No. 3-646 / 02-0770Court of Appeals of Iowa.
Filed October 15, 2003
Appeal from the Iowa District Court forScott County, James E. Kelley, Judge.
Applicant appeals the district court ruling dismissing his application for postconviction relief. AFFIRMED.
Jack Dusthimer, Davenport, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell, Assistant Attorney General, and William Davis, County Attorney, for appellee.
Considered by Vogel, P.J., and Mahan, and Zimmer, JJ.
PER CURIAM.
Garth Anderson appeals the district court ruling dismissing his application for postconviction relief. We affirm.
Background Facts and Proceedings. On March 7, 1996, a jury found Anderson guilty of first-degree murder, first-degree robbery, and willful injury. This court affirmed his convictions in September 1997. See State v. Anderson, No. 96-643 (Iowa Ct.App. Sept. 24, 1997). Anderson filed a pro se postconviction relief application in December 2000 alleging the constitutional infirmity of certain jury instructions, the ineffectiveness of both trial and appellate counsel, and the failure of the State to rebut his defense of diminished responsibility.
On February 13, 2002, Anderson’s attorney moved to withdraw as counsel, asserting the application for postconviction relief was frivolous. On February 15, the district court gave Anderson notice of its intent to dismiss the application but gave Anderson until March 21, 2002, to reply to the proposed dismissal. The order specifically stated that such “response, if any, shall contain specific basis why the Application for Post-Conviction Relief has merit and should not be dismissed.” Anderson responded to his counsel’s motion to withdraw on March 13, 2002, by requesting the motion be granted but for the court to appoint different counsel to assist with his postconviction relief action. Anderson did not assert a basis for the court to not dismiss his application, nor did he request a hearing on his application.
On April 19, 2002, the district court granted counsel’s application to withdraw and dismissed Anderson’s application for postconviction relief pursuant to Iowa Code section 822.6 (2001). The court found that there were no sufficient grounds alleged to support Anderson’s action nor material issues of fact existing that would entitle Anderson to postconviction relief. Anderson appeals.
Scope of Review. We review the dismissal of an application for postconviction relief for correction of errors at law. Brown v. State, 589 N.W.2d 273, 274 (Iowa Ct.App. 1998). To the extent the application raises constitutional issues, our review is de novo. McLaughlin v. State, 533 N.W.2d 546, 547 (Iowa 1995).
Discussion. Anderson contends the district court erred by dismissing his application for postconviction relief without allowing him to present testimony on the claims. We disagree.
Paragraph two of Iowa Code section 822.6 provides for dismissal of a postconviction relief application without a trial on the merits,
When a court is satisfied, on the basis of the application, the answer or motion, and the record, that the applicant is not entitled to postconviction relief and no purpose would be served by any further proceedings, it may indicate to the parties its intention to dismiss the application and its reasons for dismissal. The applicant shall be given an opportunity to reply to the proposed dismissal. In light of the reply, or on default thereof, the court may order the application dismissed or grant leave to file an amended application or direct that the proceedings otherwise continue. Disposition on the pleadings and record is not proper if a material issue of fact exists.
Iowa Code § 822.6. Therefore, the court may dismiss an application without oral argument or presentation of evidence unless a material issue of fact exists. While a court need not conduct a trial on the merits, it must afford the applicant an opportunity to respond prior to final disposition. Poulin v. State, 525 N.W.2d 815, 816 (Iowa 1994) (citin Hines v. State, 288 N.W.2d 344, 346 (Iowa 1980)). In this case, after appointed counsel filed the motion to withdraw, the district court notified Anderson of the motion and of the proposed dismissal and gave Anderson an opportunity to respond stating,
the matter shall be set for hearing without oral argument on March 25, 2002, at which time the Court will determine whether this post-conviction relief proceeding should be dismissed, pursuant to Section 822.6
of the Code of Iowa, for the reasons stated in counsel’s Motion to Withdraw and Brief.
Anderson’s contention is that the district court did not allow him an opportunity to present testimony on his claim. First, under Iowa Code section 822.6, a trial on the merits is not necessary as the court may decide whether to dismiss the application on the record. Second, Anderson did not request a hearing, but rather requested that the district court rule solely on the record in both his “Reply to Respondent’s Answer” and “Motion Requesting that the Court Issue a Decision and Ruling on the Pro Se Submissions and Post Conviction Relief Therefrom.” His claim on this appeal was therefore not preserved for our review. State v. Rasmus, 249 Iowa 1084, 1086, 90 N.W.2d 429, 430 (1958).
We turn then to a review of the issues raised in Anderson’s “Amended and Substituted Brief of and for Application for Post Relief.” The district court examined the record including the trial transcript, this court’s decision on direct appeal, and the arguments made in each party’s postconviction briefs before reaching its conclusion to dismiss Anderson’s postconviction relief application. We conclude the district court findings were factually correct and it applied the proper law. As such, we concur with the district court that there were no material issues of fact nor grounds asserted that would support Anderson’s postconviction relief action. Therefore, the application was properly dismissed.
AFFIRMED.