IN THE COURT OF APPEALS OF IOWA
No. 15-1702
Filed November 9, 2016
NAPOLEON HARTSFIELD,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Joel W. Barrows,
Judge.
Napoleon Hartsfield appeals the district court’s denial of his
postconviction-relief application. AFFIRMED.
Courtney T. Wilson of Gomez May LLP, Davenport, for appellant.
Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant
Attorney General, for appellee State.
Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
2
MULLINS, Judge.
Napoleon Hartsfield appeals the district court’s denial of his
postconviction-relief (PCR) application. We affirm.
I. Background Facts and Proceedings
On August 22, 2001, undercover officers purchased crack cocaine from
Hartsfield as part of a special investigation targeting street-level narcotics
dealers. See Hartsfield v. State, No. 07-2118, 2009 WL 2424640, at *1 (Iowa Ct.
App. Aug. 6, 2009). As a uniformed officer approached Hartsfield, the officer
observed Hartsfield drop a piece of white paper to the ground; the paper later
tested positive for cocaine. Id. Hartsfield was placed under arrest for possession
of a controlled substance, transported to the police station, questioned, issued a
nontraffic citation for possession of a controlled substance, and released. Id.
On October 10, Hartsfield was arrested on an unrelated charge and
served with an arrest warrant for delivery of a controlled substance, arising from
the August 22 events. Id. On October 16, Hartsfield was charged with
possession of a controlled substance, to which Hartsfield pled guilty. Id. On
October 18, a trial information was filed charging Hartsfield with delivery of a
controlled substance, for which he was subsequently convicted by a jury trial. Id.
Hartsfield appealed, and his appeal was dismissed as frivolous. Id. Procedendo
issued in February 2003. Hartsfield then filed his first PCR application, which
was denied by the district court and that denial was affirmed on appeal. See id.
at *1, 4. Hartsfield filed his current PCR application on December 27, 2010. In
October 2015, a hearing was held.
3
At the hearing on Hartsfield’s present PCR application, Hartsfield alleged
his appellate counsel was ineffective for failing to file a petition for further review
after this court affirmed the district court’s denial of his first PCR application. In
his first PCR application, Hartsfield alleged, in relevant part, “his trial counsel was
ineffective in . . . failing to move for dismissal of the delivery charge for a speedy
indictment violation” because, at the time he was arrested for the charge of
possession, he believed he was also arrested for delivery. Id. at *2. This was
the challenge Hartsfield wanted raised in his application for further review.
Hartsfield testified he instructed his appellate counsel to file an application for
further review because “the law wasn’t clear at the time” and he intended to seek
federal habeas corpus relief. Hartsfield further testified he did not learn of this
court’s affirmance of the denial of his first PCR action in a timely manner, as he
received the decision from the clerk of court weeks after the decision was
entered.
The State argued Hartsfield’s present PCR application was time barred by
Iowa Code section 822.3 (2009), as it was filed outside the three-year statute of
limitations. See Iowa Code § 822.3 (providing “applications must be filed within
three years from the date the conviction or decision is final or, in the event of an
appeal, from the date the writ of procedendo is issue”).
In its ruling, the district court denied the State’s request for summary
disposition based upon section 822.3, stating, “[w]hile this case is arguably
barred by the statute of limitations given [Hartsfield’s] reference to [the underlying
criminal case] in his application, the court is inclined to give [Hartsfield] the
4
benefit of the doubt given the somewhat confusing procedural history of this
case.” The district court went on to rule on the merits, finding
[Hartsfield’s] case centers around his allegation that his
[appellate counsel] failed to seek further review from an
unfavorable ruling in his [first PCR appeal]. It is [Hartsfield’s]
contention that [his appellate counsel] should have sought further
review anticipating the outcome of State v. Wing, 791 N.W.2d 243
(Iowa 2010). In other words, [Hartsfield] feels that his case should
have been Wing before Wing was Wing.
....
The underlying factual issues related to a Wing analysis that
might have supported [Hartsfield] were resolved in favor of the
State in [his first PCR appeal]. [Hartsfield] has failed to show that
[his appellate attorney] failed to perform an essential duty and that
prejudice resulted. [His appellate counsel] was not obligated to
pursue further review that he could rightly consider frivolous, and
his failure to do so was not ineffective assistance.
Hartsfield appeals.
II. Standard and Scope of Review
PCR proceedings, including summary dismissal of PCR applications, are
generally reviewed for errors at law. See Castro v. State, 795 N.W.2d 789, 792
(Iowa 2011). We review ineffective-assistance-of-counsel claims de novo. See
State v. Tompkins, 859 N.W.2d 631, 636 (Iowa 2015). In order to prove an
ineffective-assistance-of-counsel claim, an appellant must show by a
preponderance of the evidence that counsel (1) failed to perform an essential
duty and (2) prejudice resulted. Id. at 637. We can resolve ineffective-
assistance-of-counsel claims under either prong. State v. Ambrose, 861 N.W.2d
550, 556 (Iowa 2015); see also Dockery v. State, No. 13-2067, 2016 WL 351251,
at *3 (Iowa Ct. App. Jan. 27, 2016).
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III. Analysis
On appeal, the State maintains its claim Hartsfield’s present PCR
application is barred by the statute of limitations. As procedendo issued in
February 2003, and Hartsfield did not institute the current PCR action until 2010,
this matter is clearly untimely under section 822.3. “[I]neffective assistance of
counsel does not provide an exception to the limitation period set forth in section
822.3.” Bergantzel v. State, No. 15-1273, 2016 WL 2745065, at *2 (Iowa Ct.
App. May 11, 2016) (citing Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994));
see also Jackson v. State, No. 12-1496, 2013 WL 4505114, at *2 (Iowa Ct. App.
Aug. 21, 2013) (“Our courts have repeatedly held that ‘an application for
postconviction relief cannot circumvent the effect of the three-year time bar by
merely claiming the ineffective assistance of postconviction counsel.’” (quoting
Smith v. State, 542 N.W.2d 853, 854 (Iowa Ct. App. 1995))). Hartsfield alleges
the untimeliness is excused because his claim is based upon “a ground of fact or
law that could not have been raised within the applicable time period.” Iowa
Code § 822.3. Specifically, Hartsfield argues his postconviction counsel was
ineffective for failing to file an application for further review based on State v.
Wing, 701 N.W.2d 243 (Iowa 2010).
Hartsfield’s appeal of his first PCR action was decided by this court on
August 6, 2009. The Iowa Supreme Court decided Wing on December 3, 2010,
well after the statutory time to seek further review had expired. See State v.
Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982) (“We recognize that an attorney
need not be a ‘crystal gazer’ who can predict future changes in established rules
of law in order to provide effective assistance to a criminal defendant.”). Further,
6
the conduct of Hartsfield’s PCR appellate counsel cannot constitute a “new
ground of fact” for section 822.3 purposes. See Kelly v. State, No. 12-0838,
2014 WL 4224731, at *1 (Iowa Ct. App. Aug. 27, 2014) (considering claim of
“ineffective assistance of postconviction appellate counsel for not seeking further
review of [the court of appeals’s] decision affirming dismissal of the first
application for postconviction relief” and finding “[l]ong-standing precedent by our
surpreme court is contrary to [claimant’s] position” that the ground-of-fact
exception applied); Jackson, 2013 WL 4505114, at *2 (“Jackson argues his case
is distinguishable as he is claiming his postconviction appellate counsel is
ineffective, but our case law is clear that postconviction counsel’s conduct does
not have a direct impact on the validity of the criminal conviction and does not
qualify as a ground of fact that will avoid the limitations period.”). Hartsfield
claims Wing constitutes new law; therefore, his current PCR application is timely
because it was instituted within three years of the supreme court’s decision in
Wing. Even assuming Wing did constitute new law sufficient to toll the statute of
limitations, it does not serve to rescue Hartsfield’s claim.
In Wing, the Iowa Supreme Court considered when a defendant is
arrested for purposes of the speedy indictment rule. 791 N.W.2d at 247. The
defendant claimed an earlier encounter with police constituted an arrest, which
started the clock by which a speedy indictment had to be filed and made the
indictment filed untimely. Id. The Iowa Supreme Court considered what
circumstances constituted an arrest sufficient to trigger speedy indictment
protections and concluded the defendant’s earlier encounter with police did
constitute an arrest. Id. at 247-53.
7
Here, the parties do not dispute Hartsfield was arrested for possession on
August 22, 2001, and issued a nontraffic citation for possession. Instead,
Hartsfield claims he believed he was also arrested for delivery. The record
establishes Hartsfield was arrested for possession. Hartsfield was subsequently
arrested in October and served with an arrest warrant for the delivery charge. As
we stated in our prior opinion:
The facts are clear that the warrantless arrest on August 22, 2001,
was for possession of crack cocaine, not for the separate offense of
delivery . . . . The arresting officers only served a non-traffic
citation for possession. The fact that those officers may have
known of the earlier delivery of cocaine, or had probable cause to
have arrested the applicant on that charge, does not amount to an
arrest.
There is no language in the speedy indictment rule that
suggests or infers that it extends to an offense that had not resulted
in an arrest. The arrest for the delivery offense occurred on
October 10, rather than on August 22, as Hartsfield contends.
Even if it were proven that there was some other motive for the
arrest on August 22, 2001, that arrest is not transformed into an
arrest for a separate offense.
Hartsfield, 2009 WL 2424640, at *2-3 (citations omitted); see also id. at *3
(“Hartsfield was not arrested on August 22, 2001 for delivery of a controlled
substance, the charge relevant to this appeal. Rather, Hartsfield was arrested on
October 10, 2001, and a trial information was filed on October 18, 2001. There
was no speedy indictment violation.”).
As explained by our supreme court in State v. Penn-Kennedy, 862 N.W.2d
384, 389 (Iowa 2015), the question addressed in Wing was “whether the speedy
indictment rule requires the indictment to be filed within forty-five days of the time
when the person reasonably believes he was arrested.” In Penn-Kennedy, the
defendant argued “he reasonably believed he was arrested for [operating while
8
intoxicated] during his police encounter on January 19, 2012.” 862 N.W.2d at
389. Specifically, he claimed “the Wing rule applies to preclude the prosecution
of all crimes a person reasonably believes can be the basis for the arrest if that
belief is formed before the police inform the person of the specific crime of arrest
and prosecution is commenced on that crime.” Id. at 389. The supreme court
disagreed, noting the concerns addressed in Wing—“the anxiety and other
pitfalls of a suspended prosecution sought to be ameliorated by the speedy
indictment rule”—were not present in Penn-Kennedy—where the defendant
faced “the power of the prosecutor or grand jury to bring a separate indictment
charging a different criminal offense any time within the statute-of-limitations
period.” Id. The supreme court reasoned:
The speedy indictment rule serves to protect against the
pitfalls associated with a suspended prosecution. The rule does
not impinge on the power of the prosecutor to select the crime to be
prosecuted. Thus, the reasonable-person rule used to determine
the time of a warrantless arrest in Wing is narrow and limited to
those cases in which an arrest is not promptly followed by any
prosecution.
Id. at 390 (emphasis added); see also State v. Dennison, 571 N.W.2d 492, 497
(Iowa 1997) (“Clearly, [the defendant’s] arrest on the other charges did not
preclude the State from filing separate charges arising out of the same incident
or episode after the forty-five-day period had expired.”). The supreme court
reiterated its previous holding “that the forty-five-day period to bring an indictment
applies only to the public offense for which the defendant was arrested and any
lesser included offenses.” Penn-Kennedy, 862 N.W.2d at 390 (emphasis added)
(citing State v. Sunclades, 305 N.W.2d 491, 494 (Iowa 1981)). The Penn-
Kennedy court concluded,
9
In this case, unlike Wing, the prosecution following the arrest
was not suspended or delayed by the failure of the State to proceed
to an initial appearance based on a complaint charging a public
offense. Instead, the State pursued a criminal prosecution for
public intoxication, a simple misdemeanor that did not require an
indictment, and [the defendant] was in no different position than all
other defendants who face the possibility of multiple criminal
prosecutions arising out of the same episode.
Id. The same is true here. Hartsfield was arrested for possession, for which he
received a nontraffic citation. He was subsequently arrested and timely indicted
for the delivery offense. The circumstances of Wing do not apply to Hartsfield’s
case.
Accordingly, we affirm the district court’s denial of Hartsfield’s PCR action
as this action was untimely and no exception applies to his claim. See Grefe &
Sidney v. Watters, 525 N.W.2d 821, 826 (Iowa 1994) (“[W]e are obliged to affirm
an appeal where any proper basis appears in the record for a trial court’s
judgment, even though it is not one upon which the court based its holding.”).
AFFIRMED.