from the Iowa District Court for Scott County, Mark J. Smith
(guilty plea) and Paul L. Macek (sentencing), Judges.
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
J. Miller, Attorney General, and Jean C. Pettinger, Assistant
Attorney General, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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
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.
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 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
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. 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
court accepted Moeller's guilty plea and sentenced him to
a period of incarceration not to exceed ten years. Moeller
now appeals his conviction.
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. To prove this 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.
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 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 ...