                    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.
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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).
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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).
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      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,
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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).
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       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.
