
                        IN THE SUPREME COURT OF IOWA

                              No. 127 / 02-1866

                            Filed January 6, 2006


DEBORA SUE WISE,

      Appellant,

vs.

STATE OF IOWA,

      Appellee.



      On review from the Iowa Court of Appeals.


      Appeal from the  Iowa  District  Court  for  Scott  County,  David  E.
Schoenthaller, Judge.

      Postconviction relief applicant appeals  district  court’s  denial  of
relief sought in application.  DECISION OF COURT OF APPEALS AND JUDGMENT  OF
DISTRICT COURT AFFIRMED.

      Linda Del Gallo, State Appellate  Defender  and  David  Arthur  Adams,
Assistant State Appellate Defender, for appellant and Debora Sue  Wise,  pro
se.

      Thomas J. Miller, Attorney General, Kevin Cmelik,  Assistant  Attorney
General, and William E. Davis, County Attorney, for appellee.

LAVORATO, Chief Justice.
      In this postconviction relief  proceeding,  Debora  Sue  Wise  appeals
from a district court ruling denying her relief.  She contends the  district
court erred in failing to make sufficient inquiry into  her  waiver  of  her
right to counsel.  She also contends the district court erred in failing  to
appoint counsel on the court’s own motion.  We transferred the case  to  the
court of  appeals,  which  affirmed.   We  granted  Wise’s  application  for
further review.  Because we find no prejudicial  error  requiring  reversal,
we affirm the court of appeals decision and the district court judgment.
      I.  Background Facts and Proceedings.
      On January 7, 1998, the State filed  a  four-count  trial  information
charging Wise and Kevin Kilfoy with delivery  of  a  schedule  I  controlled
substance (marijuana) in violation  of  Iowa  Code  sections  124.204(4)(m),
124.401(1)(d), and 703.1 (1997) and with failure to affix a drug  tax  stamp
in  violation  of  Iowa  Code  sections  453B.1(3)(b),  453B.3,   453B.7(1),
453B.12, and 703.1.  The State alleged each of these  offenses  occurred  on
two separate dates, November 19, 1997 and November 24,  1997,  resulting  in
the four-count trial information.
      The State and Wise entered  into  a  plea  agreement.   The  agreement
proposed dismissing the drug tax stamp violations provided Wise would  plead
guilty to the charges of delivery of  a  schedule  I  controlled  substance.
The agreement reflected an open plea, which the court accepted.
      On the same day of the agreement, Wise entered her guilty  plea.   She
also stated that she understood the rights she was  giving  up  by  pleading
guilty and that she was satisfied with the advice and counsel given  by  her
privately retained attorney, David Treimer.  She further stated  that  there
had been no threats or promises made to induce her to plead guilty and  that
there had been no predictions made concerning her  sentence.   Finally,  she
stated that the minutes of  testimony  were  substantially  correct.   After
establishing a factual basis for her plea  and  determining  that  Wise  was
entering her plea knowingly and  voluntarily,  the  court  accepted  it  and
advised her of her right to file a  motion  in  arrest  of  judgment.   Wise
never filed the motion.
      Later, the district court sentenced Wise to  two  indeterminate  five-
year sentences to run concurrently and a fine of $1000 on each  count.   The
court denied Wise’s request for a  deferred  sentence.   Instead  the  court
suspended the sentence and fine on both  counts  and  placed  Wise  on  four
years of supervised probation.
      Wise personally filed a  notice  of  appeal,  stating  her  intent  to
appeal the denial of a deferred  sentence.   Attorney  James  M.  Stein  was
appointed to represent  Wise  on  her  appeal.   Stein  filed  a  motion  to
withdraw, stating the appeal was frivolous.  Stein sent Wise a copy  of  the
motion and a letter. In the letter, Stein instructed Wise to  write  to  our
court within thirty days if she believed the appeal should  go  forward  and
that her failure to do so would result in dismissal of the appeal.
      We granted Stein’s motion and dismissed the appeal as  frivolous.   In
our order we noted that Wise had filed no response.
      Wise then filed  a  pro  se  application  for  postconviction  relief,
raising a number of issues.  Before the hearing  on  her  application,  Wise
filed several amendments to her application adding  additional  issues.   In
the application, Wise stated that she “[was] able to  pay  court  costs  and
expenses of representation and [did] NOT desire to  have  counsel  appointed
to represent [her].”
      The State filed a motion to dismiss  Wise’s  application.   The  State
alleged that Wise not only failed to file a motion  in  arrest  of  judgment
but had failed to preserve in an appeal many of the  issues  she  raised  in
her application for postconviction relief.  In addition, the  State  alleged
that by pleading guilty, Wise waived  all  defenses  and  objections  except
those not intrinsic to the plea.  The State maintained the record  reflected
no defects in the plea.  For all of these reasons,  the  State  argued  that
Wise had no cognizable claim to support her application.  The court  treated
the motion to dismiss as a motion for  summary  judgment  and  overruled  it
because it was not filed in a timely manner.
      At the hearing, Wise appeared pro  se  and  testified.   Treimer  also
appeared and testified.   At  the  conclusion  of  the  hearing,  the  State
requested that its previously filed motion  to  dismiss  be  considered  its
final argument, which the court accepted.
      Following the hearing, the court denied  Wise’s  application  for  the
following reasons:  Wise failed to preserve issues in a motion in arrest  of
judgment and direct appeal.  She waived defenses and objections not part  of
the plea itself when she pleaded guilty.  She said she  was  not  pressured,
coerced, or promised anything in  connection  with  the  plea  and  she  was
satisfied with her  representation.   In  addition,  the  court  denied  the
postconviction relief application on its merits.
      Wise personally  filed  a  notice  of  appeal.   The  State  Appellate
Defender’s office was appointed to represent  her.   Her  appellate  counsel
raised two issues.  First, the district  court  erred  in  failing  to  make
sufficient inquiry into Wise’s waiver of her right to counsel.  Second,  the
district court erred in failing to appoint  counsel  for  Wise  on  its  own
motion once the court understood that Wise was not capable of acting as  her
own attorney.  Wise did not personally file a brief.
      We transferred the case to the court of appeals, which affirmed.   The
court held that Wise was  not  entitled  to  appointment  of  postconviction
relief counsel because she did not establish her indigence.
      Wise’s appellate counsel sought further review, which we granted.
      II.  Issues Raised.
      On  further  review,  Wise’s  appellate  counsel  again  contends  the
district court erred in failing  to  make  sufficient  inquiry  into  Wise’s
waiver of her right to counsel and in failing to  appoint  counsel  for  her
when it realized she was not capable of acting as her own attorney.
      Wise personally filed an application for further review.  Two  of  the
issues she lists relate to the  appointment  of  counsel  on  the  basis  of
financial need.   One  issue  listed  is  a  restatement  of  her  appellate
counsel’s issues as stated  above.   Finally,  Wise  contends  the  district
erred by failing to address any of the grounds for relief contained  in  her
postconviction relief application.
      III.  Appointment of Counsel in Postconviction Relief Cases.
      A.  Applicable law.  Wise concedes, as she must,  that  an  indigent’s
right to counsel  in  a  postconviction  relief  proceeding  is  statutorily
based; no state or federal constititutional grounds  for  counsel  exist  in
such proceedings.  See Fuhrmann v. State, 433 N.W.2d 720, 722  (Iowa  1988).
Iowa Code section 822.5 (2001) provides that the  costs  of  legal  services
shall be made available to an  indigent  applicant.   In  interpreting  this
section, this court has said that “an attorney need not always be  appointed
to represent an indigent postconviction applicant.”  Furgison v. State,  217
N.W.2d 613, 615 (Iowa 1974).  The determination whether to  appoint  counsel
rests in the district court’s sound discretion.  Id.
      However, this court also noted in Furgison that  “trial  judges  would
ordinarily  be  well  advised  to  appoint   counsel   for   most   indigent
postconviction review applicants” because  such  appointment  “benefits  the
applicant, aids the trial  court,  is  conducive  to  a  fair  hearing,  and
certainly helpful in event of appeal.”  Id.  On the other  hand,  the  court
in Furgison cited with approval the following:

      “If an application, in light of the state’s response, raises no  claim
      cognizable in a post-conviction proceeding, it is wasteful to  appoint
      counsel to determine solely if the  applicant  has  some  grounds  for
      relief not stated in his original application.”

Id. (quoting ABA Standards, Post-Conviction  Remedies  §  4.4  cmt.,  at  66
(Approved Draft 1968)).
      Drawing on these  principles,  the  court  in  Furgison  set  out  the
following guidelines for trial  judges  to  follow  in  determining  whether
counsel should be appointed:

      [T]rial judges should inceptionally read the  often  inartfully  drawn
      application in a light most favorable to the applicant.  In  event  it
      thus appears a substantial issue  of  law  or  fact  may  exist,  then
      counsel should be at once appointed.

Id. at 615-16.
      In Fuhrmann, the  State  filed  a  motion  to  dismiss  based  on  the
applicant’s failure to file the  postconviction  relief  application  within
the applicable statutory three-year limitation period.  433 N.W.2d  at  722.
The applicant requested the  appointment  of  counsel.   Id.  at  721.   The
applicant resisted the State’s motion,  emphasizing  his  need  for  counsel
regarding the hearing on the motion to dismiss.   Id.  at  722.   The  court
dismissed the action without addressing the motion  for  counsel.   Id.   We
noted that the failure of the district  court  to  address  the  motion  may
indicate  that  the  court   did   not   exercise   its   discretion.    Id.
Nevertheless,  we  held  such  failure  to  exercise  discretion   was   not
prejudicial error requiring reversal.  Id. at  722-23.   Our  reasoning  was
that on its face the  application  showed  the  application  was  not  filed
within the applicable statutory three-year period.  Id.
      B.  Analysis.  Here, based on the record before the district court  at
the time the State filed its motion to dismiss, the court could easily  have
dismissed Wise’s application.  Our reasons for saying so follow.
      With certain exceptions, a  guilty  plea  pursuant  to  Iowa  Rule  of
Criminal Procedure 2.8(2)(b) waives all defenses and  objections,  Speed  v.
State, 616 N.W.2d  158,  159  (Iowa  2000)  (per  curiam),  even  claims  of
ineffective assistance of counsel, Manning v. State,  654  N.W.2d  555,  561
(Iowa 2002).  One  of  the  exceptions  is  relevant  here:   irregularities
intrinsic to the plea itself.  Manning, 654 N.W.2d at  561.   Irregularities
intrinsic to the plea  itself  are  those  that  bear  on  the  knowing  and
voluntary nature of the plea.  Id.
      Our careful review of Wise’s application and  amendments  reveal  only
one claim that falls  within  this  exception.   She  alleged  that  Treimer
provided ineffective assistance of counsel by telling her she would  receive
a deferred sentence if she agreed to plead guilty.
      This allegation directly contradicts the overwhelming record  evidence
that no such representation was made.  At the plea, there was this  colloquy
between the court and Wise:

           The court:  All right.  Are you satisfied with  the  advice  and
      counsel Mr. Treimer has given you?  The defendant:  Yes, I am.


           . . . .


           The court:  Okay.  Now, have there been any threats or  promises
      made to induce you to plead guilty at this time?  The defendant:  No.


           The court:  Have there  been  any  predictions  made  by  anyone
      concerning what your sentence will be if you do plead guilty to  these
      charges?  The defendant:  No.

      In a letter to Treimer  she  requested  that  he  file  the  necessary
papers to appeal the denial of a deferred sentence in view of the fact  that
she had never been granted a deferred judgment or similar relief  before  as
Iowa law requires.  There was no mention in  the  letter  that  Treimer  had
told her she would receive a  deferred  sentence  if  she  agreed  to  plead
guilty.  In a letter  to  Stein,  her  appellate  counsel  in  her  original
appeal, she states, “The main reason that I  have  requested  to  appeal  my
case . . . is that I have otherwise no criminal record  and  would  like  to
utilize my right to appeal . . . in order to attempt to  obtain  a  deferred
sentence . . . .”  Again, there is no mention that Treimer had told her  she
would receive a deferred sentence if she  agreed  to  plead  guilty.   In  a
second letter to Stein, Wise outlined a number of issues she  wanted  raised
in her appeal.  She never mentioned that Treimer  had  told  her  she  would
receive a deferred sentence if she agreed to plead guilty.
      At the sentencing, Treimer vigorously argued for a deferred  sentence,
notwithstanding  a  presentence  investigation   report   that   recommended
probation.  The  court  simply  stated  that  it  would  consider  Treimer’s
request. Although she had the chance, Wise made no mention  of  the  alleged
agreement of a deferred sentence in return  for  the  plea.   Moreover,  the
plea agreement mentions no such understanding.  Rather than  complain,  Wise
signed the agreement.
      In  State  v.  Boge,  the  defendant  filed  a  postconviction  relief
application based on an allegation that he was induced by  his  attorney  to
plead guilty, that  the  plea  bargain  was  illegal,  and  that  there  was
collusion between his attorney and the county  attorney.   252  N.W.2d  411,
413 (Iowa 1977).  As here, the defendant at  the  plea  proceeding  in  Boge
acknowledged that there were no threats or  promises  to  induce  the  plea.
Id. at 413-14.  Relying on this acknowledgment by the defendant, this  court
said:

           We find no need for trial court to afford petitioner  a  hearing
      on allegations which  directly  contradict  the  record,  unless  some
      minimum  threshold  question  of  credibility   appears.    The   bare
      allegations that petitioner now raises do not overcome the presumption
      that the colloquy above set out reflects the true state of facts.

Id. at 414 (citation omitted); see also Hedman v. United  States,  527  F.2d
20, 21-22  (10th  Cir.  1975)  (per  curiam)  (holding  that  postconviction
allegation that defendant was promised probation in return for  guilty  plea
was insufficient to require evidentiary hearing because such allegation  was
completely refuted by defendant’s  plea  statements  that  he  was  pleading
guilty because he was in fact guilty and that he was “very  much”  satisfied
with advice and services of his counsel).
      In addition to Wise’s plea statements, we have  recited  a  number  of
other matters that directly contradict Wise’s allegation that  Treimer  told
her she would receive a deferred  sentence  if  she  pleaded  guilty.   This
allegation does not overcome the presumption  that  Wise’s  plea  statements
and these other matters reflect the true state of facts.
      Although the district court could have sustained  the  State’s  motion
to dismiss, nevertheless the court granted Wise a hearing.  At  the  hearing
Treimer emphatically denied telling Wise that she would receive  a  deferred
sentence in return for her guilty plea.  He also testified that he  probably
told her that with her criminal history she would likely  receive  probation
and had a  good  opportunity,  but  no  guarantee,  to  receive  a  deferred
sentence.
      In its ruling, the district court found that Treimer did  not  promise
Wise that she would receive a  deferred  sentence.   The  court  then  aptly
summed up the underlying reason  for  Wise’s  allegation  to  the  contrary:
“Wise is unhappy with her sentence; she wanted a  deferred  [sentence],  but
did not get one.”
      Under  the  circumstances  here,  we  conclude  the  district  court’s
failure to inquire into Wise’s waiver  of  her  right  to  counsel  and  the
court’s failure to appoint counsel for  Wise  on  its  own  motion  was  not
error.  We therefore affirm.
      DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT  AFFIRMED.

