                    IN THE COURT OF APPEALS OF IOWA

                                    No. 17-2030
                                Filed June 20, 2018


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CRYSTAL L. PION,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Marion County, Dustria A. Relph,

Judge.



       The defendant appeals the district court’s denial of her request for substitute

counsel. AFFIRMED.



       Marshall W. Orsini of Law Offices of Marshall W Orsini, P.L.C., Des Moines,

for appellant.

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

General, for appellee.



       Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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POTTERFIELD, Judge.

       Crystal Pion appeals her conviction for violation of a custodial order, a class

“D” felony in violation of Iowa Code section 710.6 (2015).         On appeal, Pion

maintains the district court abused its discretion when it denied her pro se motion

for substitute counsel, which she filed several months after pleading guilty.

I. Background Proceedings.

       On August 4, 2017, Pion pled guilty to violating a custodial order. Pion was

informed on the record that she had to file a motion in arrest of judgment within

forty-five days if she wanted to contest her guilty plea.

       Sentencing was initially set to take place on October 12. However, on

October 11, Pion’s counsel filed a motion to continue sentencing in order to allow

Pion to “arrange the transfer of [her] probation to [her] home state” of Texas. The

State did not resist, and sentencing was rescheduled for December 14.

       On November 28, 2017, Pion filed a pro se motion requesting substitute

counsel be appointed. Pion alleged that her attorney had not responded to her

communications since October 11. Additionally, she claimed her attorney “urged

her to plead guilty and states there is no defense however we really have only

discussed the case a max of about 30 minutes since March 2017.” She asked for

sentencing to be “postponed until January or February in order to consult with a

new appointed attorney.”

       The court took up the issue at the time scheduled for the sentencing hearing

on December 14. At the outset, the court stated to Pion, “This is your motion.

What would you like for me to know?” In response, Pion said:
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               I have reached out to my attorney multiple times to get more
       clarification on the case and what to expect, what the next step was.
       I would not get responses for a very long time, a very long time. I
       was urged to just plead guilty because it was stated that I did not
       have a defense.
               ....
               I just want my best possible defense is all. I don’t really know
       if pleading guilty was the right thing to do. I don’t know if there is a
       way to change that without consulting with another attorney.

Pion’s attorney responded:

               I, obviously, respect my client’s desire to have a new attorney.
       If she wants a new attorney, she certainly can. There was, in my
       opinion, sufficient contact between my client and myself since the
       plea date. Now there has not been a lot of contact, just because
       there is not a lot for us to talk about.
               I know she was concerned about who she had to pay the
       supervision fee to, to which I gave her my best answer.
               As far as forcing her to plead guilty, Judge, in my personal
       opinion—my professional opinion based on the facts of this case and
       my knowledge of the case law, there was one potential defense that
       ended up not being a defense. That was very clear by the case law.
       I informed my client of that. There is no legal defense in this case.
       We pled guilty. I certainly didn’t force my client to plead guilty. I
       explained what her options were. She wanted to move forward and
       ask for a deferred judgment. That is what we did.

The State resisted Pion’s motion, noting that it was made “after the plea had been

accepted” and that the “plea was made on the record back in August” and was a

“valid plea.”

       When asked if she had anything further to state, Pion responded:

              Again, I did not have a good chance to speak with my
       attorney. I have offered documents as to what led up to this act. She
       has not reviewed any of those documents. Nothing. We have only
       discussed the case by phone about 10 minutes total. The rest of the
       communications were by email and very vague.

The district court denied Pion’s motion and proceeded to sentencing.

       Pion was sentenced to a suspended term of incarceration not to exceed

five years and two years of probation. She appeals.
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II. Standard of Review.

       We review the district court’s denial of a motion for substitute counsel for an

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

establish an abuse of discretion, [Pion] must show that ‘the court exercised the

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

unreasonable.’” Id. (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa 1997)).

III. Discussion.

       Pion maintains the district court abused its discretion when it denied her

motion for substitute counsel. She claims the court failed to ask questions to

ascertain a breakdown in communication between Pion and counsel.

       “When a defendant represented by a court-appointed attorney requests the

court appoint substitute counsel, sufficient cause must be shown to justify

replacement.” State v. Tejada, 677 N.W.2d 744, 749 (Iowa 2004). “Sufficient

cause includes a conflict of interest, irreconcilable conflict, or a complete

breakdown in communication between attorney and the defendant.” Id. at 749–50

(quoting Lopez, 633 N.W.2d at 779). When a defendant requests substitute

counsel based on an alleged breakdown in communication, the court has a duty

to inquire into the allegations. Id. at 750.

       Here, there was no evidence that the relationship between Pion and her

attorney had deteriorated to the point where Pion’s right to counsel was violated.

See U.S. v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002) (“[T]o prove a total

breakdown in communication, a defendant must put forth evidence of a severe and

pervasive conflict with his attorney or evidence that he had such minimal contact

with the attorney that meaningful communication was not possible.”); cf. Tejada,
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677 N.W.2d at 752 (requiring court to inquire when defendant’s relationship with

counsel had deteriorated “so far that he was withholding evidence from his

attorney”). While Pion complained about the amount of contact between herself

and her attorney, the issue appeared to arise after October 11. At that time, the

attorney’s range of actions for Pion was limited, as Pion had entered a guilty plea

more than two months prior and was awaiting sentencing. Insofar as Pion may

have wanted to talk to her counsel more about possible defenses or whether she

made the right decision to plead guilty, the time for Pion to challenge her guilty

plea had passed. Additionally, the attorney stated that she had responded to

Pion’s one other question—regarding who Pion would pay for the costs of

supervision under probation—to the best of her ability. Pion did not dispute this

claim.

         In denying Pion’s request, the court took these and additional

considerations into account, stating:

         You entered a guilty plea on the record to this offense back—it looks
         like August 4th. That is more than four months ago. You filed a
         request for new counsel on November 28th, which was three and a
         half, almost four months after you entered your guilty plea. Four
         months after you entered your guilty plea is way beyond time to
         complain about the plea that you entered, whether anything was
         wrong with that, whether something was done wrong. The time to
         address that has well passed by now. Your guilty plea, again, was
         on the record. I know that you had to have been asked whether what
         you were doing was done freely and voluntarily and without any
         duress, threats, or coercion; that you had to be fully informed; that
         you were asked if there were any defenses. If you made it through
         that guilty plea and that guilty plea was accepted, you failed to file
         anything past that within the allotted times, and even today you are
         not even telling me that there is anything wrong with the guilty plea
         that you entered. I believe that the time to appoint a new attorney
         has passed. There is really nothing that I can tell that a new attorney
         could do for you at this point. It is all in the judge’s hands now.
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               As far as [your counsel], my experience with her has been that
       she is a very intelligent, qualified, and experienced criminal defense
       attorney. I have not gotten any evidence from you that there has
       been anything that she has failed to do on your behalf that she should
       have done. All I have is just statements, no proof, nothing at all.
               Again, at this point in the ballgame it is pretty late to be
       requesting new counsel. There is not much that can be done on your
       behalf at this point going forward. I am going to deny the request for
       a new attorney. I have also taken into consideration the fact that you
       live in Texas now is my understanding. If we gave you a new
       attorney, we would continue this on out again, cause added expense
       for you and the State and everybody involved. It is just time to get
       this resolved. So your motion is denied.

       Based on this record of the court’s considerations and the late nature of

Pion’s request, we cannot say the district court abused its discretion in denying

Pion’s motion.    See Tejada, 677 N.W.2d at 750 (“Last-minute requests for

substitute counsel, insofar as they constitute a delay tactic, are disfavored.”).

Moreover, Pion has neither established that she was prejudiced by the court’s

denial of her request nor claimed to fall within one of the three recognized

exceptions to the requirement to prove prejudice.        See State v. Brooks, 540

N.W.2d 270, 272 (Iowa 1995) (requiring a defendant claiming the district court

abused its discretion in denying a motion to substitute counsel to “show prejudice,

unless [the defendant] has been denied counsel or counsel has a conflict of

interest”); see also State v. Boggs, 741 N.W.2d 492, 507 (Iowa 2007) (requiring a

defendant appealing the district court’s denial of a motion to substitute counsel to

establish prejudice unless the defendant falls into the third exception, which is

recognized “when ‘counsel entirely fails to subject the prosecution’s case to

meaningful adversarial testing’” (citation omitted)).

       We affirm the district court’s denial of Pion’s motion to substitute counsel.

       AFFIRMED.
