Opinion
No. 5-496 / 04-1764
Filed July 27, 2005
Appeal from the Iowa District Court for Black Hawk County, Bruce B. Zager, Judge.
James Michael Greene appeals the dismissal of his postconviction relief application. REVERSED AND REMANDED.
Mark D. Reed of Reed Epping, P.C., Des Moines, for appellant.
Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Kimberly Griffith, Assistant County Attorney, for appellee.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
The postconviction relief applicant, James Michael Greene, appeals the district court's summary dismissal of his application. Specifically, he claims he was denied notice and the opportunity to resist the dismissal as required under Iowa Code section 822.6 (2003). He further claims his postconviction relief counsel was ineffective for requesting summary disposition of his application. We conclude the district failed to comply with the procedures mandated by the statute and reverse and remand for further proceedings.
I. Background Facts Proceedings.
On October 30, 2001, a jury found Greene guilty of first-degree robbery. This court affirmed his conviction in September 2002. On July 1, 2003, Greene filed a pro se postconviction relief application in which he requested counsel be appointed. After reviewing the application, the court appointed Kathryn Mahoney to represent Greene at public expense. On March 16, 2004, the State moved to dismiss Greene's application. Greene resisted the State's motion, and a hearing was ordered. Thereafter, the court entered an order denying the motion to dismiss and set the matter for trial. On September 23, 2004, immediately prior to the commencement of the formal hearing on the merits of Greene's application, Mahoney made an oral motion to dismiss the application on the grounds it was frivolous. The following colloquy then occurred:
THE COURT: You have had an opportunity to discuss this matter with Mr. Greene?
MS. MAHONEY: Yes, Your Honor. I spoke with him a couple of weeks ago in preparation for this hearing. And during the course of our conversation, he indicated that he understood that there really wasn't much to argue and that, you know, what the standard of ineffective assistance of counsel was. I didn't tell him because I had to — hadn't made up my mind whether I would move to dismiss or withdraw or try an argument on the presumption issue. I took quite extensive notes on that, but he did seem to understand that. He went in there with a gun and took money, and it was up to the jury whether he went in there with the intent to rob or had a gun for self-protection. You know, it didn't work his way, and I think he does understand that. So I thought he was going to call in today at 1:30 and put this on the record and I could talk to him beforehand and ask him how to, you know, what my mind was on it.
The district court noted on the record it had postponed the hearing ten minutes to wait for Greene's call, but no such call was ever received. Consequently, the court issued an order granting the motion. On October 8, 2004, Greene filed a handwritten letter requesting his trial date be reset because the dismissal was against his wishes and he was precluded from appearing by telephone at the hearing because the proper authorities at Anamosa State Penitentiary were not notified. On October 25, 2004, Mahoney filed a notice of appeal on Greene's behalf from the order dismissing his application.
II. Standard 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). However, to the extent the application raises issues of constitutional infirmity, our review is de novo. McLaughlin v. State, 533 N.W.2d 546, 547 (Iowa 1995).
III. The Merits.
Iowa Code section 822.6 prescribes two methods for terminating postconviction relief procedures without trial. Poulin v. State, 525 N.W.2d 815, 816 (Iowa 1994). The first method permits court initiation of the summary disposition process. Iowa Code § 822.6. Pertinent to this case, however, is the second method, which contemplates the initiation of summary disposition proceedings upon the motion of either party. Id. This method of summary termination incorporates the procedural rules applicable to motions for summary judgment and requires their observation, regardless of which party initiates the proceedings. Poulin, 525 N.W.2d at 816. Accordingly, a nonmoving party must be provided notice and an opportunity to resist a motion to dismiss. Brown, 589 N.W.2d at 275. In the context of a postconviction relief action, where the motion to dismiss is made by the applicant's attorney and the applicant opposes the motion, the applicant must also be afforded an opportunity to respond. See Poulin, 525 N.W.2d at 816-17 (finding applicant was denied the opportunity to resist his own counsel's motion to dismiss). As our supreme court has observed
"[t]he common thread which runs through paragraphs two and three of section 663A.6 [now section 822.6 para. 2 3] is that of protecting the applicant from having his application dismissed by the court without an opportunity to resist in some manner. . . ."
Id. at 817 (quoting Hines v. State, 288 N.W.2d 344, 346 (Iowa 1980)). Compliance with this requirement is imperative because it ensures applicants are afforded their fundamental constitutional due process rights. See City of Cedar Rapids v. Municipal Fire Police Ret. Sys., 526 N.W.2d 284, 291 (Iowa 1995) (noting procedural due process requires, at a minimum, notice and an opportunity to be heard).
Applying the aforementioned principles to the case at bar, we conclude Greene was not afforded the protection intended by the statute. Based on the record made at the hearing, it appears although Mahoney may have discussed dismissal as one possible course of action, she never advised Greene what course of action she had definitively decided to pursue at trial. Thus, Greene did not receive adequate notice of Mahoney's intent to move for summary disposition of his application. It is further unclear whether Greene was actually afforded an opportunity to call in during the hearing. All that can be gleaned from the record is Mahoney "thought" he was going to call and listen to the hearing. Given what is perceived by this court to be a climate of poor attorney-client communication, we are not comfortable in concluding the opportunity-to-respond requirement was met. Consequently, we find Greene was not afforded a meaningful opportunity to present his position as to whether there were genuine issues of material fact presented in his application or argue his interpretation of the law. This requires we reverse the trial court, reinstate the application for postconviction relief, and remand the case for further proceedings. If the parties or the court wish to proceed by summary disposition, Greene should be provided notice and allowed an adequate time to respond. See Brown, 589 N.W.2d at 275 (noting although a hearing is no longer required under the current rules of civil procedure, the court must provide the nonmoving party with notice and an adequate time to respond). Otherwise, the application for postconviction relief should be heard as provided by section 822.7. Because of this disposition, we find it unnecessary to address Greene's remaining claim of ineffective assistance of postconviction relief counsel.