RAY J. KRAKLIO, Appellant,
KENT SIMMONS, Appellee.
review from the Iowa Court of Appeals.
from the Iowa District Court for Scott County, J. Hobart
defense attorney seeks further review of court of appeals
decision that reversed district court's summary judgment
dismissing legal malpractice action.
R. Dial of Law Office of Curtis Dial, Keokuk, for appellant.
Alfredo Parrish of Parrish Kruidenier Dunn Boles Gribble
Gentry Brown & Bergmann L.L.P., Des Moines, and Kent A.
Simmons, Bettendorf, pro se, for appellee.
appeal presents the narrow question of whether the
relief-required rule (also called the exoneration rule)
applies to a convicted criminal suing one of his defense
attorneys for legal malpractice over an alleged missed
opportunity to shorten his period of supervised probation.
This rule ordinarily requires proof the client had been
exonerated from the underlying conviction. The defendant
attorney was retained after the malpractice plaintiff was
convicted and sentenced on three counts of welfare fraud and
ordered to pay restitution. The attorney successfully
obtained postconviction relief vacating two convictions and
over $80, 000 in restitution and successfully opposed the
state's effort to have his client civilly committed as a
sexually violent predator. Meanwhile, the offender,
represented by separate counsel, was incarcerated for a
probation violation. The district court later determined sua
sponte that his term of supervised probation should have
ended earlier, which would have avoided nearly a year in
prison. The offender then sued one of his lawyers for
defendant attorney moved for summary judgment on four
grounds. The district court reached only one ground and
granted summary judgment based on the relief-required rule.
The court of appeals reversed the summary judgment and held
the client may sue over the alleged sentencing error without
proving his exoneration from the conviction, so long as he
obtained relief from the sentencing error. That is the
position taken by the Restatement (Third) of the Law
Governing Lawyers. We hold the malpractice plaintiff in this
situation must prove relief from the sentencing error
allegedly caused by the malpractice, not the underlying
conviction. We express no opinion on the alternative grounds
for summary judgment, including the scope of this
defendant-attorney's duty, if any, to monitor the
duration of supervised probation. Those issues were not
briefed or argued on appeal and may be decided by the
district court on remand.
Background Facts and Proceedings.
November 2002, after a lengthy investigation into suspected
welfare fraud, Ray J. Kraklio was charged with three counts
of first-degree fraudulent practice in violation of Iowa Code
sections 714.8(3) and 714.9 (2001). The facts are set forth
in the decision of the court of appeals on his direct appeal,
Beginning in the early 1980s the Iowa Department of Human
Services (DHS) suspected that Kraklio was living with Debra
Dirksen and that at least one of her two children, Tammy, who
was born February 21, 1980, and Chad, who was born October 2,
1981, was Kraklio's child but that Dirksen and Kraklio
were concealing this fact and his income contribution to the
household in order to obtain welfare assistance, including
food stamps, Family Investment Program (FIP) benefits
(formerly Aid to Dependent Children (ADC) benefits), and
Title XIX medical benefits. Between then and November of 2001
Child Support Recovery Unit (CSRU) personnel repeatedly
questioned Dirksen as to whom the father of her children was
or might be. Dirksen repeatedly maintained she had no idea
who the father might be, and that Kraklio was not the father.
Kraklio attended most of Dirksen's interviews by state
personnel, was aware of what Dirksen told them, and himself
denied he was the father of any of Dirksen's children.
DHS records also indicate that during this same period of
time Dirksen listed Kraklio as her landlord and daycare
provider and the DHS used the rental and child-care figures
provided by Dirksen to determine and increase her ongoing
monthly public aid benefit amounts. Iowa Department of
Inspections and Appeals (DIA) Investigator Randy Dodson was
also aware of and worked on this case from time to time
beginning in the early 1980s.
In November 2001 Kraklio telephoned Investigator Dodson with
a child support and welfare fraud complaint regarding his
ex-wife. Dodson made arrangements to meet with Kraklio.
Dirksen showed up with Kraklio for Dodson's November 28,
2001 interview. At the interview Kraklio and Dirksen revealed
to Dodson that they had been together for twenty-one years.
They stated they had only been married for about one year,
but had only been apart for approximately three months of the
last twenty-one years. Dirksen and Kraklio also admitted to
Dodson they had one child together, Chad Dirksen, born
October 2, 1981. Based on this information Agent Dodson
determined he should proceed to a criminal fraud
The fraud investigation continued for approximately a year
until a trial information was filed on November 26, 2002.
State v. Kraklio, No. 03-0813, 2005 WL 156803, at *1
(Iowa Ct. App. Jan. 26, 2005).
first attorney negotiated a plea bargain in which Kraklio
agreed to plead guilty to all three counts and pay
restitution while the state agreed to recommend probation.
The court accepted Kraklio's guilty plea and, on April
17, 2003, sentenced Kraklio to concurrent terms of not more
than ten years, suspended the sentences, and placed him on
five years of probation on each count to run consecutively.
The court also ordered restitution totaling $139, 489.
met with his probation officer who, according to Kraklio,
told him that if he appealed he would not be supervised
during the appeal. Kraklio filed a pro se notice of appeal on
May 16, 2003. On June 19, the district court appointed
attorney Kent Simmons to represent Kraklio on this direct
appeal. This is when Simmons's representation of Kraklio
promptly informed Kraklio that the probation officer was not
required to suspend supervision because Kraklio had not
posted an appeal bond. Kraklio declined to post an appeal
bond. Simmons also advised Kraklio that he had the right to
begin his supervised probation while the appeal was pending,
but Kraklio chose not to do so.
moved for and obtained a limited remand to conduct discovery
into statute of limitations defenses. Based on the fruits of
his discovery, Simmons argued Kraklio's trial counsel was
ineffective in failing to argue that some or all charges were
time-barred. In its decision on the direct appeal, the court
of appeals concluded that Kraklio's trial counsel
breached an essential duty by not determining "the
possible viability of a statute of limitations defense."
Id. at *6. The court of appeals found the record
inadequate to determine prejudice on two counts; the court
preserved those claims for postconviction proceedings.
Id. at *8. On the third count the court determined
Kraklio was not prejudiced by any breach of duty and rejected
Kraklio's ineffective-assistance-of-counsel claim.
Id. The court of appeals affirmed Kraklio's
convictions on all counts, and procedendo issued on April 25,
supervised probation began in August. The probation officer
asked Kraklio to sign a restitution plan to comply with the
sentencing order, but Kraklio repeatedly refused to do so. In
December, the probation officer filed a report of the
probation violation, stating that he "resumed
supervision of his case in August 2005" after
Kraklio's appeal was denied. Simmons represented Kraklio
on this probation violation. In February 2006, Kraklio signed
a restitution plan in which he agreed to pay $12, 000
annually until he paid $139, 488 restitution in full.
hired Simmons to represent him in a postconviction-relief
(PCR) action, which Simmons filed in May. Pursuant to a fee
agreement, Kraklio paid Simmons nearly $10, 000 for
preparing, filing, and litigating the PCR action.
January 2008, Kraklio's probation officer filed another
report of probation violation because Kraklio had failed to
comply with the restitution plan. Kraklio applied for
counsel, and the court appointed a different lawyer to
represent him. After a hearing, the court revoked
Kraklio's probation on January 31, 2008, and ordered him
April 3, the PCR court granted a motion for summary judgment
filed by Simmons and ordered Kraklio's convictions on two
counts vacated as barred by the statute of limitations. This
avoided over $80, 000 in restitution.
the Iowa Department of Corrections delayed Kraklio's
release from prison pending a determination whether he was a
sexually violent predator based on his 1978 conviction for
lascivious acts with a child. Simmons successfully litigated
a motion for reconsideration of sentence. On March 24, 2009,
the court entered an order vacating the sentence of
imprisonment. The court ordered Kraklio to immediately
contact his probation officer, stating that "supervision
shall continue as originally ordered herein."
resumed supervised probation without contesting his probation
status. He again failed to pay restitution, so the probation
officer filed another report of violation of probation. A
different attorney was appointed to represent Kraklio at the
revocation hearing held on February 4, 2010. By this time,
Kraklio's original probation officer had retired, and the
new probation officer testified that Kraklio's original
probation began in April 2003, not August of 2005:
Q. Do your records indicate when the probation started for
A. The original probation?
A. I believe it was March of 2003.
A. Excuse me, April of 2003.
Q. And was that probation ordered for any particular length
A. I believe it was ordered . . . for five years for each
Q. And was that to be consecutive or concurrent?
A. I believe it was consecutive.
Q. When you make reference to the fact consecutive sentences
for each count, that also would be affected by the dismissal
of two of those ...