IN THE COURT OF APPEALS OF IOWA
No. 13-1164 Filed June 25, 2014
JOEL AGUIRRE, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Buena Vista County, Nancy L.
Whittenburg (pretrial motion) and Mary J. Sokolovske (trial), Judges.
An applicant appeals from the denial of his application for postconviction
relief. AFFIRMED.
Jack B. Bjornstad of Bjornstad Law Office, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney
General, and David Patton, County Attorney, for appellee State.
Considered by Vaitheswaran, P.J., Bower, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013). 2
GOODHUE, S.J.
Joel Aguirre appeals from the denial of his application for postconviction
relief.
I. Background Facts and Proceedings
Aguirre was charged with possession of a firearm by a felon and being
armed with intent while participating in a felony. He eventually pled guilty to
possession of a firearm by a felon and to the amended charge of simple assault.
He was sentenced to thirty days on the simple assault and up to five years on the
possession of a firearm by a felon. The five-year sentence was suspended, and
Aguirre was placed on probation for two years. He did not appeal.
Aguirre later filed this application for postconviction relief. Prior to trial,
Aguirre filed a motion for a writ of habeas corpus ad testificandum stating he was
in federal custody in Louisiana. He requested an order directing the United
States Marshal to produce him in order that he could testify at his postconviction-
relief hearing scheduled for July 5, 2012, in Buena Vista County, Iowa. At the
time of the hearing on the motion, Aguirre had filed an affidavit setting out facts
he believed would establish that his counsel at the time he entered his plea of
guilty was ineffective. The facts set out were within his personal knowledge and
would require his testimony.
The court denied Aguirre’s motion for writ of habeas corpus ad
testifcandum, citing Webb v. State, 555 N.W.2d. 824 (Iowa 1996), for the general
proposition that inmates do not have a constitutional right to be at their own
postconviction-relief hearing. The trial court stated that under Iowa Code section
822.7 (2011), Aguirre’s personal attendance was within the court’s discretion. 3
The court further stated that it had no jurisdiction over federal marshals and that
costs of obtaining Aguirre’s presence were unknown. It exercised its discretion
and denied the motion. The court noted that there was no authority to allow
testimony to be taken by telephone, but under these circumstances, if the parties
could mutually agree to such an arrangement, the court would permit it. The trial
court also mentioned the possibility of taking Aguirre’s testimony by deposition as
provided by Iowa Code section 622.82.
Aguirre filed a motion to allow his testimony to be taken by telephone or
other electronic means. The State did not object, and the motion was granted.
On appeal, Aguirre contends, in essence, that he had a right to testify in
person and it was an error to take his testimony by telephone when a disputed
fact existed.
II. Standard of Review
Postconviction-relief actions are ordinarily reviewed for correction of errors
at law unless there is a constitutional issue. LaMasters v. State, 821 N.W.2d
856, 862 (Iowa 2012). Aguirre makes no constitutional claim.
III. Error Preservation
Error preservation is generally considered present when the issues to be
reviewed have been raised and ruled on by the district court. Meier v. Senecaut,
641 N.W.2d 532, 537 (Iowa 2002). Aguirre raised the issue of his personal
presence to testify by filing a motion for writ of habeas corpus ad testifcandum.
The trial court considered the motion and overruled it. 4
IV. Discussion
An inmate has no constitutional or statutory right to be present at his
postconviction hearing. Webb, 555 N.W.2d at 826. Aguirre contends that the
case of Patterson v. State, 294 N.W.2d 683 (Iowa 1980), gives him the right to
testify in person when a fact question is involved. There is nothing in Patterson
that gives an applicant in a postconviction-relief action the right to testify in
person. In Patterson, the applicant was in the courtroom when the court signaled
by its comments that the applicant’s testimony would be unavailing and not
credible. 294 N.W.2d at 685. The trial court’s pre-testimony evaluation was
considered to be the denial of Patterson’s right to testify. Id. Patterson concerns
the right to have the applicant’s testimony before the court if his testimony was
relevant to any fact issue before the court, not the right of an applicant to appear
before the court in person. Id.
In a postconviction proceeding, “[t]he court may receive proof of affidavits,
depositions, oral testimony, or other evidence and may order the appellant
brought before it for the hearing.” Iowa Code § 822.7. It is within the court’s
discretion to order the applicant brought before it to testify. Mark v. State, 370
N.W.2d 609, 611 (Iowa Ct. App. 1985). In order to establish an abuse of
discretion it must be found that the trial court’s discretion was exercised on
grounds clearly untenable or to an extent clearly unreasonable. State v.
Morrison, 323 N.W.2d 254, 256 (Iowa 1982). Given the fact the trial court in this
case had no power or jurisdiction over the institution where the applicant was
being held, it is not reasonable to find the court abused its discretion by failing to
require the applicant to be present to testify. 5
Aguirre’s complaint shifts to the legality of the use of the telephone as
opposed to receiving his testimony in person. Since a telephone was used to
take his testimony, he asserts the trial court’s ruling should be reversed or
alternatively remanded to have his testimony taken in person. Aguirre contends
that there is no rule or statutory provision that allows a witness to testify by
telephone.
The trial court in ruling on Aguirre’s motion for a writ of habeas corpus ad
testifcandum observed the applicant had the right to provide testimony by
telephone, audiovisual, or other electronic means, only if the State consented
and if the testimony by telephone was court approved. The court also noted that
he could testify by deposition. Aguirre made a motion to allow his testimony to
be taken by telephone. The State did not resist, and the motion was granted.
In spite of the fact that the right to testify by telephone was granted at his
request, Aguirre apparently takes the position that he had no alternative when
the trial court denied his writ of habeas corpus ad testifcandum. When a person
is incarcerated in a county other than where his testimony is required, the
testimony must be by deposition.
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IN THE COURT OF APPEALS OF IOWA
No. 13-1164 Filed June 25, 2014
JOEL AGUIRRE, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Buena Vista County, Nancy L.
Whittenburg (pretrial motion) and Mary J. Sokolovske (trial), Judges.
An applicant appeals from the denial of his application for postconviction
relief. AFFIRMED.
Jack B. Bjornstad of Bjornstad Law Office, Spirit Lake, for appellant.
Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney
General, and David Patton, County Attorney, for appellee State.
Considered by Vaitheswaran, P.J., Bower, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013). 2
GOODHUE, S.J.
Joel Aguirre appeals from the denial of his application for postconviction
relief.
I. Background Facts and Proceedings
Aguirre was charged with possession of a firearm by a felon and being
armed with intent while participating in a felony. He eventually pled guilty to
possession of a firearm by a felon and to the amended charge of simple assault.
He was sentenced to thirty days on the simple assault and up to five years on the
possession of a firearm by a felon. The five-year sentence was suspended, and
Aguirre was placed on probation for two years. He did not appeal.
Aguirre later filed this application for postconviction relief. Prior to trial,
Aguirre filed a motion for a writ of habeas corpus ad testificandum stating he was
in federal custody in Louisiana. He requested an order directing the United
States Marshal to produce him in order that he could testify at his postconviction-
relief hearing scheduled for July 5, 2012, in Buena Vista County, Iowa. At the
time of the hearing on the motion, Aguirre had filed an affidavit setting out facts
he believed would establish that his counsel at the time he entered his plea of
guilty was ineffective. The facts set out were within his personal knowledge and
would require his testimony.
The court denied Aguirre’s motion for writ of habeas corpus ad
testifcandum, citing Webb v. State, 555 N.W.2d. 824 (Iowa 1996), for the general
proposition that inmates do not have a constitutional right to be at their own
postconviction-relief hearing. The trial court stated that under Iowa Code section
822.7 (2011), Aguirre’s personal attendance was within the court’s discretion. 3
The court further stated that it had no jurisdiction over federal marshals and that
costs of obtaining Aguirre’s presence were unknown. It exercised its discretion
and denied the motion. The court noted that there was no authority to allow
testimony to be taken by telephone, but under these circumstances, if the parties
could mutually agree to such an arrangement, the court would permit it. The trial
court also mentioned the possibility of taking Aguirre’s testimony by deposition as
provided by Iowa Code section 622.82.
Aguirre filed a motion to allow his testimony to be taken by telephone or
other electronic means. The State did not object, and the motion was granted.
On appeal, Aguirre contends, in essence, that he had a right to testify in
person and it was an error to take his testimony by telephone when a disputed
fact existed.
II. Standard of Review
Postconviction-relief actions are ordinarily reviewed for correction of errors
at law unless there is a constitutional issue. LaMasters v. State, 821 N.W.2d
856, 862 (Iowa 2012). Aguirre makes no constitutional claim.
III. Error Preservation
Error preservation is generally considered present when the issues to be
reviewed have been raised and ruled on by the district court. Meier v. Senecaut,
641 N.W.2d 532, 537 (Iowa 2002). Aguirre raised the issue of his personal
presence to testify by filing a motion for writ of habeas corpus ad testifcandum.
The trial court considered the motion and overruled it. 4
IV. Discussion
An inmate has no constitutional or statutory right to be present at his
postconviction hearing. Webb, 555 N.W.2d at 826. Aguirre contends that the
case of Patterson v. State, 294 N.W.2d 683 (Iowa 1980), gives him the right to
testify in person when a fact question is involved. There is nothing in Patterson
that gives an applicant in a postconviction-relief action the right to testify in
person. In Patterson, the applicant was in the courtroom when the court signaled
by its comments that the applicant’s testimony would be unavailing and not
credible. 294 N.W.2d at 685. The trial court’s pre-testimony evaluation was
considered to be the denial of Patterson’s right to testify. Id. Patterson concerns
the right to have the applicant’s testimony before the court if his testimony was
relevant to any fact issue before the court, not the right of an applicant to appear
before the court in person. Id.
In a postconviction proceeding, “[t]he court may receive proof of affidavits,
depositions, oral testimony, or other evidence and may order the appellant
brought before it for the hearing.” Iowa Code § 822.7. It is within the court’s
discretion to order the applicant brought before it to testify. Mark v. State, 370
N.W.2d 609, 611 (Iowa Ct. App. 1985). In order to establish an abuse of
discretion it must be found that the trial court’s discretion was exercised on
grounds clearly untenable or to an extent clearly unreasonable. State v.
Morrison, 323 N.W.2d 254, 256 (Iowa 1982). Given the fact the trial court in this
case had no power or jurisdiction over the institution where the applicant was
being held, it is not reasonable to find the court abused its discretion by failing to
require the applicant to be present to testify. 5
Aguirre’s complaint shifts to the legality of the use of the telephone as
opposed to receiving his testimony in person. Since a telephone was used to
take his testimony, he asserts the trial court’s ruling should be reversed or
alternatively remanded to have his testimony taken in person. Aguirre contends
that there is no rule or statutory provision that allows a witness to testify by
telephone.
The trial court in ruling on Aguirre’s motion for a writ of habeas corpus ad
testifcandum observed the applicant had the right to provide testimony by
telephone, audiovisual, or other electronic means, only if the State consented
and if the testimony by telephone was court approved. The court also noted that
he could testify by deposition. Aguirre made a motion to allow his testimony to
be taken by telephone. The State did not resist, and the motion was granted.
In spite of the fact that the right to testify by telephone was granted at his
request, Aguirre apparently takes the position that he had no alternative when
the trial court denied his writ of habeas corpus ad testifcandum. When a person
is incarcerated in a county other than where his testimony is required, the
testimony must be by deposition. Iowa Code § 622.82. It was the applicant’s
decision to testify by telephone rather than by deposition.
Telephonic testimony was considered in In re Estate of Rutter, 633
N.W.2d 740 (Iowa 2001). In that case, one of the parties had not consented to
telephonic testimony, and accordingly, it was excluded. Rutter, 633 N.W.2d at
746. Nevertheless, by way of dicta, the Rutter court stated, “We are not aware of
any statute or rule that would prohibit the parties by mutual agreement from 6
submitting a witness’s testimony by telephone, provided the court has no
objection to such a procedure.” Id. at 746 n.2.
Aguirre attempts to differentiate Rutter by asserting the cited language
only pertains to equity cases. The Rutter case may have been an equity case,
but the court did not limit its pronouncement to equity cases. The Rutter court
looked with favor on telephonic testimony if agreed upon and court-approved,
noting that it should be permitted unless expressly prohibited. Id. at 746. Aguirre
in contrast contends telephone testimony should be prohibited unless expressly
permitted. In Rutter the remedy employed was to not consider the telephonic
testimony in the appellate court’s ruling. Id. Deleting Aguirre’s testimony would
not give him the relief he desires.
When Aguirre filed his motion to have his testimony taken by telephone,
he signaled his assent to that procedure. He could have had his testimony taken
by deposition, but he chose to testify by telephone. If he had chosen to have his
testimony taken by deposition, it could have been taken by telephone. See Iowa
R. Civ. P. 1.701(7). It would be illogical to accept a witness’s telephonic
deposition but hold his live telephonic testimony at the actual trial or hearing
unacceptable.
The burden of proof in a postconviction proceeding is on the applicant.
Iowa R. App. P. 6.904(3)(e). Aguirre’s testimony was necessary if he were to
obtain any relief in his postconviction-relief proceeding. There was no way he
could testify except by telephone or by deposition. Although Aguirre did not
receive the relief he requested, it would not have been in his interest to deny him
the right to request postconviction relief simply because he was physically unable 7
to appear at the proceeding to testify. It was in his best interest to allow
telephonic testimony.
V. Conclusion
The trial court did not abuse its discretion in proceeding without the
applicant’s presence at the hearing. Furthermore, the court did not err in denying
the applicant’s motion for a writ of habeas corpus ad testifcandum or in granting
the applicant’s unresisted motion to testify by telephone.
AFFIRMED.