IN THE COURT OF APPEALS OF IOWA
No. 16-0394
Filed December 21, 2016
MONTRELL ANDERSON,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,
Judge.
Montrell Anderson appeals the dismissal of his application for
postconviction relief. AFFIRMED.
Andrew J. Boettger of Hastings, Gartin & Boettger, L.L.P., Ames, for
appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney
General, for appellee State.
Considered by Danilson, C.J., and Mullins and Bower, JJ.
2
DANILSON, Chief Judge.
Montrell Anderson appeals the dismissal of his application for
postconviction relief (PCR). Anderson contends the PCR court erred in
dismissing his application without notice or allowing him sufficient time to
respond pursuant to Iowa Code section 822.6 (2015). Because section 822.6
does not apply to this action, we conclude the PCR court did not err in dismissing
Anderson’s PCR application as time-barred under Iowa Code section 822.3.
Anderson was sentenced on May 30, 2007, after being convicted by jury
trial for third-degree sexual abuse, in violation of Iowa Code section 709.4.
Anderson’s conviction was affirmed on appeal in 2008. This PCR application—
Anderson’s second PCR application—was filed May 28, 2015. On January 11,
2016, the PCR court entered an order setting trial on Anderson’s PCR
application. The State filed a motion to dismiss the PCR application on January
19, 2016, asserting the application was time-barred under Iowa Code section
822.3. Anderson did not file a resistance to the motion to dismiss. On February
1, 2016, without setting a hearing on the motion, the PCR court entered an order
dismissing the PCR application “[u]pon oral application of the County Attorney or
pursuant to plea negotiations, and in the interest of justice.”
On February 2, 2016, Anderson filed a motion to enlarge and amend
findings, arguing the PCR court’s dismissal did not comply with Iowa Code
section 822.6 because the court did not give prior indication of its intention to
dismiss the application and did not allow Anderson an opportunity to reply. In an
order entered February 16, 2016, the PCR court explained Iowa Code section
822.6 did not apply to the dismissal because
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the court made no determination that [Anderson] would not have
been entitled to relief on the merits, if his claims were not time
barred, or that no purpose would be served by further proceedings.
The application was not dismissed on the merits but because
[Anderson] did not deny his claims were time barred by filing a
resistance to [the State]’s motion to dismiss. Had he done so, the
motion and resistance would have been promptly set for hearing.
Sec[tion] 822.6 does not purport to create an exception to the Rules
of Civil Procedure relieving a petition[er] from resisting motions duly
filed and served but, rather, precludes the court from spontaneously
dismissing an application on the merits without prior notice to the
applicant and an opportunity to respond.[1]
Upon our review for correction of errors at law, Manning v. State, 654
N.W.2d 555, 558-59 (Iowa 2002), we conclude the PCR court’s holding comports
with the law and affirm the order dismissing Anderson’s PCR application.
Iowa Code section 822.6 provides two methods for summary disposition of
a PCR application on the merits without a trial. Manning, 654 N.W.2d at 559.
Paragraph two of section 822.6 allows a PCR court, on its own initiative, to
dismiss a PCR application where it is satisfied “the applicant is not entitled to
postconviction relief and no purpose would be served by any further
proceedings.” Iowa Code § 822.6. A paragraph-two dismissal requires the court
to “indicate to the parties its intention to dismiss the application” and provide the
applicant “an opportunity to reply to the proposed dismissal.”2 Id.
1
The court further explained the language of the motion to dismiss—dismissing the PCR
application “[u]pon oral application of the County Attorney or pursuant to plea
negotiations, and in the interest of justice”—was incorrectly included because the order
was a modified EDMS “template intended for dismissing criminal cases on account of
plea negotiations or otherwise and [the order’s] references to oral applications by the
county attorney or to plea negotiations do not apply.” The court explained the order
should have “simply stated that respondent’s motion to dismiss petitioner’s application
as time barred . . . was granted because there was no resistance.”
2
“The second method, found in paragraph three of section 822.6, allows for such
disposition on the motion of either party. The goal here ‘is to provide a method of
disposition once the case has been fully developed by both sides, but before an actual
trial.’” Manning, 654 N.W.2d at 559 (citation omitted).
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However, section 822.3 provides for dismissal of a PCR application if it is
not “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 “a
ground of fact or law that could not have been raised within the applicable time
period” is being asserted. See id. § 822.3.
Anderson contends the PCR court erred in dismissing his PCR application
without providing Anderson notification of its intention to do so or allowing
Anderson time to reply. However, as the PCR court indicated, the requirements
of section 822.6 do not apply to dismissals pursuant to section 822.3. See
Ramirez v. State, No. 13-1847, 2015 WL 4936386, at *2 (Iowa Ct. App. Aug. 19,
2015) (“It is apparent that the PCR court’s ruling was not one of summary
disposition. In its ruling the court found the application was time barred under
section 822.3 ‘and is therefore dismissed.’ The court did not consider the merits
of [the applicant]’s claims as is required for summary disposition, and therefore,
[the applicant]’s reliance on Manning is misplaced.”).
We addressed a similar argument in Weatherly v. State, No. 14-1890,
2016 WL 1130043 (Iowa Ct. App. Mar. 23, 2016). In Weatherly, the applicant
alleged the PCR court erred in dismissing the PCR application as untimely
without a reported hearing or notice to the applicant of the issues the court would
consider. 2016 WL 1130043, at *2 n.1. This court held the PCR court did not err
in dismissing a PCR application as time-barred fourteen days after the motion to
dismiss was filed, although the motion was not resisted and a hearing was not
held. Id. at *2. The Weatherly court explained:
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[The applicant] complains the court failed to give him “an
opportunity to reply to the proposed dismissal”; however, the
portion of Iowa Code section 822.6 cited by [the applicant] pertains
to dismissal initiated on the court’s initiative. . . . When a motion to
dismiss a PCR application has been filed, proper service has been
made on the nonmoving party, and the nonmoving party has been
afforded an adequate time to respond and fails to do so, the court
may summarily dismiss the application as a matter of default
judgment.
Id. at *2, n.1 (citing Brown v. State, 589 N.W.2d 273, 275 (Iowa 1998)).
Here, the State filed a motion to dismiss the PCR application, Anderson
does not contest whether proper service of the motion was made, and Anderson
did not reply to the motion to dismiss despite having adequate time to do so.
Further, Anderson’s PCR application was filed approximately seven years
after procedendo was issued and is unquestionably time-barred under section
822.3. Anderson’s application alludes to “a ground of fact or law that could not
have been raised within the applicable time period.” However, his application,
his motion to amend and enlarge, and his brief on appeal fail to give any
indication what this evidence is or why it could not be raised earlier. On this
record we cannot conclude the court erred.
We conclude the requirements of section 822.6 do not apply to the PCR
court’s dismissal of Anderson’s PCR application as untimely. We further
conclude the PCR court did not err in dismissing the PCR application as it was
filed well outside the requisite three-year period. The order dismissing the PCR
application is affirmed.
AFFIRMED.
Montrell Anderson, Applicant-Appellant v. State of Iowa
Combined Opinion