author: TERNUS, Justice.

text:
    STATE of Iowa, Appellee, v. Nathan Blake WATSON, Appellant.
    No. 99-0264.
    Supreme Court of Iowa.
    Nov. 16, 2000.
    As Amended on Denial of Rehearing Jan. 2, 2001.

      Linda Del Gallo, State Appellate Defender, and Tricia A. Johnston, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney General, and Connie S. Ricklefs, County Attorney, for appellee.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   TERNUS, Justice.

The defendant, Nathan Watson, was convicted of murdering his father. On appeal, he claims that the trial court should have sua sponte held a hearing on whether his trial counsel suffered from a conflict of interest based on counsel’s dual representation of the defendant and a key prosecution witness. We agree that such a hearing was required under the Sixth Amendment to the United States Constitution. Therefore, we reverse and remand.

I. Background Facts and Proceedings.

At the time of the events giving rise to Watson’s conviction, Watson lived with his father, Rocky Chase, in a converted school bus located on property belonging to Watson’s aunt and uncle, Janet and Gene Chase. In the early morning hours of January 16, 1998, Watson ran to the next-door residence of his aunt and told her that his father had shot himself. Law enforcement authorities arrived and determined that Rocky had been shot in the forehead at close range with a shotgun. Disbelieving that Rocky’s death was a suicide, the county attorney charged Watson with first-degree murder. See Iowa Code §§ 707.1, .2(1) (1997).

The defendant pled not guilty, maintaining that the shooting was accidental or self-inflicted. Tim Ross-Boon and Brian Sissel of the Linn County Public Defender’s Office were appointed to represent the defendant.

The case was tried to a jury. The testimony of expert witnesses called by both sides was conflicting as to whether the shooting was intentional or accidental.

Of greater importance to the present appeal, however, was the testimony of a prosecution witness, David Grünewald. Grünewald testified on direct that he and Watson occupied adjoining cells at the county jail and that Grünewald overheard Watson say “demons made him shoot his dad.” Grünewald also testified that his criminal record included, among other things, burglary, public intoxication and possession of marijuana. Grünewald said that he received no benefit for his testimony and came forth voluntarily.

Defense attorney Sissel cross-examined Grünewald. He brought out the fact that Grünewald was a friend of Rocky and saw Rocky almost every day, including the day before Rocky’s death. Grünewald testified that when he heard of the shooting on the morning of the 16th, he called Janet and then visited her later that same day. Sis-sel also established on cross-examination that Grünewald was a substance abuser. Of significance to the issue on appeal was Grunewald’s testimony that criminal contempt charges were pending against him at the time he came forward with information concerning Watson’s incriminating statement. Grünewald testified that he and his attorney, Ross-Boon (the same Ross-Boon who represented the defendant), had discussed his sentencing with the county attorney before Grünewald told authorities of Watson’s statement. Grüne-wald, however, acknowledged that his sentencing occurred after he told the jailer that Watson had admitted killing his father. Grünewald testified that he was sentenced to serve fourteen days in jail, although the maximum sentence possible was thirty days. It appeared from the record that Grünewald had served his sentence prior to testifying in Watson’s trial.

As our review of Grunewald’s testimony shows, Grunewald’s cross-examination revealed that Ross-Boon simultaneously represented Grünewald and the defendant for some portion of the pre-trial period, including the period during which Grüne-wald overheard Watson’s incriminating statement, reported it to the authorities, and was sentenced on his contempt conviction. No objections were made by anyone at trial concerning the propriety of Ross-Boon’s representation of the defendant, and the trial court did not initiate an inquiry into the matter.

The jury returned a conviction of first-degree murder. This appeal followed.

On appeal, Watson asserts that his attorney, Ross-Boon, had an actual conflict of interest or a serious potential conflict of interest when he maintained dual representation of the defendant and Grünewald, a key prosecution witness whose interests were adverse to the defendant. Watson claims that this situation should have been apparent to the trial court upon Grunewald’s testimony and that the trial court had a duty sua sponte to make an inquiry. The trial court’s failure to do so, argues the defendant, requires automatic reversal of his conviction. Because Watson raises a constitutional issue, our review is de novo. See State v. Vanover, 559 N.W.2d 618, 627 (Iowa 1997).

II. Applicable Legal Principles.

The Sixth Amendment to the Federal Constitution requires that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. This constitutional guarantee is binding on the states. See Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562, 566 (1975). Defendants are entitled not only to counsel, but also to counsel that is “zealous and active.” Powell v. Alabama, 287 U.S. 45, 58, 53 S.Ct. 55, 60, 77 L.Ed. 158, 165 (1932). The purpose of this Sixth Amendment provision is “ ‘to ensure that criminal defendants receive a fair trial.’ ” Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 1696-97, 100 L.Ed.2d 140, 148 (1988) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674, 694 (1984)).

One of the first United States Supreme Court cases to consider a deprivation of the Sixth Amendment right to counsel due to a conflict of interest was Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). In that case, an attorney representing one defendant, Glasser, was appointed, over objection, to represent a codefendant, Kretske. Glasser, 315 U.S. at 68-69, 62 S.Ct. at 464, 86 L.Ed. at 698. During trial, counsel failed to undertake the cross-examination of a witness that might have been helpful to Glasser because of counsel’s admitted desire to protect Kretske. Id. at 73, 62 S.Ct. at 466, 86 L.Ed. at 700. Similar conflicts were present with respect to the admission of other evidence. Id. The Court held that Glas-ser’s Sixth Amendment right to the effective assistance of counsel had been denied and that this denial required that the defendant’s conviction be set aside and a new trial ordered. Id. at 76, 62 S.Ct. at 468, 86 L.Ed. at 702. In reaching this conclusion, the Court noted that

[t]o determine the precise degree of prejudice sustained by Glasser as a result of the court’s appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.

Id. at 75-76, 62 S.Ct. at 467, 86 L.Ed. at 702.

In a later case, Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), the Court interpreted Glasser to mandate automatic reversal “whenever a trial court improperly requires joint representation over timely objection.” 435 U.S. at 488, 98 S.Ct. at 1181, 55 L.Ed.2d at 437. Moreover, reversal is required “even if no particular prejudice is shown and even if the defendant was clearly guilty.” Id. at 489, 98 S.Ct. at 1181, 55 L.Ed.2d at 437. In such situations, “prejudice is presumed regardless of whether it was independently shown.” Id. The rationale underlying this presumed prejudice rule lies in the fact that “the evil [of representing conflicting interests] is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process.” Id. at 490, 98 S.Ct. at 1182, 55 L.Ed.2d at 438. The United States Court of Appeals for the Fifth Circuit, in a case of dual representation, gave a similar reason for presuming prejudice:

When there is a conflict of interest ... the prejudice may be subtle, even unconscious. It may elude detection on review. A reviewing court deals with a cold record, capable, perhaps, of exposing gross instances of incompetence but often giving no clue to the erosion of zeal which may ensue from divided loyalty. Accordingly, where the conflict is real ... a denial of the right to effective representation exists, without a showing of specific prejudice.

Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir.1974); accord Zuck v. Alabama, 588 F.2d 436, 440 (5th Cir.1979) (“A cold, dispassionate appellate transcript simply cannot provide an adequate basis for assessing [defense counsel’s] performance, for subtle variations in demeanor and depth of cross-examination cannot be reflected in the pages of a transcript.”).

In Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), the Court considered a Sixth Amendment claim made by a defendant who had not objected at trial to his counsel’s joint representation of another defendant. The Court indicated that joint representation of codefendants does not always give rise to a conflict of interest, presumably because, as the Court noted later in its opinion, a common defense is often the best defense. Cuyler, 446 U.S. at 347, 348, 100 S.Ct. at 1717, 1718, 64 L.Ed.2d at 345, 346. Therefore, the Court held that “[u]nless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.” Id. at 347, 100 S.Ct. at 1717, 64 L.Ed.2d at 346. Moreover, if the trial court record shows merely a possibility of a conflict, prejudice will not be presumed. Id. at 348,100 S.Ct. at 1718, 64 L.Ed.2d at 346. Rather, “a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Id.

The circumstances under which the trial court must initiate an inquiry were demonstrated in the later case of Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). In Wood, the defendants had been convicted of distributing obscene materials while employed at an “adult” theatre and bookstore. 450 U.S. at 263, 101 S.Ct. at 1099, 67 L.Ed.2d at 225. An attorney retained by their employer represented them at subsequent probation revocation hearings. Id. at 266, 101 S.Ct. at 1100-01, 67 L.Ed.2d at 227. Despite the defendants’ failure to object to the representation provided to them, the Court considered on appeal whether their attorney had a conflict of interest that necessitated some relief. Id. at 265 n. 5, 101 S.Ct. at 1100 n. 5, 67 L.Ed.2d at 226-27 n. 5. The Court stated that although it could not determine on the record “whether an actual conflict of interest was present,” “the record does demonstrate that the possibility of a conflict of interest was sufficiently apparent at the time of the revocation hearing to impose upon the [trial] court a duty to inquire further.” Id. at 272, 101 S.Ct. at 1104, 67 L.Ed.2d at 230-31. Accordingly, the Court vacated the judgment rendered at the revocation hearing and remanded the case for a hearing to determine whether an actual conflict of interest existed. Id. at 273, 101 S.Ct. at 1104, 67 L.Ed.2d at 231. The Court stated that if the court on remand finds that an actual conflict existed that the defendant did not waive, a new revocation hearing would be required. Id. at 273-74, 101 S.Ct. at 1104, 67 L.Ed.2d at 231.

Courts considering conflict-of-interest claims have disagreed on when the Cuyler test, which requires a showing that counsel’s performance was adversely affected by the conflict, applies. Some courts have held that the Cuyler standard applies whenever the defendant has failed to object to counsel’s representation at trial. See, e.g., Atley v. Ault, 191 F.3d 865, 869 (8th Cir.1999) (stating that “Cuyler applies, however, only to those cases in which a defendant raises no objection to his counsel’s representation at or before trial”); State v. James, 111 N.C.App. 785, 433 S.E.2d 755, 757 (1993) (citing Cuyler for the proposition that “a defendant who raises no objection at trial must demonstrate that an actual conflict of interest adversely affected the performance of his lawyer”). Other courts have concluded that the Cuyler standard governs only when the trial court is reasonably unaware of the particular conflict. See, e.g., Cabello v. United States, 188 F.3d 871, 875 (7th Cir.1999) (noting that Cuyler standard does not apply “if the defendant or her attorney alerted the trial judge to a possible conflict of interest or the judge otherwise knew or reasonably should have known that such a possibility existed” (emphasis added)); United States v. Fish, 34 F.3d 488, 492 (7th Cir.1994) (stating Hollotvay automatic reversal rule applies where trial court fails to inquire “[w]hen the defendant raises the issue or the trial judge otherwise knows or reasonably should know of the possibility of a conflict of interest” (emphasis added)); State v. Jenkins, 257 Kan. 1074, 898 P.2d 1121, 1129 (1995) (holding that where “trial court was presented with information that established an actual conflict — defense counsel represented the key prosecution witness,” the defendant need not show that the conflict adversely affected his lawyer’s performance, even though the defendant made no objection at trial). Under the latter line of cases, the application of Cuyler does not turn on whether the defendant objected, but rather turns on whether the conflict of interest was brought to the trial court’s attention in some way. Which line of authority we follow is important in the present case because Watson did not object at trial to Ross-Boon’s representation.

Our review of the cases leads us to agree with those courts holding that where the trial court knew or should have known of a particular conflict, reversal is required without a showing that the conflict adversely affected counsel’s performance, even though no objection was made at trial. This conclusion is consistent with the Supreme Court’s interpretation of Cuyler in Wood, where it said that Cuyler “mandates a reversal when the trial court has failed to make an inquiry even though it ‘knows or reasonably should know that a particular conflict exists.’ ” Wood, 450 U.S. at 273 n. 18, 101 S.Ct. at 1104 n. 18, 67 L.Ed.2d at 231 n. 18 (emphasis added). Logic also supports this result. If the trial court knows that a particular conflict exists and fails to conduct an inquiry, it should not matter what the source of the court’s knowledge is. Regardless of how the trial court becomes aware of the conflict, the defendant has been denied his right to independent counsel. It is only in cases of uncertainty, where the record shows the mere possibility of a conflict, that the additional requirement of an adverse effect on counsel’s performance is required to establish an actual conflict. See also United States v. Martin, 965 F.2d 839, 842 (10th Cir.1992) (“Under the Supreme Court’s standard set forth in Cuyler, in order to establish an actual conflict, Defendant has the burden of showing specific instances to support his contention of an actual conflict adverse to his interests.” (Emphasis added.)).

Having resolved this conflict as to the circumstances under which the Cuyler test applies, we now set forth the legal principles applicable to conflict-of-interest claims such as the one before us, where the claim is raised for the first time on appeal. A trial court has the duty sua sponte to inquire into the propriety of defense counsel’s representation when it “knows or reasonably should know that a particular conflict exists.” Cuyler, 446 U.S. at 347, 100 S.Ct. at 1717, 64 L.Ed.2d at 346. If an actual conflict existed and the trial court knew or should have known of the conflict, yet failed to make inquiry, reversal is required. See Wood, 450 U.S. at 273 n. 18, 101 S.Ct. at 1104 n. 18, 67 L.Ed.2d at 231 n. 18. If the record on appeal shows only the possibility of a conflict, then the case must be remanded for a determination as to whether an actual conflict existed and/or whether the defendant made a valid waiver of his right to independent counsel. See id. at 273-74, 101 S.Ct. at 1104, 67 L.Ed.2d at 231-32. If, on remand, an actual conflict is found, prejudice is presumed and reversal is mandated. See id.; Holloway, 435 U.S. at 488, 98 S.Ct. at 1181, 55 L.Ed.2d at 437. If there is no indication that the trial court knew or should have known of an actual conflict, and defendant made no objection to his representation, then the defendant, in order to obtain a reversal on appeal, must prove that his counsel rendered ineffective assistance by proving that an actual conflict adversely affected counsel’s performance. See Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718, 64 L.Ed.2d at 346-47.

III. Application of Legal Principles to Facts.

The testimony of prosecution witness Grünewald revealed to the trial court that Grünewald was represented by defense counsel Ross-Boon during the pre-trial stages of Ross-Boon’s representation of Watson. The testimony established that this period of simultaneous representation included the time frame when Grünewald overheard Watson make an incriminating statement, when Grüne-wald reported this statement to the police, and when Grünewald was sentenced on the contempt charge. Based on this testimony, the trial court knew of Ross-Boon’s dual representation of the defendant and a key prosecution witness. We next consider whether this dual representation gave rise to an actual conflict.

Although most conflict of interest cases arise in the context of one attorney representing multiple defendants, a conflict of interest can arise in other factual scenarios. Basically, “a conflict exists when an attorney is placed in a situation conducive to divided loyalties.” Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir.1991); accord State v. Atley, 564 N.W.2d 817, 834 (Iowa 1997) (Lavorato, J., dissenting). We think that, under this standard, an actual conflict of interest existed in the present case.

Unlike the joint representation of code-fendants, where there may be a benefit to presenting a united defense, in the case of dual representation of the defendant and an adverse witness, there is no benefit to common representation. To the contrary, the potential for less zealous representation of the defendant is obvious. In a case of dual representation of the defendant and a prosecution witness, the Pennsylvania Superior Court analyzed the divergence of interests that is the hallmark of a conflict of interest:

[The defendant’s] interest and [the witness’s] interest diverged with respect to [the attorney’s] cross-examination of [the witness]. [The attorney] had an obligation to [the defendant] to use all the information at his disposal to impeach [the witness’s] credibility. Yet, [the attorney] also had an obligation to [the witness] to maintain the confidentiality of [the witness’s] communications with the Defender Association. Given these inconsistent duties, counsel was forced to make a “Hobson’s choice.”
One might argue that [the attorney] had a greater responsibility to [the defendant] than to [the witness]. Yet, the importance of maintaining client confidences cannot be lightly disregarded. Any statements made by [the witness] to the Defender Association in connection with his legal representation were covered by the attorney-client privilege. Moreover, a heightened concern for protecting confidences is particularly appropriate where a lawyer is called upon to cross-examine an individual whom his office represents....
We find that counsel had a duty to protect [the witness’s] rights as well as a duty to protect [the defendant’s] rights. Thus, an “actual conflict of interest arose.”

In re Saladin, 359 Pa.Super. 326, 518 A.2d 1258, 1261-62 (1986) (citations omitted). Other courts have also concluded that an actual conflict of interest exists when an attorney represents the defendant and a prosecution witness. See, e.g., Castillo, 504 F.2d at 1245 (finding actual conflict where the defendant’s attorney also represented the victim of the defendant’s crime in an unrelated civil matter, noting that the attorney “is likely to be restrained in the handling of that clieni/witness”); Porter v. United States, 298 F.2d 461, 463 (5th Cir.1962) (holding, in case where criminal defendant sought to prove entrapment by police officer, that actual conflict would exist if defense attorney also represented the implicated officer in an unrelated matter); United States ex rel. Williamson v. LaVallee, 282 F.Supp. 968, 971 (E.D.N.Y.1968) (finding actual conflict of interest where defense attorney represented important prosecution witness); United States ex rel. Miller v. Myers, 253 F.Supp. 55, 57 (E.D.Pa.1966) (finding conflict of interest where attorney represented defendant and victim witness); James, 433 S.E.2d at 758 (holding that representation of defendant and witness “resulted in an unavoidable conflict as to confidential communications”).

The State attempts to distinguish these authorities on two bases: (1) Ross-Boon no longer represented Grünewald at the time of trial; and (2) Ross-Boon did not cross-examine Grünewald; Ross-Boon’s co-counsel, also an attorney with the Public Defender’s Office, did. We do not think these facts insulated the defendant’s counsel from the actual conflict of interest shown by the record.

We begin our analysis with a review of Ross-Boon’s ethical obligations to his clients. Ross-Boon had a duty to Watson to represent him “zealously within the bounds of the law.” Iowa Code of Profl Responsibility EC 7-1. He also had a duty to Grünewald to maintain the confidences of Grünewald, see id. Canon 4, in other words, not to reveal information protected by the attorney-client privilege, see id. DR 4-101 (A). Not only was defense counsel obliged to refrain from revealing the “confidences” of Grünewald, he was also obligated to preserve the “secrets” of Grünewald. See id. Canon 4. The term “secrets” is much broader than “confidences.” It includes any “information gained in the professional relationship ... the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” Id. DR 4-101(A). Moreover, Ross-Boon’s ethical obligation to preserve the confidences and secrets of Grünewald “exist[ed] without regard to the nature or source of [the] information or the fact that others share[d] the knowledge.” Id. EC 4-4. Of equal importance to the present case is the fact that the ethical obligations of defense counsel extended beyond a prohibition of merely revealing Grunewald’s confidences and secrets. Counsel was also obligated to refrain from using Grunewald’s confidences or secrets “to the disadvantage of [Grünewald]” or “for the advantage ... of a third party.” Id. DR 4-101(B)(2)-(3); see also Williamson, 282 F.Supp. at 971 (noting that one “danger in being represented by an attorney who is also representing a prosecution witness is that the scope of examination of the witness by the attorney might be restricted by the fact that the attorney has learned' confidential information about his client-witness which cannot be revealed”); People v. Coleman, 301 Ill.App.3d 290, 234 Ill.Dec. 525, 703 N.E.2d 137, 144 (1998) (holding that defense counsel’s “duty of confidentiality owed [client/witness] precluded the use of any helpful information that [client/witness] may have divulged to [defense counsel]” in criminal trial of counsel’s client/defendant).

With this background, we now consider the State’s contention that no conflict existed because, by the time of trial, Ross-Boon no longer represented Grünewald. We initially point out that there was simultaneous representation of Watson and Grünewald during some portion of the pretrial period. Thus, defense counsel’s pretrial investigation was burdened with the conflict between Grunewald’s interests and Watson’s interests. See Coleman, 234 Ill.Dec. 525, 703 N.E.2d at 144 (noting that defense counsel owed duty to client/witness during trial preparation as well as during trial). Ross-Boon’s efforts to ferret out impeachment material based on the relationship between Grünewald and the victim, based on Grunewald’s substance abuse problem, or based on any other ground would be dampened by the fact that he also represented Grünewald and had to ensure that he used no information gained in his relationship with Grünewald to Grunewald’s disadvantage or to Watson’s advantage.

In addition, we think defense counsel’s divided loyalties survived the termination of the attorney-client relationship between Ross-Boon and Grünewald. The end of this relationship did not lessen Ross-Boon’s ethical obligation to Grünewald. He was still bound to maintain Grunewald’s confidences and secrets. See Iowa Code of Prof 1 Responsibility EC 4-6 (“The obligation of a lawyer to preserve the confidences and secrets of a client continues after the termination of employment.”). Simultaneously with his obligation not to use any “information gained in [his] professional relationship” with Grünewald the disclosure of which would be embarrassing or detrimental to Grünewald, id. DR 4-101(A), Ross-Boon was also obligated to zealously represent Watson by impeaching Grünewald with any information available to Ross-Boon. Clearly the impeachment of Grünewald would be embarrassing to Grünewald and would help Watson. See Okeani v. Superior Ct., 178 Ariz. 180, 871 P.2d 727, 728 (Ct.App.1993) (holding that, in fulfilling duty to client/defendant by impeaching client/witness, counsel causes an adverse effect on client/witness, which “is clearly a conflict of interest”). In our opinion, Ross-Boon was burdened by an actual conflict of interest at trial despite the fact that he no longer represented Grünewald. See id. at 729 (holding that conflict was not resolved simply because the witness’s legal matter had been resolved before trial and “she thus had become a former client of the Public Defender”); Coleman, 234 Ill.Dec. 525, 703 N.E.2d at 144 (holding that defense counsel’s withdrawal as counsel for witness before witness’s testimony did not cure the conflict).

As for the State’s second argument— that Ross-Boon did not cross-examine Grü-newald — we point out that attorneys in the same office are permitted to share confidences. See Iowa Code of Profl Responsibility EC 4-2 (“Unless the client otherwise directs, a lawyer may disclose the affairs of a client to partners or associates of the lawyer’s firm.”). Therefore, all members of the Public Defenders Office were bound to protect Grunewald’s confidences and secrets. Thus, Ross-Boon’s co-counsel labored under the same conflict of interest as did Ross-Boon.

Moreover, Ross-Boon’s obligation to zealously represent his client, the defendant, was not suspended simply because his co-counsel was the one who asked Grü-newald questions on the witness stand. Ross-Boon still had an obligation to Watson to contribute what he could to the defense team’s preparation for Grunewald’s cross-examination, including pre-trial investigation. We conclude, therefore, that Ross-Boon’s decision not to personally examine Grünewald was insufficient to remove the actual conflict of interest that burdened Watson’s defense team. See Ross v. Heyne, 638 F.2d 979, 984-85 (7th Cir.1980) (finding actual conflict where counsel had access to confidences of witness who was associate’s client); Okeani, 871 P.2d at 728 (“The conflict of interest is not alleviated’by the fact that defendant and the victim were represented by different lawyers with the Public Defender’s Office.”); In re Saladin, 518 A.2d at 1260 n. 4 (“Even the representation of two clients by different attorneys employed by the same Defender Association constitutes dual representation for the purpose of conflict of interest analysis.”).

IV. Conclusion.

We hold that the defendant’s trial counsel had an actual conflict of interest that the trial court knew or should have known existed when the court became aware of counsel’s dual representation of the defendant and a key prosecution witness. Under these circumstances, the court was obligated sua sponte to hold a hearing on the propriety of the defendant’s representation by the Linn County Public Defender’s Office. The court’s failure to conduct such an inquiry mandates reversal. Accordingly, we reverse the defendant’s conviction and remand for a new trial where the defendant shall be represented by counsel unburdened by a conflict of interest.

REVERSED AND REMANDED.

McGIVERIN, S.J., participates in place of SNELL, J., who takes no part.

      . Defendant also alleges he received ineffective assistance from trial counsel based on Ross-Boon's failure to withdraw. Because we conclude the defendant’s conflict-of-interest claim requires reversal, we do not reach his failure-to-withdraw claim.

      . Even if we were to apply the Cuyler standard, reversal is required. Ross-Boon's simultaneous representation of the defendant and Grünewald during the time Watson allegedly made the incriminating statement and Grünewald came forward with this information "resulted in an unavoidable conflict as to confidential communications and affected counsel's ability to effectively impeach the credibility of [the] witness....” James, 433 S.E.2d at 758. In James, ihe North Carolina court held that the simultaneous representation of the defendant and a prosecution witness created an unavoidable conflict that on its face adversely affected defense counsel's performance. Id. The court gave, as an example of this conflict, defense counsel’s failure to explore the plea agreement between the slate and the witness. Id. Similar failures existed here. Although defense counsel established in his cross-examination of Grünewald that Grünewald was not sentenced until after he had informed law enforcement of Watson’s incriminating statement, counsel did not challenge Grunewald's denial that his cooperation with the authorities had no impact on his sentence in his criminal case. Nor did defense counsel explore whether Grunewald’s substance abuse problem affected his cognitive abilities on the date he overheard Watson talking about Rocky’s death. Similarly, Grunewald’s relationship with the decedent was not probed to reveal any bias or animosity Grünewald might have toward the defendant. Grunewald's cross-examination simply lacked any aggressive questioning to challenge his credibility.

      . No claim of waiver is made in the present appeal.

      . The State argues that this case is one of "past representation” of a prosecution witness by defense counsel, a characterization we reject. Whether prior representation of a witness that did not overlap with counsel’s representation of the defendant would create a conflict of interest must be decided on an ad hoc basis.

      . Our conclusion that an actual conflict of interest existed should not be viewed as a condemnation of Watson’s trial attorneys, who we trust attempted to render a competent and vigorous defense of Watson consistent with principles of professional responsibility. Nevertheless, when an actual conflict of interest is apparent, we must conclude that a defendant has been denied his Sixth Amendment right to counsel, a right that entitles the defendant to counsel with undivided loyalties.


source: Caselaw Access Project

author: LARSON, Justice.

license: Public Domain

text:
    Michael Allen JONES, Appellant, v. IOWA DISTRICT COURT FOR WAPELLO COUNTY, Appellee.
    No. 98-1937.
    Supreme Court of Iowa.
    Dec. 20, 2000.
    Thomas M. Walter of Johnson, Hester, Walter & Breckenridge, L.L.P., Ottumwa, for appellant.
    Thomas J. Miller, Attorney General, Mary Tabor, Assistant Attorney General, Victoria Siegel, County Attorney, and Riv-ka Sorensen, Special Prosecutor, for appel-lee.
   LARSON, Justice.

This plaintiff, Michael Alen Jones, has appealed from a district court order denying his petition for a writ of certiorari to challenge a judicial magistrate’s refusal to order discovery depositions in a simple-misdemeanor case. Because we hold a defendant has no right to court-ordered discovery depositions in simple-misdemeanor cases, we affirm the order of the district court.

I. Facts and Prior Proceedings.

Jones was charged with domestic-abuse assault, a simple misdemeanor. See Iowa Code §§ 236.2 (1997) (defining domestic abuse); 708.1 (defining assault); 708.2A (penalties for domestic-abuse assault). Jones served notice on the State of his intention to take depositions of two police officers, the alleged victim, and two other witnesses. The State filed a motion to quash the discovery attempt. The magistrate granted the State’s motion to quash, holding that depositions could not be taken in simple-misdemeanor cases. Jones petitioned for a writ of certiorari in the district court, which denied it. Jones appealed.

II. The Bases of the Discovery Argument.

Jones claims three bases for his argument that discovery depositions should be ordered in his case:

(1) the Due Process Clauses of the federal and state constitutions require it;
(2) Iowa Rule of Criminal Procedure 12(1), providing for depositions of witnesses listed on an indictment or county attorney’s information, requires it; and
(3) Iowa Rule of Criminal Procedure 12(2), allowing the court in its discretion to order depositions of witnesses not so listed, should be interpreted to grant him that right.

III. Analysis.

Jones’s first and third arguments are controlled by our recent case of State v. Weaver, 608 N.W.2d 797 (Iowa 2000), which was filed after the district court’s ruling here. In Weaver we held a criminal defendant has no due process right to pretrial discovery. Id. at 803. We also held that Iowa Rule of Criminal Procedure 12(2), the basis of Jones’s third argument, is to be used only for preservation of testimony for use at trial and provides no right to pretrial discovery depositions. Id. at 801-02. Because Weaver controls these issues, we reject Jones’s constitutional argument and his argument based on rule 12(2).

Disposition of those issues under Weaver leaves only Jones’s argument based on Iowa Rule of Criminal Procedure 12(1). That rule provides this regarding depositions:

A defendant in a criminal case may depose all witnesses listed by the state on the indictment or information or notice of additional witnesses in the same manner and with like effect and with the same limitations as in civil actions except as otherwise provided by statute and these rales. Depositions before indictment or trial information is filed may only be taken with leave of court.

(Emphasis added.) The limited scope of this rule is apparent: it applies, at least on its face, only to indictable cases. This would exclude Jones’s assault case, which is a simple misdemeanor.

Jones argues this is not a run-of-the-mill simple-misdemeanor case because a conviction of domestic-abuse assault carries a two-day, mandatory jail sentence. See Iowa Code § 708.2A(6)(a). He argues that in view of this fact, our discovery rules should apply to his case, even if they are generally inapplicable in simple-misdemeanor cases. The State responds that discovery provisions of our rules of criminal procedure are simply inapplicable. Further, all simple-misdemeanor offenses may be punishable by up to thirty days in jail, and we should not devise a special discovery rule for domestic-abuse assault.

Jones rejoins that Iowa Rule of Criminal Procedure 33 makes the discovery provisions of rule 12(1) applicable in simple-misdemeanor cases. Under rule 33,

[procedures [for trial of simple-misdemeanor cases] not provided for herein shall be governed by the provisions of these rales which are by their nature applicable relating to trial of indictable offenses, and by the statutes of the state of Iowa.

(Emphasis added.)

In State v. Brown, 243 N.W.2d 854, 856 (Iowa 1976), we refused to require depositions in a simple-misdemeanor case. While this decision preceded the adoption of our rules of criminal procedure, nothing in those rules signaled an intention to deviate from the rule of Brown or to incorporate discovery provisions for simple-misdemeanor cases. In Hadjis v. Iowa District Court, 275 N.W.2d 763, 765-66 (Iowa 1979), we discussed a discovery issue in the context of our newly adopted criminal rules. The issue in Hadjis was whether rule 33 made rule 13(2)(a)(l) (allowing a defendant to obtain a copy of his own statement) applicable in simple-misdemeanor cases. We concluded that allowing a defendant to “inspect and copy or photograph” his own statement entailed minimal cost and no delay, so this procedure was “by its nature applicable” to simple-misdemeanor cases. Id. at 766. We said:

Whether a provision of the indictable offense rules is by its nature applicable to prosecutions for simple misdemeanors must be decided by reference to the purposes of the simple misdemeanor rules. An examination of those rules leads to the conclusion that they are intended to facilitate disposition of criminal charges with as much speed and as little cost as can be accomplished consistent with a fair trial.

Id. We distinguished Hadjis from our holding in Brown by noting that “[t]he cost and delay caused by that type of discovery [depositions] would be considerably greater than should result here.” Id. Requiring discovery depositions in simple-misdemeanor cases under rule 12(1) is qualitatively different, as we noted in Hadjis, from simply requiring the state to produce a copy of the defendant’s statement as in Hadjis. See id. We believe rule 33 should not be interpreted to make simple-misdemeanor prosecutions more costly and time consuming by requiring discovery depositions under rule 12(1).

This interpretation of rule 33 is consistent with the legislative intent with respect to the trial of simple-misdemeanor cases, as evidenced by this language of Iowa Code section 602.6405(2):

The criminal procedure before magistrates is as provided in chapters 804 [regarding arrest and disposition of prisoners], 806 [magistrate to hold hearing under Uniform Fresh Pursuit Law], 808 [authority regarding searches], 811 [regarding pretrial release], 820 [duties regarding Uniform Criminal Extradition Act], and 821 [regarding Detainers Compact] and rules of criminal procedure 1, 2, 5, 7, 8, and 32 to 56.

It is significant this statute does not include rule 12 as a rule to be incorporated in trials before magistrates. We agree with the district court that discovery depositions may not be ordered in simple-misdemeanor cases.

AFFIRMED.


author: LAVORATO, Chief Justice.

text:
    Ronald GILBRIDE, Appellee, v. Theodore R. TRUNNELLE and Rosalie Bonavia, Appellants, Mary Kahler, Donald Trunnelle, David Trunnelle and Susan Fudurich, Defendants. Mary Kahler, Donald Trunnelle, David Trunnelle and Susan Fudurich, Cross-Petitioners, v. Ronald Gilbride, Theodore R. Trunnelle and Rosalie Bonavia, Cross-Defendants.
    No. 99-0358.
    Supreme Court of Iowa.
    Dec. 20, 2000.

      Chad A. Swanson, Thomas L. Staack, and Steven K. Daniels of Dutton, Braun, Staack & Heilman, P.L.C., Waterloo, for appellants.
    Joseph J. Straub, Jr. and Eldon J. Winkel of Winkel & Straub Law Firm, Algona, for appellee.
   LAVORATO, Chief Justice.

Theodore R. Trunnelle and Rosalie Bo-navia appeal from a district court ruling granting Ronald Gilbride’s motion for partial summary judgment to enforce a settlement in a real estate partition action. Theodore and Rosalie assert summary judgment was not proper because there was a genuine issue of material fact as to whether the attorney who negotiated the settlement was representing them at the time of the settlement. Theodore and Rosalie alternatively argue that, even if an attorney-client relationship existed, there was a genuine issue of material fact as to whether they had given the attorney authority to make a settlement on their behalf. We affirm and remand for further proceedings.

I. Background Facts and Proceedings.

This case arises out of a partition-in-kind and sale action, which Ronald Gil-bride filed in Kossuth County on August 27, 1997. At the time, Gilbride owned an undivided one-fifth interest in 160 acres of farmland. The petition named Theodore and Rosalie as defendants, in addition to Mary Kahler, each of whom also owned an undivided one-fifth interest in the farmland. The petition also named as defendants Donald Trunnelle, David Trunnelle, Glen Trunnelle, Gordon Trunnelle, and Susan Fudurich, each of whom owned an undivided one-twenty-fifth interest in the farmland. Gilbride alleged that the farmland could be equitably divided so that he would receive a specific one-fifth division of the property.

On September 16 attorney James Hudson of Pocahontas filed an answer to the petition on behalf of all the defendants. On the same day, Hudson wrote Eldon J. Winkel, who represented Gilbride. In his letter, Hudson advised Winkel that he had visited with Mary Kahler, who had agreed to act as the Iowa spokesperson for the defendants. Hudson further advised that (1) Kahler had indicated she would like to work with Gilbride and (2) he had explained the nature of the partition action to Kahler, and she in turn had explained the action to the other defendants. Hudson stated that the defendants would be willing to either buy out Gilbride’s interest or sell him a portion of the farmland.

Shortly after the petition was filed, Rosalie gave the original notice and petition that had been served on her to an Algona attorney, Robert Dotson, for him to review. On September 23 Dotson and Rosalie had a telephone conversation about the lawsuit in which she advised Dotson that Kahler had retained Hudson to represent all of the defendants. Dotson followed up the conversation with a letter in which he advised Rosalie that it would be foolish for the defendants to have more than one attorney. Dotson further stated:

It is my understanding that you will confer directly with Attorney Hudson concerning these matters, and, of course, enter into an attorney/client employment contract with him. Since Mr. Hudson will be representing you and presumably other defendants in this matter, I will not enter an appearance nor an answer to the petition....

On February 26, 1998, an order was entered setting a settlement conference for April 20, 1998, and trial for April 23, 1998.

On March 23, 1998, Winkel wrote to Hudson with a proposed settlement: Gil-bride would receive the east forty acres of the farmland in exchange for (1) giving up his interest in a “building site” on the land, (2) paying $7500 to the defendants, and (3) dismissing the partition action. At some point before this offer was made, Gilbride apparently had purchased the one-twenty-fifth interests of Glen Trunnelle and Gordon Trunnelle.

On April 2 Rosalie wrote Gilbride proposing a counteroffer: Gilbride would receive thirty-one acres and a one-fifth interest in the “acreage,” which would be sold as a separate unit at a future date. In her letter, Rosalie gave a proposed legal description of the thirty-one acres and suggested that she could “have a lawyer check it for [her] and draw it up.”

On April 8 Winkel responded to the letter and sent to Hudson a courtesy copy of his response as well as Rosalie’s April 2 letter. In his letter to Rosalie, Winkel rejected her counteroffer, reiterated Gil-bride’s offer, and advised her that “[a]s Mr. Hudson is representing all of the defendants’ interests, we are sending him a copy of this letter and a copy of your letter dated April 2,1998, to Ron.”

On April 16 Hudson called Winkel’s office and spoke to his secretary. The secretary’s written record of the call stated that the defendants were proposing to transfer to Gilbride the east thirty-seven acres of the farmland.

Shortly after April 16 and before the April 23 trial date, Winkel and Hudson worked out a settlement agreement whereby Gilbride would receive the east thirty-seven acres in consideration for his dismissal of the suit. The attorneys then cancelled the trial scheduled for April 23.

On April 29 Winkel wrote Hudson, enclosing a proposed warranty deed (purporting to transfer the east thirty-seven acres and containing signature lines for each defendant and spouse) and a document, captioned “Notation of Settlement Agreement.” The following day, Hudson wrote back, stating that he had reviewed both documents and that they were “fine.” Hudson sent Kahler a courtesy copy of this letter.

On May 1 Winkel wrote Hudson, asking Hudson to sign the enclosed “Notation of Settlement Agreement” and return it to Winkel.

The notation of settlement agreement provided, among other things, that (1) the parties had through their respective attorneys entered into a “binding settlement agreement in consideration for the ultimate dismissal” of the partition action, (2) Gilbride would receive the east thirty-seven acres of the farmland, and (3) Gilbride would dismiss with prejudice the lawsuit “upon proper execution by all parties concerned of the documents necessary to complete said partition.” The last paragraph of the notation of settlement agreement stated: “The foregoing agreement is executed on behalf of the Plaintiffs and Defendants by their respective attorneys and intended to be filed in the above-entitled cause for the purpose of indicating that same has been settled and the terms thereof.” Both attorneys signed the agreement on May 4.

On June 30 Winkel wrote Hudson, suggesting that Hudson might be having trouble convincing all of the defendants to sign the deed. Additionally, Winkel stated he “strongly” felt that Hudson would not be able to get all of the defendants’ signatures on the deed. Winkel also stated that Theodore, who was living on the farm with his sister, Rosalie, came into Winkel’s office, and he sounded like “he was not going to be willing to sign anything.” Winkel proposed that he file a motion in the partition suit, requesting the court to appoint a receiver to execute the deed conveying title to Gilbride pursuant to the agreement.

On July 1 Hudson responded, indicating that Kahler had agreed to contact the other defendants about signing the deed.

On August 4 Gilbride filed a motion to amend his petition and an amended petition. The amendment alleged that Gil-bride was the owner of the east thirty-seven acres of the subject farmland because of the notation of settlement agreement. Gilbride requested, among other things, that the court appoint a referee to execute a deed on behalf of the defendants to transfer the east thirty-seven acres.

On August 28 Hudson filed a resistance to Gilbride’s motion to amend and the amended petition. Hudson filed the resistance on behalf of all the defendants except Theodore and Rosalie and alleged that Theodore and Rosalie refused to sign a deed in fulfillment of the notation of settlement agreement. The resistance further alleged that, because of the refusal of the two defendants to participate in the partition in kind, the court should appoint a referee and determine each of the parties’ interest and partition the real estate entirely by sale.

As part of the resistance, Kahler, Donald Trunnelle, David Trunnelle and Susan Fudurich cross-petitioned for partition by sale against Gilbride, Theodore, and Rosalie.

The district court granted Gilbride’s motion to amend. Later, Gilbride filed a motion for partial summary judgment supported by affidavit against all the defendants. He requested that the court enter summary judgment for him to receive the east thirty-seven acres of the real estate. Kahlfer, Donald Trunnelle, David Trun-nelle, and Susan Fudurich resisted the motion. They admitted “that prior to trial a settlement agreement was agreed to between the respective counsel for and on behalf of the parties but denie[d] that said settlement agreement was a complete and binding agreement on all parties.” Kahler submitted an affidavit in support of the resistance. Theodore and Rosalie did not file a resistance.

The district court held a hearing on the motion, but the hearing was not reported. Hudson, Winkel, and Kahler were present. None of the other defendants attended, but Rosalie did participate by telephone at which time she said that she opposed Gil-bride’s motion for partial summary judgment. The district court ruled it was undisputed “that at the time the settlement was arrived at, through Mary Kahler, [Hudson] had authority from all of the defendants to enter into [the] settlement agreement and to sign the Notation of Settlement Agreement.” The court granted Gilbride’s motion for partial summary-judgment, deeming him the owner of the east thirty-seven acres of the farmland.

Only Theodore and Rosalie appealed.

II. Issues.

The appellants, Theodore and Rosalie, raise two issues on appeal. They first contend that there is a genuine issue of material fact as to whether Hudson was their attorney at the time Hudson conveyed the settlement offer on April 16, 1998. The appellants alternatively contend that, even if an attorney-client relationship existed, there is a genuine issue of material fact as to whether they had given Hudson authority to enter into a settlement agreement on their behalf.

III. Scope of Review.

The district court has authority to enforce settlement agreements made in a pending case. Wright v. Scott, 410 N.W.2d 247, 250 (Iowa 1987); Wende v. Orv Rocker Ford Lincoln Mercury, Inc., 530 N.W.2d 92, 94 (Iowa App.1995). The district court may summarily enforce a settlement agreement on motion by one of the parties when, as here, a party amends his or her pleadings to assert settlement as an additional claim in the original lawsuit. Wende, 530 N.W.2d at 94. However, as a remedy to enforce a settlement agreement, summary judgment is proper only when

[pjleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.

Iowa R.Civ.P. 237(c); see also Wende, 530 N.W.2d at 94 (holding that, on appeal, standards applicable to summary judgment are applied in determining whether summary enforcement of a settlement agreement is appropriate).

On the other hand, if there are genuine issues of material fact surrounding the settlement, the issue is not appropriate for summary judgment, but rather must be resolved by a finder of fact. Wende, 530 N.W.2d at 94.

IV.Whether There Was an Attorney Client Relationship at the Time of the Settlement Offer.

As mentioned, the appellants first contend that there is a genuine issue of material fact as to whether Hudson was their attorney at the time Hudson made the settlement offer on April 16, 1998. The appellants concede that Hudson represented them in September 1997 when Hudson filed an answer for all the defendants in the partition action. However, the appellants contend, when Rosalie made the counteroffer to Gilbride on April 2, 1998, the attorney-client relationship ended.

The summary judgment record shows that all of the defendants except Theodore and Rosalie resisted Gilbride’s motion. The resisting defendants conceded that Hudson was representing all of the defendants when the offer was made on April 16, 1998, notwithstanding Rosalie’s counteroffer of April 2,1998. Kahler’s affidavit in support of the resistance to Gilbride’s motion for partial summary judgment confirms this fact:

When this partition action was started I contacted each one of the defendants and they agreed that we should have one lawyer. We selected James C. Hudson of Pocahontas, Iowa, to represent us, who filed an answer on behalf of all of the defendants. From the start of the lawsuit I was the spokesperson for the group of defendants and contacted them from time to time with information from attorney Hudson. They did not meet with him directly nor speak with him directly, but I was the contact person inasmuch as a number of the defendants in the Trunnelle family lived in California.
Through negotiations just prior to trial in April 1997, we were able to reach an agreement. All of the defendants at that time agreed to the agreement that Ronald Gilbride should receive the east 37 acres. We instructed Mr. Hudson to prepare a deed and other paper work in conformance with that agreement. We were advised that the trial would not be held because we had settled it and I did not attend the trial.... Theodore R. Trunnelle and Rosalie Bonavia refused to sign the deed once it had been prepared. At that point in time it became obvious to those of us who were remaining landowners that there would be problems in the future with Rosalie Bo-navia and Theodore R. Trunnelle and we decided at that point in time that we could no longer move forward to attempt to settle this by partitioning in kind but decided to file a cross-petition ... to reiterate our belief that the farm could not be partitioned but needed to be sold....

Additionally, the resisting defendants concede in their statement of disputed facts that prior to trial the parties through their attorneys negotiated a settlement agreement evidenced by the notation of settlement agreement. The resisting defendants also stated in their memorandum of authority that

[Hudson] continued to represent all of the defendants up to and including the time of entering into the notation of settlement. This has never been disputed by attorney Hudson nor any of the defendants. At such time as defendants Theodore R. Trunnelle and Rosalie Bo-navia communicated to attorney Hudson that they did not want to sign deeds and they would not go along with the compromise, attorney Hudson encouraged them to participate in the compromise as he believed it was in their best interest. However, once it became clear that they did not, attorney Hudson felt that he no longer represented their interest.... Defendants Theodore R. Trunnelle and Rosalie Bonavia have basically been without representation in this matter since August of1998....

(Emphasis added.)

Therefore, according to the memorandum, to the extent the attorney-client relationship between the appellants and Hudson was actually terminated, such termination did not occur until sometime in August 1998 — over three months after the offer was made and the settlement was reached.

In the absence of a resistance and an affidavit from the appellants to support their contention that Hudson did not represent them when the settlement offer was made and settlement was reached, no genuine issue of material fact exists as to this contention. The only record made by the appellants was Rosalie’s statement at the summary judgment hearing that she opposed Gilbride’s motion for partial summary judgment. According to our rules of civil procedure, that statement was not enough to raise a genuine issue of material fact on the attorney-client relationship. See Iowa R.Civ.P. 237(e) (providing that, when a motion for summary judgment is supported by affidavit, depositions, answers to interrogatories or oral testimony, the opposing party may not rest on his or her pleading but must respond by affidavit or as otherwise provided by the rule and set forth specific facts showing a genuine issue for trial). Simply put, whether an attorney-client relationship between appellants and Hudson existed at the time in question was not an issue in the district court.

V. Whether Hudson Had Authority to Enter Into a Settlement Agreement.

For their alternative contention, the appellants assert there is a genuine issue of material fact as to whether Hudson had authority from the appellants to enter into the settlement agreement on their behalf. This was the issue the dis-triet court decided, and the court decided Hudson did have such authority.

Iowa Code section 602.10114 provides that an attorney has power to “[b]ind a client to any agreement, in respect to any proceeding within the scope of the attorney’s or counselor’s proper duties and powers....” Iowa Code § 602.10114(2) (1997). An attorney’s offer of settlement is generally within the scope of the attorney’s litigation duties. See Strong v. Rothamel, 523 N.W.2d 597, 600 (Iowa App.1994); Starlin v. State, 450 N.W.2d 257, 258 (Iowa App.1989). However, an attorney cannot settle or compromise a case without authority. Dillon v. City of Davenport, 366 N.W.2d 918, 924 (Iowa 1985). If a settlement is made with authority, that settlement is binding on the client. Id.; see Iowa Code § 602.10114(2).

An attorney is presumed to act with authority. Dillon, 366 N.W.2d at 923. The presumption, however, is not conclusive and may be rebutted. Id. The presumption is overcome only by clear and satisfactory proof. Lonning v. Lonning, 199 N.W.2d 60, 62 (Iowa 1972).

In its ruling granting the motion for partial summary judgment, the district court noted that Hudson stated at the hearing that all of the defendants, including the appellants, had agreed to the settlement. Hudson’s statement to the court was a professional statement. A professional statement “means a statement of fact presented to the court by an attorney in connection with a matter then before such court, verified in effect by the oath of such attorney, and designed or calculated to aid or influence the court in the determination of a given cause or issue.” State v. Williams, 315 N.W.2d 45, 53 (Iowa 1982) (quoting Cogley v. Hy-Vee Food Stores, Inc., 257 Iowa 1381, 1386-87, 137 N.W.2d 310, 313 (1965)).

Additionally, a professional statement

“is a technique, used as a matter of convenience and practical necessity to establish a record of matters peculiarly within the knowledge of an attorney. In offering a professional statement an attorney pledges the honor of his profession and his personal integrity. It has the effect of an affidavit.”

Id. (quoting State v. Brewer, 247 N.W.2d 205, 212 (Iowa 1976)). Hudson’s statement to the district court regarding the extent of his authority clearly concerned a matter within his knowledge. Because the statement had the status of an affidavit, the district court could properly consider it. See Wende, 530 N.W.2d at 95.

In addition to Hudson’s professional statement, the district court noted that according to Kahler’s affidavit Hudson— through Kahler — had authority from all the defendants to enter into the settlement agreement and to sign the notation of settlement agreement. We agree with the district court’s assessment of Kahler’s affidavit. Like the district court, we find nothing in the summary judgment record to refute Kahler’s affidavit on this point.

To further support its conclusion, the district court cited the following language from the “Statement of Disputed Facts” signed by Hudson on behalf of those defendants resisting Gilbride’s motion for partial summary judgment:

Prior to trial in the spring of [1998] the parties, through their attorneys of record, negotiated a settlement which is evidenced by the Notation of Settlement Agreement filed in this record, reliance upon which trial date was missed. Said settlement ivas negotiated in good faith by both of the attorneys and all of the parties in this matter.

The only defense Hudson presented at the summary judgment hearing was based on the following italicized language in the first sentence of the notation of settlement agreement:

COMES NOW, Eldon J. Winkel, attorney for plaintiff and James C. Hudson, attorney for defendants, and hereby state that the above-entitled ease was set for trial on April 23, 1998, however, prior thereto the parties, through their respective undersigned attorneys, entered into a binding settlement agreement in consideration for the ultimate dismissal of the above-entitled cause upon the proper execution by all interested parties to carry out the terms of the settlement agreement.

(Emphasis added.)

Hudson’s defense (which the appellants have not urged on appeal) was that there was to be no settlement until the deeds were signed. The district court properly rejected the argument, stating its reasoning as follows:

That phrase [“upon the proper execution by all interested parties to carry out the terms of the settlement agreement”] is obviously a statement of time when something would happen, namely, dismissal of the lawsuit. If the phrase is read in context with what appears immediately before it, it becomes clear that the parties have agreed that the lawsuit would be dismissed upon proper execution by all interested parties of whatever documents are necessary to carry out the terms of the settlement.

For the foregoing reasons, we conclude that the appellants have not demonstrated that there was record evidence generating a genuine issue of material fact on whether Hudson had the authority to settle on their behalf. They make much of the fact that witnesses did not testify as to the nature of the communications between Hudson, Kahler, and the other defendants. They repeatedly argue that the record is thin and that “we simply don’t know” on this record who said what, when they said it, and what exactly happened. However, the appellants had the burden to adequately resist the summary judgment motion once Gilbride presented a record of undisputed facts that sufficiently supported summary judgment. See Iowa R.Civ.P. 237(c), (e); see also Humphries v. Methodist Episcopal Church, 566 N.W.2d 869, 872-73 (Iowa 1997) (“A factual issue does not arise simply from the claim that one exists.”). They cannot now assert that a thin record warrants a reversal of the summary judgment when they presented nothing to generate a genuine issue of material fact.

VI. Disposition.

Because there exists no genuine issue of material fact on Hudson’s authority to represent the appellants or his authority to settle on their behalf, we affirm. We remand for further proceedings.

AFFIRMED AND REMANDED.


text:
    TOM RILEY LAW FIRM, P.C. a/k/a Tom Riley Law Firm, a Professional Corporation n/k/a Tom Riley, a Professional Corporation; Tom Riley Law Firm, P.L.C.; Sara Riley Brown; and Tom Riley, Appellees, v. Milo GLASS and Jerolene Glass, Appellants. Milo Glass and Jerolene Glass, Appellants, v. Tom Riley Law Firm, P.C. a/k/a Tom Riley Law Firm, a Professional Corporation n/k/a Tom Riley, a Professional Corporation; Tom Riley Law Firm, P.L.C.; Sara Riley Brown; and Tom Riley, Appellees.
    No. 99-0204.
    Supreme Court of Iowa.
    Dec. 20, 2000.

      Timothy S. White and William G. Nicholson of White & Johnson, P.C., Cedar Rapids, for appellants.
    David J. Dutton, James R. Heilman, and Carolyn A. Rafferty of Dutton, Braun, Staack & Heilman, P.L.C., Waterloo, for appellees.
   LARSON, Justice.

The plaintiffs, a law firm and two of its members, whom we will refer to as “Riley,” sued the defendants, Milo and Jero-lene Glass, for legal fees arising out of Riley’s representation of the Glasses in a 1993-94 condemnation proceeding. The defendants counterclaimed against Riley for legal malpractice, claiming Riley caused them to receive less than they were entitled to in the condemnation proceeding by negligently failing to serve notice of appeal of the condemnation commission award to the necessary parties. The matter proceeded to a jury trial. Following the trial, the district court entered judgment in favor of Riley, allowing its claim for attorney fees and denying the defendants’ claim of legal malpractice. The defendants appealed, and we now affirm.

I. Facts and Prior Proceedings.

In 1983 the Iowa Department of Transportation (DOT) condemned a portion of the Glasses’ property in conjunction with a plan to alter Highway 22 in Muscatine County. The condemnation was to prevent massive landslides that the DOT feared would cover the highway. The Glasses contested the amount of compensation awarded for the condemnation and petitioned for review in district court. The amount of land taken was increased because, after construction began, unexpected difficulties were encountered in stabilizing the roadway. After the taking was Increased, the Glasses filed an amended petition, which specifically referred to the loss of lateral support due to the condemnation and raised their damage demand substantially. The Glasses’ appeal of the 1984 condemnation award went to trial before a jury, and a general verdict was returned in favor of the Glasses for $167,000. The verdict did not identify whether anything was awarded for the loss of lateral support. We will refer to this as the first condemnation proceeding.

With the historic rains of 1993, the area had substantial movement of rock and soil onto Highway 22, and by September 1993 a new road project was being discussed. The Glasses anticipated a possible dispute with the DOT and met with Riley on September 8, 1993, to discuss the possibility of a new condemnation proceeding. The original agreement was for Riley to represent the Glasses for an hourly fee, but this was later changed to a contingency fee of one-third.

The second condemnation proceeding began in 1993. The DOT had the property appraised and subsequently offered the Glasses $293,500. The Glasses refused the offer and the compensation commission met in August 1994 to consider the award. Riley represented the Glasses before the commission. The commission awarded the Glasses a total of $380,000. The Glasses felt this amount was insufficient, and Riley prepared an appeal petition, seeking $1.6 million in compensation. Although the appeal was prepared and filed in a timely manner, Riley failed to serve notice of the appeal on all necessary parties. Riley admits this was negligence. Based on this failure to serve notice, the DOT successfully moved to dismiss the appeal.

Riley filed the present case on February 12, 1997, to recover fees for the legal representation of the Glasses in the second condemnation case. The Glasses answered the petition and counterclaimed for damages based on Riley’s negligence. A jury verdict was returned on December 7, 1998, awarding Riley $28,833 on its claim for attorney fees and denying any recovery to the Glasses on their legal malpractice claim.

II. The Issues.

The defendants assign three errors: (1) the court’s instruction to the jury that damages for loss of lateral support could not duplicate a similar recovery in the 1985 condemnation, (2) Riley’s recovery of attorney fees in view of its admitted negligence, and (3) the court’s admission of hearsay evidence. •

A. The court’s instruction. The court’s instruction No. 28 stated:

The damages to the real estate from which the condemned portion is taken for a public improvement when assessed, are assessed once and for all, and are conclusively presumed to include all damages, present and future, which may be sustained by the owner by reason of the proper use of the condemned portion for the purpose for which it is condemned. If you find that the Glasses were entitled to or were awarded damages for loss of lateral support to their property in the 1985 condemnation verdict, the Glasses are not entitled to damages resulting from the same loss of lateral support to their property in this case, subject to Instruction No. 29.

Much of the language of this instruction comes from the case of Hammer v. County of Ida, 231 N.W.2d 896, 900 (Iowa 1975). The Glasses claim the language of the instruction, “If you find that the Glasses were entitled to or were awarded damages for loss of lateral support to their property in the 1985 condemnation verdict,” erroneously submitted the concept of issue preclusion, a legal matter, to the jury.

Riley contends Instruction No. 28 did not embody principles of issue preclusion but simply stated a general principle of condemnation law that compensation cannot be received twice for the same element of damage' — -here, the loss of lateral support. Our law presumes that damages in a condemnation case

include all damages, present and future, which may be sustained by the owner by reason of the proper use of the condemned portion for the purpose for which it is condemned.

Hammer, 231 N.W.2d at 900.

While we tend to agree with Riley that Instruction No. 28 embodied the principle that double recovery is not allowed and was not an attempt to shift to the jury the application of issue-preclusion principles, it is not necessary to decide that question. This is so because, under the jury’s findings, all of the damages to which the Glasses were entitled for the second taking, including the loss of lateral support, were included in the 1994 compensation commission award.

The basis of the Glasses’ malpractice suit is that Riley’s negligence in failing to appeal the compensation commission award resulted in their losing compensation to which they were entitled. Specifically, they claim they are entitled to an award for the loss of lateral support of their land adjacent to the DOT project. They claim this was a loss for which they had not been compensated in the 1984 condemnation proceedings, and Riley’s negligence in the 1994 proceeding prevented them from recovering for it in that proceeding. Riley responds that the jury found the Glasses were not entitled’ to any damages in excess of the $380,000 awarded to them by the commission. A special interrogatory asked the jury to

[ijnsert the amount you find to be the difference between the fair and reasonable market value of the property before the taking on August 18, 1994, and the fair and reasonable market value of the Glasses’ remaining portion after the taking which is in excess of the $380,000 awarded by the Muscatine County Compensation Commission.

The jury answered “$0.00.” Under this finding, a perfected appeal to the district court of the compensation commission award of $380,000 would have been fruitless, so Riley’s negligence in failing to perfect the appeal caused no damage to the Glasses. We therefore affirm the court’s judgment in favor of Riley on the counterclaim for legal malpractice.

B. The claim for attorney fees. Riley’s suit was filed to force the Glasses to pay the contingent fee on which they had agreed: one-third of the difference between the amount offered by the DOT ($293,500) and the amount awarded by the compensation commission ($380,000). The jury found for Riley on this issue and awarded attorney fees of $28,833. The Glasses argue this was improper because Riley was negligent in failing to perfect the appeal. As a matter of law, they contend, an attorney is not entitled to compensation for negligent services rendered. They rely on Crookham v. Riley, 584 N.W.2d 258 (Iowa 1998), in which we said

an attorney should not be permitted to recover fees for legal services performed negligently that cause substantial damage to the client.

Id. at 269 (emphasis added). Here, Riley’s negligence did not cause damage to the Glasses. In fact, Riley’s services resulted in a recovery of all damages to which the Glasses were entitled, according to the jury’s findings. Riley’s judgment for attorney fees is therefore affirmed.

C. The hearsay issue. Glasses contend that the court erroneously admitted a hearsay statement by an attorney who had previously represented them. A written statement by the Glasses’ former attorney, made to the court in the first condemnation proceeding as a part of an application to award legal fees to the Glasses in that proceeding, was introduced into evidence in the present trial:

During the course of my representation of the Plaintiffs, the embankment continued to have landslides. My research uncovered the fact that an extension of the fault that runs through New Madrid, Missouri extends through the edge of the Glass property. [The research revealed] [t]hat the instability of the soil was due to the fault and that the Iowa Department of Transportation had not taken the fault into consideration in making their plans to cut into the hill.

The Glasses objected to this statement on the basis it was hearsay. Counsel for Riley responded that the document was “part of the court file,” and the trial court admitted it on that basis. Glasses complain that the fee statement mentioned the lateral-support problem and would tend to lend credence to Riley’s claim that the right to lateral support was litigated in the first condemnation proceeding and therefore could not have been recovered in the second proceeding.

We believe the problem with the Glasses’ hearsay argument is that admission of the evidence could not reasonably be construed to be prejudicial. The presence of a fault causing landslides on the Glass property was evident in the record. In fact, experts testified to that fact. The attorney-fee statement is merely cumulative and therefore not prejudicial. See State v. Hildreth, 582 N.W.2d 167, 170 (Iowa 1998).

We find no merit in any of the arguments presented by the Glasses and therefore affirm.

AFFIRMED.


author: NEUMAN, Justice.

text:
    STATE of Iowa, Appellee, v. Michael Lee HAWKINS, Appellant.
    No. 99-0179.
    Supreme Court of Iowa.
    Dec. 20, 2000.

      Linda Del Gallo, State Appellate Defender, and John P. Messina, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Karen B. Doland, Assistant Attorney General, Michael Short, County Attorney, and Bruce C. McDonald, Assistant County Attorney, for appellee.

       Senior judge assigned by order pursuant to Iowa Code section 602.9206 (1999).

   NEUMAN, Justice.

This is an appeal by defendant, Michael Lee Hawkins, from the judgment and sentence entered upon his convictions of two counts of perjury as an habitual offender in violation of Iowa Code sections 720.2 and 902.8 (1997). The perjury charges stem from Hawkins’ testimony during a postconviction relief hearing. His testimony contradicted statements made in his prior guilty-plea colloquy to the charge of delivery of methamphetamine.

Hawkins now claims entitlement to reversal because (1) his voluntary dismissal of the postconviction relief action negated the materiality of his perjurious statements, (2) he would have prevailed on a statutory retraction defense but for counsel’s failure to urge it, and (3) personal belief does not constitute a “fact” under the perjury statute, a dispositive legal issue his trial counsel failed to urge. Finding no merit in any of these contentions, we affirm the district court judgment.

I. Background Facts and Proceedings.

The State charged Hawkins with two counts of delivery of a schedule II controlled substance (methamphetamine) by a trial information filed in January 1996. The charges stemmed from controlled drug buys involving a confidential informant named Rick Hardman. In exchange for dismissal of one of the charges, Hawkins agreed to plead guilty to one count of delivery of methamphetamine.

During the guilty-plea colloquy Hawkins affirmatively stated that no threats or promises had been made to induce his guilty plea. He also acknowledged that he had discussed the matter thoroughly with his counsel, was satisfied with his representation, and that he was, indeed, guilty as charged. Summing up the factual scenario, Hawkins told the court “I sold some crystal to Rick Hardman.”

Although hoping for a deferred or suspended sentence, Hawkins received a prison term for his offense. Roughly four months later he filed a pro se petition for postconviction relief. The petition, as later amended by court-appointed counsel, asserted that Hawkins’ guilty plea had not been knowing and voluntary but was instead the product of ineffective counsel who had failed to properly investigate the facts and charges, ultimately forcing him to plead guilty.

At the evidentiary hearing that followed, Hawkins denied that he delivered drugs and testified that his attorney pressured him into accepting the State’s plea offer when he, in fact, wanted to go to trial. Because that testimony formed the basis for the perjury charges now under review, we quote it here:

Q. Do you recall the judge asking whether it was your voluntary act to plead guilty on that day? A. I remember him saying that.
Q. Did you tell him it was? A. Yeah, I did. I did, but I just felt like I was coerced into it.
Q. Why did you feel that way? A. ’Cuz when I had mentioned that I had wanted a jury trial and things, Mr. Henson acted like he just didn’t want to act on that. I just — You know, if you have a lawyer that you tell him what you want to do and he keeps talking against it, then when you know you got witnesses that you just want them to, you know, tell the truth about something and he doesn’t want to call them, I guess you begin to feel a little disgusted about the whole deal anyway.
Q. And the Court asked you to indicate what the facts of the case were at the time and you responded, “I sold some crystal to Rick Hardman.” You recall saying that? A. Yes, I do.
Q. And today you’re telling the Court that you did not sell crystal to Rick Hardman? A. No, I never.

Rather than rule from the bench, the court took Hawkins’ postconviction application under advisement. About three weeks later, before the court had ruled, Hawkins sought the court’s permission to dismiss the action. His motion stated that he believed it “would fail based on the current state of the law.” The district court granted the motion.

The State then charged Hawkins with perjury based on his testimony at the post-conviction hearing. The trial information specified two allegedly perjurious statements: Hawkins’ denial that he sold drugs to Hardman and the claim he believed his attorney coerced his plea. Following a trial in which the State introduced Hawkins’ contradictory testimony into evidence, the jury returned guilty verdicts on both charges. This appeal by Hawkins followed.

II. Scope of Review.

Claims of insufficient evidence, preserved by motion for judgment of acquittal, are reviewed on appeal for errors at law. State v. Walker, 574 N.W.2d 280, 283-84 (Iowa 1998). We are bound by the jury’s verdict unless we determine it is not supported by substantial evidence. Id. at 284. In making that determination, we consider the evidence in the light most favorable to the State. Id.

Ineffective assistance of counsel claims, being constitutional in nature, are reviewed by this court de novo. State v. Westeen, 591 N.W.2d 203, 207 (Iowa 1999).

III. Issues on Appeal.

A. Effect of dismissal. Hawkins begins by asserting he was entitled to judgment of acquittal, as a matter of law, because the voluntary dismissal of his postconviction action negated the materiality of the false testimony he gave during the postconviction hearing. The State counters that, for purposes of a criminal prosecution, the materiality of a statement is measured at the time it is made. Hawkins does not disagree with this assertion but insists that, under the record before us, when he “cancelled his case, he can-celled his falsehoods.”

We begin with the undisputed premise that proof of the materiality of a factual assertion is an essential element of the crime of perjury. The governing statute, Iowa Code section 720.2, states in pertinent part:

A person who, while under oath or affirmation in any proceeding or other matter in which statements under oath or affirmation are required or authorized by law, knowingly makes a false statement of material facts or who falsely denies knowledge of material facts, commits a class “D” felony.

(Emphasis added.) A statement of fact is material if it

directly or circumstantially (1) supports or attacks the credibility of a witness, or . (2) has a legitimate tendency to prove or disprove some relevant fact irrespective of the main fact at issue, or (3) is capable of influencing the court, officer, tribunal or other body created by law on any proper matter of inquiry.

Walker, 574 N.W.2d at 284 (quoting State v. Deets, 195 N.W.2d 118,122 (Iowa 1972)).

We have not before had occasion to address the effect of a dismissal on the materiality element of a perjury prosecution. At least one federal court has wrangled with the question, however. In United States v. McFarland, 371 F.2d 701 (2d Cir.1966), the court of appeals reviewed the perjury convictions of a prison warden investigated for permitting prostitution with inmates. The warden had been charged and convicted of lying under oath to the grand jury but claimed on appeal that false statements given in connection with the investigation of dismissed charges could not be considered material. McFarland, 371 F.2d at 703. The appeals court, observing materiality must be established as of the time the false answers are given, rejected the notion that perjury can “vanish” if a count to which it pertains is withdrawn from the jury’s consideration. Id. In other words, the court held, materiality turns on the relationship between the interrogation and the matters under investigation at the time. Id. at 704; see also United States v. Norris, 300 U.S. 564, 574, 57 S.Ct. 535, 539, 81 L.Ed. 808, 813 (1937) (retraction defense unavailable to senator charged with perjury because perjury complete “when a witness’s statement has once been made”); United States v. Lococo, 450 F.2d 1196, 1199 n.3 (9th Cir.1971) (because materiality tested as of time of inquiry, later proof that truthful statement would not have helped grand jury does not render false testimony immaterial). •

Implicit in these decisions is the notion that the essential nature of a statement does not change depending on the outcome of the proceedings in which it is asserted. Hawkins urges us to reject this rationale in favor of permitting a misguided prisoner to abandon a fraudulent claim without penalty, ostensibly on the ground such second thoughts would be rejected anyway. We are not inclined to do so. As the United States Supreme Court has observed, accepting such an argument would effectively ignore the fact

that the oath administered to the witness calls on him freely to disclose the truth in the first instance and not to put the court and the parties to the disadvantage, hindrance, and delay of ultimately extracting the truth by cross-examination, by extraneous investigation, or other collateral means.

Norris, 300 U.S. at 574, 57 S.Ct. at 539, 81 L.Ed. at 813.

If, as we firmly believe, the pursuit of truth is at the heart of all judicial proceedings, neither precedent nor policy supports the argument Hawkins advances. We hold that dismissal of an action does not negate the materiality of false statements made therein under oath. The district court correctly rejected Hawkins’ argument to the contrary.

B. Retraction defense. Hawkins next claims that trial counsel in his perjury case was ineffective because he failed to plead and assert the retraction defense that is incorporated into Iowa Code section 720.2. The statutory defense states: “No person shall be guilty of perjury if the person retracts the false statement in the course of the proceedings where it was made before the false statement has substantially affected the proceeding.” Iowa Code § 720.2. Counsel’s failure to properly raise the issue at trial, Hawkins submits, deprived him of the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. See Strickland v. Washington, 466 U.S. 668, 684-86, 104 S.Ct. 2052, 2063-64, 80 L.Ed.2d 674, 691-92 (1984).

The State concedes defense counsel’s waiver of this issue at trial enables Hawkins to now assert it on appeal as an ineffective assistance of counsel claim. State v. Lucas, 323 N.W.2d 228, 232 (Iowa 1982). To prevail on such a claim, Hawkins must prove (1) that counsel failed to perform an essential duty, and (2) prejudice resulted. Westeen, 591 N.W.2d at 207. But “[c]ounsel is not ineffective when the issue counsel failed to raise has no merit.” Id. Here, the State insists Hawkins was not entitled to the retraction defense as a matter of law, therefore counsel was not ineffective for failing to raise it. For the reasons that follow, we agree.

Hawkins correctly argues the retraction defense contains three essential elements. Considered in context, they are: (1) whether by voluntarily dismissing his postconviction action Hawkins “retracted” his false testimony, (2) whether a post-trial dismissal meets the statutory requirement of “in the course of the proceedings,” and (3) whether his dismissal motion occurred before his false statements “substantially affected the proceeding.” See Iowa Code § 720.2. Hawkins claims the first two elements are established as a matter of law under the record before us. As for the impact of his false statements on the dismissed proceeding, he contends the jury should have been permitted to weigh the evidence.

Turning to the first element — whether a voluntary dismissal constitutes a retraction — we note that the term “retract” is not defined in the perjury statute. So we apply its common meaning. See Westeen, 591 N.W.2d at 208. To retract means “to draw back” or “to recant or disavow something.” Webster’s Ninth New Collegiate Dictionary 1007 (1986). Hawkins concedes on appeal that he did not specifically disavow or take back the false statements at issue. But he contends “he accomplished as much by withdrawing his whole post-conviction claim and dismissing the case.” We are not so convinced.

The essential purpose of a retraction or recantation defense is to encourage a perjurer to set the record straight, that is, to reveal the truth. State v. Hanson, 302 N.W.2d 399, 402 (N.D.1981). As one federal court has aptly noted,

[u]nlike insanity or entrapment, recantation does not excuse a defendant because it makes him any less guilty, or justifies his otherwise criminal conduct. Rather, statutory recantation erects a barrier that permits escape from prosecution, despite guilt, in the interest of encouraging corrected testimony and thereby improving the functioning of judicial proceedings.

United States v. Moore, 613 F.2d 1029, 1037 (D.C.Cir.1979). Although the wording of the federal perjury statute, unlike our own, specifically conditions the retraction defense on an affirmative admission that prior testimony was false, see id. at 1038 (quoting 18 U.S.C. § 1623(d) (1976)), federal court decisions nevertheless illuminate our view of the permissible scope of a retraction defense. It has been held, for example, that entitlement to the defense requires more than an expression of uncertainty about the thrust of a prior inquiry, United States v. Goguen, 723 F.2d 1012, 1017 (1st Cir.1983), or a claim that, if the prosecutor had reopened grand jury proceedings, prior testimony would have been corrected, United States v. D'Auria, 672 F.2d 1085, 1091-92 (2d Cir.1982). Observing that “[t]he law has little tolerance for half-baked explanations of phony testimony,” the court in Precision Window Manufacturing v. NLRB, 963 F.2d 1105, 1110 (8th Cir.1992), refused to extend the benefit of retraction to a worker whose recanted testimony had to be “hammered out” of him on cross-examination. And in Adams v. State, 727 So.2d 983, 984 (Fla.Dist.Ct.App.1999), the appeals court rejected a perjurer’s claim that her efforts to recant her prior false testimony were rejected by the prosecutor, a belated plea the court deemed insufficient as a matter of law under Florida’s perjury statute.

These decisions make plain that the essence of retraction is the act of uncovering the truth. And uncovering the truth involves not only admitting a lie has been told, but also admitting what really happened. Hawkins did neither when he voluntarily dismissed his postconviction action. His motion to dismiss stated he believed his action would be unsuccessful, not that he wanted to withdraw or disavow its allegations. Moreover the State’s perjury case rested, not on the contents of Hawkins’ postconviction application, but on the substance of his trial testimony. Hawkins’ brief cites no authority for the proposition that dismissing a pleading or action thereby “dismisses” the testimony given to support it.

We hold, as a matter of law, that mere dismissal of an action — without more-does not amount to a taking-back or disavowal of testimony required to satisfy the retraction element of the statutory defense to Iowa Code section 720.2. Because the record does not furnish an evidentiary basis for submission of this essential element of the perjury defense to the jury, Hawkins’ counsel was not ineffective for failing to urge it. Moreover our decision makes it unnecessary to consider whether Hawkins’ post-trial dismissal was done “in the course of the proceedings” or before the testimony “substantially affected the proceeding.” See Iowa Code § 720.2. No ground for reversal appears.

C. False statement of fact or belief. Hawkins’ third assignment of error also rests on a claim of ineffective assistance of counsel. But for his attorney’s failure to move for judgment of acquittal, Hawkins claims, he would have been acquitted on count II of the State’s trial information because a personal opinion or belief is not a false “fact” subject to prosecution under Iowa’s perjury statute. The State counters that a false statement of opinion or belief may constitute perjury if, in fact, the witness held no such opinion or belief at the time the assertion was made. Thus, the State argues, the record supports a guilty verdict in connection with Hawkins’ statement that he believed his lawyer coerced his guilty plea; no motion for judgment of acquittal would have been successful.

By its terms, Iowa’s current perjury statute (as amended upon adoption of the “new” criminal code in 1978) specifically criminalizes only the making of false statements of material “facts.” Iowa Code § 720.2. The former perjury statute, quoted at length in State v. Deets, 195 N.W.2d 118, 122 (Iowa 1972), made it a crime to swear or affirm falsely to any material “matter or thing.” See Iowa Code § 721.1 (1966). Thus we held in Deets that, to sustain a charge of perjury, the State must establish proof of a “false statement of fact, opinion or belief.” Deets, 195 N.W.2d at 122 (emphasis added); accord Walker, 574 N.W.2d at 284; State v. Gartin, 271 N.W.2d 902, 908-09 (Iowa 1978). Hawkins now claims that the legislature’s decision to change the statute in 1978 by penalizing only false statements of “fact” reveals an intent to eliminate prosecutions like the one before us — prosecutions that, in his words, are “grounded on personal, subjective views on a given matter, no matter how insincerely held.”

We begin by noting we did not address the precise issue Hawkins now raises in either Gartin or Walker. We also note that Hawkins is correct when he states that, in general, to sustain a charge of perjury, the alleged false statement “must be one of fact, and not of opinion or belief.” 60A Am.Jur.2d Perjury § 22, at 1080 (1988). The rule is subject to qualification, however, when — as a matter of fact — the witness is alleged to have held no such opinion or belief. Id. § 23, at 1081. Numerous states have applied the rule and its caveat to uphold perjury convictions in the face of defendants’ claims that their fabrications voiced only opinions, not facts, and were thus not criminal. See People v. Webb, 74 Cal.App.4th 688, 88 Cal.Rptr.2d 259, 264 (1999) (in action for perjurious statements made to fraudulently obtain worker’s compensation benefits, court held opinion testimony regarding pain and disability constitutes perjury if witness does not honestly hold opinion to which he testifies); People v. Drake, 63 Ill.App.3d 633, 20 Ill.Dec. 544, 380 N.E.2d 522, 524 (1978) (motion to dismiss reversed on appeal in action for perjury committed in bond reduction hearing, in recognition of rule that “statement of belief or opinion may constitute perjury when, as a matter of fact, the witness had no such belief or opinion”); State v. McCaslin, 240 Neb. 482, 482 N.W.2d 558, 564 (1992) (held person may be convicted of making false statement under oath when statement based on belief known to be false); State v. Sullivan, 24 N.J. 18, 130 A.2d 610, 615-16 (1957) (in appeal from conviction for perjury committed by state medical witness whose testimony “varied violently” on retrial of criminal defendants, court rejected doctor’s “opinion” defense, holding where existence or nonexistence of opinion or belief is itself a material matter of fact, a false statement about it may constitute perjury); Brasher v. State, 715 S.W.2d 827, 831 (Tex.Ct.App.1986) (“A person who willfully swears falsely to a belief in the existence of a fact which he knows does not exist is as guilty of perjury as if he had sworn directly to the existence of a fact which he knew did not exist.”).

Turning to the case before us, the issue is not — -as Hawkins frames it— whether he honestly believed he was being-coerced into pleading guilty at the time of his postconviction hearing. The issue is whether he actually held that belief at the time of the guilty plea hearing or only claimed coercion, after the fact, to support his postconviction application. In other words, the case does not turn on opinion, but fact. See Shorette v. Maine, 402 A.2d 450, 453 (Me.1979) (“the existence or nonexistence of an opinion or belief is, in itself, a matter of fact, and, if material, the false statement of opinion or belief may constitute [perjury]”). Whether Hawkins believed in the truth of his postconviction testimony, when uttered, was a question uniquely within the province of the jury. McCaslin, 482 N.W.2d at 564.

The record before us contains ample evidence from which a jury could determine Hawkins’ postconviction assertion about his counsel was false and fabricated solely to secure reversal of his conviction. Hawkins’ trial counsel on the drug delivery charges, John Henson, testified at length about representing Hawkins, counseling him regarding his plea, and discussing with him the right to file a motion in arrest of judgment, a maneuver Hawkins declined. Contrary to Hawkins’ assertion, Henson testified that he routinely offers his clients his opinion on the value of tendered plea bargains, but would never force a client to plead guilty rather than go to trial. This includes taking cases to trial, Henson asserted, that should have been resolved by guilty plea.

The jury also had the opportunity to listen to the testimony given by Hawkins at his postconviction hearing and compare it with the testimony he gave at the plea colloquy. The testimony was flatly contradictory. In ultimately deciding which record to credit, the jury was entitled to disbelieve the truth of Hawkins’ postcon-viction assertions. The jury was likewise entitled to consider Hawkins’ motives when weighing the credibility of his testimony.

Because the trial court committed no error in submitting count II of the trial information to the jury and substantial evidence in the record supports the verdict rendered, Hawkins cannot prove he was prejudiced by his counsel’s failure to move for judgment of acquittal. Accordingly we affirm the district court’s judgment convicting Hawkins of two counts of perjury as an habitual offender.

AFFIRMED.

McGIVERIN, S.J., participates in place of LARSON, J., who takes no part.