Opinion
No. 5-779 / 05-0032
Filed December 21, 2005
Appeal from the Iowa District Court for Black Hawk County, Bruce B. Zager, Judge.
A postconviction relief applicant appeals the district court's order dismissing his application. AFFIRMED.
Alfredo Parrish and Andrew Dunn of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble Cook, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Thomas W. Andrews, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kim Griffith, Assistant County Attorney, for appellee.
Heard by Sackett, C.J., Vogel and Eisenhauer, JJ.
Darrell Anderson appeals the district court's order dismissing his application for postconviction relief following Alford pleas to two counts of second-degree robbery. We affirm.
See North Carolina v. Alford, 400 U.S. 25, 32-38, 91 S. Ct. 160, 164-168, 27 L. Ed. 2d 162, 168-172 (1970).
Background Facts and Proceedings.
Anderson was charged by trial information with two counts of robbery in the first degree, both class B felonies, in February 2003. As part of a plea agreement with the State, Anderson entered Alford pleas to two counts of robbery in the second degree in September 2003. No motion in arrest of judgment was made. In July 2004 Anderson filed an application for postconviction relief (PCR), asserting the following grounds:
The plea agreement also related to a number of other criminal charges then pending against Anderson in Black Hawk County, but they are not the subject of the PCR application or this appeal.
(1) Attorney failed to file appeal.
(2) [Anderson] never viewed any of the video tapes or any of the State's evidence.
(3) [T]he deposition of Barbara J. Laws is set on emotions and not on true facts as stated [on page] 41 starting from line 6 to line 25. Barbara J. Laws indicated in line 11 and in line 20 that she could not I.D. or wasn't sure who robbed her. She also chose to stand by her first statement, as well as her second statement. During questioning my attorney Kelly Smith chose not to challenge any of Barbara J. Laws' answers.
(4) In the deposition of Barbara J. Law, [on page] 46 line 3 through 14 are based on speculation and emotion, which once again my attorney Kelly Smith chose not to challenge.
Due to the facts I say that I had ineffective assistance of counsel on the grounds by: Iowa Rules of Court 2001 Professional Responsibility (citations omitted)
The State filed a motion to dismiss the PCR application pursuant to Iowa Code section 822.6 (2003) in October 2004, arguing that Anderson could not raise an issue for the first time in PCR proceeding. Although Anderson was appointed PCR counsel, the attorney did not file a resistance to the State's motion to dismiss. On October 14 the motion was set for hearing with notice sent to the parties. The district court on November 23 also denied Anderson's transportation request to be present at the hearing. A hearing was held on the motion to dismiss on November 30, resulting in the district court granting the motion in an order filed on December 21, 2004. Anderson appeals.
I. Scope of Review.
Ordinarily postconviction proceedings are law actions, reviewable on appeal for error by the district court. Collins v. State, 588 N.W.2d 399, 401 (Iowa 1998). Because a claim of ineffective assistance of counsel implicates constitutional rights, our review is de novo. State v. Carter, 602 N.W.2d 818, 820 (Iowa 1999).
II. Postconviction Proceedings.
Anderson's claims on appeal assert the following errors: (1) the district court improperly applied Chapter 822 when dismissing the PCR application; (2) the postconviction proceeding was fundamentally unfair; (3) there was ineffective assistance of PCR counsel; and (4) the district court abused its discretion in factual findings on the motion to dismiss.
Anderson contends ineffective assistance of PCR counsel and the resulting dismissal prevented him from establishing his claim of ineffective assistance of trial counsel. While his PCR application alleged some shortcomings of his trial counsel, Anderson did not directly assert his Alford pleas were not knowingly and voluntarily made. State v. Speed, 573 N.W.2d 594, 596-98 (Iowa 1998) (stating that a guilty plea waives all defenses and objections not intrinsic to the knowing and voluntary nature of the plea itself). In its motion to dismiss Anderson's PCR application, the State asserted only that Anderson waived all defenses and objections by his pleas and is barred from raising any issue for the first time in a PCR application. Neither the PCR application nor the motion to dismiss gave the district court a clear signal of the issues preserved or resisted. Nonetheless, the district court dismissed the PCR application on the merits of Anderson's vague ineffective assistance of counsel claims by addressing and finding his pleas to be knowing and voluntary.
We tend to agree with the State that error has not been preserved on any of Anderson's multiple issues asserted on appeal. Nevertheless, Anderson alleged ineffective assistance of trial counsel in his PCR application and that issue was not fully developed during the PCR proceedings. See Manning v. State, 654 N.W.2d 555, 561-62 (Iowa 2002) (reasoning the record should be fully developed and a PCR applicant given adequate notice before deciding the merits of an ineffective assistance of counsel claim on a section 822.6 motion for summary disposition). As a result, we will preserve Anderson's narrow claim of ineffective assistance of PCR counsel on two points only: (1) failure to amend his pro se PCR application, and (2) failure to resist the State's motion to dismiss. The record is incomplete as to PCR counsel's actions and therefore not adequate to review and determine the ineffectiveness, if any, of PCR counsel on direct appeal. See State v. Tejeda, 677 N.W.2d 744, 752 (Iowa 2004) (stating that when the record is inadequate to decide an issue on direct appeal and counsel has not had an opportunity to explain his actions, an ineffective assistance claim will be preserved for postconviction proceedings). Accordingly, we affirm the district court's dismissal of the PCR application, but preserve Anderson's claims of ineffective assistance of PCR counsel for alleged failures in not amending the PCR application and not resisting the State's motion to dismiss for possible future PCR proceedings.