No. 95 / 03-0277Supreme Court of Iowa.
Filed September 1, 2004
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County, Thomas N. Bower, Judge.
Applicant appeals from district court’s dismissal of his application for postconviction relief. DECISION OF COURT OFAPPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.
Linda Del Gallo, State Appellate Defender and Patricia Reynolds, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Karen Doland, Assistant Attorney General, for appellee.
PER CURIAM.
Antwan S. Young appealed from the district court’s dismissal of his application for postconviction relief. He contended that his postconviction counsel was ineffective for failing to claim Young’s trial counsel was ineffective for not challenging the adequacy of his plea to second-degree robbery. We transferred the case to the court of appeals, which affirmed. We granted Young’s application for further review. On that review, we affirm the court of appeals decision and the district court judgment.
I. Background Facts and Proceedings.
On October 13, 2000, Young pled guilty to second-degree robbery in violation of Iowa Code sections 711.1 and 711.3 (1999). During the plea proceedings, the court informed Young that second-degree robbery is a class C felony, the maximum punishment for which is ten years in prison and/or a fine of $10,000. The court did not inform Young that pursuant to Iowa Code sections 902.12 and 903A.2(1)(b) he would have to serve eighty-five percent of the ten-year sentence. Young did not appeal.
On May 22, 2002, Young filed a pro se application for postconviction relief. He challenged the conviction and sentence for a number of reasons, none of which included the plea court’s failure to advise him of the mandatory sentencing provisions relative to the charge to which he pled guilty. Pursuant to Young’s request, the district court appointed counsel for him.
The State moved to dismiss the postconviction relief application, alleging that Young failed to preserve the issues he raised because they were raised for the first time in his application.
At the hearing on the State’s motion to dismiss, Young’s appointed counsel argued a full postconviction relief hearing was necessary to discover what Young actually knew about certain defenses that may have been available to him. Counsel stated,
The concern here also is that he did plead guilty to an eighty-five percent rule case just as charged. I mean, he may have had some defenses that he simply was not aware of when he pled guilty and that’s what we would like to flesh out at a full-blown hearing.
Notwithstanding this statement, counsel did not mention that the plea court failed to advise Young of the mandatory sentencing provisions relative to the charge to which Young pled guilty.
Later, the district court filed its ruling sustaining the State’s motion to dismiss.
Young appealed. He contended that postconviction relief counsel was ineffective for failing to claim that trial counsel was ineffective for allowing Young to plead guilty in the absence of the plea court advising Young of the mandatory minimum sentence provisions applicable to his case. We transferred the case to the court of appeals, which affirmed. We granted Young’s application for further review.
II. Issue.
The issue is whether, as Young contends, postconviction relief counsel was ineffective because he failed to claim that trial counsel was ineffective for allowing Young to plead guilty in the absence of the plea court advising Young of the mandatory minimum sentence provisions applicable to his case.
III. Scope of Review.
We review postconviction relief decisions for errors at law DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002). However, when the postconviction relief applicant raises a constitutional issue, our review is de novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). Because claims of ineffective assistance of counsel implicate the Sixth Amendment to the Federal Constitution, our review is de novo. State v. Kress, 636 N.W.2d 12, 19 (Iowa 2001).
IV. Error Preservation.
The State contends that Young has failed to preserve error on the issue he now raises because he failed to raise the issue in a motion in arrest of judgment, a direct appeal, or his postconviction relief application.
Here, the plea court informed Young that he had to file a motion in arrest of judgment to challenge the plea. Young was therefore precluded from challenging the adequacy of the plea because of his failure to file a motion in arrest of judgment See Iowa R. Crim. P. 2.24(3)(a) (providing that a defendant’s failure to challenge the adequacy of the plea proceeding by a motion in arrest of judgment precludes the defendant’s right to assert such challenge on appeal). However, we have held this rule is suspended if the defendant’s failure to move in arrest of judgment resulted from ineffective assistance of counsel. State v. Schoelerman, 315 N.W.2d 67, 73 (Iowa 1982).
Likewise, a defendant may not raise an issue for the first time on appeal unless that failure was due to ineffective assistance of counsel. State v. Scalise, 660 N.W.2d 58, 61 (Iowa 2003). However, Young did not file a direct appeal. In those circumstances, the rule is that “any claim not properly raised on direct appeal may not be litigated in a postconviction relief action unless sufficient reason or cause is shown for not previously raising the claim, and actual prejudice resulted from the claim of error.” Berryhill v. State, 603 N.W.2d 243, 245
(Iowa 1999) (defendant dismissed his appeal because he believed the trial record was inadequate to properly present his claims of ineffective assistance of counsel and elected to pursue the claims in a postconviction relief proceeding where a full and complete record could be made; held that was not a sufficient reason and dismissal of such proceedings was proper); see also
Iowa Code §§ 822.2(7) para. 2 (postconviction relief “is not a substitute for nor does it affect any remedy, incident to the proceedings in the trial court, or of direct review of the sentence or conviction”), .8 (requiring sufficient reason for not previously raising issue).
There was nothing in the record to establish a sufficient reason for not raising on appeal the issue Young now asserts. No claim was made that trial counsel was ineffective for not pursuing a direct appeal and raising the issue. Nor does appellate counsel here assert trial counsel was ineffective for not pursuing a direct appeal. Ordinarily, in those circumstances, we would conclude that Young is precluded from raising his trial counsel’s and postconviction relief counsel’s ineffective assistance regarding the eighty-five percent sentencing issue.
However, the legislature recently passed legislation that went into effect on July 1, 2004, which provides in part:
1. An ineffective assistance of counsel claim in a criminal case shall be determined by filing an application for postconviction relief pursuant to chapter 822, except as otherwise provided in this section. The claim need not be raised on direct appeal from the criminal proceedings in order to preserve the claim for postconviction relief purposes.
___ Iowa Acts ch. ___, § ___ (codified at Iowa Code § 814.7
(Supp. 2004)) (emphasis added).
This statute would allow us to consider the merits of Young’s claim if we find it applies to Young’s case. Generally, courts interpret statutes as providing prospective application only. 73 Am.Jur.2d Statutes § 245, at 426 (2001). Iowa Code section 4.5 codifies this principle: “A statute is presumed to be prospective in its operation unless expressly made retrospective.” Section 4.5, however, was not intended to apply to remedial or procedural statutes. Iowa Comprehensive Petroleum Underground Storage Tank Fund Bd. v. Shell Oil Co., 606 N.W.2d 370, 375 (Iowa 2000).
The new statute, however, does not help Young because of the rule which provides that “`statutes controlling appeals are those that were in effect at the time the judgment or order appealed from was rendered.'” Wal-Mart Stores, Inc. v. Caselman, 657 N.W.2d 493, 498 (Iowa 2003) (quoting Ontjes v. McNider, 224 Iowa 115, 118, 275 N.W. 328, 330 (1937)). The district court’s postconviction relief judgment was entered January 10, 2003, approximately eighteen months before the statute went into effect.
Because Young failed to raise on direct appeal the issue he now raises, he has failed to preserve the issue for our review. Accordingly, we affirm the court of appeals decision and the district court judgment.
DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURTAFFIRMED.
All justices concur except Larson, J., who takes no part.
This is not a published opinion.