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State v. Bisdorf

Court of Appeals of Iowa

September 27, 2017

STATE OF IOWA, Plaintiff-Appellee,
v.
JOHN GEORGE BISDORF JR., Defendant-Appellant.

         Appeal from the Iowa District Court for Dubuque County, Mark T. Hostager, District Associate Judge.

         John Bisdorf Jr. appeals the judgments and sentences entered following his guilty plea to domestic abuse assault and first-degree harassment. AFFIRMED.

          Colista K. Anglese of Hammer Law Firm, PLC, Dubuque, for appellant.

          Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney General, for appellee.

          Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.

          DOYLE, Judge.

         John Bisdorf Jr. appeals the judgments and sentences entered following his guilty plea to the aggravated misdemeanors of domestic abuse assault, in violation of Iowa Code section 708.2A(2)(d) (2016), and harassment in the first degree, in violation of section 708.7(2). Bisdorf appeals, contending the failure of the district court to conduct a hearing on his request for new counsel violated his Sixth Amendment right to counsel. Additionally, Bisdorf claims his trial counsel's failure to request a hearing for substitute counsel amounted to ineffective assistance.

         Although we find the court had a duty to inquire into the alleged breakdown in communication between Bisdorf and his counsel, the record concerning the alleged breakdown is inadequate for us to decide this issue on direct appeal. We preserve it for potential postconviction-relief proceedings. Also, because the record is inadequate for us to decide Bisdorf's claims of ineffective assistance of counsel, we preserve them for potential postconviction-relief proceedings. We affirm Bisdorf's convictions.

         I. Background Facts and Proceedings

         After assaulting his live-in girlfriend on October 9, 2016, Bisdorf was charged with three counts: (I) domestic abuse assault, a class "D" felony, in violation of Iowa Code sections 708.2A(1) and 708.2A(5); (II) harassment in the first degree, an aggravated misdemeanor, in violation of Iowa Code sections 708.7(1)(b) and 708.7(2); and (III) domestic abuse assault causing bodily injury, a serious misdemeanor, in violation of Iowa Code sections 708.2A(1) and 708.2A(2)(b). Bisdorf was appointed counsel and entered pleas of not guilty. The initial pretrial conference was scheduled for November 21, 2016, final pretrial conference was scheduled for December 5, and a jury trial was set for December 13. The initial pretrial conference was held as scheduled. On November 28, the district court received a "Notice of Complaint"-the first pro-se filing from Bisdorf. Therein, Bisdorf complained, among other things, about the delay in proceedings and the lack of due diligence by his counsel. To address the pro-se filing, the court scheduled a status hearing in conjunction with the final pretrial conference. Bisdorf was not present at the hearing. Trial was continued to December 20 "at the request of the defendant." Bisdorf's counsel advised the court it was Bisdorf's desire to withdraw his complaint. The court ordered defense counsel to meet with Bisdorf, secure a writing to this effect, and file it with the court.

         A week later, Bisdorf's trial was again continued, "at the request of the defendant, " to January 3, 2017. Bisdorf sent a letter that was received by the clerk of court on December 16, expressing his concern with his counsel's "lack of due diligence" and demanding appointment of a new attorney. Bisdorf's counsel filed an application for competency evaluation, requesting that Bisdorf's ability to stand trial be evaluated and his mental status determined. The court suspended the criminal proceedings and ordered Bisdorf be evaluated to determine his competency to stand trial.

         The court continued to receive a number of complaints and ex-parte communications from Bisdorf. These again expressed Bisdorf's concern with his counsel and his frustration at the alleged lack of trial preparation. His pro se "Motion To Withdrawl, " filed January 31, 2017, alleges "a total breakdown in communications" between himself and his counsel due to his counsel's "lack of due diligence." Bisdorf filed a pro se "Notice of Complaint" on February 2, alleging "a major breakdown in Attorney Client Relations" and that he was "suffering from infliction of counsels lack of Du[e ]diligence."

         A competency evaluation report was filed with the court. The report concluded Bisdorf was competent to stand trial. The court scheduled a competency review hearing for March 6, 2017.

         On February 16, Bisdorf filed written guilty pleas and a waiver of presence, pleading guilty to a reduced charge of domestic abuse assault, in violation of Iowa Code section 708.2A(2)(d), an aggravated misdemeanor, and harassment in the first degree, in violation of section 708.7(2), an aggravated misdemeanor. The State agreed to dismiss Count III, the domestic-abuse-assault-causing-bodily-injury charge. Based on the report filed with the court, a stipulation regarding competency was also filed. The court, based upon the report and the parties' ...


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