                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-0901
                              Filed March 22, 2017


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

CHAD JOSEPH MOELLER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mark J. Smith (guilty

plea) and Paul L. Macek (sentencing), Judges.



      A defendant appeals the judgment entered upon his guilty plea to

possession of heroin with intent to deliver. AFFIRMED.



      Courtney T. Wilson of Gomez May L.L.P., Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Jean C. Pettinger, Assistant

Attorney General, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.

       Chad Moeller appeals the judgment entered on his guilty plea to

possession of heroin with intent to deliver, in violation of Iowa Code section

123.401(1)(c) (2016). Moeller alleges a denial of counsel in violation of the Sixth

Amendment. Because our record is insufficient to resolve Moeller’s claim, we

affirm his conviction but preserve the denial-of-counsel issue for postconviction-

relief proceedings.

       On January 27, 2016, Davenport police officers arrested Moeller after

discovering heroin, methamphetamine, and marijuana on his person and in his

vehicle.   At his initial appearance the next day, the district court appointed

counsel for Moeller. About three weeks later, on February 17, Moeller filed a

pro se motion for new counsel, alleging a “breakdown in the attorney-client

relationship in that [the attorney] refuses to respond in any form of

communication with the Defendant through mail, phone or in person.” Moeller

specified that his attorney had “neglected to follow through on legal issues,”

including “but not limited to motions for bond reduction and discovery requests.”

Moeller alleged this failure prevented his counsel from effectively representing

him and that continued representation “would violate the Iowa Rules of

Professional Conduct.” Hours later, the State filed a trial information charging

Moeller with possession with intent to deliver heroin, methamphetamine, and

marijuana.

       The next day, February 18, Moeller, through counsel, filed a motion for

bond reduction, a written arraignment, and a plea of not guilty. Moeller also filed

a pro se “motion to produce.” The district court denied Moeller’s motion for new
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counsel the following day, finding Moeller’s “court-appointed counsel shall confer

with him and determine whether this motion should be set for hearing.

Defendant’s Motion for New Counsel is denied until and unless Defendant’s

counsel has it set for hearing.” Reasoning Moeller was “represented by court-

appointed counsel and should work through him,” the court denied Moeller’s

motion to produce in an order filed shortly thereafter.

       Neither Moeller nor his attorney requested the motion for new counsel be

scheduled for a hearing, and on March 15, 2016, Moeller entered into a plea

agreement with the State, pleading guilty to possession of heroin with intent to

deliver in exchange for the dismissal of the other possession charges.1 At the

plea hearing, the district court did not question Moeller about his previous motion

for new counsel but did ask generally whether Moeller was “satisfied with the

advice and counsel” his attorney had provided him. Moeller responded in the

affirmative.

       The court accepted Moeller’s guilty plea and sentenced him to a period of

incarceration not to exceed ten years. Moeller now appeals his conviction.

       Because the district court’s failure to inquire into Moeller’s request for new

counsel implicates the Sixth Amendment, our review is de novo. See State v.

Tejeda, 677 N.W.2d 744, 749 (Iowa 2004). Moeller contends he was denied the

effective assistance of counsel in the underlying proceedings.2 To prove this


1
  Moeller also pled guilty to an unrelated charge of willful injury resulting in bodily injury,
in violation of Iowa Code section 708.4, as a part of the plea agreement. The State
agreed the sentences would run concurrently.
2
  We recognize Moeller’s final appellant’s brief frames the question only as ineffective
assistance of counsel for not requesting a hearing on the motion to substitute counsel
after the court’s February 19 order. But the final appellee’s brief filed by the State also
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claim, he must demonstrate both that his trial counsel failed to perform an

essential duty and that his counsel’s failure resulted in prejudice. See id. at 754.

We    generally    preserve     ineffective-assistance     claims    for   postconviction

proceedings because preservation “allows the defendant to make a complete

record of the claim, allows trial counsel an opportunity to explain his or her

actions, and allows the trial court to rule on the claim.” See State v. Shanahan,

712 N.W.2d 121, 136 (Iowa 2006). We do so regardless of our estimation of the

claim’s “potential viability.” See State v. Johnson, 784 N.W.2d 192, 198 (Iowa

2010); see also State v. Roby, No. 16-0191, 2016 WL 4384979, at *2 (Iowa Ct.

App. Aug. 17, 2016) (preserving for postconviction relief and noting “we may not

rule on the merits of a claim without an adequate record or penalize [defendant]

for inadequate briefing of the claim on direct appeal”). Only if we find additional

development of the record is unnecessary to decide the claim will we address it

on direct appeal. See Shanahan, 712 N.W.2d at 136.

       We find the current record is inadequate to resolve Moeller’s claim. In

Tejeda, 677 N.W.2d at 751, our supreme court affirmed that district courts have a

duty of inquiry once a defendant requests new counsel due to an alleged

communication breakdown. The court acknowledged not all grievances raised


addresses the district court’s conditional denial of Moeller’s pro se motion outside the
context of ineffective assistance. As the State points out in a petition for rehearing,
Moeller’s final brief differs from his proof brief. Moeller’s amended proof brief added the
issue of the district court’s failure to address his request for substitute counsel, arguing
that under Tejeda, the district court “received a colorable complaint” and should have
inquired into the alleged breakdown in communication between the attorney and Moeller.
See 677 N.W.2d at 751–52. But Moeller’s final brief appears inadvertently to have been
prepared from the original proof brief rather than the amended proof brief and omits that
issue. Iowa Rule of Appellate Procedure 6.904(4)(b) prohibits parties from making any
substantive changes from the proof brief as originally served. Accordingly, we opt to
address the claim under Tejeda as originally argued in Moeller’s amended proof brief.
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by a defendant require a hearing, but if a defendant makes a “colorable

complaint”—alleging “a severe and pervasive conflict” or “such minimal

contact . . . that meaningful communication was not possible”—the court’s duty to

inquire is activated. Tejeda, 677 N.W.2d at 752 (citation omitted). We conclude

Moeller’s pro se motion for new counsel, which alleged a complete lack of

communication with his attorney and lodged specific complaints about his

counsel’s performance, presented a colorable complaint and triggered the district

court’s duty of inquiry. See State v. Lowe, No. 15-0402, 2016 WL 902888, at *1,

*4 (Iowa Ct. App. Mar. 9, 2016) (finding defendant’s motion alleging his attorney

failed to communicate with him or “build a defense” for his trial sufficient to trigger

the court’s duty of inquiry). As in Tejeda, the district court failed to inquire into

the matter, instead shifting its duty to Moeller’s attorney. See 677 N.W.2d at 751.

Because the court made no inquiry, we cannot determine whether Moeller’s

alleged difficulties with his attorney rose to the level of a complete breakdown in

communications denying him the right to counsel.3 We preserve Moeller’s claim

for a potential postconviction-relief proceeding in which a record can be

developed to determine if he was denied his Sixth Amendment right to counsel.

       AFFIRMED.

3
  We disagree with the State’s contentions that the district court properly allowed Moeller
and his attorney to “work things out rather than prolonging the process by appointing
substitute counsel” and that we can assume Moeller’s complaints were resolved
because he confirmed during the plea colloquy he was satisfied with the advice of his
attorney. At no point did the district court ask about the allegations in Moeller’s motion
for new counsel. And we are not convinced Moeller’s general affirmation he was
satisfied with the advice of his counsel at the plea hearing eliminated the need to assure
that any breakdown in the relationship with counsel did not render the plea unknowing or
involuntary. See Lowe, 2016 WL 902888, at *2, *4 (preserving claim even after
defendant “agreed he had a ‘full and fair opportunity’ to meet with his attorney and
discuss his case and any possible defense” and indicated he was satisfied with his
attorney’s services at the plea hearing).
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Doyle, J., concurs; Potterfield, P.J., partially dissents.
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POTTERFIELD, Presiding Judge. (concurring in part and dissenting in part)

       I dissent in part.   The appellant argues on appeal that counsel was

ineffective for failing to request a hearing on his motion for substitute counsel.

Moeller does not contend the court’s response to his request was inadequate,

and the majority’s opinion that the court erred addresses an issue not raised.

The majority’s decision following the petition for rehearing to rely on appellant’s

poof brief instead of the final brief is just another overreach to decide an issue

not raised.

       Even if Moeller raised the issue, I would find that the court's act of

directing counsel to inquire of her client regarding a request for new counsel is

sufficient inquiry under State v. Tejeda on this record. 677 N.W.2d 744, 751–52

(Iowa 2004). A hearing on a defendant’s request puts the client’s privilege of

confidentiality or a revealing of potential defense strategy at risk. The court can

only safely proceed by asking leading questions of the defendant. Assigning

counsel to this role can be an effective first step. I note that almost immediately

following the defendant’s request, a trial information was approved, a motion to

produce was filed, and a plea agreement was reached.

       The majority discounts the defendant’s affirmative response to the inquiry

at the time of the plea concerning satisfaction with representation. Under our

case law, a defendant’s assertions at the time of plea are considered to be

significant when evaluating the plea procedures.        I see no reason why a

defendant’s answer that he is satisfied with counsel should not also be credited.

Counsel stated on the record at the plea proceeding that he and Moeller “have

spoken about this at great length,” with no contradiction from Moeller.        The
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majority’s decision to preserve the issue for potential postconviction relief is

overkill. Moeller had opportunities to complain about his counsel but did not do

so. I agree with the State that he cannot prove prejudice.
