IN THE COURT OF APPEALS OF IOWA
No. 15-1492
Filed July 27, 2016
CHARLES DEAN WHITE,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Page County, Jeffrey L. Larson,
Judge.
Charles White appeals from the district court’s grant of summary judgment
to the State in this postconviction relief proceeding. REVERSED AND
REMANDED.
Marti D. Nerenstone, Council Bluffs, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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DANILSON, Chief Judge.
Charles White appeals from the district court’s grant of summary judgment
to the State in this postconviction relief (PCR) proceeding. Because the State did
not prove material facts are undisputed, we reverse and remand for further
proceedings.
On June 5, 2012, following a jury trial, judgment and sentence were
entered upon White’s conviction for three counts of second-degree sexual abuse
and one count of lascivious acts with a child based on offenses committed
against a seven-year-old child. Additional facts are set out in our opinion dealing
with White’s direct appeal, in which White made two claims of ineffective
assistance of trial counsel, and also contested the admission of allegedly
prejudicial evidence. State v. White, No. 12-1256, 2013 WL 4504896, at *1-2
(Iowa Ct. App. Aug. 21, 2013). The ineffectiveness claims raised on direct
appeal were that trial counsel failed to object to the undifferentiated sexual abuse
counts in the trial information and marshalling instructions, and failed to object to
the prosecutor’s closing argument. Id. at *3. We rejected these ineffectiveness
claims. Id. at *3-5.
On October 23, 2014, White filed a pro se PCR application, asserting six
additional claims of ineffective assistance of trial counsel. The State filed a
motion for summary judgment, asserting (1) the ineffectiveness claims “were
addressed and disposed of by direct appeal” and (2) the allegations “regarding
depositions being withheld and sufficiency of the evidence are without merit.”
White—now represented by counsel—resisted, contending the claims of
ineffective assistance of trial counsel raised in the PCR application had not been
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resolved, and the affidavit submitted of White’s trial counsel (stating White had
access to the transcript of the victim’s deposition) does not negate White’s claim
that counsel was ineffective in failing to utilize the deposition. PCR counsel
asserted White should be allowed to depose trial counsel at least to question
counsel about the failure to use contradictory statements made by the victim.
The PCR court granted the State’s motion for summary judgment,
concluding White was barred from raising an ineffectiveness claim in the PCR
action because he had already alleged counsel was ineffective in other respects
on direct appeal. White appeals the grant of summary judgment.
We normally review postconviction proceedings for errors at
law. Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010). This
includes summary dismissals of applications for postconviction
relief. Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002).
Applications for postconviction relief that allege ineffective
assistance of counsel, however, raise a constitutional claim. State
v. Nitcher, 720 N.W.2d 547, 553 (Iowa 2006). We review
postconviction proceedings that raise constitutional infirmities de
novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011).
“The standards for summary judgment in postconviction relief actions are
analogous to summary judgment in civil proceedings.” Id. at 793. “Under these
standards, summary judgment is proper when the record reveals only a conflict
over the legal consequences of undisputed facts.” Id. “In determining whether
summary judgment is warranted, the moving party has the burden of proving the
material facts are undisputed.” Id. at 792. Moreover, the facts are viewed in the
light most favorable to the nonmoving party. Id.
The PCR court ruled, “Because this issue has already been raised on
direct appeal, it is barred and cannot be relitigated here.”
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True, “[o]ur decision on direct appeal is . . . final as to all issues decided
therein, and is binding upon both the postconviction court and this court in
subsequent appeals.” Holmes v. State, 775 N.W.2d 733, 735 (Iowa Ct. App.
2009) (emphasis added). But res judicata will bar only ineffectiveness claims
already litigated on direct appeal. See id.
The ineffectiveness claims raised in the PCR action are not the same
claims addressed on direct appeal and are thus properly raised in an initial PCR
action. See Iowa Code § 814.7 (2013) (“An ineffective assistance of counsel
claim in a criminal case shall be determined by filing an application for
postconviction relief pursuant to chapter 822, except as otherwise provided in
this section. The claim need not be raised on direct appeal from the criminal
proceedings in order to preserve the claim for postconviction relief purposes.”);
State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (“[W]e hold defendants are
no longer required to raise ineffective-assistance claims on direct appeal, and
when they choose to do so, they are not required to make any particular record in
order to preserve the claim for postconviction relief.”). The State concedes the
PCR court erred, but argues summary judgment could be granted nonetheless.
We disagree.
The applicant asserted trial counsel was ineffective in failing to use the
child’s inconsistent deposition testimony at trial. Trial counsel’s affidavit does not
address this issue. Rather, trial counsel asserts White had access to the
deposition. As PCR counsel noted, this “begs the question of was the attorney
ineffective in not utilizing that deposition.”
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On appeal, the State acknowledges it is undisputed that a deposition was
taken of the child prior to trial; that despite containing possible impeachment
testimony, neither the deposition nor any of these other documents were used at
trial; and the child was not impeached by use of her deposition on cross-
examination. Nonetheless, the State argues that White cannot prevail on his
ineffectiveness claim because “the use of the deposition at trial could not have
changed White’s fate in light of the strength of the evidence against him.”
We believe this conclusion is premature. We do not have the child’s
deposition in evidence. Nor does criminal trial counsel’s affidavit address the
contents of the deposition. While further inquiry may establish trial counsel’s
decisions were a reasonable strategy or there was no prejudice, the State has
failed to carry its burden to prove there is no genuine issue of fact for trial.
Because the district court erred in concluding White’s ineffectiveness claims were
res judicata, and because the State has not met its burden to warrant summary
judgment, we reverse and remand for further proceedings.
REVERSED AND REMANDED.