from the Iowa District Court for Pottawattamie County, James
M. Richardson, Judge.
Bey appeals the order denying his application for
H. Kouris, Council Bluffs, for appellant.
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
Bey appeals the order denying his application for
postconviction relief (PCR). He alleges he received
ineffective assistance of standby and PCR counsel. We review
ineffective-assistance-of-counsel claims de novo. See
Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010). To
succeed, Bey must show counsel failed to perform an essential
duty and that he was prejudiced as a result. See id.
Background Facts and Proceedings.
State charged Bey with kidnapping Tabitha Proplesch. The
State Public Defender was initially appointed to represent
Bey. An attorney with the Council Bluffs office of the Office
of the State Public Defender represented Bey until allowed to
withdraw due to a conflict. The court then appointed the
Sioux City Office of the State Public Defender to represent
Bey and Assistant Public Defender Michael Williams from that
office appeared for Bey. Bey filed a motion to disqualify
Williams due to a conflict of interest. The district court
overruled Bey's motion. Bey then filed a motion to
proceed pro se and a motion to dismiss his appointed counsel.
At a March 18, 2013 hearing on Bey's motions, Greg Jones,
the head of the State Public Defender's Sioux City
office, appeared for Bey and represented to the court that he
would be handling the case and that Williams would have
nothing further to do with the case. In addressing Bey's
request to proceed pro se, the court conducted an in-depth
colloquy with Bey to secure a waiver of Bey's right to
counsel. The court then granted Bey's motion to proceed
pro se but appointed Jones to serve as standby counsel. Bey
filed a motion to dismiss Jones and requested the court
appoint new standby counsel. After an April 4, 2013 hearing,
the court denied Bey's request, "[g]iven the
imminent date of trial, " and concluded Jones should
continue to serve as standby counsel. On April 10, 2013, Bey
filed a motion to appoint Jones as "hybrid"
counsel. After a hearing, the court overruled the motion.
trial began as scheduled on April 23, 2013. Following the
trial, the jury found Bey guilty of first-degree and
second-degree kidnapping. The court merged the convictions,
entered a judgment of conviction on one count of first-degree
kidnapping, and ordered Bey to serve a sentence of life in
prison. Bey appealed, contending, in part, that "the
district court's colloquy during the hearing in which he
waived his right to counsel was constitutionally inadequate
and his waiver was not knowing, intelligent, and
voluntary." State v. Bey, 13-1312, 2014 WL
7343234, at *1-3 (Iowa Ct. App. Dec. 24, 2014). In affirming
his conviction on direct appeal, this court concluded Bey
executed a valid waiver of his right to counsel. Id.
at *5. Specifically, we said: "On our review of the
evidence, we are satisfied that under the circumstances of
this case the court engaged in an adequate discussion with
Bey, resulting in a waiver that, while unwise, was
nonetheless knowing, intelligent, and voluntary."
Id. at *3.
March 2015, Bey filed a pro se PCR application and counsel
was appointed to represent Bey in the proceedings. In its
answer, the State noted Bey's PCR application "does
not contain any allegations and does not call for an
answer" and that Bey "has failed to request any
relief." Bey never filed an amended PCR application. At
the PCR trial, Bey complained that his standby counsel was
ineffective, reasserting the same complaints made in his
original motion to dismiss standby counsel and as argued at
the April 4, 2013 hearing before the district court-counsel
was not always available to meet, counsel mishandled the
filing of certain motions, and by serving unfiled motions on
the State, counsel breached confidentiality. The PCR court
denied Bey's PCR application, finding Bey "has
failed to proffer or establish that standby counsel failed to
perform an essential duty or that any prejudice
resulted" and that, "[n]onetheless, . . . such a
claim of ineffective standby counsel is barred or waived when
a criminal defendant represents himself." Bey
appeals the denial of his PCR application. He abandons his
arguments made before the PCR court, and now alleges he
received ineffective assistance of standby counsel and PCR
counsel concerning his waiver of his right to counsel. To the
extent this court addressed the adequacy of Bey's waiver
of counsel on direct appeal, res judicata bars additional
litigation. See Iowa Code § 822.8 (2015)
(stating that "any ground finally adjudicated . . . in
the proceeding that resulted in the conviction . . . may not
be the basis for a subsequent application"); Holmes
v. State, 775 N.W.2d 733, 735 (Iowa Ct. App. 2009)
("A postconviction proceeding is not intended as a
vehicle for relitigation, on the same factual basis, of
issues previously adjudicated, and the principle of [r]es
judicata bars additional litigation on this point."
(citation omitted)). Bey asserts, however, that he is not
asking this court to "directly reexamine" the
waiver of his right to counsel but is instead asking us to
examine the effectiveness of his standby and PCR counsel on
the issue of his "mental status at the time
that he waived his right to be represented." (Emphasis
added.) It would seem that finding a defendant knowingly,
intelligently, and voluntarily made a waiver necessarily
encompasses a finding the defendant was competent to do so,
for how could a defendant make a knowing, intelligent, and
voluntary waiver if the defendant was not competent to do so?
Bey's discrete issue regarding his competency at the time
he made the waiver has already been considered and decided by
this court when we concluded Bey's waiver of counsel was
"knowing, intelligent, and voluntary."
Bey, 2014 WL 7343234, at *3. However, statements at
the end of Bey's brief intimate a separate issue-that Bey
was not competent to represent himself at trial. Bey says:
Even more important is what is not known: What did Bey say
and do during his jury trial? It could show he acted
appropriately and even made proper objections and legal
arguments. Or, it could show that Bey was ...