Arzel Jones v. State of Iowa

• Court: Supreme Court of Iowa
• Decided: October 21, 2022
• Docket: 21-0411
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 21–0411

Submitted September 15, 2022—Filed October 21, 2022

Amended October 27, 2022 ARZEL JONES,

Appellant,

vs.

STATE OF IOWA,

Appellee.

Appeal from the Iowa District Court for Marshall County, James C.

Ellefson, Judge.

A represented party filed a pro se notice of appeal from a ruling denying

his petition for postconviction relief and seeks a delayed appeal. APPEAL

DISMISSED.

Waterman, J., delivered the opinion of the court, in which all justices

joined.

Jamie Hunter of Dickey, Campbell & Sahag Law Firm, PLC, Des Moines,

for appellant.

Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant

Attorney General, for appellee. 2

WATERMAN, Justice.

This appeal presents the question whether a pro se notice of appeal filed

by a represented party in postconviction proceedings is valid, and if not, whether

we will allow a delayed appeal after his attorney filed an untimely notice of

appeal. We answer “no” to both questions.

Arzel Jones was convicted of kidnapping, assault causing bodily injury,

second-degree sex abuse, and related crimes. We affirmed his convictions on

direct appeal. State v. Jones, 817 N.W.2d 11, 15, 22–23 (Iowa 2012). He sought

postconviction relief under Iowa Code chapter 822, which the district court

denied. He filed a pro se notice of appeal within thirty days, and several months

later his counsel filed a notice of appeal and motion for delayed appeal, which

the State resisted. We retained the case and ordered the parties to brief the

jurisdictional issues.

For the reasons explained below, we hold that Jones’s pro se notice of

appeal filed in 2021 while he was represented by counsel was a nullity under

Iowa Code section 822.3A (2021), which prohibits the filing of pro se documents

by represented parties and the court’s consideration thereof. The legislature

subsequently amended this statute effective July 1, 2022, to allow pro se notices

of appeal by represented litigants, but the 2021 statute controls this case. See

2022 Iowa Acts ch. 1110, § 2 (to be codified at Iowa Code § 822.3A(3)(b) (2023)).

We decline to allow delayed appeals in postconviction proceedings. We dismiss

this appeal for lack of jurisdiction. 3

I. Background Facts and Proceedings.

Arzel Jones was convicted of crimes he committed over a five-day period

with a single victim, M.P. He met her in the fall of 2007 at a bar in Marshalltown

where she worked. They began a consensual sexual relationship and saw each

other daily that autumn. Their relationship soured on November 30 when Jones

brought M.P. to his apartment and accused her of being unfaithful. “Over the

course of the next several hours, Jones punched M.P. in the chest two or three

times, slapped her across the face, and slapped the back of her head.” Jones,

817 N.W.2d at 13. When M.P. did not show up for work, her ex-boyfriend called

911 and police performed a welfare check on M.P. at Jones’s apartment. Jones

prevented her from responding when officers knocked on the door. Jones then

directed M.P. to call her family and the police and falsely report she was in Ames

with a friend, which she did.

M.P. spent the weekend at Jones’s apartment because she did not think

he would let her leave and she did not want her parents or her son to see her

injuries. M.P. finally left Jones’s apartment on the afternoon of December 3 to

pick her son up from school. That day she worked the late shift at the bar. Jones

arrived there after midnight and had several drinks while he watched M.P. He

left just before the bar closed. M.P. finished her shift, and when she started her

car, Jones jumped in. He forced her back to his apartment.

Once inside, Jones locked the door and ordered M.P. to remove her clothes. During the next several hours, Jones forced M.P. to engage in nonconsensual sexual activity by holding a metal fork to her neck, threatened M.P.’s life, kicked M.P. in the face while wearing boots, punched M.P. in the chest, and strangled her. 4

Id. at 14. The State charged Jones with multiple crimes. Id. He waived his right

to a jury trial and after a three-day bench trial Jones was found guilty and

sentenced to consecutive prison sentences totaling thirty-five years. Id. at 14–

15. The court of appeals affirmed his convictions, as did we on further review.

Id. at 15, 22–23.

Jones filed this action for postconviction relief (PCR), which, after many

delays, was tried to the court for five days ending on December 17, 2020. Jones

argued his trial counsel was ineffective for failing to have DNA testing done on a

washcloth to show the absence of blood and for failing to challenge a

forty-four-minute gap between crime scene photos of forks. He theorized the

police planted one fork identical to another the victim testified he held to her

throat when forcing her to perform oral sex. The State offered testimony from

Jones’s trial counsel who strategized not to do the DNA testing because it could

have helped prove the prosecution’s case and because the absence of blood on

the washcloth would have been consistent with the victim’s testimony that

neither she nor Jones cleaned up her blood with it. The State also presented

testimony explaining how the officers’ other duties at the crime scene caused the

delay between photos.

The PCR court denied Jones’s motion to compel an Iowa Division of

Criminal Investigation (DCI) forensic analyst to act as his expert witness and

investigator. The court noted Jones already had been appointed a private

investigator at state expense. The court questioned whether a DCI analyst could

be compelled to work for Jones. The court also noted that Jones obtained 5

testimony from a Marshalltown police crime scene technician, and concluded

Jones failed to show he needed another investigator.

The court denied Jones’s motion to compel testimony from the victim, M.P.

The court concluded that Jones had the victim’s trial testimony and the mere

possibility she might change some answers did not support compelling

cumulative testimony. Jones presented no evidence that M.P. had recanted or

changed her story in any material way. The court declined to allow a fishing

expedition that would harass and revictimize the victim.

The court also denied Jones’s motion to compel testimony from the

prosecutor, who had moved out of state and was unavailable. Jones made no

showing that her testimony was needed in the PCR trial when the original trial

transcript and record was available. The court ruled that the prosecutor’s mental

impressions were off limits, her testimony was irrelevant, and Jones had no right

to compel her testimony.

On February 26, 2021, the court entered a thirty-nine-page ruling denying

relief on all remaining claims. Jones’s counsel filed a motion for new trial on

March 15, and the district court denied it the following day. On March 22, Jones

filed a handwritten “Pro-Se Motion Under Lado v. State”1 in district court that

stated he was “requesting my appeal from my P.C.R. trial.” Jones’s

postconviction counsel took no further action. On March 31, the district court

appointed a different lawyer to represent Jones on his appeal. Neither lawyer

1804 N.W.2d 248 (Iowa 2011). 6

filed a timely notice of appeal. On August 6, we ordered the parties to brief the

issue of whether we have jurisdiction over Jones’s appeal. On August 9, Jones’s

appellate counsel filed a notice of appeal and a motion for delayed appeal, which

the State resisted. On October 6, we determined the motion for delayed appeal

should be submitted with the appeal and directed the parties to brief the

jurisdictional issue and whether a delayed appeal should be granted.

In his appellate brief, Jones argues his notice of appeal was valid because

it was not prohibited by Iowa Code section 822.3A (2021), he was not represented

by counsel at that time, and a prohibition would be unconstitutional under the

separation of powers doctrine. Alternatively, he argues we should allow a delayed

appeal. On the merits, Jones raises the same PCR claims discussed above. The

State urges us to bypass the statutory issue and allow a delayed appeal, and

affirm on the merits. We retained the case.

II. Appellate Jurisdiction.

“The issue of the timeliness of appeals is jurisdictional for civil and

criminal cases.” Anderson v. State, 962 N.W.2d 760, 762 (Iowa 2021). “The

failure to timely appeal generally terminates appellate jurisdiction.” Id. We must

decide whether Jones’s pro se filing constitutes a valid notice of appeal allowing

our appellate jurisdiction, and if not, whether we will grant his motion for a

delayed appeal. We have allowed delayed appeals in several direct appeals in

criminal cases, and in some “termination-of-parental-rights cases depending on

the circumstances.” Id. But we have never previously held that delayed appeals

are allowed in postconviction proceedings. See id. In Anderson v. State, we denied 7

a delayed appeal in a postconviction case without deciding whether that relief

was available because the appellant had “waited six months after learning of his

attorney’s failure to timely file a notice to appeal before filing his motion for

delayed appeal.” Id. at 763.

Iowa Code section 814.6A (applying to direct appeals) and section 822.3A

(2021) (applying to postconviction cases) have the same language prohibiting

pro se filings by represented parties. In several direct appeals, we allowed

delayed appeals without deciding whether Iowa Code section 814.6A(1)

invalidates a pro se notice of appeal filed by a defendant represented by counsel.

See, e.g., State v. Davis, 969 N.W.2d 783, 785–88 (Iowa 2022); see also State v.

Wilbourn, 974 N.W.2d 58, 60 (Iowa 2022) (resolving the section 814.6A issue by

allowing a delayed appeal under State v. Davis); State v. Crawford, 972 N.W.2d

189, 194 (Iowa 2022) (same); State v. Newman, 970 N.W.2d 866, 868–69 (Iowa

2022) (same); State v. Jackson-Douglass, 970 N.W.2d 252, 255 (Iowa 2022)

(same). The State suggests that we simply take the same approach and grant

Jones’s motion for a delayed appeal without deciding whether section 822.3A

nullifies his notice of appeal. We decline the parties’ invitation to hold, for the

first time, that delayed appeals are allowed in postconviction proceedings.

A. Whether Jones’s Pro Se Notice of Appeal Is a Nullity. We begin with

the text of the statute. Section 822.3A in 2021 stated,

1. An applicant seeking relief under section 822.2 who is currently represented by counsel shall not file any pro se document, including an application, brief, reply brief, or motion, in any Iowa court. The court shall not consider, and opposing counsel shall not respond to, such pro se filings. 8

2. This section does not prohibit an applicant for postconviction relief from proceeding without the assistance of counsel.

3. A represented applicant for postconviction relief may file a pro se motion seeking disqualification of counsel, which a court may grant upon a showing of good cause.

Iowa Code § 822.3A.

The legislature amended section 822.3A this year to allow PCR applicants

who are represented by counsel to file pro se notices of appeal. 2022 Iowa Acts

ch. 1110, § 2 (to be codified at Iowa Code § 822.3A(3)(b) (2023)). That

amendment became effective July 1, 2022, and is inapplicable to Jones’s pro se

notice of appeal filed March 22, 2021. See Hrbek v. State, 958 N.W.2d 779, 783

(Iowa 2021) (holding the “event of legal consequence” for determining which

statute applies is the date the challenged pro se document is filed); see also

State v. Macke, 933 N.W.2d 226, 231 (Iowa 2019) (holding the appeal is governed

by the statute in place at the time of judgment, and not by a subsequent

statutory amendment).

We presume the legislature changed the law this year to prospectively

allow pro se notices of appeal by represented parties, rather than merely to

clarify which pro se filings were covered by the prior enactment. See Griffin Pipe

Prods. Co. v. Guarino, 663 N.W.2d 862, 867 (Iowa 2003). The statute in effect in

2021 did not expressly allow a represented party to file a pro se notice of appeal.

Rather, the operative statutory text prohibits a represented party from filing

“any” pro se document other than a motion to disqualify counsel. And the plain

language of the statute prohibits the court from considering any pro se filings 9

apart from motions to disqualify counsel. We are not persuaded that by providing

a nonexclusive list of prohibited filings (“including an application, brief, reply

brief, or motion”) the legislature by implication allowed other documents to be

filed, such as a notice of appeal. “Any” means “any,” and the only exception

stated is for a motion to disqualify. We hold that under Iowa Code section 822.3A

(2021) a pro se notice of appeal by a represented party is a nullity, and counsel

must timely file the notice of appeal to invoke appellate jurisdiction.

We reject Jones’s assertion that he was not represented by counsel when

he filed the notice of appeal. The duties of his appointed PCR counsel continued

after the trial. See Jackson-Douglass, 970 N.W.2d at 255–56; see also Iowa R.

Crim. P. 2.29(6) (requiring trial counsel to file the notice of appeal unless

appellate counsel has already been appointed). Another lawyer was subsequently

appointed for the appeal within the period to file a timely notice of appeal. At all

relevant times, Jones was represented by counsel.

We also reject Jones’s constitutional challenge to section 822.3A under the

separation-of-powers doctrine. “Because statutes are cloaked with a strong

presumption of constitutionality, a party challenging a statute carries a heavy

burden of rebutting this presumption.” Hrbek, 958 N.W.2d at 784 (quoting

Klouda v. Sixth Jud. Dist. Dep’t of Corr. Servs., 642 N.W.2d 255, 260 (Iowa 2002)).

We have already rejected such a challenge and upheld the constitutionality of

this statute in State v. Hrbek. Id. at 784–89. Hrbek is dispositive here. See id. We

hold Jones’s notice of appeal is a nullity. 10

B. Whether a Delayed Appeal Should Be Allowed. Finally, we address

Jones’s request for a delayed appeal. We have never previously held that delayed

appeals are allowed in postconviction proceedings, but we reserved the question

whether to do so in Anderson, 962 N.W.2d at 762–63. We recently elected to

allow delayed appeals in termination-of-parental-rights cases for “negligible”

delays when “the parent clearly intended to appeal and the failure to timely

perfect the appeal was outside of the parent’s control.” In re A.B., 957 N.W.2d

280, 292–93 (Iowa 2021). We have allowed delayed direct appeals when the

“defendant has expressed a good faith intent to appeal before the appeal deadline

but failed to timely perfect the appeal due to state action or circumstances

beyond the defendant’s control.” Davis, 969 N.W.2d at 787. We limited delayed

appeals “to those instances where a valid due process argument might be

advanced should the right of appeal be denied.” Id. (quoting Swanson v. State,

406 N.W.2d 792, 793 (Iowa 1987)); see also In re A.B., 957 N.W.2d. at 291–92

(relying on parents’ fundamental liberty interest in raising their children).

The due process argument does not apply to appeals from postconviction

proceedings, because the defendant has already been convicted in the criminal

proceedings with full due process protections. See Miller v. Baldwin, 32 P.3d 234,

238–39 (Or. Ct. App. 2001) (declining to allow delayed postconviction appeal). As

the Miller v. Baldwin court explained, due process rights differ in direct criminal

appeals and parental rights cases on the one hand, and postconviction appeals

on the other hand: 11

[U]nlike a proceeding for termination of parental rights, in which the state brings the direct weight of its power to bear on parents who risk losing the fundamental right of parenthood, petitioner has been convicted of a crime in an underlying proceeding. . . . Here, unlike in the criminal proceeding, petitioner is the party who is ultimately responsible for prosecuting the action. In sum, this is a collateral civil proceeding, in which petitioner is the party seeking relief. The Geist rationale is not controlling here merely because petitioner, like the parent in Geist, also has a statutory right to suitable counsel.

Id. (alteration in original) (quoting Elkins v. Thompson, 25 P.3d 376, 381 (Or. Ct.

App. 2001)); see also State v. Nichols, 463 N.E.2d 375, 377–78 (Ohio 1984)

(rejecting right to delayed appeal in postconviction proceeding, which is a civil

proceeding, after the defendant’s direct appeal in his criminal case); Stokes v.

State, 146 S.W.3d 56, 59–61 (Tenn. 2004) (declining to allow delayed

postconviction appeal to state supreme court because “all due process requires

during post-convictions procedures is a meaningful opportunity to be heard” that

was satisfied by the “full evidentiary hearing” at the trial level and timely-filed

“first-tier” appellate review).

“Due process merely requires an opportunity to present those claims in

some forum.” State v. Treptow, 960 N.W.2d 98, 108 (Iowa 2021). Jones has

already had a trial and direct appeal and a postconviction trial in district court

and the opportunity to timely file an appeal from the postconviction judgment.

Due process does not require a right to a delayed appeal in postconviction

proceedings. The deadline for filing a notice of appeal remains mandatory:

“[w]here an appellant is late in filing, by as little as one day, we are without

jurisdiction to consider the appeal.” Root v. Toney, 841 N.W.2d 83, 87 (Iowa

2013) (quoting In re Marriage of Mantz, 266 N.W.2d 758, 759 (Iowa 1978)). Our 12

rules require the notice of appeal to be filed within thirty days. That ends the

inquiry. This deadline imposes a limit on the court’s jurisdiction that we decline

to extend through extemporaneous suspensions of enforcement on a case-by-

case basis. Ad hoc exceptions undermine the efficacy of the rules and create

confusion. As other jurists have aptly observed:

Rules of procedure are a necessary part of an orderly system of justice. Their efficacy, however, depends upon the willingness of the courts to enforce them according to their terms. Changes in rules whose inflexibility has turned out to work hardship should be effected by the process of amendment, not by ad hoc relaxations by this Court in particular cases. Such dispensations in the long run actually produce mischievous results, undermining the certainty of the rules and causing confusion among the lower courts and the bar.

Houston v. Lack, 487 U.S. 266, 283 (1988) (Scalia, J., dissenting) (quoting

Thompson v. INS, 375 U.S. 384, 390 (Clark, J., dissenting) (1964) (per curiam),

overruled by Bowles v. Russell, 551 U.S. 205 (2007)).

We hold that Jones is not entitled to a delayed appeal. Because Jones’s

pro se notice of appeal was a nullity, and his counsel’s notice of appeal was late,

we lack jurisdiction over this untimely appeal.

III. Disposition.

For the foregoing reasons, we dismiss Jones’s appeal for lack of

jurisdiction.

APPEAL DISMISSED.