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Dewiese v. State

Court of Appeals of Iowa
Feb 6, 2002
No. 1-889 / 00-1812 (Iowa Ct. App. Feb. 6, 2002)

Opinion

No. 1-889 / 00-1812.

Filed February 6, 2002.

Appeal from the Iowa District Court for Buchanan County, JAMES L. BEEGHLY, Judge.

William DeWiese appeals from the district court's judgment and decree dismissing his application for postconviction relief. AFFIRMED.

John Hofmeyer, Olwein, for appellant.

Thomas J. Miller, Attorney General, Denise Timmins, Assistant Attorney General, Allen W. VanderHart, County Attorney and Andrea Dryer, Assistant County Attorney, for appellee.

Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.


William DeWiese appeals from the district court's judgment and decree dismissing his application for postconviction relief. He contends (1) the trial court in the underlying criminal case erred in not fully informing him of the nature of the charge as it related to the evidence, and in not informing him that a consequence of his guilty plea was loss of firearm rights, (2) the trial court in the criminal case erred in proceeding to sentencing because the record does not show that he effectively and personally waived his right to time before sentencing, his right to file a motion in arrest of judgment, and his right to the use of a presentence investigation report at sentencing, (3) the record in the criminal case does not show an adequate factual basis for his guilty plea, and (4) he was denied the right to have a presentence investigation conducted before sentencing in the criminal case. We affirm.

I. PROCEDURAL HISTORY

William DeWiese was charged by trial information with third offense domestic abuse assault and interference with official acts in violation of Iowa Code sections 708.2A(4) and 719.1 (1) (1997) respectively. DeWiese entered an Alford plea to the domestic abuse charge and in exchange for his plea the State dismissed the interference with official acts count. The district court sentenced DeWiese to a five-year indeterminate term of incarceration to run consecutively to a parole revocation sentence. DeWiese filed a direct appeal of his conviction and sentence.

North Caroline v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

After reviewing the record DeWiese's court-appointed appellate counsel filed a motion to withdraw pursuant to Iowa Rule of Appellate Procedure 104. The required accompanying brief by appellate counsel pointed out three potential issues for appeal and concluded these claims were all without merit. Appellate counsel sent DeWiese the requisite letter and copy of the brief pursuant to rule 104 explaining to him the frivolousness determination and stating that if he disagreed with the analysis he must inform the clerk of the supreme court within thirty days. DeWiese filed no response to appellate counsel's motion. After an independent review of the record the supreme court determined the appeal was frivolous and dismissed the appeal pursuant to rule 104.

DeWiese filed a pro se application for postconviction relief. He alleged trial counsel in the criminal case had rendered ineffective assistance by (1) having a conflict of interest, (2) misinforming him his sentence would be concurrent, and (3) not giving adequate attention, effort and preparation to his case, thus coercing him to plead guilty. The State filed a motion for summary judgment. The district court granted the State's motion for summary judgment as to the second of these three claims and denied the motion as to the first and third. The court held a trial on the merits of the remaining claims and filed a written ruling denying DeWiese's application for postconviction relief. The court found DeWiese had failed to show any error by the court or any prejudice resulting therefrom, and had failed to establish any facts which would support his claim of ineffective assistance of trial counsel.

DeWiese now appeals from the postconviction court's judgment and decree. He raises the claims noted in the first paragraph of this opinion. The State contends DeWiese is precluded from now asserting these claims on appeal because he did not make them on direct appeal and has not shown a sufficient reason or cause for not raising them on direct appeal.

II. SCOPE OF REVIEW

We typically review postconviction relief proceedings on claimed error. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). However, when the applicant asserts constitutional claims, our review is de novo. Id. Thus, we review claims of ineffective of assistance of counsel de novo. Id.

III. MERITS

We adhere to the general principle that postconviction relief proceedings are not an alternative means of litigating issues that were or should have been properly presented for review on direct appeal. Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999).

Thus, we have consistently held that any claim not properly raised on direct appeal may not be litigated in a postconviction relief action unless sufficient reason or cause is shown for not previously raising the claim, and actual prejudice resulted from the claim of error.

Id.; see also Polly v. State, 355 N.W.2d 849, 856 (Iowa 1984). Ineffective assistance of appellate counsel constitutes a sufficient reason for failing to raise a claim of ineffective assistance of trial counsel on direct appeal. Ledezma, 626 N.W.2d at 141; Berryhill, 603 N.W.2d at 245.

Factual or legal matters which were excusably unknown at the time of trial and appeal may also properly be asserted for the first time on postconviction relief. Berryhill, 603 N.W.2d at 245.

Based on these general principles, our supreme court has previously determined that when a direct appeal is dismissed as frivolous in response to an uncontested rule 104 motion all grounds which could have been raised on direct appeal, but were not, are precluded from postconviction relief unless the applicant can show sufficient reason for not raising such grounds on direct appeal. Bugley v. State, 596 N.W.2d 893, 896-97 (Iowa 1999).

The State is correct in pointing out DeWiese did not raise on direct appeal any of the claims now asserted in this appeal. Therefore, these claims are now precluded unless DeWiese shows a sufficient reason for failing to assert them on direct appeal. Id. at 897. As noted above, ineffective assistance of appellate counsel can constitute a sufficient reason. Ledezma, 626 N.W.2d at 141. However, DeWiese does not claim or show any ineffectiveness on the part of his appellate counsel, nor does he set forth any other possible cause or excuse for failing to pursue his present claims on direct appeal. We therefore conclude he is precluded from presenting these claims in a postconviction relief proceeding.

In addition, in the district court postconviction relief proceeding DeWiese did not raise and pursue any of the issues he now raises and pursues on appeal. "Nothing is more basic in the law of appeal and error than the axiom that a party cannot sing a song to us [on appeal] that was not first sung in trial court." State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999). We do not review issues, even of constitutional magnitude, not presented to the trial court and first raised on appeal. State v. Farni, 325 N.W.2d 107, 109 (Iowa 1982). Issues must ordinarily be presented to and passed on by the trial court before they may be raised and adjudicated on appeal. Jain v. State, 617 N.W.2d 293, 298 (Iowa 2000); State v. Ashburn, 534 N.W.2d 106, 109 (Iowa 1995).

This fundamental rule of error preservation is no less applicable in a postconviction relief proceeding than in an underlying criminal case or a civil case. An issue may not be raised in a postconviction relief appeal when it was not raised in the postconviction relief trial court. The issues DeWiese raises on appeal were neither presented to nor passed on by the trial court. DeWiese has failed to preserve error on them.

IV. SUMMARY AND DISPOSITION

DeWiese has failed to preserve error in two different ways. First, he did not assert his present claims in his direct appeal from his conviction and does not claim or show sufficient reason, cause or excuse for not doing so. Second, he did not raise in the postconviction trial court the issues he now raises on appeal. We therefore affirm the district court's dismissal of DeWiese's application for postconviction relief.

AFFIRMED.


Summaries of

Dewiese v. State

Court of Appeals of Iowa
Feb 6, 2002
No. 1-889 / 00-1812 (Iowa Ct. App. Feb. 6, 2002)
Case details for

Dewiese v. State

Case Details

Full title:WILLIAM DEWIESE, Applicant-Appellant, v. STATE OF IOWA, Respondent-Appellee

Court:Court of Appeals of Iowa

Date published: Feb 6, 2002

Citations

No. 1-889 / 00-1812 (Iowa Ct. App. Feb. 6, 2002)