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State v. Wells

Court of Appeals of Iowa

August 16, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
MICHAEL LAMAR WELLS, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.

         Michael Wells appeals the district court's denial of his motion to correct an illegal sentence and denial of his application for court-appointed counsel. WRIT ANNULLED.

          Mark C. Smith, State Appellate Defender, for appellant.

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

          Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ. Blane, S.J. takes no part.

          MULLINS, Judge.

         In 2012, Michael Wells pled guilty to one count of attempted murder, two counts of willful injury causing serious injury, and one count of possession of a firearm as a felon. He was sentenced to consecutive terms of imprisonment for all four counts, for a total sentence of fifty years. Wells did not directly appeal his conviction, but in 2014, he filed a pro se motion to correct an illegal sentence, asserting the two willful injury counts should merge with the attempted murder conviction. The district court appointed counsel to represent Wells upon Wells's application. The State resisted the motion, asserting the case of State v. Clark, 475 N.W.2d 193, 193-96 (Iowa 1991), held willful injury was not a lesser-included offense of attempted murder so the counts do not merge. On the day of the hearing on the motion, Wells, through appointed counsel, withdrew his motion, and the court conducted a colloquy with Wells to determine the withdrawal of the motion was knowing and voluntary.

         On March 15, 2016, Wells filed a second pro se motion to correct an illegal sentence that was identical to the first motion. He again applied for the appointment of counsel. On May 31, 2016, the district court denied both the motion to correct an illegal sentence, citing Clark, 475 N.W.2d at 196, and denied the application for the appointment of counsel, concluding a motion to correct an illegal sentence is not a "critical stage" of the trial proceeding.

         Wells filed a notice of appeal, [1] and the district court appointed appellate counsel to represent him on appeal. Wells asserts on appeal the district court should have appointed him counsel to represent him on his motion to correct an illegal sentence and the court should not have denied his motion without a hearing.

         I. Appointment of Counsel

Wells asserts he has a statutory right to the appointment of counsel for his motion to correct an illegal sentence. In support of his position, he cites Iowa Rule of Criminal Procedure 2.28(1) and Iowa Code section 815.10(1) (2016). Rule 2.28(1) provides, in part:
Every defendant, who is an indigent person as defined in Iowa Code section 815.9, is entitled to have counsel appointed to represent the defendant at every stage of the proceedings from the defendant's initial appearance before the magistrate or the court through appeal, including probation revocation hearings, unless the defendant waives such appointment.

Likewise, section 815.10(1) provides, in part:

The court, for cause and upon its own motion or upon application by an indigent person or a public defender, shall appoint the state public defender's designee pursuant to section 13B.4 to represent an indigent person at any stage of the criminal . . . proceedings or on appeal of any criminal . . . action in ...

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