                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0984
                             Filed August 16, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

MICHAEL LAMAR WELLS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, William P. Kelly,

Judge.



      Michael Wells appeals the district court’s denial of his motion to correct an

illegal sentence and denial of his application for court-appointed counsel. WRIT

ANNULLED.




      Mark C. Smith, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Blane, S.J.

takes no part.
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MULLINS, Judge.

       In 2012, Michael Wells pled guilty to one count of attempted murder, two

counts of willful injury causing serious injury, and one count of possession of a

firearm as a felon. He was sentenced to consecutive terms of imprisonment for

all four counts, for a total sentence of fifty years. Wells did not directly appeal his

conviction, but in 2014, he filed a pro se motion to correct an illegal sentence,

asserting the two willful injury counts should merge with the attempted murder

conviction. The district court appointed counsel to represent Wells upon Wells’s

application. The State resisted the motion, asserting the case of State v. Clark,

475 N.W.2d 193, 193–96 (Iowa 1991), held willful injury was not a lesser-

included offense of attempted murder so the counts do not merge. On the day of

the hearing on the motion, Wells, through appointed counsel, withdrew his

motion, and the court conducted a colloquy with Wells to determine the

withdrawal of the motion was knowing and voluntary.

       On March 15, 2016, Wells filed a second pro se motion to correct an

illegal sentence that was identical to the first motion. He again applied for the

appointment of counsel. On May 31, 2016, the district court denied both the

motion to correct an illegal sentence, citing Clark, 475 N.W.2d at 196, and denied

the application for the appointment of counsel, concluding a motion to correct an

illegal sentence is not a “critical stage” of the trial proceeding.

       Wells filed a notice of appeal,1 and the district court appointed appellate

counsel to represent him on appeal. Wells asserts on appeal the district court


1
 As an initial matter, the State asserts Wells did not have a right to appeal the district
court’s denial of his motion to correct an illegal sentence and any review of the district
                                            3


should have appointed him counsel to represent him on his motion to correct an

illegal sentence and the court should not have denied his motion without a

hearing.

       I.      Appointment of Counsel

       Wells asserts he has a statutory right to the appointment of counsel for his

motion to correct an illegal sentence. In support of his position, he cites Iowa

Rule of Criminal Procedure 2.28(1) and Iowa Code section 815.10(1) (2016).

Rule 2.28(1) provides, in part:

             Every defendant, who is an indigent person as defined in
       Iowa Code section 815.9, is entitled to have counsel appointed to
       represent the defendant at every stage of the proceedings from the
       defendant’s initial appearance before the magistrate or the court
       through appeal, including probation revocation hearings, unless the
       defendant waives such appointment.

Likewise, section 815.10(1) provides, in part:

              The court, for cause and upon its own motion or upon
       application by an indigent person or a public defender, shall appoint
       the state public defender’s designee pursuant to section 13B.4 to
       represent an indigent person at any stage of the criminal . . .
       proceedings or on appeal of any criminal . . . action in which the
       indigent person is entitled to legal assistance at public expense.

Wells claims his motion to correct an illegal sentence is necessarily a stage of

the “criminal proceeding.”




court’s decision in this case must come by way of a petition for writ of certiorari or
application for discretionary review. We agree the proper form of review of a district
court’s ruling on a motion to correct an illegal sentence is by certiorari or discretionary
review. See State v. Propps, 897 N.W.2d 91, 97 (Iowa 2017). However, Wells’s failure
to seek the proper form of review is not fatal to his claim. “[I]f a case is initiated by a
notice of appeal, but another form of review is proper, we may choose to proceed as
though the proper form of review was requested by the defendant rather than dismiss
the action.” Id. (citing Iowa R. App. P. 6.108). We treat Wells’s notice of appeal and
brief as a petition for writ of certiorari, and we grant the writ.
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       Rule 2.28(1) notes an indigent defendant is entitled to appointed counsel

at every stage of the criminal proceeding “from the defendant’s initial appearance

before the magistrate or the court through appeal.” (Emphasis added.) A motion

to correct an illegal sentence is not a “stage” between the initial appearance and

appeal. Such a motion can only come after judgment and sentence has been

entered, and in this case, the motion was filed four years after the appeal period

had expired. Section 815.10(1) is similarly worded to permit the appointment of

counsel at any stage of the proceeding or appeal.           It does not provide for

appointment of counsel for post-appeal period motion practice.

       Wells also asserts he is constitutionally entitled to appointed counsel

under the Federal and Iowa Constitutions. See U.S. Const. amend. VI (“In all

criminal prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.”); Iowa Const. art. I, §10 (“In all criminal

prosecutions, . . . the accused shall have a right . . . to have the assistance of

counsel.”). The State asserts Wells did not preserve error on his constitutional

claims.    Assuming, without deciding such claims are preserved, we have

previously held there is no constitutional right to have counsel appointed for a

motion to correct an illegal sentence. See State v. Cohrs, No. 14-2110, 2016 WL

146526, at *2–3 (Iowa Ct. App. Jan. 13, 2016). We see no reason to depart from

that position in this case.

       Wells next contends another provision of article I, section 10 of the Iowa

Constitution confers a right to the appointment of counsel when it states: “In all

criminal prosecutions, and in cases involving the life, or liberty of an individual the

accused shall have a right . . . to have the assistance of counsel.” (Emphasis
                                           5


added.) Because his motion pertains to his liberty interest in not being confined

to prison longer than statutorily authorized, he asserts he is entitled to counsel for

his motion to correct an illegal sentence.

       However, the “cases involving the life, or liberty of an individual” clause

was added to the constitution in 1857 in response to the Fugitive Slave Act to

give escaped slaves the right to a trial in Iowa. See In re Johnson, 257 N.W.2d

47, 54 (Iowa 1977) (“No one can doubt from the convention record that the

disputed language was added to art. I [section] 10 in an effort to nullify the

Fugitive Slave Act by giving persons accused as escaped slaves the right to jury

trial in Iowa.”). But see State v. Young, 863 N.W.2d 249, 279 (Iowa 2015) (“But

the ‘cases’ language of article I, section 10 has broader application than the

immediate problem it was designed to ameliorate.            While it may be that the

‘cases’ language amounts to constitutional support for a right to counsel in

qualifying civil contexts, it also strongly suggests that if a right to counsel exists in

civil cases in which ‘liberty’ is involved, it also must exist in criminal prosecutions

in which ‘liberty’ is also at stake.”). At this point, the “cases” language in article I,

section 10 has not been extended to confer a state constitutional right to counsel

for motions to correct an illegal sentence, and we decline to do so here.

       Finally, Wells claims he is constitutionally entitled to the appointment of

counsel based on due process and fundamental fairness. Wells concedes that

appointment of counsel under this argument is done on a case-by-case basis

where the accused makes a “colorable” claim and the reasons for the claim are

“complex or otherwise difficult to develop or present.” See Pfister v. Iowa Dist.

Ct., 688 N.W.2d 790, 795–96 (Iowa 2004) (“[W]hen the circumstances of a
                                           6

particular case meet the standard set forth in Gagnon [v. Scarpelli, 411 U.S. 778

(1973)], due process requires that counsel be appointed to represent indigent

parolees.”). Assuming without deciding that due process under the Federal or

Iowa Constitutions would permit the appointment of counsel when a defendant

makes a “colorable” claim that is “complex” or “difficult to develop or present” in a

motion to correct an illegal sentence, no such complex colorable claim existed

here.

        Wells’s claim is based on his belief that the double jeopardy clause

requires the willful injury convictions to merge into the attempted murder

conviction.2   This merger argument has been rejected by the Iowa Supreme

Court in Clark, 475 N.W.2d at 195–96:

        “[W]e see nothing to prevent the State from charging and convicting
        an individual for both attempting to murder and, at the same time,
        willfully injuring a victim. Application of the legal elements test
        plainly demonstrates that willful injury is not a lesser-included
        offense of attempted murder. No reason appears to depart from
        the legal elements test in the present case just because both
        offenses arise out of the same course of conduct by the defendant.
        Neither the opinions of the Supreme Court nor pertinent Iowa
        statutory law compels a contrary result in the context of a single
        criminal prosecution. No violation of the defendant’s claimed rights
        under the double jeopardy clause occurred.

In light of the controlling precedent on the issue Wells raised in his motion to

correct an illegal sentence, we conclude it was not an abuse of discretion for the

district court to deny Wells the assistance of counsel for his motion.
2
  While Wells cited the case of State v. Velez, in his motion to correct an illegal
sentence, he made no claim the two willful injury convictions violated the Double
Jeopardy Clause as a double punishment for the same offense. 829 N.W.2d 572, 584
(Iowa 2013) (finding no Double Jeopardy violation based on the defendant’s guilty pleas
to two counts of the same offense); see also State v. Love, 858 N.W.2d 721, 726 (Iowa
2015) (Mansfield, J., concurring) (“When the instructions permit the jury to convict the
defendant twice of the same offense (or of an offense and a lesser included offense)
based on the same conduct, and two guilty verdicts are returned, merger must follow.”).
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       II.     Hearing

       Wells also faults the district court for summarily rejecting his motion

without providing him a hearing. Wells contends there were complex legal and

factual issues that required an evidentiary hearing. As noted above, in light of

the controlling precedent that willful injury is not a lesser-included offense of

attempted murder, see Clark, 475 N.W.2d at 195–96, there is no indication a

hearing, evidentiary or otherwise, would have been of any benefit to Wells. 3 See

State v. Poulson, No. 11-1340, 2012 WL 1864790, at *2 (Iowa Ct. App. May 23,

2012) (denying claim for a hearing on a motion to correct an illegal sentence

where defendant “has not indicated what, if anything, would have been gained by

a hearing on his motion”); see also State v. Gonzales, 718 N.W.2d 304, 309

(Iowa 2006) (holding that to conduct an evidentiary hearing in response to a

defendant’s motion to dismiss the trial information “only wastes valuable judicial

resources that the court can use for other matters requiring such a hearing”).

Because Wells’s motion, based on the assertion that his willful injury convictions

should merge with his attempted murder conviction as a lesser-included offense,

was strictly a legal—rather than evidentiary—determination, which was resolved

by controlling precedent, we conclude the district court was not required to hold a

hearing on Wells’s motion to correct an illegal sentence.

       WRIT ANNULLED.



3
  In his appellate brief, Wells notes his motion cited the cases of Velez, 829 N.W.2d at
584, and State v. Ross, 845 N.W.2d 692, 706 (Iowa 2014), in support of his motion and
those cases involve complex factual merger issues. However, both of those cases
pertain to convictions for multiple counts of the same offense, not the merger of the
conviction for one offense into the conviction for a separate offense. In his motion, Wells
did not challenge the legality of his sentence for the two counts of willful injury.
