Poulin v. State, 93-768

• Decision Date: 21 December 1994
• Docket Number: No. 93-768,93-768
• Citation: 525 N.W.2d 815
• Parties: Paul G. POULIN, Jr., Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 815

525 N.W.2d 815

Paul G. POULIN, Jr., Appellant, v. STATE of Iowa, Appellee.

No. 93-768.

Supreme Court of Iowa.

Dec. 21, 1994.

Linda Del Gallo, State Appellate Defender, and Patricia Reynolds Lapointe, Asst. State Appellate Defender, for appellant.

Bonnie J. Campbell, Atty. Gen., Thomas G. Fisher, Jr., Asst. Atty. Gen., and Michael L. Zenor, County Atty., for appellee.

Considered by HARRIS, P.J., and LARSON, LAVORATO, ANDREASEN, and TERNUS, JJ.

ANDREASEN, Justice.

This is an appeal from the summary dismissal of a postconviction relief application. We must decide if the trial court is required to schedule a hearing and give notice of the hearing to the applicant before granting a motion to dismiss filed by the applicant's court-appointed counsel. The trial court granted the motion without hearing or notice. We reverse and remand.

I. Background.

In December 1990 Paul G. Poulin, Jr. was charged with two class D felonies, possession of marijuana with intent to deliver and failure to affix a drug tax stamp. Pursuant to a plea bargain, Poulin pled guilty to the drug tax stamp offense and the possession of marijuana offense was dismissed. In May 1991 he was sentenced to serve an indeterminate five-year sentence on the drug tax stamp offense. The court then suspended the sentence and placed Poulin on probation.

Approximately one year later an application to revoke Poulin's probation was filed and a revocation hearing was ordered. Following the hearing, the district court found Poulin had violated the terms of his probation, revoked his probation, and required that he serve the sentence imposed.

On January 29, 1993 Poulin filed an application for postconviction relief alleging his probation had been unlawfully revoked. After the State had filed an answer to the application and Poulin had filed an affidavit of indigency, the court appointed John Sandy as his attorney.

On April 13, 1993 attorney Sandy presented to the court a motion to dismiss the postconviction relief action. In the motion Sandy stated he had fully investigated the allegations of the application and that further pursuit of the action would be frivolous. The motion, together with the court's order dismissing the action and discharging Sandy as attorney, was filed on April 15. Timely appeal was taken.

On appeal Poulin urges the court erred in dismissing his application without hearing or notice and an opportunity to respond. Because Poulin did not claim Sandy was ineffective in conducting his investigation, the State argues counsel is presumed to be effective and therefore the trial court could rule upon the motion to dismiss without further notice or hearing. The State suggests a hearing on the motion would serve no purpose because the motion to dismiss was made by the applicant.

II. Notice and Hearing.

Iowa adopted the Uniform Postconviction Procedure Act in 1970. 1970 Iowa Acts ch. 1276. The Act was contained in chapter 663A of the Code until transferred to chapter 822 in 1993. Although the postconviction proceeding is a civil action, an indigent applicant is entitled to legal services and the payment of court costs. Iowa Code § 822.5 (1993).

Normally an application for postconviction relief will be set for hearing, proof will be received at the hearing, and, after completing the hearing, the court will make specific findings and conclusions of law and then enter an appropriate order. Iowa Code § 822.7. However, two statutory methods for summary disposition of postconviction relief applications are provided in Iowa Code section 822.6.

"The first method allows for summary disposition on the court's initiative and the applicant is foundationally entitled to notice of the court's intention to dismiss the application and its reasons for dismissal." Hines v. State, 288 N.W.2d 344, 346 (Iowa 1980). The applicant is to be given an opportunity to respond prior to final disposition. Id.

The second method allows summary disposition on the motion of either party. Id. The relevant language employed in section 822.6 is comparable to Iowa Rule of Civil Procedure 237 relating to summary judgments. See State v. Mulqueen, 188 N.W.2d 360, 367 (Iowa 1971). The principles underlying our summary judgment procedure also apply to summary dispositions under the postconviction procedures. Boge v. State, 309 N.W.2d 428, 430 (Iowa 1981). Under the procedural rules of summary judgment, the court must set the motion for hearing and both parties are then given an opportunity to resist and argue the motion. We have recognized it is error for the court not to set for hearing a state's motion to dismiss an application for postconviction relief. Hines, 288 N.W.2d at 346-47; Chartier v. State, 223 N.W.2d 255, 257 (Iowa 1974); Mulqueen, 188 N.W.2d at 368. The State urges these cases have no application because the applicant, not the State, filed the motion to dismiss.

In Brewer v. State, 446 N.W.2d 803 (Iowa 1989), both the state and the applicant requested summary disposition in a postconviction relief action. We reversed because the court dismissed the case on a ground not raised by the state. Id. at 805. Here, the motion to dismiss was not filed by the State but by Sandy,...