                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1392
                            Filed September 13, 2017


RAY J. KRAKLIO,
     Plaintiff-Appellant,

vs.

KENT SIMMONS,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire,

Judge.



      Ray Kraklio appeals the court’s summary dismissal of his malpractice

claim against a criminal defense attorney. REVERSED AND REMANDED.




      Curtis R. Dial of the Law Office of Curtis Dial, Keokuk, for appellant.

      Kent A. Simmons, Bettendorf, pro se.




      Considered by Vaitheswaran, P.J., Mullins, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                            2


MULLINS, Judge.

       In 2014, Ray Kraklio sued one of his criminal defense attorneys, Kent

Simmons, alleging Simmons was liable for malpractice; specifically, Simmons

“took no steps to see that [Kraklio] was discharged from probation.” The district

court granted summary relief to Simmons, citing Barker v. Capotosto, 875

N.W.2d 157, 161 (Iowa 2016) (requiring defendant to achieve relief from a

conviction before advancing a legal malpractice action against former attorney).

Kraklio appeals, and we begin by setting out the underlying court proceedings.

       In November 2002, Kraklio was charged by trial information with three

class “C” felony counts of first-degree fraudulent practice—counts 4, 5, and 6.1

State v. Kraklio, No. 03-0813, 2005 WL 156803, at *1 (Iowa Ct. App. Jan. 26,

2005). Kraklio agreed to plead guilty to all three counts and pay restitution, and

the State agreed to recommend probation.             Id. at *2.   The court sentenced

Kraklio on April 17, 2003, to concurrent terms of not more than ten years,

suspended the sentences, and placed him “on five years [of] probation on each

of the three counts.” Id. The court also ordered restitution for each count. Id.

       Kraklio met with his probation officer. According to Kraklio, the officer “told

me that if I filed a Notice of Appeal, he would not supervise me while my case

was on appeal.” On May 16, 2003, Kraklio filed a pro se notice of appeal.

       In June 2003, Simmons was appointed to represent Kraklio. During the

direct appeal, Simmons secured a limited remand for discovery regarding “a

defense based on the statute of limitations.” Id. After discovery, Kraklio asserted


1
  The first three counts of the trial information were charges against Kraklio’s wife, also
for welfare fraud.
                                          3


trial counsel was ineffective by not arguing the State’s trial information was filed

outside the statutes of limitations.     Id. at *3.    In January 2005, this court

concluded Kraklio’s trial counsel “breached an essential duty” by not determining

“the possible viability of a statute of limitations defense.” Id. at *6. Turning to the

prejudice prong, we found the record inadequate to resolve the ineffectiveness

challenges to counts 4 and 5 and preserved those for possible postconviction

proceedings.    Id. at *8.    But because the record showed Kraklio was not

prejudiced by any breach of duty by trial counsel on count 6, we rejected his

ineffectiveness claim for count 6. Id. Thus, his convictions on all counts were

affirmed. Procedendo issued on April 25, 2005.

       In August 2005, Kraklio’s probation officer resumed supervision and asked

Kraklio to sign a restitution plan. Kraklio would not sign, which led to the filing of

a report of probation violation in December 2005. Simmons defended Kraklio,

and in February 2006, Kraklio signed a restitution plan.          He agreed to pay

$12,000 annually until he paid over $139,000 in restitution.

       Kraklio hired Simmons to represent him in a postconviction-relief (PCR)

action, which Simmons filed in May 2006. In 2008, rulings were issued in both a

new revocation action and the ongoing PCR action. Because Kraklio did not

follow the restitution plan, a report of probation violation was filed.        Kraklio

applied for and was appointed counsel—not Simmons. After a hearing, the court

revoked Kraklio’s probation on January 31, 2008, ordering him to prison. Two

months later, on April 3, 2008, the PCR court granted Simmons’s motion for

summary judgment and ordered Kraklio’s convictions on counts 4 and 5 vacated
                                          4


for failure to meet the relevant statutes of limitations.      Based on Simmons’s

representation, over $80,000 in restitution was voided.

       While Kraklio was still in prison as a result of his revoked probation,

Simmons prepared and successfully litigated a motion to reconsider sentence—

on March 24, 2009, the court reconsidered the prison sentence, again

suspended it, and ordered Kraklio’s supervised probation to resume. The court

instructed Kraklio to immediately contact his probation officer, stating

“supervision shall continue as originally ordered herein.”

       Kraklio resumed supervised probation and did not challenge the probation.

He again refused to pay restitution, and in December 2009, a report of violation

was filed. Another attorney, not Simmons, was appointed to represent Kraklio,

and a revocation hearing was held on February 4, 2010.              Kraklio’s original

probation officer had retired. On cross-examination by Kraklio’s attorney, his

new probation officer testified Kraklio’s original probation started in April 2003. At

the conclusion of evidence and without arguments by counsel, the district court

immediately ruled on the record that Kraklio’s “maximum period of probation for

the remaining offense for which he’s been convicted [(count 6)] has expired.

Therefore, [Kraklio] will be discharged unsuccessfully from probation.”

       In October 2014, Kraklio sued Simmons, claiming Simmons was negligent

“in failing to ensure [Kraklio] was discharged from probation,” which allegedly

should have discharged on April 17, 2008.2 See Iowa Code § 907.7(1) (2003).


2
  In the malpractice litigation, Simmons claimed he did not represent Kraklio in the
underlying criminal case after the March 2009 hearing. Disputing the revocation court’s
conclusions, Simmons also asserts: “The ruling that the probation had expired was
incorrect, but the State did not object. It appears [the court] was unaware the term of
                                            5


To establish a prima facie claim of legal malpractice, Kraklio “must ‘achieve relief

from a conviction before advancing a legal malpractice action against his former

attorney.’” Barker, 875 N.W.2d at 161 (quoting Trobaugh v. Sondag, 668 N.W.2d

577, 583 (Iowa 2003) (“[T]he approach [requiring] a defendant to achieve relief

. . . before advancing a legal malpractice action against his former attorney . . .

best preserves key principles of judicial economy and comity, including the

avoidance of multiple proceedings related to the same factual and procedural

issues, [and] respect for other statutorily created processes such as

postconviction relief . . . .”)).

        Simmons sought summary judgment, citing Barker, which declined “to

adopt proof of actual innocence as a separate prerequisite to recovery for legal

malpractice.”3 Id. at 158, 167 (“[W]e are not persuaded that an actual innocence

requirement is needed to prevent a proliferation of nuisance suits. A criminal

malpractice plaintiff still must obtain relief from the conviction.”).

        Kraklio resisted summary judgment, and arguments were advanced in an

unreported hearing. The court framed the issue: “[W]hether Kraklio has achieved


probation had been suspended while the case was on direct appeal.” Because the
district court’s ruling on summary judgment did not specifically address those claims by
Simmons, we decline to address them in the first instance.
3
  The Barker court also stated, “[T]he legislature has established immunity for appointed
counsel unless a postconviction court determines that the client’s ‘conviction resulted
from ineffective assistance of counsel.’ This is similar to the ‘relief from a conviction’
prerequisite that we recognized under the common law in Trobaugh.” 875 N.W.2d at
167 (citing Trobaugh, 668 N.W.2d at 583). In support, Barker quoted Iowa Code section
815.10(6), which provides a court-appointed attorney
         is not liable to a person represented by the attorney for damages as a
         result of a conviction in a criminal case unless the court determines in a
         postconviction proceeding or on direct appeal that the person’s conviction
         resulted from ineffective assistance of counsel, and the ineffective
         assistance of counsel is the proximate cause of the damage.
Id.
                                          6


relief from his underlying convictions to advance a legal malpractice action

against Simmons.”     Noting the irony of the fact “the only relief achieved on

Mr. Kraklio’s behalf in this case was achieved by Simmons,” the court cited

Barker, granted summary judgment to Simmons, and concluded:

              Kraklio stayed on probation after counts 4 and 5 were
       vacated because count 6 was affirmed by the court of appeals and
       never vacated postconviction. Kraklio never achieved relief from
       count 6, which was the cause of his probation, which [also] was the
       basis for his claims against Simmons. As such, because Kraklio
       has never achieved relief from his conviction as to count 6, he
       cannot advance a legal malpractice claim against Simmons.

       We review Kraklio’s appeal for correction of errors at law and view the

facts in the light most favorable to Kraklio. See id. at 161.

       On appeal, Kraklio “is not claiming that he did not commit the crimes.”

Rather, he claims the district court “erred in requiring [him to] show that he had

achieved relief from his conviction before advancing his legal malpractice claim.”

He asserts Barker and Trobaugh are factually distinguishable because those

cases dealt with claims “against attorneys who had represented [the defendants]

on criminal cases and [the defendants] claimed that the attorneys did not

properly represent them on criminal cases.”

       In reaching its decision, Barker cited approvingly to the analysis of the

Kansas Supreme Court in Mashaney v. Board of Indigents’ Defense Services,

355 P.3d 667, 687 (Kan. 2015).         We have no Iowa cases considering this

question, but the Kansas Supreme Court has discussed the “prior relief”

requirement in a sentencing context. See Garcia v. Ball, 363 P.3d 399, 408

(Kan. 2015). In Garcia, the court ruled the defendant “was required to obtain
                                            7


post-sentencing relief from the unlawful sentence” before pursuing his claim of

legal malpractice.      Id. (allowing defendant to bring malpractice suit against

attorney who had represented him in probation revocation because defendant

met the “prior relief” requirement by filing a pro se motion to correct illegal

sentence, resulting in the court setting aside an “illegal post-release supervision

term”).

          In this case, as a result of the facts developed by Kraklio’s attorney at the

2010 probation revocation hearing, the court granted Kraklio relief from

probation, declaring he was discharged from the expired probation. That relief

was granted prior to Kraklio filing this malpractice action. Although Kraklio did

not initiate the proceedings in which he obtained his relief—i.e., the probation

revocation proceedings—the factual record developed at the hearing by his

counsel quite clearly resulted in the court’s ruling finding his probation had

expired. Consequently, we determine Kraklio obtained relief prior to filing his

malpractice action.

          We must now address a question not yet addressed by an Iowa appellate

court: In a lawsuit based on alleged malpractice on sentencing issues, must there

be “prior relief” from the underlying conviction, or is “prior relief” from the

sentencing issue that forms the basis of the lawsuit enough to allow the case to

proceed? More simply: Should this court follow the reasoning of the Kansas

court in Garcia?

          The analysis of this question relates to Iowa’s view of the exoneration rule

and its reach and application. In Barker, our supreme court clarified its adoption
                                        8


of a relief rule rather than an exoneration rule. 875 N.W.2d 165-67. In both

Barker and Trobaugh, the court was considering the exoneration rule in the

context of relief from convictions, and the court articulated the rule as requiring

relief “from a conviction.” Barker, 875 N.W.2d at 161; Trobaugh, 668 N.W.2d at

583. The case before us presents a scenario not previously considered by our

supreme court.

      We could take a literal reading of Barker and Trobaugh and say “relief

from a conviction” means exactly that and apply it to this case even though the

facts here do not mirror either of those cases. We note with interest, however,

Trobaugh cited with approval the “extensive, well-reasoned policy arguments

underlying the relief-required approach” of the Kansas Supreme court in Canaan

v. Bartee, 72 P.3d 911, 916 (Kan. 2003). See Trobaugh, 668 N.W.2d at 583. In

deciding Barker, the court referenced a subsequent Kansas case, Mashaney,

355 P.3d at 687 (citing to Canaan’s “exoneration rule”), as a “decision [that]

mirrors the recommendation of the Restatement of the Law Governing Lawyers”

and found both Mashaney and the Restatement to be persuasive. Barker, 875

N.W.2d at 165-66.

      Between the times the Kansas Supreme Court decided Mashaney and the

Iowa Supreme Court decided Barker, the Kansas court decided Garcia v. Ball,

363 P.3d 399 (Kan. 2015). Garcia’s claim of legal malpractice was not related to

a wrongful conviction but to an illegal sentence. Garcia, 363 P.3d at 574. Garcia

had contacted his attorney to inform him of a mistake in the application of post-

release supervision, which was requiring him to remain incarcerated. After his
                                            9


attorney took no action, Garcia filed a pro se motion to correct an illegal

sentence. The court entered a nunc pro tunc order, resulting in Garcia’s release

from prison a few days later. Id. at 563.

       The Garcia court explained, under these facts, Garcia was not required to

prove he was actually innocent of the crimes he had committed, but Garica “was

required to obtain post-sentencing relief from the unlawful sentence.             That

‘exoneration’ occurred when the district court acknowledged that it had imposed

an illegal sentence by entering a nunc pro tunc order, setting aside the illegal

post-release supervision term.” Id. at 573.

       Garcia was decided five weeks before Barker and is not cited in Barker,

but the facts and issue addressed in Garcia would have been of little

consequence to the Barker court’s resolution.          Instead, Garcia applies the

principles to a different claim: not malpractice resulting in a conviction but

malpractice in a subsequent sentencing proceeding.            If Garcia is a logical

extension of Mashaney; then Kraklio’s case is, similarly, a logical extension of

Barker. On our reading of the policy considerations guiding the Barker decision,

we determine the same policy considerations support a finding the “prior relief”

requirement in this criminal legal malpractice action was satisfied when the

district court in the probation-revocation proceeding declared Kraklio’s probation

had ended.4

       Accordingly, we determine the district court erred in its reliance on Barker.

We reverse the grant of summary judgment and remand for further proceedings


4
  Our resolution of the legal issue on appeal is not intended to suggest any particular
final outcome of this case.
                                           10


without prejudice for the district court to consider issues not addressed in its

summary judgment ruling.5

       REVERSED AND REMANDED.

       Blane, Senior Judge, concurs; Vaitheswaran, Presiding Judge, dissents.




5
  While we have the authority to consider whether to affirm on grounds different than
those on which the district court relied, generally we do so only when those grounds
have been urged and briefed on appeal. See, e.g., State v. Pettijohn, No. 14-0830, __
N.W.2d __, __, 2017 WL 2823027, at *6 (Iowa 2017) (“[W]e affirm the district court ruling
that the seizure was constitutional based on an alternate ground urged by the State
below and fully briefed and argued by the parties on appeal.”). Alternative grounds were
not urged or briefed on the appeal in this case.
                                          11


VAITHESWARAN, Presiding Judge (dissenting).

       I respectfully dissent. I agree with the majority that Kraklio was obligated

to obtain relief as a predicate to going forward with his legal malpractice action.

See Trobaugh v. Sondag, 668 N.W.2d 577, 583 (Iowa 2003) (“[W]e conclude that

the approach that requires a defendant to achieve relief from a conviction before

advancing a legal malpractice action against his former attorney is superior in

this particular area of the law.”). I also agree in principle that the “relief” a legal

malpractice plaintiff suing a criminal lawyer must obtain may be something other

than relief from the underlying conviction, a scenario the Iowa Supreme Court

has not had reason to address.

       That said, I believe the relief a legal malpractice plaintiff must obtain has

to be based on the same grounds as alleged in the legal malpractice action. See

Restatement (Third) of the Law Governing Lawyers § 53 cmt. d (Am. Law Inst.

2000) (“As required by most jurisdictions addressing the issue, a convicted

defendant seeking damages for malpractice causing a conviction must have had

that conviction set aside when process for that relief on the grounds asserted in

the malpractice action is available.” (emphasis added)). That was the situation in

Garcia v. Ball, 363 P.3d 399, 401 (Kan. 2015).

       Garcia filed a legal malpractice action against his criminal attorney for

failing to seek correction of a district court order that required postrelease

supervision, in violation of a Kansas statute. Garcia, 363 P.3d at 402. The

postrelease supervision order entered in his probation revocation proceeding

was illegal from the moment it was entered yet, “inexplicably,” nothing was
                                         12

immediately done to correct it. Id. Eventually, Garcia filed a pro se motion to

correct the illegal sentence, which was granted. In his subsequently-filed

malpractice action, Garcia alleged that, but for his attorney’s negligence in failing

to seek correction, he would have been eligible for conditional release and would

have completed his maximum sentence five months sooner. Id.

       After discussing the exoneration rule, the Kansas Supreme Court held

Garcia “was not required to prove that he was actually innocent of either the

crime for which he was illegally sentenced to a postrelease supervision term or

the new crime that triggered his imprisonment for violating the unlawfully

imposed postrelease supervision.” Id. at 408. Instead, the court said, “Garcia

was required to obtain post-sentencing relief from the unlawful sentence.” Id. In

light of Garcia’s previously-filed motion to correct the illegal sentence and the

order granting it, the court concluded Garcia satisfied the exoneration rule. Id.

       Garcia obtained the precise relief he had unsuccessfully asked his

attorney to obtain. It made sense, then, that he would be allowed to proceed with

his malpractice claim against the attorney.       After all, the point of requiring

exoneration or relief as a predicate to filing a legal malpractice claim against a

criminal lawyer is to preliminarily distinguish a defendant’s culpability from an

attorney’s negligence. See Mashaney v. Bd. of Indigents’ Def. Servs., 355 P.3d

667, 674 (Kan. 2015) (citing Canaan v. Bartee, 72 P.3d 911, 920-21 (Kan. 2003)

(“[T]he adoption of the exoneration rule could be construed simply as a

recognition that a plaintiff has no cause of action until he or she can establish the

causation element of his or her claim. In other words, until a plaintiff has been
                                         13


exonerated, his or her criminal conduct and not his or her attorney’s negligence

is the proximate cause of his or her incarceration.”)).

       In contrast, Kraklio did not obtain the precise relief that he claims he asked

Simmons to obtain. In his legal malpractice action, Kraklio alleged his “probation

should have discharged” on April 17, 2008, and “[f]rom April 17, 2008 through

February 4, 2010 [Simmons] took no steps to see that [he] was discharged from

probation.” But, in the 2010 probation revocation proceeding, the district court

made no finding that his probation was indeed discharged on April 17, 2008.

Following the probation revocation hearing—a hearing in which Simmons was

not involved—the district court simply ruled “the defendant’s maximum period of

probation for the remaining offense for which he has been convicted has expired.

Therefore, the defendant will be discharged unsuccessfully from probation.”

Without a finding of a probation-expiration date, there is no way to discern

whether Kraklio had a colorable malpractice claim against Simmons. See Barker

v. Capostosto, 875 N.W.2d 157, 166 (Iowa 2016) (“The prerequisite that the

malpractice plaintiff obtain judicial relief from her or his conviction, which the

Restatement endorses and which we adopted in Trobaugh after ‘considering all

of the issues presented and the wealth of commentary on this issue,’ serves as

an important screen against unwarranted claims and ‘preserves key principles of

judicial economy and comity.’” (quoting Trobaugh, 668 N.W.2d at 583));

Trobaugh, 668 N.W.2d at 583 (stating the approach of requiring a legal

malpractice plaintiff to obtain relief “best preserves key principles of judicial

economy and comity, including the avoidance of multiple proceedings related to
                                         14


the same factual and procedural issues, respect for other statutorily created

processes such as postconviction relief, and the prevention of potentially

wasteful practices such as requiring a plaintiff to file a legal malpractice claim

which may never come to fruition due to one of a number of factors”).

       The district court stated Kraklio “never achieved relief from Count 6, which

was the cause of his probation, which was the basis for his claims against

Simmons.” Whether or not Kraklio had to attack his underlying conviction on

count 6 to proceed with his malpractice claim against Simmons, I believe he was

required to obtain criminal relief on the grounds he alleged in his legal

malpractice action—i.e. that his probation on count 6 expired on April 17, 2008.

He failed to obtain this relief. Accordingly, I would conclude the district court did

not err in granting summary judgment in favor of Simmons.
