Opinion
No. 2-615 / 01-0813
Filed September 11, 2002
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge.
Appellant appeals the district court's dismissal of his petition for postconviction relief. REVERSED AND REMANDED.
Linda Del Gallo, State Appellate Defender, and Tricia Johnston, Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Thomas Tauber, Assistant Attorney General, William Davis, County Attorney, and Don Frank, Assistant County Attorney, for appellee.
Considered by Sackett, C.J., and Vogel and Mahan, JJ.
Appellant, Damen Carl Govan, appeals the district court's dismissal of his petition for postconviction relief. He contends the district court erred in failing to rule on the merits of his claim. We agree and reverse the district court's finding that the issues were not preserved and remand for a hearing on the merits. We do not retain jurisdiction. Reversed and remanded.
Govan was convicted following a jury trial of robbery in the second degree, in violation of Iowa Code section 711.3 (1997), and sentenced to a ten-year indeterminate term. The conviction came as a result of Govan's attempt to shoplift pork steak from a Davenport grocery store and his subsequent violent encounter with the store owner that resulted in the owner suffering a concussion. A notice of appeal was filed on March 25, 1999 by attorney Kyle D. Williamson. On September 17 Govan's court-appointed attorney Thomas H. Preacher notified Govan he was going to file a motion to withdraw, claiming Govan's appeal was frivolous. Preacher supplied Govan with a brief supporting his position that the appeal was frivolous. On September 20, 1999 Preacher filed the motion to withdraw on the ground that the appeal was frivolous together with the brief in support of the motion that had been supplied earlier to Govan. Preacher's brief indicated he found no merit to issues concerning (1) the institution of the prosecution, (2) pretrial and trial matters, (3) the photo line-up, (4) Miranda warnings, (4) voir dire, (5) a tape recording of Govan's statements, (5) a claim of self defense, (6) the change of attorney and continuances, and (7) post trial matters.
On October 14, 1999 Govan filed a pro se motion to proceed with the appeal, contending he disagreed with his attorney and contending the appeal should be heard. Govan contended arguments on appeal were among other things (1) appointment of different counsel; (2) failure to grant a continuance; (3) failure of trial counsel to subpoena a 911 tape; (4) a note calling defense witnesses; (5) failure of trial counsel to challenge waiver of speedy trial and to obtain a bill of particulars and to challenge false statements made by the prosecutor; and other issues of ineffective assistance of counsel. On January 27, 2000 the supreme court dismissed Govan's appeal.
On July 25, 2000 Govan filed an application for postconviction relief, alleging many of the same claims he raised on direct appeal. The district court dismissed the claim raised by Govan after a hearing on the petition for postconviction relief, finding that the supreme court in dismissing Govan's appeal as frivolous, failed to preserve the issues raised, and therefore error on the issues was not preserved for postconviction procedures. Govan contends this finding is in error. The State recognizes that the district court's theory was inconsistent with precedent. We agree.
Postconviction proceedings are law actions ordinarily reviewed for errors of law. Carter v. State, 537 N.W.2d 715, 716 (Iowa 1995). Where there is an alleged denial of constitutional rights our review is de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).
Iowa Code section 822.8 (1997) limits the grounds for a postconviction relief petition by providing, in relevant part:
Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived . . . in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted . . . in the original, supplemental or amended application.
This section 822.8 imposes a burden on the postconviction applicant to show sufficient reasons why any ground for relief asserted in a postconviction relief petition was not previously asserted on direct appeal. Bledsoe v. State, 257 N.W.2d 32, 33-34 (Iowa 1977). If the burden is not met, the grounds may not be asserted in a postconviction relief petition. Id.
Iowa Rule of Appellate Procedure 6.104 permits an attorney appointed to represent an indigent defendant in an appeal to move to withdraw if he or she is convinced, after conscientious investigation, the appeal is frivolous. Iowa R. App. P. 6.104( a); Bugley v. State, 596 N.W.2d 893, 895 (Iowa 1999); Poulin v. State, 525 N.W.2d 815, 816 (Iowa 1994). The attorney is required to advise his or her client in writing of the intent to file a motion to withdraw and provide the client with a copy of the motion and the required brief in support of the motion. Iowa R. App. P. 6.104( b); see Bugley, 596 N.W.2d at 895; Poulin, 525 N.W.2d at 816-17. The attorney must also notify his or her client client to advise the supreme court within thirty days of receiving the attorney's letter whether the client desires to proceed with the appeal, and to raise any appropriate points in response to the motion if the client chooses to proceed with the appeal. See id.; see also Iowa R. App. P. 6.104( b), ( d). A defendant who fails to communicate with the supreme court is deemed to agree with the decision of his or her appellate attorney who has contended the appeal is frivolous. Iowa R. App. P. 6.104( g).
However where, as here, when a direct appeal is dismissed as frivolous in response to a contested rule 6.104 motion, the burden described in Bledsoe does not apply. Stanford v. Iowa State Reformatory, 279 N.W.2d 28, 34 (Iowa 1979). The dismissal under these circumstances does not prevent issues which could have been presented on direct appeal from being pursued on postconviction relief.
Section 822.8 permits a postconviction applicant to pursue grounds that could have been raised on direct appeal, but were not, by showing sufficient reasons for not raising such grounds in response to a rule 6.104 motion. Bugley, 596 N.W.2d at 893. Appellate counsel's failure to raise claims on direct appeal cannot be imputed to the applicant. Bugley, 596 N.W.2d at 893. However, this reasoning does not fully apply when an applicant fails to object to a prior rule 6.104 dismissal. See id. Although the dismissal would still not be considered an adjudication for the purposes of postconviction relief, the failure to raise grounds for relief on direct appeal no longer rests with the actions of counsel. Id. A motion filed under rule 6.104 that is not resisted transforms an appellate attorney's decision not to raise any grounds on direct appeal into the decision of his or her client. See Iowa R. App. P. 6.104( g). The applicant is considered to have filed an appeal and elected not to raise any grounds despite the opportunity. Id. Under section 822.8, this failure to raise grounds that could have been raised on direct appeal precludes asserting the grounds in a postconviction relief petition. All grounds which could have been raised in the direct appeal are precluded from postconviction relief only if the applicant fails to show sufficient reason why they were not raised on direct appeal. Bugley, 596 N.W.2d at 893. Section 822.8 cannot be applied against an applicant to exclude postconviction relief for failing to raise grounds on direct appeal without also giving the applicant the corresponding opportunity to satisfy the burden provided under the statute. Id.
The State, while recognizing that the district court's reason for dismissing Govan's petition was incorrect, urges that we follow Bugley and affirm because a proper basis, though not the one stated, supports the district court's ruling.
Like the applicant in Bugley, Govan was required to show a sufficient reason for failing to assert his claims on direct appeal. See Bledsoe, 257 N.W.2d at 34. Unlike Bugley Govan pled reasons for failing to assert his claims on direct appeal. Unlike Bugley, where there was no indication Bugley raised these postconviction relief claims with his appellate counsel on direct appeal, here there is evidence Govan did.
Other claims raised by Govan were not raised on direct appeal because his appellate attorney filed a brief contending after examining the record the issue was not supported. This establishes sufficient cause for Govan's failure to raise these issues on direct appeal, which permits Govan to raise them in a postconviction proceeding. See Bugley, 596 N.W.2d at 893. All grounds which could have been raised in the direct appeal are precluded from postconviction relief only if the applicant fails to show sufficient reason why they were not raised on direct appeal. See id.
We decline the State's invitation to address the claims raised as they are better addressed by the district court judge who heard the evidence, saw the witnesses, and is in a better position than we to make the required credibility assessment. We reverse the finding that the claims were not preserved and remand for a hearing on the merits.
REVERSED AND REMANDED.