IN THE COURT OF APPEALS OF IOWA
No. 13-1930 Filed June 24, 2015
ROBERT E. ARMSTRONG, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Nancy S. Tabor
(order) and Marlita A. Greve (dismissal), Judges.
Applicant appeals the district court decision dismissing his application for
postconviction relief on the ground of untimeliness. AFFIRMED.
Blake Parker of Parker Law Office, Clinton, for appellant.
Robert E. Armstrong, Fort Madison, appellant pro se.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney
General, Mike Wolf, County Attorney, and Ross Barlow, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., Mullins, J., and Sackett, S.J.* Tabor, J., takes
no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
SACKETT, S.J.
Applicant Robert Armstrong appeals the district court decision dismissing
his application for postconviction relief on the ground of untimeliness. The district
court did not abuse its discretion by not appointing new postconviction counsel.
Also, Armstrong’s application was properly dismissed as untimely under Iowa
Code section 822.3 (2013). We affirm the court’s decision dismissing
Armstrong’s postconviction-relief proceedings.
I. Background Facts & Proceedings
Armstrong was convicted of two counts of second-degree sexual abuse
and two counts of third-degree sexual abuse. His conviction was affirmed on
appeal. State v. Armstrong, No. 07-0122, 2008 WL 238944, at *1 (Iowa Ct. App.
Jan. 30, 2008). Procedendo from that appeal was issued on April 1, 2008.
Armstrong filed the present application for postconviction relief on May 2,
2013.1 He claimed the trial information in his criminal action was deficient due to
the lack of sufficient factual specificity. He also claimed the trial information
improperly included the terms “unlawfully” and “willfully,” which were not statutory
elements of the offenses. Armstrong asserted he had not raised this issue earlier
due to the ineffective assistance of his previous postconviction relief counsel.
Armstrong requested the appointment of counsel. On May 10, 2013, the
court appointed Tom O’Flaherty to represent him. Armstrong filed a motion on
July 10, 2013, seeking the dismissal of O’Flaherty and requesting the
1 Armstrong had previously sought postconviction relief. His appeal of the prior postconviction action, Armstrong v. State, No. 12-0918, was dismissed by the Iowa Supreme Court on February 20, 2013. Procedendo in that case was issued on March 15, 2013. 3
appointment of new counsel. O’Flaherty also filed a motion to withdraw, stating
he believed Armstrong’s postconviction application was untimely.
The district court entered an order on July 29, 2013, stating the application
appeared to be untimely and “no purpose would be served by further
proceedings in this matter.” The court indicated its intention to dismiss the
application pursuant to section 822.6. Armstrong and the State were given sixty
days to respond to the pending dismissal. The court granted O’Flaherty’s motion
to withdraw. The court ordered Armstrong’s “request for new counsel shall be
stayed until such time as the Court determines that this matter should remain on
file.”
Armstrong filed a pro se resistance and objection to the court’s intent to
dismiss. The district court entered an order on October 28, 2013, finding the
postconviction-relief application should be dismissed because it was untimely.
Armstrong filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2),
which was denied by the court. Armstrong now appeals.
II. Standard of Review
Proceedings for postconviction relief are civil proceedings at law and are
ordinarily reviewed for the correction of errors at law. Jones v. State, 479
N.W.2d 265, 271 (Iowa 1991).
III. Appointment of Counsel
Armstrong contends the district court should have appointed new counsel
when O’Flaherty was permitted to withdraw. He states he had a statutory right to 4
counsel under section 822.5. Armstrong asserts he was denied the assistance of
counsel at a critical stage of his postconviction proceeding.
There is no constitutional right to counsel in a postconviction proceeding.
Fuhrmann v. State, 433 N.W.2d 720, 722 (Iowa 1988). The right to counsel
arises from section 822.5, which provides, “the costs and expenses of legal
representation shall also be made available to the applicant in the preparation of
the application, in the trial court, and on review if the applicant is unable to pay.”
A trial court has discretion in determining whether to appoint counsel for
an indigent postconviction applicant. Leonard v. State, 461 N.W.2d 465, 467
(Iowa 1990). In general, counsel should be appointed because “it benefits the
applicant, aids the trial court, is conducive to a fair hearing, and certainly helpful
in event of appeal.” Furgison v. State, 217 N.W.2d 613, 615 (Iowa 1974). On
the other hand, “[I]f an application, in light of the State’s response, raises no
claim cognizable in a postconviction proceeding, it is wasteful to appoint counsel
to determine solely if the applicant has some grounds for relief not stated in his
original application.” Wise v. State, 708 N.W.2d 66, 69 (Iowa 2006).
A court must examine an application for postconviction relief in a light
most favorable to the application to determine whether there is a substantial
issue of law or fact. Fuhrmann, 433 N.W.2d at 722. “In event it thus appears a
substantial issue of law or fact may exist, then counsel should be at once
appointed.” Furgison, 217 N.W.2d at 615-16.
The issue in the present case is similar to that found in Fuhrmann, 433
N.W.2d at 721, “whether the district court must appoint counsel for [an] applicant 5
for postconviction relief when the petition shows on its face that the action is
barred by the statute of limitations.” The court determined the applicant did not
come within the three-year statute of limitations and had not shown that any of
the grounds raised in his application “could not have been raised before the
limitation period had expired.” Fuhrmann, 433 N.W.2d at 723. The court
concluded the district court had not erred in failing to appoint postconviction
counsel and in dismissing the application for postconviction relief. Id.
Under section 822.3 a postconviction relief action should be “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.” After Armstrong’s direct
appeal, procedendo was issued on April 1, 2008. He filed this postconviction
action on May 2, 2013, more than five years later. Thus, his application is
untimely unless it comes within the exception for claims based on “a ground of
fact or law that could not have been raised within the applicable time period.”
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IN THE COURT OF APPEALS OF IOWA
No. 13-1930 Filed June 24, 2015
ROBERT E. ARMSTRONG, Applicant-Appellant,
vs.
STATE OF IOWA, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Nancy S. Tabor
(order) and Marlita A. Greve (dismissal), Judges.
Applicant appeals the district court decision dismissing his application for
postconviction relief on the ground of untimeliness. AFFIRMED.
Blake Parker of Parker Law Office, Clinton, for appellant.
Robert E. Armstrong, Fort Madison, appellant pro se.
Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney
General, Mike Wolf, County Attorney, and Ross Barlow, Assistant County
Attorney, for appellee.
Considered by Vogel, P.J., Mullins, J., and Sackett, S.J.* Tabor, J., takes
no part.
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015). 2
SACKETT, S.J.
Applicant Robert Armstrong appeals the district court decision dismissing
his application for postconviction relief on the ground of untimeliness. The district
court did not abuse its discretion by not appointing new postconviction counsel.
Also, Armstrong’s application was properly dismissed as untimely under Iowa
Code section 822.3 (2013). We affirm the court’s decision dismissing
Armstrong’s postconviction-relief proceedings.
I. Background Facts & Proceedings
Armstrong was convicted of two counts of second-degree sexual abuse
and two counts of third-degree sexual abuse. His conviction was affirmed on
appeal. State v. Armstrong, No. 07-0122, 2008 WL 238944, at *1 (Iowa Ct. App.
Jan. 30, 2008). Procedendo from that appeal was issued on April 1, 2008.
Armstrong filed the present application for postconviction relief on May 2,
2013.1 He claimed the trial information in his criminal action was deficient due to
the lack of sufficient factual specificity. He also claimed the trial information
improperly included the terms “unlawfully” and “willfully,” which were not statutory
elements of the offenses. Armstrong asserted he had not raised this issue earlier
due to the ineffective assistance of his previous postconviction relief counsel.
Armstrong requested the appointment of counsel. On May 10, 2013, the
court appointed Tom O’Flaherty to represent him. Armstrong filed a motion on
July 10, 2013, seeking the dismissal of O’Flaherty and requesting the
1 Armstrong had previously sought postconviction relief. His appeal of the prior postconviction action, Armstrong v. State, No. 12-0918, was dismissed by the Iowa Supreme Court on February 20, 2013. Procedendo in that case was issued on March 15, 2013. 3
appointment of new counsel. O’Flaherty also filed a motion to withdraw, stating
he believed Armstrong’s postconviction application was untimely.
The district court entered an order on July 29, 2013, stating the application
appeared to be untimely and “no purpose would be served by further
proceedings in this matter.” The court indicated its intention to dismiss the
application pursuant to section 822.6. Armstrong and the State were given sixty
days to respond to the pending dismissal. The court granted O’Flaherty’s motion
to withdraw. The court ordered Armstrong’s “request for new counsel shall be
stayed until such time as the Court determines that this matter should remain on
file.”
Armstrong filed a pro se resistance and objection to the court’s intent to
dismiss. The district court entered an order on October 28, 2013, finding the
postconviction-relief application should be dismissed because it was untimely.
Armstrong filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2),
which was denied by the court. Armstrong now appeals.
II. Standard of Review
Proceedings for postconviction relief are civil proceedings at law and are
ordinarily reviewed for the correction of errors at law. Jones v. State, 479
N.W.2d 265, 271 (Iowa 1991).
III. Appointment of Counsel
Armstrong contends the district court should have appointed new counsel
when O’Flaherty was permitted to withdraw. He states he had a statutory right to 4
counsel under section 822.5. Armstrong asserts he was denied the assistance of
counsel at a critical stage of his postconviction proceeding.
There is no constitutional right to counsel in a postconviction proceeding.
Fuhrmann v. State, 433 N.W.2d 720, 722 (Iowa 1988). The right to counsel
arises from section 822.5, which provides, “the costs and expenses of legal
representation shall also be made available to the applicant in the preparation of
the application, in the trial court, and on review if the applicant is unable to pay.”
A trial court has discretion in determining whether to appoint counsel for
an indigent postconviction applicant. Leonard v. State, 461 N.W.2d 465, 467
(Iowa 1990). In general, counsel should be appointed because “it benefits the
applicant, aids the trial court, is conducive to a fair hearing, and certainly helpful
in event of appeal.” Furgison v. State, 217 N.W.2d 613, 615 (Iowa 1974). On
the other hand, “[I]f an application, in light of the State’s response, raises no
claim cognizable in a postconviction proceeding, it is wasteful to appoint counsel
to determine solely if the applicant has some grounds for relief not stated in his
original application.” Wise v. State, 708 N.W.2d 66, 69 (Iowa 2006).
A court must examine an application for postconviction relief in a light
most favorable to the application to determine whether there is a substantial
issue of law or fact. Fuhrmann, 433 N.W.2d at 722. “In event it thus appears a
substantial issue of law or fact may exist, then counsel should be at once
appointed.” Furgison, 217 N.W.2d at 615-16.
The issue in the present case is similar to that found in Fuhrmann, 433
N.W.2d at 721, “whether the district court must appoint counsel for [an] applicant 5
for postconviction relief when the petition shows on its face that the action is
barred by the statute of limitations.” The court determined the applicant did not
come within the three-year statute of limitations and had not shown that any of
the grounds raised in his application “could not have been raised before the
limitation period had expired.” Fuhrmann, 433 N.W.2d at 723. The court
concluded the district court had not erred in failing to appoint postconviction
counsel and in dismissing the application for postconviction relief. Id.
Under section 822.3 a postconviction relief action should be “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.” After Armstrong’s direct
appeal, procedendo was issued on April 1, 2008. He filed this postconviction
action on May 2, 2013, more than five years later. Thus, his application is
untimely unless it comes within the exception for claims based on “a ground of
fact or law that could not have been raised within the applicable time period.”
See Iowa Code § 822.3. Armstrong’s application claimed his trial information
was defective because (1) it lacked sufficient factual specificity; and (2) it
included the terms “unlawfully” and “willfully,” which were not found in the statute.
The district court did not err in concluding these claims could have been raised
within the three-year time period. Armstrong would have been aware of the trial
information at the time it was filed back in 2006.2
2 Our decision on Armstrong’s direct appeal states, “On August 21, 2006, Armstrong was charged with four counts of sexual abuse.” Armstrong, 2008 WL 238944, at *1. 6
IV. Issue of Material Fact
In a pro se brief, Armstrong asserts the district court should not have
dismissed his application for postconviction relief because there was an issue of
material fact. He contends the trial information in his criminal case was so
deficient the court lacked subject matter jurisdiction to try his case. He asserts
that because his claim is based on subject matter jurisdiction it may be raised at
any time, and so his application should not have been dismissed as untimely.
“A challenge to subject matter jurisdiction may be made at any time.”
State v. Oetken, 613 N.W.2d 679, 686 (Iowa 2000). “Subject matter jurisdiction
refers to the power of a court ‘to hear and determine cases of the general class
to which the proceedings in question belong, not merely the particular case then
occupying the court’s attention.’” State v. Mandicino, 509 N.W.2d 481, 482 (Iowa
1993) (citation omitted). Unlike subject matter jurisdiction, a lack of authority to
hear a particular case may be obviated by consent, waiver, or estoppel. Id. at
483.
A trial information that adequately describes a proceeding as a criminal
case, which is a type of case a district court has jurisdiction to hear, is sufficient.
See State v. Ambrose, 861 N.W.2d 550, 561 (Iowa 2015). A defendant’s
complaints concerning the sufficiency of the charges in a trial information is a
challenge to the court’s authority to hear a particular case and should be raised
prior to trial. See id. We conclude the district court was not lacking subject
matter jurisdiction in Armstrong’s criminal case. We consequently determine
Armstrong’s postconviction-relief proceedings could be dismissed as untimely. 7
We affirm the decision of the district court.
AFFIRMED.