State of Iowa v. Saivon Isaiah McGruder

IN THE COURT OF APPEALS OF IOWA

No. 17-1839
Filed September 12, 2018

STATE OF IOWA,
Plaintiff-Appellee,

vs.

SAIVON ISAIAH McGRUDER,
Defendant-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Paul Scott and Karen

A. Romano, Judges.

The defendant challenges his convictions for robbery in the first degree and

theft in the first and third degrees. AFFIRMED.

Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee.

Considered by Potterfield, P.J., and Bower and McDonald, JJ.
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McDONALD, Judge.

The district court convicted Saivon McGruder of robbery in the first degree

and theft in the first and third degrees. The district court sentenced McGruder to

concurrent terms of incarceration for each offense. McGruder challenges these

convictions on appeal, contending the district court erred in denying his motion for

substitute counsel and his convictions must be vacated as a result.

This court reviews the district court’s ruling on a motion for substitute

counsel for an abuse of discretion. See State v. Lopez, 633 N.W.2d 774, 778

(Iowa 2001). This court will find an abuse of discretion only where “the [district]

court exercised [its] discretion on grounds or for reasons clearly untenable or to an

extent clearly unreasonable.” Id. (quoting State v. Maghee, 573 N.W.2d 1, 5 (Iowa

1997)).

A criminal defendant has the right to the assistance of “counsel at all critical

stages of a criminal proceeding.” State v. Boggs, 741 N.W.2d 492, 506 (Iowa

2007) (altered for readability). The right to the assistance of counsel does not

encompass the absolute right to the assistance of particular counsel. See State v.

Kirchner, 600 N.W.2d 330, 333 (Iowa Ct. App. 1999). In the case of appointed

counsel,

[t]he grounds to justify the appointment of substitute counsel include
a conflict of interest, irreconcilable conflict, or a complete breakdown
in communication between the defendant and counsel. The court
must balance the defendant’s right to counsel of his choice and the
public’s interest in the prompt and efficient administration of justice.
The court has a “duty of inquiry” when it receives a request from a
defendant for substitute counsel on account of an alleged breakdown
in communication. The defendant must show the grounds to justify
substitute counsel and the court has considerable discretion whether
to grant substitute counsel.
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State v. Mott, 759 N.W.2d 140, 148–49 (Iowa Ct. App. 2008) (citations omitted).

The district court’s “duty of inquiry” is satisfied when it, after being “apprised of a

potential breakdown in communication, personally ask[s] the defendant at a

hearing to explain the nature of the communication problem.” State v. Tejeda, 677

N.W.2d 744, 751 (Iowa 2004).

The motion at issue was submitted to the district court on the Friday before

the scheduled trial on the robbery charge. On that day, McGruder’s appointed

counsel sought to withdraw from the representation at McGruder’s behest. The

district court inquired further. McGruder stated he sought new counsel because

he believed his attorney had not provided him with enough help, had not kept him

informed of the status of the proceedings, and had not given him certain

documents, including police reports and deposition transcripts. Upon further

inquiry from the district court, counsel stated the documents had been hand-

delivered to McGruder at the jail. Counsel’s statements were based upon an office

log showing the dates her law firm delivered the documents to McGruder. The

district court inquired of McGruder whether his apprehension would be alleviated

if he were given an opportunity to review the depositions before trial, to which

McGruder responded in the affirmative. The district court ordered a recess. During

the recess copies of the deposition transcripts were made and delivered to

McGruder for him to review with counsel prior to trial. After the recess, McGruder

stated he still wished to be represented by a different attorney. The district court

denied the motion. In support of the denial, the district court noted the matter had

been pending for some time, there was a codefendant prepared for trial,

McGruder’s counsel had conducted significant discovery and was prepared for
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trial, and the district court’s knowledge that McGruder’s counsel was a good and

experienced defense attorney. The district court also found McGruder sought new

counsel as a delay tactic.

The robbery charge proceeded to trial with appointed counsel, and the jury

found McGruder guilty. At the time of sentencing on the robbery charge, as part

of a comprehensive plea agreement to resolve other charges in pending cases,

McGruder pleaded guilty to and was convicted of theft in the first and third degrees.

We first address McGruder’s challenge to his convictions for theft in the first

and the third degree. McGruder’s challenge to the convictions is without merit.

The convictions were entered pursuant to a comprehensive plea agreement.

During the plea colloquy, the district court explicitly asked McGruder whether he

was satisfied with the performance of his counsel, and McGruder stated he was.

McGruder was advised of his right to file a motion in arrest of judgment to challenge

the guilty pleas, and he waived the right. “[T]he denial of a motion for substitute

counsel is waived by a guilty plea, where the guilty plea explicitly confirmed

satisfaction with plea counsel.” State v. Daye, No. 15-1645, 2016 WL 5408112, at

*2 (Iowa Ct. App. Sept. 28, 2016); accord State v. McCaleb, No. 15–2215, 2016

WL 4384412, at *1 (Iowa Ct. App. Aug. 17, 2016) (“By freely and voluntarily

pleading guilty to the above charges, during which McCaleb explicitly confirmed

she was satisfied with the representation she had received, McCaleb waived her

right to request new counsel or challenge the district court’s denial of new counsel,

insofar as any denial was actually made.”).

With respect to the robbery conviction, McGruder did not cite any

recognized ground or cause for the appointment of new counsel. See Boggs, 741
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N.W.2d at 506 (stating it is the defendant’s burden to “show the grounds to justify

substitute counsel”). McGruder did not identify any conflict of interest. See Mott,

759 N.W.2d at 148–49. He did not allege any irreconcilable conflict between

himself and counsel. See id. He did not allege there was a complete breakdown

in communication between himself and counsel. See id. Instead, McGruder had

only a generalized grievance that he thought his attorney should be doing more

and giving him certain documents. As a factual matter, the grievance was not well-

founded. As the record makes clear, McGruder’s counsel had conducted

significant discovery and was prepared for trial. In addition, McGruder’s counsel

had an office log that showed the desired documents were hand-delivered to

McGruder in the jail. As a legal matter, the defendant’s generalized grievance his

attorney should be doing more, in and of itself, is not a recognized ground for the

appointment of new counsel. As the supreme court has explained:

General frustration and dissatisfaction with defense counsel
expressed by a defendant does not alone render counsel unable to
perform as a zealous and effective advocate. The focus of the inquiry
is not on the defendant’s relationship with his or her attorney, but the
adequacy of counsel in the adversarial process. In reality, a person
accused of a crime is often genuinely unhappy with an appointed
counsel who is nevertheless doing a good job. Thus, not all criticism
lodged by a defendant against defense counsel requires new
counsel.

Boggs, 741 N.W.2d at 506 (altered for readability).

In addition to the lack of any ground justifying the appointment of new

counsel, there were countervailing considerations supporting the denial of the

motion. Here, it appears the defendant sought new counsel on the eve of trial

merely to delay trial. As the supreme court has warned, “last-minute requests to

substitute counsel must not be allowed to become a tactic for delay.” State v.
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Webb, 516 N.W.2d 824, 828 (Iowa 1994); see also Boggs, 741 N.W.2d at 506

(“[E]leventh-hour requests for substitute counsel are generally disfavored”). The

district court’s concern regarding the delay in trial was particularly acute here, as

any delay would have prejudiced McGruder’s codefendant, who was ready to

proceed.

In reviewing whether to grant or deny the motion, the district “court must

balance the defendant’s right to counsel of his choice and the public’s interest in

the prompt and efficient administration of justice.” Lopez, 633 N.W.2d at 778.

Under the circumstances presented, the district court did not abuse its discretion

in balancing the relevant considerations and denying McGruder’s motion for

substitute counsel.

AFFIRMED.