Kenneth Lee Frei, Applicant-Appellant v. State of Iowa ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-2113
Filed August 2, 2017
KENNETH LEE FREI,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Muscatine County, Mark D. Cleve,
Judge.
Kenneth Frei appeals the dismissal of his untimely application for
postconviction relief, arguing his guarantee of due process under both the Iowa
and United States Constitutions was violated because he was never informed of
the statutory postconviction relief limitation period. AFFIRMED.
Lauren M. Phelps, Davenport, for appellant.
Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney
General, for appellee State.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
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DOYLE, Judge.
In 2011, Kenneth Frei pled guilty to five counts of lascivious acts with a
child. Pursuant to the plea agreement, he was sentenced to five consecutive
prison terms not to exceed ten years on each count. Frei was advised on the
record he had a right to appeal within thirty days. Thereafter, Frei filed a motion
for reconsideration of his sentence, which the court denied in February 2012.
Frei did not file an appeal.
In February 2016, Frei filed a pro se application for postconviction relief
(PCR). He asserted he had not been informed of the thirty-day time period to file
an appeal, the victim’s age was miscalculated leading the “prosecution to coerce
a plea deal on false [pretenses],” two of the counts were for the same act in
violation of double jeopardy, and there was “new evidence.” The State
subsequently filed a motion to dismiss Frei’s application as untimely because it
was filed past the deadline imposed by the three-year statute of limitations, Iowa
Code section 822.3 (2016), and Frei’s application made “no specific allegation
that it raises a ground of fact or law which could not have been raised within the
limitations period.” Ultimately, the PCR court granted the State’s motion,
concluding that by operation of section 822.3, the State was entitled to dismissal
of Frei’s PCR application.
Frei now appeals, arguing the PCR court erred in dismissing his
application because he was never informed by the sentencing court of the time
limits for filing a PCR application. Frei maintains that not being informed of the
statute of limitations violated his guarantee of due process under both the Iowa
and United States Constitutions. He states error was preserved as
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follows: “Timely notice of appeal was filed. Moreover, the [c]ourt’s ruling
specifically dismissed based on its reading of Iowa Code Section 822.3, therefore
error was preserved. Filing of a motion to amend or enlarge is not necessary for
preservation of appeal rights (I.R.C.P. 1.904(2)).”
The State takes issue with Frei’s claim of error preservation, noting that
filing a “notice of appeal has nothing to do with error preservation.” State v.
Lange, 831 N.W.2d 844, 846-47 (Iowa Ct. App. 2013). The State also points out
Frei never raised his due-process claim before the PCR court. This court further
notes that, under certain circumstances, a motion to amend or enlarge pursuant
to Iowa Rule of Civil Procedure 1.904(2) is necessary to preserve error on
appeal. See Lamasters v. State, 821 N.W.2d 856, 862-63 (Iowa 2012) (noting a
rule 1.904(2) motion must be filed if the “district court fails to rule on an issue
properly raised by a party” by “the party who raised the issue”).
Because Frei’s due process issue concerning notice of the PCR statute of
limitations was never raised before the PCR court, it is not preserved for our
review. See id. Nevertheless, in an effort to stave off another potential PCR
proceeding, we proceed to the merits of Frei’s appellate claim. See State v.
Taylor, 596 N.W.2d 55, 56 (Iowa 1999) (bypassing an error-preservation problem
and proceeding to the merits of the appeal). Generally, we review the court’s
ruling on the State’s statute-of-limitations defense for correction of errors of law.
See Nguyen v. State, 829 N.W.2d 183, 186 (Iowa 2013). However, to the extent
a constitutional issue is raised, our review is de novo. See Perez v. State, 816
N.W.2d 354, 356 (Iowa 2012).
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Frei reasons that because he is entitled under the United States
Constitution to “not be deprived of life, liberty or property, without due process of
law” and because that principle is applicable to the States, “it follows that [he]
was denied due process by the sentencing [c]ourt’s failure to notify him of the
time requirements for filing an application for [PCR].” However, “[m]any of the
constitutional safeguards guaranteed an individual in criminal trial proceedings
are not granted to such an individual in subsequent postconviction proceedings.”
Jones v. State, 479 N.W.2d 265, 269 (Iowa 1991). In fact, “[s]tates have no
obligation to provide this avenue of relief,” and when they do, the federal
constitution does not dictate “the exact form such assistance must assume. On
the contrary, in this area States have substantial discretion to develop and
implement programs to aid prisoners seeking to secure postconviction review.”
Pennsylvania v. Finley, 481 U.S. 551, 557, 559 (U.S. 1987); see also
Montgomery v. Louisiana, 136 S. Ct. 718, 746 (2016) (Thomas, J., dissenting)
(“Because the Constitution does not require postconviction remedies, it certainly
does not require postconviction courts to revisit every potential type of error.”). A
PCR applicant’s “right to due process is not parallel to a trial right, but rather
must be analyzed in light of the fact that he has already been found guilty at a fair
trial, and has only a limited interest in [PCR].” Dist. Attorney’s Office v. Osborne,
557 U.S. 52, 69 (2009).
Our legislature has provided to convicted criminals a statutory remedy for
obtaining PCR, but it chose to limit the time frame for pursuing that remedy to
three years, except where the applicant asserts “a ground of fact or law that
could not have been raised within the applicable time period.” Iowa Code
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§ 822.3; see also Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994). The Iowa
Supreme Court expressly found the legislature was within its discretion to
determine the proper limitation period, and the court did not find the three-year
limitation period unreasonable. See Davis v. State, 443 N.W.2d 707, 711 (Iowa
1989). Because PCR is only a statutory right and there is no statutory
requirement that a convicted person be notified of the limitations period for
bringing a PCR claim, Frei was not entitled to notice under either the federal or
state constitutions. See generally Saadiq v. State, 387 N.W.2d 315, 321 (Iowa
1986) (“In viewing the fair notice requirement of due process, we apply the legal
fiction that all persons of ordinary intelligence are presumed to know the law.
Thus if a statute has sufficient publication that it is discoverable by reasonable
means and it contains ‘ascertainable standards to determine what it proscribes,
then the actor can be held criminally liable for his conduct.’” (citations omitted)).
Thus, even if Frei had preserved error on the issue, his claim has no merit.
Accordingly, we affirm the PCR court’s dismissal of Frei’s PCR application as
untimely.
AFFIRMED.