Summary
finding record inadequate and preserving claims of ineffective assistance of PCR trial counsel
Summary of this case from Giambo v. StateOpinion
No. 4-156 / 03-1088
April 14, 2004.
Appeal from the Iowa District Court for Polk County, Artis I. Reis, Judge.
Applicant-appellant Kristina Fetters appeals the decision of the district court dismissing her application for postconviction relief. AFFIRMED.
Linda Del Gallo, State Appellate Defender, and David Adams, Assistant State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Richard Bennett, Assistant Attorney General, John Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
Kristina Fetters, Mitchellville, appellant pro se.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Applicant-appellant Kristina Fetters appeals the decision of the district court dismissing her application for postconviction relief. On appeal applicant claims the State, in failing to raise the issue of the timeliness of the application in its resistance, has waived this argument. On the merits applicant claims the district court erred in dismissing her application for postconviction relief claiming ineffective assistance of trial and appellate counsel on several grounds. We affirm this dismissal. Applicant also claims ineffective assistance of postconviction counsel. We preserve these claims for possible postconviction proceedings.
Applicant was convicted by a jury of first-degree murder on December 18, 1995. She appealed, and our court affirmed the conviction. See State v. Fetters, No. 96-0239 (Iowa Ct.App. Feb. 26, 1997). Procedendo issued on May 23, 1997. More than five years later, on July 15, 2002, applicant filed a pro se application for postconviction relief. The following were the specific grounds and allegations of fact in the application:
I am filing a claim of ineffective assistance of counsel. My attorney failed to pursue the issues of medical malpractice (in the State doctor's prescription of Prozac to a child — not FDA approved) and the juvenile court officer (lawyer's) failure to follow proper procedure (allowing Dr. Dedney to make a ruling rather than taking it to a juvenile court judge). I am also filing under new information. Recent medical information has resulted in restrictions upon the use of Prozac in children.
Counsel was appointed to represent applicant and ordered to determine whether the application had merit. In the event counsel determined the application was without merit, counsel was ordered by the district court to file a motion for summary judgment and accompany that motion with affidavits and a brief, among other documents.
On December 19, 2002 counsel determined the application was without merit and moved to withdraw from the case. Counsel did not file a motion for summary judgment or file a brief as ordered by the district court. On January 22, 2003 the court permitted counsel to withdraw and ordered the State to file an answer to applicant's application. On January 27, 2003 the State filed an answer which denied the substantive grounds upon which applicant sought postconviction relief but did not raise the issue of applicant's untimeliness in filing the application. The matter was set for trial on April 4, 2003. Applicant did not appear, and no one appeared on her behalf. No hearing was held, no evidence was taken, and there was no discussion of any of the issues applicant raised in her application. On April 18, 2003 the court issued a Notice of Intent to Dismiss Postconviction Relief Application, finding there was no genuine issue of material fact, and granting applicant thirty days to reply. Applicant did not reply, and the court dismissed the application on May 20, 2003. On June 19, 2003 applicant filed a pro se appeal of the dismissal of her application.
Applicant now makes several claims of ineffective assistance of counsel, claiming postconviction counsel was ineffective for failing to make claims of ineffective assistance of counsel with respect to the following issues: (1) appellate counsel failed to argue the trial court applied the incorrect standard of review to her motion for a new trial; (2) trial counsel erred in stipulating to the waiver of juvenile court jurisdiction prior to trial, and appellate counsel erred in failing to make this claim on appeal; (3) trial counsel erred in failing to proffer evidence of the Polk County jury selection system to support the claim that African-Americans were excluded in the jury selection process, and appellate counsel erred in failing to make this claim on appeal; and (4) trial counsel failed adequately to investigate the likelihood that applicant's actions resulted from her Prozac use, and appellate counsel erred in failing to make this claim on appeal. Applicant further claims postconviction counsel was ineffective for failing to argue that newly discovered evidence shows the drug Prozac may cause violent outbursts in the individual taking it, and the fact she was on Prozac may have been evidence of insanity or diminished capacity.
II. SCOPE OF REVIEW
We review the dismissal of an application for postconviction relief for errors at law. Brown v. State, 589 N.W.2d 273, 274 (Iowa Ct.App. 1998).
III. ANALYSIS
The State urges us to dismiss applicant's application for postconviction relief on the grounds that it was not timely filed. Under Iowa Code section 822.3 (2001) applications for postconviction relief regarding appealed convictions must be filed within three years of the issuance of procedendo. There is no dispute applicant did not file her application within three years of procedendo. Applicant argues the State waived its timeliness argument by failing to make it to the district court and also that some of her postconviction claims are based on facts which were not available during the applicable time period. See id. Preservation. The State did not raise, and the district court did not address, the procedural error the State now claims on appeal, namely the late filing date of the application. Under DeVoss v. State, 648 N.W.3d 56, 63 (Iowa 2002), we will not address a procedural or substantive issue for the first time on appeal. We decline to affirm the district court on preservation grounds which it did not address.
Merits. The district court determined there appeared to be no genuine issue of material fact, and it gave applicant thirty days to respond. Although the applicant was not represented by counsel at the time the court filed its Notice of Intent to Dismiss Postconviction Relief Application, she was given thirty days to reply to the proposed order. She did not respond within those thirty days. There is no claim she did not receive the proposed order and thirty-day notice. The court followed a recognized statutory method for summary disposition of a postconviction relief application. See Iowa Code § 822.6; Poulin v. State, 525 N.W.2d 815, 816 (Iowa 1994).
We have previously held that where a motion to dismiss an application for postconviction relief has been filed by the State, proper service has been made on the applicant, and the applicant has been afforded an adequate time to respond and fails to do so, the district court may summarily dismiss the application as a matter of default judgment. See Brown, 589 N.W.2d at 275. We affirm the dismissal of applicant's application.
The claims applicant has made of ineffective assistance of postconviction counsel were not before the district court, and there is insufficient record for us to address them on appeal. They are preserved for possible postconviction proceedings.