RAY J. KRAKLIO, Plaintiff-Appellant,
KENT SIMMONS, Defendant-Appellee.
from the Iowa District Court for Scott County, J. Hobart
Kraklio appeals the court's summary dismissal of his
malpractice claim against a criminal defense attorney.
R. Dial of the Law Office of Curtis Dial, Keokuk, for
A. Simmons, Bettendorf, pro se.
Considered by Vaitheswaran, P.J., Mullins, J., and Blane,
2014, Ray Kraklio sued one of his criminal defense attorneys,
Kent Simmons, alleging Simmons was liable for malpractice;
specifically, Simmons "took no steps to see that
[Kraklio] was discharged from probation." The district
court granted summary relief to Simmons, citing Barker v.
Capotosto, 875 N.W.2d 157, 161 (Iowa 2016) (requiring
defendant to achieve relief from a conviction before
advancing a legal malpractice action against former
attorney). Kraklio appeals, and we begin by setting out the
underlying court proceedings.
November 2002, Kraklio was charged by trial information with
three class "C" felony counts of first-degree
fraudulent practice-counts 4, 5, and 6.State v.
Kraklio, No. 03-0813, 2005 WL 156803, at *1 (Iowa Ct.
App. Jan. 26, 2005). Kraklio agreed to plead guilty to all
three counts and pay restitution, and the State agreed to
recommend probation. Id. at *2. The court sentenced
Kraklio on April 17, 2003, to concurrent terms of not more
than ten years, suspended the sentences, and placed him
"on five years [of] probation on each of the three
counts." Id. The court also ordered restitution
for each count. Id.
met with his probation officer. According to Kraklio, the
officer "told me that if I filed a Notice of Appeal, he
would not supervise me while my case was on appeal." On
May 16, 2003, Kraklio filed a pro se notice of appeal.
2003, Simmons was appointed to represent Kraklio. During the
direct appeal, Simmons secured a limited remand for discovery
regarding "a defense based on the statute of
limitations." Id. After discovery, Kraklio
asserted trial counsel was ineffective by not arguing the
State's trial information was filed outside the statutes
of limitations. Id. at *3. In January 2005, this
court concluded Kraklio's trial counsel "breached an
essential duty" by not determining "the possible
viability of a statute of limitations defense."
Id. at *6. Turning to the prejudice prong,
we found the record inadequate to resolve the ineffectiveness
challenges to counts 4 and 5 and preserved those for possible
postconviction proceedings. Id. at *8. But because
the record showed Kraklio was not prejudiced by any breach of
duty by trial counsel on count 6, we rejected his
ineffectiveness claim for count 6. Id. Thus, his
convictions on all counts were affirmed. Procedendo issued on
April 25, 2005.
August 2005, Kraklio's probation officer resumed
supervision and asked Kraklio to sign a restitution plan.
Kraklio would not sign, which led to the filing of a report
of probation violation in December 2005. Simmons defended
Kraklio, and in February 2006, Kraklio signed a restitution
plan. He agreed to pay $12, 000 annually until he paid over
$139, 000 in restitution.
hired Simmons to represent him in a postconviction-relief
(PCR) action, which Simmons filed in May 2006. In 2008,
rulings were issued in both a new revocation action and the
ongoing PCR action. Because Kraklio did not follow the
restitution plan, a report of probation violation was filed.
Kraklio applied for and was appointed counsel-not Simmons.
After a hearing, the court revoked Kraklio's probation on
January 31, 2008, ordering him to prison. Two months later,
on April 3, 2008, the PCR court granted Simmons's motion
for summary judgment and ordered Kraklio's convictions on
counts 4 and 5 vacated for failure to meet the relevant
statutes of limitations. Based on Simmons's
representation, over $80, 000 in restitution was voided.
Kraklio was still in prison as a result of his revoked
probation, Simmons prepared and successfully litigated a
motion to reconsider sentence- on March 24, 2009, the court
reconsidered the prison sentence, again suspended it, and
ordered Kraklio's supervised probation to resume. The
court instructed Kraklio to immediately contact his probation
officer, stating "supervision shall continue as
originally ordered herein."
resumed supervised probation and did not challenge the
probation. He again refused to pay restitution, and in
December 2009, a report of violation was filed. Another
attorney, not Simmons, was appointed to represent Kraklio,
and a revocation hearing was held on February 4, 2010.
Kraklio's original probation officer had retired. On
cross-examination by Kraklio's attorney, his new
probation officer testified Kraklio's original probation
started in April 2003. At the conclusion of evidence and
without arguments by counsel, the district court immediately
ruled on the record that Kraklio's "maximum period