                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0616
                            Filed November 26, 2014


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHRISTOPHER M. KELLY,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris, Judge.



      Christopher Kelly appeals his conviction for credit card forgery as an

habitual offender. AFFIRMED.



      Mark C. Smith, State Appellate Defender, and Rachel C. Regenold,

Assistant Appellate Defender, for appellant.

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

General, Thomas J. Ferguson, County Attorney, and Brian Williams, Assistant

County Attorney, for appellee.



      Considered by Vogel, P.J., and Vaitheswaran and Potterfield, JJ.
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VOGEL, P.J.

      Christopher Kelly appeals his conviction arising out of his guilty plea to

credit card forgery as an habitual offender, in violation of Iowa Code sections

715A.6, 902.8, and 902.9 (2011).      Kelly asserts the district court abused its

discretion when it denied his motion to substitute counsel and motion in arrest of

judgment. We conclude the court properly denied Kelly’s motion to substitute

and, due to the evidence demonstrating Kelly’s plea was entered into voluntarily,

the court also correctly denied Kelly’s motion in arrest of judgment.

Consequently, we affirm.

I. Factual and Procedural Background

      On December 13, 2012, Kelly was charged with credit card forgery, a

count that was amended on August 28, 2013, to include the habitual offender

status, in violation of Iowa Code sections 715A.6, 902.8, and 902.9.       A plea

hearing was set for May 20, 2013, for which Kelly failed to appear. Another

hearing was scheduled for July 29, 2013, at which Kelly also failed to appear. A

warrant was issued for his arrest.

      On August 28, 2013, Kelly entered a guilty plea to the charge of credit

card forgery as an habitual offender, with the State’s agreement to lift the

warrant. Kelly filed a motion in arrest of judgment on October 7, 2013, which was

resisted by the State. A sentencing date was set for November 4, 2013, for

which Kelly again failed to appear, and after which an arrest warrant was again

issued. The sentencing date was reset to April 7, 2014, and Kelly appeared with

counsel, arguing in support of his motion in arrest of judgment and his March 26,

2014 pro se motion for substitute counsel. The district court denied both motions
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and sentenced Kelly to a term of incarceration not to exceed fifteen years. Kelly

appeals.

II. Motion to Substitute Counsel

       Kelly first claims the district court erred in summarily denying his motion to

substitute counsel.    Specifically, Kelly alleges the court should have made a

more detailed record regarding his asserted breakdown in the attorney-client

relationship.

       We review the grant or denial of a motion to substitute counsel for an

abuse of discretion. State v. Lopez, 633 N.W.2d 774, 778 (Iowa 2001). To

establish the court abused its discretion, Kelly must show the court based its

decision “on grounds or for reasons clearly untenable or to an extent clearly

unreasonable.” Id.

       The Sixth Amendment right to counsel does not guarantee a “meaningful

relationship between an accused and his counsel.” Id. (quoting Morris v. Slappy,

461 U.S. 1, 14 (1983)).      To justify the appointment of substitute counsel, a

defendant must show sufficient cause, which includes a conflict of interest,

irreconcilable conflict, or a complete breakdown in communication between

counsel and the defendant. Id. at 778–79.

       In deciding whether to grant a request for substitute counsel, the district

court must balance “the defendant’s right to counsel of his choice and the

public’s interest in the prompt and efficient administration of justice.” Id. at 779

(internal citation omitted). The court should not allow “last-minute requests to

substitute counsel . . . to become a tactic for delay.” Id. (internal citation omitted).
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      Ordinarily, a defendant must show prejudice when the court denies a

motion for substitute counsel “unless [the defendant] has been denied counsel or

counsel has a conflict of interest.” Id. Because Kelly does not assert either

ground, he must show prejudice. See id.

      At the sentencing hearing, regarding Kelly’s request for substitute counsel,

the following exchange occurred:

              [Defense Counsel]: After discussing the matter with Mr. Kelly
      and it—specifically the letter he filed on March 26th asking for new
      counsel, he is at this time asking that the court appoint new counsel
      for him.
              I do support that request, Your Honor. There is an issue of
      trust between counsel and Mr. Kelly and without the bottom line
      mutual trust, it is very hard to repair the attorney-client relationship.
              ....
              The Court: It looks like the motion in arrest of judgment was
      filed in October of 2013. That was set for hearing on November
      4th. On that date the defendant didn’t appear. A warrant was
      issued. The matter was reset then. Defendant was arrested on
      March 20th. The matter was reset for today’s date.
              [Defense counsel], are you ready—are you willing to or able
      to represent Mr. Kelly at this time on any legal issue?
              [Defense Counsel]: I don’t believe so, Your Honor, given the
      fact that—that the attorney-client relationship has been destroyed
      quite frankly.
              The Court: Well, it appears that it has been destroyed
      because Mr. Kelly didn’t appear for his hearing, and this matter was
      in warrant from November of 2013 until March of this year; is that
      correct?
              [Defense Counsel]: Yes. That would be accurate, Your
      Honor.

The State, after pointing out the multiple delays due to Kelly’s failure to appear,

argued that Kelly’s motion was yet another delaying tactic. It further noted Kelly

stated on the record at his plea hearing that he was satisfied with the services of

his attorney.    After allowing Kelly an opportunity to respond—which he
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declined—the district court denied the motion to substitute counsel without

further inquiry.

       Given this record, the district court did not abuse its discretion in denying

Kelly’s motion to substitute counsel.        There were multiple delays of the

proceeding due to Kelly’s own actions, and nothing in the plea record indicated a

need for substitute counsel.     Taking into account the public’s interest in the

efficient administration of justice, Kelly was not entitled to yet another delay. See

State v. Webb, 516 N.W.2d 824, 828 (Iowa 1994). Moreover, contrary to Kelly’s

assertion, a further hearing was not required, considering he alleged a

breakdown in communication rather than a conflict of interest.         See State v.

Watson, 620 N.W.2d 233, 238 (Iowa 2000) (holding a further inquiry is required

when a conflict of interest between counsel and the defendant has been alleged).

Nor has Kelly made the requisite showing that he was prejudiced by the lack of

substitute counsel. See Lopez, 633 N.W.2d at 779. Consequently, the district

court properly denied Kelly’s motion to substitute.

III. Motion in Arrest of Judgment

       Kelly also argues the district court erred in denying his motion in arrest of

judgment, asserting that his plea was entered into involuntarily. He claims that

this was due in part to the breakdown in communication between himself and

counsel.

       We review rulings on a motion in arrest of judgment for an abuse of

discretion. State v. Smith, 753 N.W.2d 562, 564 (Iowa 2008). The reviewing

court will find an abuse of discretion when the basis for the district court’s ruling

was “untenable or to an extent clearly unreasonable.”          State v. Craig, 562
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N.W.2d 633, 634 (Iowa 1997). A ruling “is untenable when it is not supported by

substantial evidence or when it is based on an erroneous application of the law.”

Id.

      At the sentencing hearing, the following exchange occurred between Kelly

and his attorney:

             Q: Was your plea voluntary on August 28th? A: Yes.
             Q: It was your choice with no coercion? A: Well, no. It was
      coercion and threats, but that’s why I took the plea because they
      told me if I didn’t take the plea, that they were going to have me a
      warrant issued [sic], and I didn’t—so I took the plea. I didn’t feel it
      was right, but it was noting that I could do at that time.
             Q: Who was telling you to plead guilty? A: My counsel.
             Q: Who—are you speaking—you’re referring to me?
      A: Correct.

      This is the evidence on which Kelly relies in arguing his plea was

involuntary. However, upon cross-examination, Kelly admitted he was given the

opportunity to consult with counsel and indicated he was satisfied with counsel’s

performance at the plea hearing. This is supported by the record of the plea, in

which the court engaged Kelly in the following colloquy:

             Q: Mr. Kelly, have you fully discussed your case with your
      lawyer and discussed any defenses that you might have to the
      charge? A: Yes.
             Q: Are you satisfied with your attorney’s advice and the
      manner in which your case has been handled? A: Yes.
             Q: Is your decision to plead guilty the result of any threats,
      force, or anyone pressuring you to plead guilty? A: No.
             Q: Is your decision to plead guilty the result of any promises
      besides the terms of the plea agreement? A: No.
             Q: Is your decision to plead guilty voluntary? A: Yes.
             Q: Is it, in fact, your decision and not someone else’s
      decision for you to plead guilty? A: Yes.

      This record indicates Kelly’s plea was entered into voluntarily. Kelly’s bare

assertion that counsel coerced him into pleading guilty is not enough to carry his
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burden showing his plea was not voluntarily entered. See generally Smith, 753

N.W.2d at 564 (noting the defendant bears the burden of showing his plea was

involuntary). Therefore, the district court properly denied Kelly’s motion in arrest

of judgment, and we affirm Kelly’s conviction.

       AFFIRMED.
