Paul Joseph Boruch v. State of Iowa

• Court: Court of Appeals of Iowa
• Decided: April 15, 2020
• Docket: 18-1764
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-1764 Filed April 15, 2020

PAUL JOSEPH BORUCH, Applicant-Appellant,

vs.

STATE OF IOWA, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Brad McCall, Judge.

Paul Boruch appeals from the dismissal of his application for postconviction

relief. AFFIRMED.

John Audlehelm of Audlehelm Law Office, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee State.

Considered by Vaitheswaran, P.J., and Doyle and May, JJ. 2

VAITHESWARAN, Presiding Judge.

A jury found Paul Boruch guilty of willful injury causing serious injury and

going armed with intent. This court affirmed his judgment of conviction, vacated a

portion of the sentencing order relating to a no-contact order, and remanded for

entry of a corrected sentencing order. See State v. Boruch, No. 14-1757, 2016

WL 4801325, at *6 (Iowa Ct. App. Sept. 14, 2016).

Boruch filed a postconviction-relief application raising issues that are not a

subject of this appeal. The case was submitted to the court on written briefs and

argument of counsel. The postconviction court dismissed the application.

On appeal, Boruch argues “all prior counsel [were] ineffective for failing to

request dismissal of the underlying charges based on the State’s failure to provide

preliminary hearing within 10 days.” By raising it as an ineffective-assistance-of-

counsel claim, Boruch essentially concedes the issue was not considered by the

postconviction court. That said, Boruch raised a variant of the issue on direct

appeal. He contended he should not have been assessed jail room-and–board

fees because he was illegally detained after the date by which he should have had

a preliminary hearing. Id. at *3–4.

This court began by summarizing the governing rule: “A criminal defendant

is entitled to a preliminary hearing within ten days of his initial appearance if he is

in custody and within twenty days if he is not in custody.” Id. at *3 (citing Iowa R.

Crim. P. 2.2(4)(a)). Turning to the remedy for violation of the rule, the court stated,

Boruch was not entitled to dismissal of his charges after he was not granted a preliminary hearing within ten days after his initial appearance, even though the trial information was not filed until nine days later. During that time he was entitled to challenge his custody by a habeas corpus proceeding, but he failed to do so. Thus, his 3

incarceration was subject to challenge, but without a judicial determination that he was entitled to be released, his incarceration was not illegal.

Id. at *4 (citations omitted). The court cited State v. Rouse, 290 N.W.2d 911, 913

(Iowa 1980). There, the court held, “habeas corpus, not dismissal, is the proper

remedy for alleged failure to comply with the time requirements of rule [2.]2(4)(a).”

Rouse, 290 N.W.2d at 913.

We are persuaded that the issue Boruch now raises was raised and decided

on direct appeal, albeit in a slightly different context. Because the ground for relief

was “finally adjudicated” on direct appeal, Boruch cannot revisit the issue. See

Iowa Code § 822.8 (2018); Holmes v. State, 775 N.W.2d 733, 735 (Iowa Ct. App.

2009) (“Holmes cannot now relitigate issues decided adversely to him on direct

appeal.”).

Even if the argument Boruch now raises could be construed as different

from the argument he raised on direct appeal, Rouse still serves as controlling

contrary precedent.1 Previous counsel could not have been ineffective in declining

to pursue an issue that found no support in the law. See State v. Harris, 891

N.W.2d 182, 186 (Iowa 2017) (“Trial counsel is not ineffective in failing to urge an

issue that has no merit.”).

We affirm the dismissal of Boruch’s postconviction-relief application.

AFFIRMED.

1 Boruch raises factual distinctions between his case and Rouse. Those distinctions do not affect Rouse’s holding of the proper remedy for violation of rule 2.2(4)(a).