Joshua McDonald v. State of Iowa

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 20-0908 Filed February 16, 2022

JOSHUA MCDONALD, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan,

Judge.

Applicant appeals the dismissal of his postconviction-relief application.

AFFIRMED AND REMANDED FOR FURTHER PROCEEDINGS.

Martha J. Lucey, State Appellate Defender, and Shellie L. Knipfer, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney

General, for appellee.

Considered by Bower, C.J., and Greer and Badding, JJ. 2

GREER, Judge.

In 2016, Joshua McDonald stipulated to two violations of a no-contact order

and pled guilty to two counts of willfully violating it. The State dismissed the felony

domestic assault count initially charged (the contempt case).1 The district court

sentenced McDonald to 180 days in jail on each count, to be served concurrently.

The district court then extended the no-contact order to February 23, 2021.

Almost three years later, a new criminal complaint was filed against

McDonald asserting he again violated the no-contact order under Iowa Code

section 664A.7(1) (2019). After a February 7, 2020 hearing where McDonald

appeared as a self-represented party, he was found in contempt of willfully

violating the no-contact order and was sentenced to 180 days in jail. Shortly after

sentencing, on February 20, McDonald moved to appeal the contempt case, which

the district court treated as a notice of appeal. At the same time, he petitioned for

a writ of habeas corpus, generally raising a denial of due process and a violation

of his rights. After reviewing the petition for writ of habeas corpus, on March 6, the

district court interpreted the writ as an application for postconviction relief (PCR)

and directed the clerk of court to open a “new [PCR case] so that this filing can be

considered in that manner.” The clerk of court docketed the motion to appeal and

the petition for writ of habeas corpus in the PCR case, but treated the petition as

a PCR application. Yet, on March 13, in a nunc pro tunc order filed in the contempt

case, the court rescinded the March 6 order establishing a PCR action and “[held]

1 Initially, McDonald was charged with domestic abuse assault by impeding breathing or circulation causing bodily injury, a class “D” felony. See Iowa Code §§ 708.1(2), 708.2A(5) (2015). The no-contact order restrains McDonald from having any contact with the victim to this assault, S.L. 3

it for naught.”2 That nunc pro tunc order never made it to the PCR case file.

Instead, on that same day, another judge entered an order in the PCR case

appointing PCR counsel and setting a trial scheduling conference to hear the PCR

action.

Now with a PCR application pending in the PCR case, on March 23, the

State moved to dismiss the application arguing that the contempt finding was not

a conviction or sentence of a public offense and so, on the face of the application,

McDonald was not entitled to PCR under Iowa Code section 822.2(1)(a) (2020).

On April 12, the district court agreed with the State’s position and concluded the

PCR action should be dismissed but allowed McDonald thirty days to file a written

reply to the proposed dismissal. Through his newly-appointed PCR counsel, on

May 12, McDonald resisted the motion to dismiss and argued he was directly

attacking his conviction for the offense of violation of a no-contact order and was

entitled to PCR. After a video-conference hearing with counsel, the district court

dismissed the PCR action on May 27.3 The district court gave two reasons for

dismissing the PCR action. The first reason was that “[t]he applicant was not

convicted of a public offense in [the contempt case] as that case [the assault]

ended in a dismissal with prejudice. There is no conviction or sentence for the

applicant to collaterally attack through postconviction relief.” Then in the order filed

after the hearing, the district court also referenced a second reason to dismiss the

PCR action. That other ground for dismissal was because the nunc pro tunc order

2McDonald moved to reconsider the nunc pro tunc order, which remains pending. 3The district court directed that the order on the motion to dismiss the PCR action be filed in both the PCR case and the contempt case. 4

rescinded the order to treat the petition for writ of habeas corpus as a PCR

application; thus, there was no PCR action to address. Still, the court offered

another avenue for McDonald by stating: “[T]he petition for writ of habeas corpus,

motion to appeal and motion to reconsider need to be addressed by the court in

[the contempt case].”

McDonald appeals the dismissal of his PCR application. He advances

several arguments. First, he asserts the district court erred by dismissing the PCR

action under the theory he was not convicted of a “public offense” when he was

found to be in contempt on February 18. Next, McDonald asserts the case should

have proceeded under a habeas action even though his PCR counsel failed to

discover the district court’s rescission of the directive to treat his filing as a PCR

application.

Standard of Review.

We review PCR proceedings for errors at law. Castro v. State, 795 N.W.2d

789, 792 (Iowa 2011).

Was it appropriate to dismiss the application for PCR in a contempt

proceeding?

First, we note that McDonald did not file a PCR application. The district

court interpreted his petition for writ of habeas corpus as an application for PCR.

Even so, McDonald argues he should get to proceed because State v. Arne allows

a person found in contempt to challenge that proceeding by PCR. See 579 N.W.2d

326, 330 (Iowa 1998) (allowing an ineffective-assistance-of-counsel claim where

the appellant asserted counsel breached duties in failing to challenge the

sufficiency of the evidence to support the contempt charge and failing to petition 5

for writ of certiorari). True, after referencing the right to counsel when a hearing

might result in incarceration, Arne was allowed to “properly assert an ineffective

assistance of counsel claim.” Id. (preserving Arne’s claims for a later PCR

hearing). But Arne does not consider the directives under the applicable PCR

statute, Iowa Code section 822.2. Under that statute, the legislature defined the

situations in which a defendant can seek PCR. Iowa Code section 822.2(1)(a)

states:

Any person who has been convicted of, or sentenced for, a public offense and who claims any of the following may institute, without paying a filing fee, a proceeding under this chapter to secure relief: (a) The conviction or sentence was in violation of the Constitution of the United States or the Constitution or laws of this state.

(Emphasis added.)

Referencing the public offense restriction, the State argued at the hearing

on the motion to dismiss:

Your Honor, I have laid out my argument in my written motion to dismiss. It boils down to this is a [PCR] application, or it has been construed that way, and there has been no conviction. Under the statute, [PCR] is only available to those who have either been convicted or sentenced for a public offense. The statute of the PCR is a creature of statute, and it is only designed to remedy those cases that fit that definition. They are a conviction or a sentence for a public offense, hence the name postconviction relief. In this case the [domestic abuse assault] charge was dismissed, so there was no conviction. There was no sentence. As I understand it, there was a no-contact order that was entered before the case was dismissed. And then there was a violation of that no-contact order. A contempt proceeding was held, and the defendant was held in contempt for violating the no-contact order; and as such, a five-year no-contact order was put in place, and that remains in place. And he has, more recently, picked up a violation of that no- contact order and was held in contempt again, and so that’s why he 6

is in the Polk County Jail, at least on this case, even though the charge was dismissed. Your Honor, any complaint that he has about the legal defect of the procedural posture of those no-contact orders, those types of arguments should have been made in the underlying criminal case. When the contempt proceedings were being held, that was the venue to raise those types of arguments. [PCR] is not.

The State explained that McDonald’s no-contact violation was brought under

section 664A.7(1) after the assault charge was dismissed.4 And according to

section 664A.7(3), a person can be “convicted of or held in contempt for a violation

of a no-contact order,” which seems to distinguish the two options of “contempt or

simple misdemeanor” found in that section’s heading. This is distinct from a

section 664A.7(5) violation, under which a violation of a no-contact order can be a

public offense. See Iowa Code § 664A.7(5) (“Violation of a no-contact order

entered for the offense or alleged offense of domestic abuse assault in violation of

section 708.2A or a violation of a protective order issued pursuant to chapter 232,

235F, 236, 236A, 598, or 915 constitutes a public offense and is punishable as a

simple misdemeanor. Alternatively, the court may hold a person in contempt of

court for such a violation, as provided in subsection 3.”). The State argues the

legislature would not make these distinctions if they had no purpose or meaning.

We agree.

McDonald acknowledges that the finding of contempt and a conviction for a

criminal offense are distinct in their proceedings, but urges each has similar

potential outcomes—jail and fines—which should allow a PCR filing. But here,

4On February 8, 2016, the underlying charge on which the no-contact order was based was dismissed with prejudice, but the no-contact order itself was retained because it was violated before the dismissal occurred. 7

under the other option in the statute, McDonald was “held in contempt” and was

not convicted of and sentenced to a public offense that would allow him the right

to file a PCR application. But see Arne, 579 N.W.2d at 330 (recognizing “a right

to counsel in a hearing that might directly result in incarceration” and that, along

with risk of the imposition of fines and jail time, allowed for an ineffective-

assistance-of-counsel claim).

Because the State did not seek punishment of McDonald under the simple

misdemeanor violation, which required a conviction as a public offense, he cannot

access the PCR review of his case. Instead, we find that the finding of contempt

of the no-contact order must be challenged through other means. See Iowa Code

§ 665.11 (“No appeal lies from an order to punish for a contempt, but the

proceedings may, in proper cases, be taken to a higher court for revision by

certiorari.”). Because McDonald cannot show he was “convicted of, or sentenced

for, a public offense,” the district court correctly dismissed the PCR action. See

Daughenbaugh v. State, 805 N.W.2d 591, 598 (Iowa 2011) (holding that the

phrase “convicted of” a public offense as used in chapter 822 is to be viewed in

the “strict legal sense”).

Does McDonald still have an avenue for review of his claims outside

the PCR?

McDonald calls this case “a comedy of errors” orchestrated by the court and

his PCR counsel. He argues his counsel did not investigate the inconsistency of

the different judge’s orders filed on the same day—one rescinding the PCR order

that established the PCR case filed in the contempt case and the second order

that appointed PCR counsel to investigate filed in the PCR action. To remedy 8

those errors, he offers two routes: (1) reverse the district court and allow the PCR

action to proceed or (2) return the case for determination under his habeas claim

in the contempt case. The district court postured that “there is a question whether

the court had the authority to extend the no-contact order on February 23, 2016

for another five years since there was no judgment entered against the defendant

on the underlying charge.”

Although McDonald claims prejudice because his attorney did not know and

failed to investigate the competing orders, the district court confirmed that

McDonald could still pursue his pending filings in the contempt case involving his

petition for writ of habeas corpus, the notice of appeal, and motion to reconsider.

See id. at 594 (finding that one avenue to challenge illegal restraint is through

habeas corpus). The State concedes McDonald’s right to pursue his habeas

corpus action.

Thus, we remand for the limited purpose of addressing the pending motions

in the contempt case. We do not comment on the viability of those filings at this

stage. See Iowa R. App. P. 6.108.