from the Iowa District Court for Polk County, William P.
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.
C. Smith, State Appellate Defender, for appellant.
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.
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.
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.
filed a notice of appeal,  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.
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
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 ...