Crowell v. State Pub. Defender, 845 N.W.2d 676,
5
691 (Iowa 2014). Chapter 13B of the Iowa Code sets forth the duties and
responsibilities of the State Public Defender. Regarding appeals for indigent
defendants, Iowa Code section 13B.4(1) provides: “The state public defender
shall coordinate the provision of legal representation of all indigents under arrest
or charged with a crime” in various proceedings, including “appeal[s] in criminal
cases.” With respect to the State Public Defender’s duties in criminal appeals,
section 13B.11 provides: “The state public defender shall appoint a state
appellate defender who shall represent indigents on appeal in criminal cases and
on appeal in proceedings to obtain postconviction relief when appointed to do so
by the district court in which the judgment or order was issued.”
In conformance with this statutory scheme and the State Public
Defender’s duties contained therein, Iowa Code section 814.11(2) mandates that
appointment of counsel for indigents on appeal “shall be made to the state
appellate defender,” unless the appointment is declined. We find no language in
section 814.11(7) that would give the district court independent authority to
circumvent this legislative framework. Rather, the initial appointment of the State
Appellate Defender “shall” be made prior to appointment of other counsel. See
Iowa Code § 814.11(2). Consequently, we do not agree with Weiler’s alternative
argument that his appointment is proper under Iowa Code section 814.11(7).3
3
Furthermore, even if section 814.11(7) were to be construed as a mechanism for
appointment of appellate counsel—independent of the mandates of subsection (2)—
Weiler did not follow the specific notification procedure contained therein. Specifically, it
imposes additional duties on counsel, including notifying the State Public Defender of
the application and providing “a copy of any representation agreement, and information
on any moneys earned or paid to the attorney prior to the appointment.” See Iowa Code
§ 814.11(7).
6
In concluding the appointment should nonetheless be approved, thus
paving the path for Weiler to seek compensation, the district court stated:
In this case, the District Court entered an order. That order
appointed Mr. Weiler to represent the defendant on appeal.
Counsel for the defendant is an officer of this court. He was
obligated to perform his duties pursuant to said order. Both in
keeping with and in reliance on the order, Mr. Weiler performed the
services necessary to represent the defendant. No complaint has
been made about the quality of his representation, the alacrity of
his representation, or the expense of his representation. This
defendant is entitled to a speedy resolution of his case. Granting
the public defender’s request to deny payment would inevitably
cause a delay in this appeal or result in an inequity to counsel. It is
a matter of simple equity that someone who works for someone
else should be paid a reasonable sum.
In this case it is conceivable that the original order
appointing counsel was in error. The question then becomes who
should bear the weight of that error. Should it be the defendant
who is indigent and who only wants to be well represented in the
prosecution of his appeal? Or, should it be the attorney who,
arguably, was improvidently appointed but performed his duties
according to his ethics, a specific court order and the law? Or,
should it be the State of Iowa who could have made it clear that
retroactive appointment of counsel was not an acceptable
procedure, or, at a minimum, provide the court with either a written
resistance or a brief and argument.
While we appreciate the sentiments expressed by the district court and its
effort to ameliorate the perceived harshness of the denial of compensation,
nonetheless, the disposition is contrary to statutory law. See Iowa Code
§ 13B.4(4)(d)(5) (stating that “the action of the state public defender shall be
affirmed unless the action conflicts with a statute or an administrative rule”); see
also Maghee v. State, 639 N.W.2d 28, 31 (Iowa 2002) (noting that “we are not
convinced that the inherent power to appoint counsel to assist the court in
conducting a proceeding carries with it the power to order the state to
compensate counsel thus appointed”); State Pub. Defender v. Iowa Dist. Ct. for
7
Muscatine Cnty., 594 N.W.2d 38, 40 (Iowa 1999) (holding the district court lacked
the independent authority to award fees in excess of that provided by the
statutory scheme). Thus, notwithstanding Weiler’s admirable efforts to represent
Hansen on appeal, his appointment was contrary to section 814.11, and pursuant
to section 13B.4(4)(c)(2)(d), the State Public Defender had the statutory authority
to deny Weiler’s compensation claim. Therefore, we reverse the order of the
district court.
REVERSED.