No. 5-164 / 04-0799Court of Appeals of Iowa.
Filed April 28, 2005
Appeal from the Iowa District Court for Hamilton County, Ronald H. Schechtman, Judge.
Steven Rowley appeals the district court’s grant of summary judgment to the State on his postconviction claims. AFFIRMED.
Daniel Gonnerman of Gonnerman, Owen Stonehocker, L.L.P., Ames, for appellant.
Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, Patrick Chambers, County Attorney, and Jay Tiernan, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., and Mahan and Vaitheswaran, JJ.
PER CURIAM
I. Background Facts Proceedings
In June 1996 Steven Rowley was charged with first-degree murder in connection with the death of his wife, Kathryn. Rowley’s motions to suppress were denied. A plea offer was made to reduce the charges to second-degree murder and first-degree robbery, and possibly the trial would be held on the minutes of testimony. Plea discussions continued between the county attorney, Patrick Chambers, and Rowley’s attorneys, Stephan Japuntich and James Fitzgerald, in the office of Judge Allan L. Goode. Eventually, Chambers agreed to reduce the charges to second-degree murder and willful injury in exchange for an Alford plea. On the advice of his attorneys, Rowley accepted this plea.
Rowley was sentenced to a term of imprisonment not to exceed fifty years on the second-degree murder charge, and a term not to exceed ten years on the willful injury charge, to be served consecutively. He appealed, and his appeal was dismissed as frivolous under Iowa Rule of Appellate Procedure 6.104. Procedendo issued on August 11, 1997.
On July 16, 1998, Rowley filed a “notice of intention” to file a postconviction action. Later, on March 9, 2000, he filed a 102-page pro se application for postconviction relief, claiming in part that Judge Goode was biased against him. Concerning the plea negotiations, Japuntich testified in the postconviction hearing as follows:
Q. What changed that that initial plea agreement didn’t go through? A. We made the plea agreement over the phone in our office in Fort Dodge. Mr. Fitzgerald was there and Greta Truman was there. We went across the street to the courthouse, went into chambers with the Judge, again the three attorneys were up there. We got Pat [Chambers] on the phone.
We recited the plea offer, and this was not on the record. I don’t believe there was any court reporter in there. We were just discussing it.
And then Judge Goode said — asked Pat something to the effect of why would you agree to a trial on the Minutes when you know it’s going to preserve this suppression issue or something of that nature.
And then Pat expressed that he hadn’t understood it to be a trial on the Minutes but a plea.
Q. An outright plea? A. That’s my recollection, yes.
. . . .
Q. Like over the phone or in person? A. It was over the phone. We were still up in chambers with Judge Goode. Eventually — and I don’t remember exactly how all of this played out — but we agreed to the deal that Steve [Rowley] eventually pled to, which was actually 15 years less than the trial on the Minutes would have been. It was a willful stacked onto a murder second.
Q. Was there any arrangement about how that case would be resolved procedurally? A. Well, I thought we agreed to do an Alford plea.
Q. Was an Alford plea actually entered then? A. To the best of my recollection, yes.
Fitzgerald similarly testified:
Q. What happened in Judge Goode’s office? A. The plea was discussed and there was some reference back and forth about how the Minutes of Testimony — a trial on the Minutes of Testimony would allow the Defendant to bring up adverse rulings on appeal. I remember that discussion.
I don’t remember exactly what was said by whom; but I know Judge Goode did mention that, too; and after that, things — we weren’t where we were.
Q. There was no longer an agreement, would that be fair? A. That’s very fair.
Q. And to clarify your testimony, do you believe that these concerns about a trial on the Minutes were expressed by Judge Goode initially? A. I don’t remember who initially brought them up, but I know it was discussed between the County Attorney and Judge Goode. I cannot tell you who said it first or who brought it up.
The district court denied Rowley’s request for postconviction relief. The court found no factual basis in the record to support Rowley’s claim that Judge Goode engaged in unethical conduct. Rowley appealed, and this appeal was also dismissed as frivolous pursuant to rule 6.104. Procedendo issued on May 10, 2002.
On October 10, 2002, Rowley filed a second application for postconviction relief. He claimed Judge Goode improperly inserted himself into the plea negotiations and Judge Goode’s action violated the separation of powers provision of the Iowa Constitution and violated his due process rights. The State sought summary judgment on the ground that Rowley’s application was untimely under Iowa Code section 822.3 (2001). Section 822.3
provides that postconviction applications “must be filed within three years from the date the conviction or decision is final or, in the event of an appeal, from the date the writ of procedendo is issued.” The second postconviction action was filed more than three years after procedendo was issued on Rowley’s direct appeal.
Section 822.3 also provides that the three-year limitation “does not apply to a ground of fact or law that could not have been raised within the applicable time period.” Rowley claimed his second postconviction action was based on evidence he could not have raised earlier because he did not understand the implications of the testimony of his trial attorneys until he received a letter on October 11, 2001, from his attorney on the appeal of his first postconviction action, James Beres. In this letter Beres states:
One might criticize Judge Goode, for inserting himself into the plea discussions to the extent it appears he may have done. It appears to me that Judge Goode is the one who persuaded Pat Chambers to withdraw the plea offer which entailed a trial on the minutes. It appears to me that Judge Goode did this because he wasn’t real confident what would happen to his ruling on appeal. But this is just an inference, which I have drawn. The record does not clearly show that is exactly what happened.
The district court determined the Rowley’s allegations were not based on new evidence because “[t]he facts and circumstances clearly show that this present allegation inhered in the allegations set forth in the first postconviction proceeding.” Also, the court determined Rowley had not presented any new “facts,” only inferences. The court found the allegations were “speculation at best.” The court also found the filing of the “notice of intention” in July 1998 did not stay the effect of section 822.3. The court concluded Rowley’s second postconviction action did not come within the three-year statute of limitations found in section 822.3 and that summary judgment for the State was appropriate. Rowley appeals.
II. Standard of Review
Our review of postconviction relief proceedings is for correction of errors at law. DeVoss v. State, 648 N.W.2d 56, 60
(Iowa 2002). However, when an applicant raises constitutional issues, our review is de novo. Berryhill v. State, 603 N.W.2d 243, 244-45 (Iowa 1999).
Section 822.6 provides that a court may summarily dismiss a postconviction relief action when “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” The Iowa Rules of Civil Procedure governing summary judgment are controlling in these circumstances. Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002). The State, as the moving party, has the burden of showing the nonexistence of a material fact, and the court considers the evidence in the light most favorable to the party opposing the motion. Id.
III. Statute of Limitations
Rowley contends he could not have raised his present claims within the applicable time period, and therefore, his claims come within the exception to the limitations period found in section 822.3. The purpose of the “discovery” rule in section 822.3 is to “provide relief from the limitation period when an applicant had `no opportunity’ to assert the claim before the limitation period expired.” Cornell v. State, 529 N.W.2d 606, 611 (Iowa Ct.App. 1994) (citation omitted).
The question we must address is whether Rowley’s claims could have been raised during the three-year period, either on direct appeal or in the first postconviction action. See Smith v. State, 542 N.W.2d 852, 854 (Iowa Ct.App. 1995). An applicant must also show a nexus between the alleged newly discovered fact and the challenged conviction. Harrington v. State, 659 N.W.2d 509, 520 (Iowa 2003). There is no requirement that the evidence “would most likely or probably have changed the outcome of the underlying criminal case in order to avoid a limitations defense.” Id. at 521.
It is clear Rowley’s claims could have been raised in the first postconviction action, and in fact were raised in that action. Rowley relies upon testimony which was given during the first postconviction hearing, and which was considered and rejected by the district court in its ruling on that postconviction application. At that time Rowley had the same evidence he has now regarding his claim that Judge Goode improperly interjected himself into the plea negotiations. The October 2001 letter from Beres raises only conjecture, stating it is the attorney’s own “inference.” Furthermore, those inferences are based on the same testimony from the first postconviction action. We find no error in the district court’s conclusion that Rowley has failed to show “a ground of fact or law that could not have been raised within the applicable limitations period.” See Iowa Code § 822.3.
We also find no error in the district court’s conclusion that the “notice of intention” filed by Rowley in July 1998 did not toll the statute of limitations in this case. Section 822.3
provides that a postconviction proceeding “is commenced by filing an application verified by the applicant. . . .” This application must “specifically set forth the grounds upon which the application is based, and clearly state the relief desired.” Iowa Code § 822.4. Rowley’s “notice of intention” did not meet these requirements, and thus did not constitute an application which would commence postconviction proceedings under section 822.3.
We conclude Rowley’s second postconviction action is barred by the three-year statute of limitations found in section 822.3. We affirm the district court’s grant of summary judgment to the State.
AFFIRMED.