Opinion
No. 1-628 / 00-1326
Filed November 15, 2002
Appeal from the Iowa District Court for Sioux County, MICHAEL S. WALSH, Judge.
Appellant appeals the dismissal of his applications for postconviction relief. AFFIRMED.
Frank Cosgrove, Sioux City, for appellant.
Thomas J. Miller, Attorney General, Cristen C. Odell, Assistant Attorney General, and Mark J. Schouten, County Attorney, for appellee.
Heard by MAHAN, P.J., and MILLER and HECHT, JJ.
Applicant-appellant John Mulder appeals from a trial court ruling which overruled his motion to amend his first of two successive applications for postconviction relief and granted the State's motion for summary judgment in both of those two cases. We affirm.
I. BACKGROUND FACTS AND PRIOR PROCEEDINGS
Following an early 1979 jury trial in which he was represented by two attorneys, Mulder was convicted of and sentenced for the 1976 first-degree murder of Jean Homan. Mulder appealed, represented by new counsel. The day before scheduled oral argument on direct appeal the Iowa Attorney General reported the possibility that exculpatory evidence had been withheld and our supreme court remanded the case to the district court for an evidentiary hearing on that issue as well as on Mulder's claim of ineffective assistance of trial counsel. See State v. Mulder, 313 N.W.2d 885, 887 (Iowa 1981). On remand the trial court resolved these claims against Mulder. Following remand the supreme court affirmed Mulder's conviction, finding no merit to his claims of: (1) insufficiency of the evidence; (2) the State's failure to disclose exculpatory evidence; (3) prosecutorial misconduct; and (4) ineffective assistance of counsel.
In 1983 Mulder filed an application for writ of habeas corpus in the United States District Court. He was apparently represented by the same attorney that had represented him on direct appeal and remand. That case was ultimately dismissed in 1986 by reason of Mulder having failed to exhaust State remedies.
On September 12, 1986, with the assistance of counsel, Mulder filed an application for postconviction relief ("first PCR"). He was represented by the same attorney that had represented him on direct appeal, remand, and habeas corpus ("first PCR attorney"). The State filed a responsive pleading denying material allegations of Mulder's application. Both parties thereafter engaged in discovery.
In October 1988 Mulder's first PCR attorney sought to withdraw as he was moving out of state to a new position. In November 1988 the trial court allowed that attorney to withdraw and appointed new counsel ("second PCR attorney"). In November 1990 Mulder wrote to the clerk of court, seeking confirmation that his postconviction relief action had been filed and, if so, a file-stamped copy of it. The record does not disclose whether the clerk responded.
In September 1995 Mulder, representing himself, filed another application for postconviction relief ("second PCR"). He sought appointment of counsel, and in late September the trial court appointed counsel ("third PCR attorney"), a different attorney than any of the several attorneys that had represented Mulder in the earlier criminal, habeas corpus, and postconviction proceedings. The State filed a responsive pleading in late September denying material allegations of Mulder's application. The parties thereafter engaged in discovery.
On April 12, 2000, the State filed a combined motion for summary judgment in the two pending PCR cases. In support of the motion the State asserted that the second PCR was barred by the three-year statute of limitations in Iowa Code section 822.3 (1995), and that all of the substantive issues raised on both Mulder's first PCR and his second PCR had been raised and addressed in his direct appeal from his conviction. On May 4, 2000 Mulder applied to have his third PCR attorney, previously appointed to represent him in his second PCR, appointed to represent him in his first PCR as well. The trial court did so. Mulder resisted the State's motion for summary judgment. He also sought to amend his first PCR.
On May 15, 2000 the trial court held a hearing on Mulder's motion to amend and the State's motion for summary judgment. In a July 14, 2000 ruling the trial court overruled Mulder's motion to amend his first PCR and granted the State summary judgment of dismissal on both the first PCR and the second PCR. Mulder appeals.
II. ISSUES ON APPEAL
Mulder raises two narrow issues on appeal. He claims the district court erred in concluding the first PCR was subsumed into the second PCR. He also claims the district court abused its discretion in overruling his motion to amend the first PCR. We address these claims in reverse order.
III. DENIAL OF MOTION TO AMEND FIRST PCR
Mulder's first PCR alleged, in relevant part:
2. His conviction in January, 1979, was a violation of law for the following reasons:
a. He was denied his Sixth Amendment rights to a fair trial by lack of effective representation of counsel and prosecutorial misconduct.
In relevant part, Mulder sought to amend his first PCR to assert:
This application is based upon the denial to plaintiff of effective assistance of counsel in the proceedings upon remand and appeal to the Iowa Supreme Court on the first claim of ineffective assistance of trial counsel.
The proposed amendment would also have made further changes to clarify that Mulder wished to and was asserting a claim of ineffective assistance of remand and appellate counsel and was seeking a hearing on and resolution of that claim.
In overruling the motion to amend the trial court stated in relevant part:
The assertions that counsel during the remand hearing or appellate counsel were ineffective are new and separate issues from the assertion that trial counsel was ineffective. For that reason, the proposed amended application amounts to a new application for post-conviction relief filed 21 years after Mulder's conviction and 18 ½ years after the Iowa Supreme Court affirmed his conviction.
On appeal Mulder focuses on and limits his argument to the trial court's denial of that part of his proposed amendment that would have raised a claim of ineffective assistance of remand and appellate counsel. He asserts he sought to amend his first PCR "to more specifically challenge the effectiveness of remand and appellate counsel." He argues the proposed amendment did not substantially change the issues presented in the 1986 application or present a significantly different theory for relief, and the State must have been aware that the challenge of necessity was to remand and appellate counsel. He asserts the State thus would not be harmed, prejudiced, or surprised by amendment to assert ineffectiveness of remand and appellate counsel.
We review a trial court's decision concerning a request to amend a pleading for an abuse of discretion. See Tomka v. Hoechst Celanese Corp., 528 N.W.2d 103, 108 (Iowa 1995) (stating we will reverse a trial court's refusal to allow amendment of a petition only upon a showing of a clear abuse of discretion).
The State argues that for several reasons the trial court's ruling did not constitute an abuse of discretion. We agree, finding the following points raised by the State to be valid.
First, if Mulder in fact believed his first PCR encompassed a claim of ineffective assistance of remand and appellate counsel there was no need to move to amend it as he did. His motion to amend belies his claim that the application already encompassed a claim of ineffective assistance of remand and appellate counsel. Second, Mulder's argument that his first PCR already included a claim of ineffective assistance of remand and appellate counsel is belied by its allegation that he "was denied his Sixth Amendment right to a fair trial by lack of effective representation of counsel. . . ." (Emphasis added). The quoted language, and in particular the italicized language, is simply not susceptible to being read as claiming he was denied a right to a fair remand hearing, a fair appeal, or both.
Third, the issue of ineffective assistance of trial counsel is separate and distinct from the issue of the effectiveness of remand or appellate counsel. See Sims v. State, 295 N.W.2d 420, 422-23 (Iowa 1980) ("Ineffective assistance of appellate counsel, and of prior postconviction counsel, would provide `sufficient reason' to permit the issue of ineffective trial counsel to be raised now."); LeGrand v. State, 540 N.W.2d 667, 669 (Iowa Ct.App. 1995) ("LeGrand has failed to prove a sufficient reason or cause for not having raised the issue of ineffective assistance of trial counsel in his direct appeal. He failed to present to the postconviction court the issue of ineffective assistance of appellate counsel. . . ."). Although allowing amendments in the usual situations is encouraged and denying amendments is discouraged, In re Marriage of Fields, 508 N.W.2d 730, 732 (Iowa 1993), an amendment which substantially changes the issues should not be allowed, Davis v. Ottumwa YMCA, 438 N.W.2d 10, 14 (Iowa 1989). Because the issue of ineffective assistance of remand and appellate counsel is substantially different than the issue of ineffectiveness of trial counsel, the proposed amendment would have substantially changed the issues in Mulder's first PCR almost fourteen years after it was filed.
Fourth, the claim asserted in the proposed amendment, ineffective assistance of remand and appellate counsel, did not arise out of the conduct, transaction, or occurrence set forth in the original pleading, ineffective assistance of trial counsel. It therefore would not relate back to the original pleading, Iowa R.Civ.P. 1.402(5), and therefore had to be asserted before it was barred by the statute of limitations. Because Mulder's conviction became final prior to July 1, 1984, the claim was barred when not asserted on or before June 30, 1987. Brewer v. Iowa Dist. Ct., 395 N.W.2d 841, 844 (Iowa 1986). Finally, the proposed amendment came some fourteen years after the issues had been framed and well after discovery had been conducted and completed based on those issues, which included no claim of ineffective assistance of remand and appellate counsel. It came almost a month after the State filed for summary judgment, and shortly before the summary judgment hearing. If the amendment had been allowed the State would have had to respond by a new pleading and might well have felt it necessary to re-initiate discovery some fourteen years after the case was at issue and some twenty years after the as-yet-unidentified acts or omissions purportedly giving rise to the new claim. Prejudice to the State would seem apparent under such circumstances.
We conclude Mulder has not shown that the trial court abused its discretion by denying amendment to the first PCR to assert ineffectiveness of remand and appellate counsel.
IV. MOTION FOR SUMMARY JUDGMENT
Postconviction relief actions are law actions and absent an assertion of a violation of a constitutional safeguard our review is on error. Schertz v. State, 380 N.W.2d 404, 408 (Iowa 1985); Starling v. State, 328 N.W.2d 338, 339-40 (Iowa Ct.App. 1982). Our review of a grant or denial of summary judgment is similarly for correction of errors at law. Wright v. Am. Cyanamid Co., 599 N.W.2d 668, 670 (Iowa 1999).
Mulder asserts the district court erroneously rejected the principle that the second PCR abated in favor of the first, timely filed PCR, and concluded the first PCR was abandoned and subsumed in the second. The essence of Mulder's complaint is that the trial court erroneously concluded the first PCR was abandoned and subsumed in the second PCR and as a result also erroneously failed to decide whether summary judgment was appropriate as to the first PCR as well as the second. If, as Mulder alleges, the trial court concluded he abandoned the first PCR by filing the second and resultantly failed to consider whether summary judgment was appropriate as to the first, we would agree the trial court erred. This is because a later action abates in favor of an earlier action rather than the earlier abating in favor of the later. Schroeder v. Todd, 249 Iowa 139, 142, 86 N.W.2d 101, 102 (1957). However, Mulder's view of the facts is not supported by the record.
In his brief Mulder apparently concedes that the second PCR is barred by the statute of limitations, referring to it as "the time-barred [second PCR]."
In its ruling the trial court did state: "Mulder, in effect, abandoned his application in [the first PCR] in lieu of his application [in the second PCR]." It went on to state that because his application was not resolved in the first PCR it would consider it subsumed in the second PCR. However, the trial court thereafter noted that the State's motion for summary judgment addressed both cases. It then proceeded to address and rule on the motion as to both cases, in the process identifying the issues raised in the first PCR and finding they had been resolved adversely to Mulder on direct appeal.
We conclude Mulder's claim that the trial court erroneously concluded he abandoned the first PCR by filing the second and resultantly failed to address and decide whether summary judgment was appropriate as to the first PCR is not supported by the record and is in fact refuted by the record. We therefore reject this claim of trial court error. Mulder raises no further or additional claims of trial court error with respect to the summary judgment ruling. We therefore affirm the trial court's grant of summary judgment.
V. CONCLUSION
Mulder has not shown that the trial court abused its discretion in denying amendment of the first PCR. Mulder's claim that the trial court erroneously concluded he abandoned the first PCR and erroneously failed to address and decide whether summary judgment was appropriate as to the first PCR is without merit.