IN THE COURT OF APPEALS OF IOWA
No. 14-0762
Filed June 15, 2016
DAVID HERING,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Muscatine County, Henry W.
Latham II, Judge.
Applicant appeals the district court decision dismissing his application for
postconviction relief on the ground it was untimely. AFFIRMED.
William R. Monroe of the Law Office of William Monroe, Burlington, for
appellant.
David Hering, Anamosa, appellant pro se.
Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney
General, for appellee State.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
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BOWER, Judge.
David Hering appeals the district court decision dismissing his application
for postconviction relief on the ground it was untimely. We find Hering’s notice of
appeal was timely filed, however, we determine Hering’s application for
postconviction relief, filed on January 17, 2014, is untimely under Iowa Code
section 822.3 (2013). We affirm the decision of the district court.
I. Background Facts & Proceedings
Hering was convicted of first-degree murder for killing his wife and of two
counts of attempted murder for shooting at officers who responded to a 911 call
from his residence. His convictions were affirmed on appeal. See State v.
Hering, No. 04-1222, 2006 WL 60678, at *1 (Iowa Jan. 11, 2006).
Hering filed the present application for postconviction relief on January 17,
2014, claiming his convictions were void because he was incompetent to stand
trial under Iowa Code chapter 812. The district court, sua sponte, filed a notice
of intent to dismiss the application as untimely under section 822.3. The State
agreed the application was untimely and also stated the principle of res judicata
barred additional litigation on the issue because it had been adjudicated in a prior
postconviction action. Hering resisted the notice of intent to dismiss.
The district court entered an order on April 1, 2014, dismissing Hering’s
application for postconviction relief on the grounds of untimeliness and res
judicata. On April 9, 2014, Hering filed a motion pursuant to Iowa Rule of Civil
Procedure 1.904(2), claiming the court did not address his assertion his criminal
convictions were void because he was not competent to stand trial. The district
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court entered an order on April 29, 2014, denying Hering’s rule 1.904(2) motion.
Hering appealed on May 7, 2014.
II. Timeliness of Appeal
The State filed a motion to dismiss Hering’s appeal on the ground it was
untimely. The State claimed Hering did not file a proper rule 1.904(2) motion and
therefore it did not toll the time for filing an appeal. The Iowa Supreme Court
denied the motion to dismiss but ruled the issue could be raised by the State on
appeal, which the State has done.
We determine Hering’s appeal is not untimely. Hering claimed the statute
of limitations for filing postconviction actions found in section 822.3 should not
apply because his convictions were void and the district court had not specifically
addressed this issue. Therefore, we determine Hering filed a proper rule
1.904(2) motion and he timely appealed after the district court ruled on his
motion. See State v. Krogmann, 804 N.W.2d 518, 524 (Iowa 2011); Meier v.
Senecaut, 641 N.W.2d 532, 539 (Iowa 2002).
III. Timeliness of Postconviction Application
The district court found Hering’s application for postconviction relief was
untimely. We review the district court’s decision for the correction of errors at
law. See Harrington v. State, 659 N.W.2d 509, 519 (Iowa 2003). 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.” Iowa Code § 822.3. A writ of procedendo from
Hering’s direct appeal was filed on January 24, 2006, and his application for
postconviction relief was filed almost eight years later, on January 17, 2014.
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There is a statutory exception for applications based upon “a ground of
fact or law that could not have been raised within the applicable time period.” Id.
Hering claims a past conservatorship proceeding provides the “ground of fact or
law that could not have been raised within the applicable time period.” See id.
While Hering’s criminal case was pending, the Muscatine County Sheriff filed a
petition for the appointment of a conservator for Hering, and the district court
entered an order finding “David L. Hering, is presently incarcerated in the
Muscatine County Jail and that it would be in his best interests that a
Conservator be appointed during the pendency of his incarceration.” 1 Hering
was aware prior to his criminal trial a conservator had been appointed for him
and there had not been a competency hearing under chapter 812. He has failed
to show his present claim could not have been raised within the three-year time
period found in section 822.3.
Hering claims the statute of limitations for postconviction actions does not
apply to his application because his criminal convictions are void due to his
assertion he was mentally incompetent at the time of his criminal trial. When a
defendant is determined to have been incompetent at the time of trial, the
criminal conviction is reversed, not declared void. See State v. Pedersen, 309
N.W.2d 490, 501 (Iowa 1981).
1
In an earlier case concerning Hering, the district court, when discussing the application
to appoint a conservator, found “the conservatorship proceeding may have been
prompted more by his incarceration and a desire to preserve his assets for his children,
than a truly impaired capacity to make, communicate, or carry out important decisions
concerning his financial affairs.”
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We determine Hering’s application for postconviction relief, filed on
January 17, 2014, is untimely under section 822.3. We affirm the decision of the
district court.
AFFIRMED.
David Hering, Applicant-Appellant v. State of Iowa
Combined Opinion