IN THE COURT OF APPEALS OF IOWA
No. 17-1531
Filed August 15, 2018
CHAD STECHCON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Benton County, Chad A. Kepros
(motion to dismiss) and Christopher L. Bruns (order), Judges.
Chad Stechcon appeals the district court’s summary dismissal of his
application for postconviction relief. REVERSED AND REMANDED.
Mark C. Smith, State Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.
A jury found Chad Stechcon guilty of first-degree burglary, domestic abuse
assault while using or displaying a dangerous weapon, and false imprisonment.
This court affirmed Stechcon’s convictions. See State v. Stechcon, No. 13-0049,
2013 WL 5951359, at *3-7 (Iowa Ct. App. Nov. 6, 2013). Procedendo issued on
December 9, 2013.
The following year, Stechcon filed an application for appointment of
counsel, requesting “competent counsel to properly prepare his Application for
Post Conviction Relief, and bring the same into open court for a hearing.” He also
filed an application to proceed in forma pauperis and declaration in support. On
April 17, 2014, the district court granted the applications. The court specifically
noted, “Applicant did not include an actual Application for Post-Conviction Relief.”
The court cautioned Stechcon that, by appointing counsel, it was “making no ruling
that Applicant has a colorable claim for post-conviction relief” but was “simply
appointing [counsel] to represent Applicant to investigate whether Applicant has
such a claim and, if so, to prepare, file, and prosecute the claim.”
The “case” languished, and Stechcon was notified that it would be
automatically dismissed pursuant to Iowa Rule of Civil Procedure 1.944. No action
was taken and the case was dismissed. Later, counsel moved to have it reinstated
and the motion was granted.
On February 14, 2017, postconviction counsel filed what he characterized
as an “amended” postconviction-relief application, alleging trial counsel was
ineffective in failing to call Stechon as a witness. The State moved to dismiss the
application as untimely. Stechcon filed a reply acknowledging he “did not file an
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application for postconviction relief, but instead, merely . . . filed, on April 7, 2014,
an application to proceed in forma pauperis and an application for appointment of
post-conviction relief counsel.” He argued it would “be inequitable” to dismiss the
case because the clerk of court assigned a case number to the matter.
The district court granted the dismissal motion, reasoning as follows:
Applicant, who had counsel appointed to represent his
interests as of April 17, 2014, was clearly informed that he must still
prepare, file, and prosecute any alleged claim for post-conviction
relief. . . . [O]n February 14, 2017, Applicant finally attempted to
comply with the April 17 order. By that point in time, his claim was
time barred as asserted by the State.
On appeal from the summary dismissal order, Stechcon concedes a
postconviction relief application generally “must be filed within three years” of the
issuance of procedendo, which in his case was “on or before December 13, 2016.”
See Iowa Code § 822.3 (2017) (stating an application for postconviction relief
“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 issued,” unless
the application raises “a ground of fact or law that could not have been raised within
the applicable time period”). He seeks to circumvent the time bar by arguing his
“court-appointed postconviction relief counsel was ineffective in failing to file his
application for postconviction relief in a timely fashion.”
The Iowa Supreme Court recently addressed applicants’ efforts to sidestep
the section 822.3 time bar by alleging ineffective assistance of counsel. See
Allison v. State, 914 N.W.2d 866, 2018 WL 3198793, at *22 (Iowa 2018). The
court held:
[W]here a [postconviction-relief (PCR)] petition alleging ineffective
assistance of trial counsel has been timely filed per section 822.3
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and there is a successive PCR petition alleging postconviction
counsel was ineffective in presenting the ineffective-assistance-of-
trial-counsel claim, the timing of the filing of the second PCR petition
relates back to the timing of the filing of the original PCR petition for
purposes of Iowa Code section 822.3 if the successive PCR petition
is filed promptly after the conclusion of the first PCR action.
Id. The court essentially invoked an equitable tolling doctrine to permit
consideration of a second postconviction relief application. Id.
Although the black-letter holding of Allison does not apply here, the opinion
also contained broad language about the need for effective counsel to pursue
postconviction relief applications. See id. at ___ (noting “where the only counsel
provided to an applicant has been ineffective, a violation of the statute [requiring
counsel to be effective] occurs”); id. at ___ (discussing Wilkins v. State, 522
N.W.2d 822 (Iowa 1994) and its holding that an ineffective assistance of counsel
claim did not fall into the exceptions to the section 822.3 time bar and stating the
Wilkins court “gave no consideration to the constitutional implications of the
ruling”); id. at ___ (discussing Dible v. State, 557 N.W.2d 881 (Iowa 1996),
abrogated in part by Harrington v. State, 659 N.W.2d 509, 521 (Iowa 2003), and
its holding that the applicant failed to establish a ground of fact that could not have
been raised under the three-year time bar and qualifying the Dible holding after
noting it “gave no consideration to the fundamental constitutional interests at stake
when an accused alleges ineffective assistance of trial counsel and the PCR
proceeding is the first opportunity to raise the issue”). Stechon’s ineffective-
assistance-of-postconviction-counsel claim implicates this language. He is not
challenging trial counsel’s errors—errors he should have known about before the
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expiration of the limitations period—but postconviction counsel’s error in failing to
timely file a postconviction application.
This brings us to Lado v. State, 804 N.W.2d 248, 251-52 (Iowa 2011), cited
by Stechcon. There, the applicant filed a timely postconviction-relief application,
which was dismissed pursuant to Iowa Rule of Civil Procedure 1.944. Lado, 804
N.W.2d at 250. The court held “[c]ounsel’s failure to seek a continuance of the
case, or to apply to have the case reinstated, resulted from abdication, not
exercise, of professional judgment.” Counsel therefore breached an essential duty
resulting in the case being dismissed” and no showing of prejudice was required.
Id. at 251.
The State argues Lado is inapposite because it presumed a timely
postconviction application and Stechcon did not file a timely postconviction-relief
application. But Lado’s holding turned on postconviction counsel’s failure to file
documents that would have avoided dismissal of the postconviction-relief
application. Similarly, Stechon’s ineffective-assistance claim turns on his
postconviction attorney’s failure to timely file an application that would have
avoided summary dismissal of the postconviction application. In our view, there is
no material difference between Lado and Stechon’s case—both involved the
failure of postconviction counsel to prevent dismissal of a postconviction relief
application. Where Stechon is challenging counsel’s failure to timely file the
application, it would be anomalous to require a timely filed application before he
could proceed.
Stechon’s postconviction attorney was appointed for the express purpose
of investigating and filing a postconviction-relief application. He filed an application
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two months after the statutory deadline. Postconviction counsel abdicated his
acknowledged duty to file a timely postconviction-relief application, effectively
leaving Stechon without counsel. We conclude postconviction counsel breached
an essential duty and the failure amounted to structural error. We reverse and
remand for adjudication of the merits of Stechon’s untimely filed postconviction
relief application. See id. at 253; Dockery v. State, No. 13-2067, 2016 WL 351251,
at *5 (Iowa Ct. App. Jan. 27, 2015) (reversing and remanding for consideration of
substantive claims where “although three attorneys were appointed to represent
Dockery in the PCR action, none made any substantive filings appropriate to a
PCR action during the three-and-one-half years the action was pending”).
REVERSED AND REMANDED.