                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-1123
                               Filed September 13, 2017


ALLEN KILLINGS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson

(pretrial) and Lawrence P. McLellan (trial), Judges.




      Allen Killings appeals the denial of his application for postconviction relief.

AFFIRMED.




      Andrea K. Buffington of Ranes Law Firm, West Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kelli Huser, Assistant Attorney

General, for appellee State.




      Considered by Doyle, P.J., Bower, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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DOYLE, Presiding Judge.

       Allen Killings appeals the denial of his application for postconviction relief

(PCR).     He challenges the PCR court’s ruling denying his request for

appointment of new PCR counsel, as well as the court’s determination to

combine the PCR case with Killings’s other pending PCR matter. We affirm.

       I. Background Facts and Proceedings.

       In 2009, Killings was found guilty of first-degree murder. See State v.

Killings, No. 09-0739, 2010 WL 3894161, at *1-2 (Iowa Ct. App. Oct. 6, 2010).

That year, Killings was also found guilty of first-degree robbery and four counts of

second-degree sexual abuse in an unrelated matter. See State v. Killings, No.

10-0858, 2011 WL 1781518, at *1 (Iowa Ct. App. May 11, 2011). We affirmed all

of his convictions on direct appeal. See Killings, 2010 WL 3894161, at *1-2;

Killings, 2011 WL 1781518, at *1.

       In 2011, Killings filed an application seeking PCR in the murder case. The

matter was docketed as PCCE068339.1 Killings also filed an application seeking

PCR in the robbery/sexual abuse case. It was docketed as PCCE069818, and it

is this PCR application that is the subject of this appeal.         Killings requested

counsel be appointed, and the PCR court appointed one attorney to represent

Killings in both PCR cases.

       In April 2013, a month prior to the scheduled trial date in PCCE069818,

Killings filed a motion requesting new counsel be appointed in both PCR cases.

He asserted that his appointed counsel was not proceeding as Killings directed.


1
 This court affirmed the district court’s denial of this PCR application. See Killings v.
State, No. 15-1061, 2017 WL 1735614, at *5 (Iowa Ct. App. May 3, 2017).
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Trial in that case was continued to December 2013, and then again to June

2014.

        In April 2014, Killings filed another pro se motion requesting new counsel

be appointed to represent him. Killings’s motion expressly stated:

        Note: the appointment of new counsel will not delay the
        proceedings because Mr. Killings simply desires new counsel to
        help him present his “pro se” case to the court in the best possible
        manner—once he has filed his pro se brief. Which will be shortly
        after the court does appoint new counsel.

A hearing on Killings’s motion was held, and Killings appeared telephonically.

The PCR court asked Killings to clarify the relief he sought in his motion,

summarizing: “So if I am to understand your motion correctly, Mr. Killings, you

are asking the court to allow [your appointed counsel] to withdraw, and you want

to proceed by—alone; is that right?” Killings responded, “Well, I am asking the

court to grant me another attorney just to make sure I do it right. Just to make

sure that my pro se brief is presented right in a manner to be presented to you.”

Killings also clarified that his request for appointment of new counsel was meant

to apply to both of his PCR cases. The PCR court ruled that Killings would be

allowed to proceed pro se, but his appointed counsel would be relegated to

standby counsel; no new counsel would be appointed, and the June 2014 trial

date would remain.

        At some point thereafter, Killings filed a motion requesting the court

reconsider its ruling permitting him to proceed pro se, insisting that he could not

represent himself, and seeking appointment of new counsel.           The PCR trial

commenced on June 30, 2014 as scheduled, and the court heard Killings’s

motion to reconsider. Killings stated:
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       Your Honor, I would like you to reconsider me doing this case pro
       se. I do not know how to do a pro se case. I want you to
       reconsider appointing me an attorney who would help me present
       the issues and preserve the issues that I would like the court to
       hear.
              I also would like you to reconsider doing both of these cases
       at one time. I haven’t even dealt with the first case, [PCCE068339],
       and getting the issues and preserving the issues that I want in that
       case, let alone the [PCCE069818 case]. I haven’t even did any
       work on that case, yet today [we’re] having trial on both cases.

The court denied his motion and attempted to hear Killings’s case. However,

Killings told the court he had not had time to prepare anything and that he had

not requested to proceed pro se, explaining his counsel indicated there were

issues counsel would not raise but that Killings could present those issues

himself. The court “very reluctantly” continued the trial but warned Killings this

was the last continuance of both cases, and that if he “came to the next trial and

[said he was] not ready,” the court would move forward anyway.               The court

reappointed standby counsel to represent Killings in both matters. The court

advised Killings he could present any issues at the next hearing that his attorney

was not willing to raise. Trial was continued to October 2014, with PCCE069818

to be tried at the conclusion of the trial in PCCE068339.

       Trial commenced in October 2014.             After the trial in PCCE068339

concluded, the court heard PCCE069818 as scheduled. Killings stated he was

not prepared to go forth in that case, and he did not want his appointed counsel

to represent him. Killings admitted he knew the case was to be heard on that

date, but he claimed he was waiting on counsel to send information and provide

to him case law.      The court advised Killings that the trial would go on as

scheduled, and Killings told the court he “[didn’t] have [his] stuff in front of [him].”
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Killings’s appointed counsel attempted to elicit testimony from Killings about his

claims, but Killings was unhelpful, to put it mildly. Killings stated it was too much

for him; he was confused, and his mind was still on the PCCE068339 case. The

court requested Killings explain his claims, but Killings could not or would not.

Thereafter, the PCR court entered its order denying Killings’s PCR application.

       Killings now appeals the PCR court’s denial of his application, asserting

the PCR court should have appointed a new attorney to represent him and tried

the two matters separately.

       II. Standard of Review.

       Our review of the PCR court’s decision to deny Killings’s requests for

appointment of new PCR counsel is for an abuse of discretion. See Leonard v.

State, 461 N.W.2d 465, 469 (Iowa 1990); see also State v. Tejeda, 677 N.W.2d

744, 750 (Iowa 2004) (“The decision to grant a motion for substitute counsel is a

matter within the trial court’s discretion.”). Similarly, we also review a court’s

decision to consolidate actions for an abuse of discretion. See Johnson v. Des

Moines Metro. Wastewater Reclamation Auth., 814 N.W.2d 240, 245 (Iowa

2012); see also Iowa R. Civ. P. 1.913; State v. Johnson, 756 N.W.2d 682, 689

(Iowa 2008). An abuse of discretion occurs if the court’s discretion “is exercised

on grounds or for reasons ‘clearly untenable or to an extent clearly

unreasonable.’” Leonard, 461 N.W.2d at 469 (citation omitted).

       III. Discussion.

       Killings asserts the PCR court should have appointed a new attorney to

represent him and tried the two matters separately.          Killings points to his

numerous complaints about his appointed counsel before the PCR court as
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justification for the appointment of new counsel.    He maintains his appointed

attorney “was not communicative,” was “uncooperative,” and based on Killings’s

own testimony, he “was not prepared for the trial and had not thoroughly

discussed the issues with [his appointed attorney].” He argues the problems

were exacerbated by the attorney’s appointment to represent him in both PCR

cases and by trying both cases the same day. He also asserts the court should

have had a colloquy with him “to determine whether such waiver of his statutory

right to counsel was sufficiently voluntary and intelligent.” We are not persuaded.

       PCR “proceedings are not criminal proceedings, but rather are civil in

nature.”   Jones v. State, 479 N.W.2d 265, 269 (Iowa 1991).         Consequently,

“[m]any of the constitutional safeguards guaranteed an individual in criminal trial

proceedings are not granted to such an individual in subsequent [PCR]

proceedings.” Id. One of the distinctions between criminal trial proceedings and

PCR proceedings is one’s constitutional right to counsel.       See Fuhrmann v.

State, 433 N.W.2d 720, 722 (Iowa 1988). Specifically, defendants in criminal trial

proceedings have the right to counsel under the Iowa Constitution and the United

States Constitution. See State v. Majeres, 722 N.W.2d 179, 182 (Iowa 2006)

(citing U.S. Const. amend. VI; Iowa Const. art. I, § 10).      Applicants in PCR

proceedings do not have that constitutional right. See Fuhrmann, 433 N.W.2d at

722 (“[T]he United States Supreme Court has clearly announced the right to

appointed counsel for a convicted criminal extends only to the first appeal of

right, not to a collateral appeal on a conviction that has long since become final

upon the exhaustion of the appellate process.       We would construe our own

constitution likewise.” (citation omitted)).
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      Iowa Code section 822.3 (2013), formerly section 663A.5, does not

expressly require the appointment of PCR counsel upon a PCR applicant’s

request. However, its language has been interpreted to mean that a PCR court

can appoint the applicant counsel at its discretion.    See Jones v. State, 731

N.W.2d 388, 391 (Iowa 2007); Dunbar v. State, 515 N.W.2d 12, 14 (Iowa 1994);

Leonard, 461 N.W.2d at 467-68; Fuhrmann, 433 N.W.2d at 722.              The Iowa

Supreme Court has recommended that PCR counsel be appointed if it appears

that a substantial issue of law or fact may exist. See id. If PCR counsel is

appointed, that attorney is required to provide the applicant effective

representation. See Dunbar, 515 N.W.2d at 14-15. Nevertheless, the PCR court

retains the discretion of whether to remove the appointed counsel upon the

applicant’s request. See Jones, 731 N.W.2d at 391. Even in criminal matters,

where a defendant has a constitutional right to counsel, there is no guarantee of

a “‘meaningful relationship between an accused and his counsel.’” Tejeda, 677

N.W.2d at 750 (citation omitted). Moreover, requesting new counsel at the last

minute as a delay tactic is disfavored. See id.

      Here, Killings’s claims are based upon rights he does not have in a civil

PCR proceeding. While a trial court has a duty in a criminal matter to inquire into

assertions of a breakdown in communication between the defendant and his

appointed attorney, this duty arises to safeguard the defendant’s constitutional

right to counsel—a right a PCR applicant simply does not have.            See id.;

Fuhrmann, 433 N.W.2d at 722. Thus, a breakdown of communication between a

PCR applicant and his appointed counsel does not trigger the same

constitutional protections or necessitate the same inquiry of the court—though
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the record evidences here that the PCR court did, on several occasions, inquire

into Killings’s allegations concerning his counsel and found them to be without

merit. Similarly, the PCR court had no obligation to conduct a colloquy with

Killings to determine if he voluntarily and intelligently waived the right of

representation in the PCR proceeding because Killings had no such right.

       Additionally, there is no evidence or even allegations on appeal that

Killings’s PCR counsel provided ineffective assistance. See, e.g., Dunbar, 515

N.W.2d at 15 (“When complaining about the adequacy of an attorney’s

representation, it is not enough to simply claim that counsel should have done a

better job.    The applicant must state the specific ways in which counsel’s

performance was inadequate and identify how competent representation

probably would have changed the outcome.” (citation omitted)). Rather, Killings

is disgruntled with the PCR court’s ruling that it would not appoint him new

counsel on the eve of the scheduled PCR trial. We do not find the court abused

its discretion in so ruling.

       Though Killings later claimed he did not request to represent himself, a

review of the record makes clear that he did initially make the request. The court

was very direct with Killings during the May 2014 hearing on his motion for new

counsel in clarifying the relief Killings was requesting. The court expressly found

that the appointed attorney had communicated with Killings, contrary to Killings’s

allegations, and that it would not appoint new counsel with the trial date looming.

The court found Killings’s appointed counsel was familiar with the case and, if

Killings wanted to proceed pro se, his appointed counsel could be his standby

counsel. Thus, the court essentially gave Killings two choices at that point—
                                          9


proceed with the appointed counsel or proceed pro se with the assistance of

standby counsel.

         Then, despite being told the matter would not be continued again, Killings

at the June 2014 trial made the same arguments he previously made for

appointment of new counsel. The court reappointed counsel, gave Killings a

month to sort out his issues with his counsel and file any amendments to his

application, and continued the matter. Following another written request for new

counsel, the PCR court expressly denied Killings’s request. The court explained

it found “no justifiable reason to remove [Killings’s appointed] counsel in

PCCE069818,” noting the attorney had actively prepared both PCR cases for

trial.

         Yet, despite being given additional time, Killings’s presentation at the

October 2014 hearing was the same as the June 2014 hearing. He was not

prepared. He claimed he was overwhelmed and that his counsel did not help

him. He still wanted a new attorney appointed. His attorney attempted to elicit

testimony in response to Killings’s pro se filings and PCR applications, but

Killings was vague and unresponsive.          Killings was given the opportunity to

present evidence at trial, but ultimately, he did not do so. We find no abuse in

the district court’s discretion to deny appointment of a new PCR counsel.

         Finally, we find no abuse in the district court’s decision to try the PCR

cases consecutively on the same day. It was in the interests of judicial economy

to do so.     The parties and their attorneys were the same in both matters.

Furthermore, Killings had more than ample time to prepare to try both matters on

the same day. “It is well established trial judges have considerable discretion
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over matters related to the orderly conduct of trial.” Johnson, 756 N.W.2d at 689.

We find, under the circumstances of the case, the PCR court did not abuse its

discretion to hear the cases one after the other.

       IV. Conclusion.

       Because we find the PCR court did not abuse its discretion in denying

Killings’s requests for the appointment of a new attorney or in hearing the two

cases consecutively, we affirm the PCR court’s ruling denying Killings’s PCR

application.

       AFFIRMED.
