IN THE COURT OF APPEALS OF IOWA
No. 15-1461
Filed June 15, 2016
ROBERT JOHNSTON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Polk County, Karen A. Romano,
Judge.
An applicant appeals the district court’s dismissal of his application for
postconviction relief. AFFIRMED.
Alexander Smith of Parrish, Kruidenier, Dunn, Boles, Gribble, Gentry,
Brown & Bergmann, L.L.P., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.
Robert Johnston pled guilty to second-degree murder and willful injury in
April 2008 and was sentenced to prison for fifty years and ten years, to be served
consecutively. Johnston filed his first postconviction-relief application (PCR) in
September of 2008, as amended in October 2010, which was denied, and the
denial was affirmed on appeal. See Johnston v. State, No. 11-0450, 2012 WL
1237778, at *1 (Iowa Ct. App. Apr. 11, 2012).
Johnston filed the current application for PCR in July 2014, more than six
years after his conviction became final. The State moved to summarily dismiss
the PCR application on the basis that the current application was barred by the
three-year statute of limitations applicable to PCR actions and no exception to
the statute of limitations applied. See Iowa Code § 822.3 (2013). In addition, the
State alleged Johnston’s application was barred because the claims had
previously been litigated. The district court partially granted the State’s motion
based on the three-year statute of limitation, finding;
All of the Petitioner’s claims were known and could have been
brought either on a direct appeal or in the first postconviction-relief
application. Some of the current claims were brought in the first
postconviction proceeding, finally adjudicated, and cannot be
relitigated in this proceeding. All of the alleged newly discovered
evidence and alleged exculpatory evidence was known to the
Petitioner prior to the trial and plea in the criminal case.
However, the court preserved for PCR trial Johnston’s claim that his sentence
was illegal because such a claim can be raised at any time. After trial, the court
denied Johnston’s challenge to his sentence, finding one of Johnston’s claims
was not actually challenging the legality of his sentence but challenging the
factual basis to support his guilty plea, which was barred by the three-year
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statute of limitations. The court also rejected Johnston’s claim the offenses
should merge, finding “the record in the underlying case supports a factual basis
for separate and distinct offenses.” The court went on, “The record in the
criminal case clearly supports by evidence beyond a reasonable doubt that
Johnston committed or aided and abetted in the commission of two crimes.
Further, the trial court found and the parties agreed those sentences do not
merge.”
On appeal, Johnston claims the court should have considered his claims
because the three-year statute of limitations is an unconstitutional suspension of
habeas corpus. Ignoring the error preservation problems with this claim as it was
never presented to nor decided by the district court, we reject Johnston’s
assertion based on the supreme court’s decision in Davis v. State, 443 N.W.2d
707, 710 (Iowa 1989)—“[W]e hold that the three-year limitation contained in
section 663A.3 [now section 822.3] does not violate the constitutional prohibition
against the suspension of the writ of habeas corpus.” We are not at liberty to
overturn this or any precedent from the Iowa Supreme Court. State v. Hastings,
466 N.W.2d 697, 700 (Iowa Ct. App. 1990).
Johnston also claims his willful injury conviction should merge into his
second-degree murder conviction and his sentence should be corrected as an
illegal sentence. We agree with the district court’s rejection of this claim. In the
sentencing order, the court stated,
Under count I, the court finds beyond a reasonable doubt that the
defendant or someone he aided and abetted killed Matthew
Stegman with malice aforethought. The defendant actively
participated in the plan to lure Matthew Stegman to the Woodland
Cemetery in Polk County Iowa, knowing that others had the intent
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to kill. Matthew Stegman died as result of the beating and stabbing
inflicted by the defendant and the others that he aided and abetted.
Under count II, the court finds beyond a reasonable doubt that the
defendant or someone he aided and abetted performed an act that
was not justified and resulted in serious injury to Matthew Stegman
and while doing so, the defendant and or someone he aided and
abetted had the intent to commit a serious injury. The court finds
that there were several serious injuries inflicted on Matthew
Stegman separate and distinct from the stab wounds which were
the immediate cause of his death. The court finds and the parties
agree the counts charged do not merge.
(Emphasis added.) Because Johnston’s convictions arise from two distinct acts,
the two offenses do not merge. See State v. Copenhaver, 844 N.W.2d 442, 447
(Iowa 2014) (“If the legislature criminalizes two separate and distinct acts,
separate sentences on each act are not illegal.”). Johnston participated in the
beating of the victim by kicking him two to three times and hitting him twice with a
billy club. Later, another member of the group slit the victim’s throat with a knife,
causing the victim’s death, and the court found Johnston “actively participated in
the plan to lure Matthew Stegman to the Woodland Cemetery in Polk County
Iowa, knowing that others had the intent to kill.” These two separate, distinct acts
justify the imposition of two separate sentences. Because neither the convictions
nor sentences merge, we affirm the district court’s denial of Johnston’s PCR
application.
AFFIRMED.