Bugley v. State, 98-608.

• Decision Date: 03 June 1999
• Docket Number: No. 98-608.,98-608.
• Citation: 596 N.W.2d 893
• Parties: Arthur BUGLEY, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

596 N.W.2d 893

Arthur BUGLEY, Appellant, v. STATE of Iowa, Appellee.

No. 98-608.

Supreme Court of Iowa.

June 3, 1999.

Martha M. McMinn, Sioux City, for appellant.

Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Paul E. Kittredge, Jr., Assistant County Attorney, for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LAVORATO, NEUMAN, and CADY, JJ.

CADY, Justice.

Arthur Bugley appeals from the summary dismissal by the district court of his application for postconviction relief. We affirm the district court.

I. Background Facts and Proceedings.

Bugley was convicted of three counts of third-degree sexual abuse following a jury trial. He was also found to be a habitual offender. The district court subsequently sentenced Bugley to three concurrent fifteen-year terms of imprisonment.

Bugley filed an appeal from the judgment and sentence. After reviewing the record, his court-appointed appellate counsel filed a motion to withdraw pursuant to Iowa Rule of Appellate Procedure 104. A brief which accompanied the motion analyzed three potential issues for appeal, and concluded they were without merit. The motion further indicated a claim of ineffective assistance of counsel should be considered in postconviction relief proceedings because the record was inadequate to fully address it on direct appeal. The underlying basis for this claim was Bugley's trial attorney failed to challenge a juror during voir dire for bias.

Appellate counsel sent Bugley a copy of the motion, brief in support of the motion, and a letter informing him to raise any points in support of his appeal with the supreme court within thirty days if he disagreed with the motion. The letter also informed Bugley his appeal would be dismissed if he failed to contact the supreme court.

Bugley did not resist the motion to withdraw. Following our review of the motion, the appeal was dismissed as frivolous pursuant to rule 104.

Bugley subsequently filed an application for postconviction relief. He raised several claims, including grounds of ineffective assistance of trial counsel not considered in the rule 104 motion.¹ He also raised the jury bias claim reviewed by his former appellate counsel in the rule 104 motion.

The State moved for summary judgment. It claimed the dismissal of the direct appeal as frivolous precluded Bugley from asserting his postconviction relief claims. The district court granted the motion. It concluded Bugley should have raised his grounds for postconviction relief on direct appeal in response to the rule 104 motion, and his failure to do so precluded him from raising them in a subsequent postconviction relief petition.

On appeal Bugley claims the district court erred by precluding postconviction relief on those grounds which were not apparent from the trial record and could not have been raised on direct appeal. He also claims the dismissal of his postconviction relief petition denied him due process of law because he was not notified that the failure to object to the rule 104 dismissal of his direct appeal would deprive him of the opportunity to pursue postconviction relief based on new grounds.

II. Standard of Review.

Postconviction proceedings are law actions ordinarily reviewed for errors of law. Carter v. State, 537 N.W.2d 715, 716 (Iowa 1995). When summary judgment is granted in a postconviction relief action, we examine the record to determine if a genuine issue of fact exists and whether the moving party is entitled to a judgment as a matter of law. Iowa R.Civ.P. 237(c); Grissom v. State, 572 N.W.2d 183, 184 (Iowa App.1997). However, when there is an alleged denial of constitutional rights our review is de novo. Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998).

III. Uncontested Dismissal of Direct Appeal.

The first issue we consider is whether an applicant for postconviction relief who failed to object to the dismissal of a prior direct appeal as frivolous is precluded from pursuing claims for relief in a postconviction petition. The resolution of this issue hinges upon two rules.

The first rule is Iowa Rule of Appellate Procedure 104. This rule permits counsel appointed to represent an indigent defendant in an appeal to move to withdraw if convinced, after conscientious investigation, the appeal is frivolous. Iowa R.App.P. 104(a); Poulin v. State, 525 N.W.2d 815, 816 (Iowa 1994). Counsel must, however, advise the client in writing of the intent to file a motion to withdraw and provide the client with a copy of the motion and the required brief in support of the motion. Iowa R.App.P. 104(b); Poulin, 525 N.W.2d at 816-17. Counsel must also notify the client to advise the supreme court within thirty days of receiving counsel's letter whether the client desires to proceed with the appeal, and to raise any appropriate points in response to the motion if the client chooses to proceed with the appeal. Iowa R.App.P. 104(b), (d). A defendant who fails to communicate with the supreme court is deemed to agree with the decision of appellate counsel that the appeal is frivolous. Iowa R.App.P. 104(g). The second rule is found in Iowa Code section 822.8 (1997). It limits the grounds for a postconviction relief petition by providing, in relevant part:

Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived ... in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted... in the original, supplemental or amended application.

We have interpreted section 822.8 to impose a burden upon a postconviction applicant to show sufficient reasons why any ground for relief asserted in a postconviction relief petition was not previously asserted on direct appeal.² Bledsoe v. State, 257 N.W.2d 32, 33-34 (Iowa 1977). If the burden is not met, the grounds may not be asserted in a postconviction relief petition. Id.

We have also previously determined that when a direct appeal is dismissed as frivolous in response to a contested rule 104 motion, the burden described in Bledsoe does not apply. Stanford v. Iowa State Reformatory, 279 N.W.2d 28, 34 (Iowa 1979). Thus, the dismissal under these circumstances does not prevent issues which could have been presented upon direct appeal from being pursued on postconviction relief. Id. We reserved, however, the question whether the Bledsoe rule would apply when no resistance to the dismissal was filed. Id.

Although this case is our first opportunity to consider the question reserved in Stanford, our court of appeals was given the opportunity in Ailes v. State, 574 N.W.2d 353 (Iowa App.1997). It concluded the applicant's failure to resist counsel's motion under rule 104 on direct appeal precluded postconviction relief. Ailes, 574 N.W.2d at 355.

We agree with the court in Ailes that the failure to resist a dismissal under rule 104 can preclude subsequent postconviction relief. However, we think Ailes went too far. We believe section 822.8 permits a postconviction applicant to pursue grounds that could have been raised on direct appeal, but were not, by showing sufficient reasons for not raising such grounds in response to a rule 104 motion.

We expressed two reasons in Stanford for not imposing the all-inclusive mandate of section 822.8 in postconviction relief proceedings instituted after a contested dismissal of a direct appeal pursuant to rule 104. Stanford, 279 N.W.2d at 34. First, a dismissal under the frivolous appeal rule is not an adjudication for the purposes of postconviction relief. Id.; State v. Boge, 252 N.W.2d 411, 413 (Iowa 1977). Second, the imposition of the Bledsoe burden to a contested dismissal would impermissibly permit counsel to waive the grounds for postconviction relief contrary to the desires of the client. Stanford, 279 N.W.2d at 34. In other words, counsel's failure to raise claims on direct appeal cannot be imputed to the applicant.

This same reasoning, however, does not fully apply when an applicant fails to object to a prior rule 104 dismissal. Although the dismissal would still not be considered an adjudication for the purposes of postconviction relief, the failure to raise grounds for relief on direct appeal no longer rests with the actions of counsel. An unresisted rule 104 motion transforms counsel's decision not to raise any grounds on direct appeal into the decision of the applicant. See Iowa R.App.P. 104(g). The applicant is considered to have filed an appeal and elected not to raise any grounds despite the opportunity. Under section 822.8, this failure to raise grounds which could have been raised on direct appeal precludes asserting the grounds in a postconviction relief petition.

Section 822.8, however, cannot be applied against an applicant to exclude postconviction relief for failing to raise grounds on direct appeal without also giving the applicant the corresponding opportunity to satisfy the burden provided under the statute. The Bledsoe burden was not pertinent in Stanford because the "not raised" language of the statute was never implicated. The case was dismissed over the applicant's objection before the issues were framed.

We recognize the Bledsoe burden is not applicable under all circumstances defined by section 822.8. The general statutory mandate under section 822.8 applies to three situations: grounds "finally adjudicated"; grounds "not raised"; or any ground "knowingly, voluntarily, and intelligently waived" in any other proceeding. Rinehart v. State, 234 N.W.2d 649, 657 (Iowa 1975). Yet, the "sufficient reason" exception applies only to the second situation involving grounds "not raised." Iowa Code § 822.8. Thus, the burden does not apply when the grounds were "finally adjudicated" or "knowingly, voluntarily, and intelligently waived" in a proceeding to secure relief....