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Kraklio v. Simmons

Court of Appeals of Iowa

September 13, 2017

RAY J. KRAKLIO, Plaintiff-Appellant,
v.
KENT SIMMONS, Defendant-Appellee.

         Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge.

          Ray Kraklio appeals the court's summary dismissal of his malpractice claim against a criminal defense attorney.

          Curtis R. Dial of the Law Office of Curtis Dial, Keokuk, for appellant.

          Kent A. Simmons, Bettendorf, pro se.

          Considered by Vaitheswaran, P.J., Mullins, J., and Blane, S.J. [*]

          MULLINS, JUDGE.

         In 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.

         In November 2002, Kraklio was charged by trial information with three class "C" felony counts of first-degree fraudulent practice-counts 4, 5, and 6.[1]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.

         Kraklio 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.

         In June 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.

         In 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.

         Kraklio 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.

         While 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."

         Kraklio 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 of ...


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