Robert David Johnston Jr. v. State of Iowa ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0481
Filed October 6, 2021
ROBERT DAVID JOHNSTON JR.,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Polk County, Heather Lauber, Judge.
Robert Johnston Jr. appeals the summary disposition of his application for
postconviction relief. AFFIRMED.
Christopher A. Clausen of Clausen Law Office, Ames, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee State.
Considered by Mullins, P.J., Ahlers, J., and Scott, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
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SCOTT, Senior Judge.
In 2008, sentence was imposed upon Robert Johnston Jr.’s convictions of
second-degree murder and willful injury. No appeal was taken. He has filed
various applications for postconviction relief (PCR) since then. He filed the
application precipitating this appeal in late 2018, more than ten years after his
convictions became final. In time, the district court granted the State’s motion for
summary disposition on statute-of-limitations grounds. Johnston appeals that
ruling.
We review summary disposition rulings in PCR proceedings for legal error.
Linn v. State, 929 N.W.2d 717. 729 (Iowa 2019). Summary disposition is
appropriate if “there is no genuine issue of material fact and . . . the moving party
is entitled to a judgment as a matter of law.” Schmidt v. State, 909 N.W.2d 778,
784 (Iowa 2018) (ellipsis in original) (quoting Davis v. State, 520 N.W.2d 319, 321
(Iowa Ct. App. 1994)); see also Iowa R. Civ. P. 1.981(3). “There is no fact issue if
the only dispute concerns the legal consequences flowing from the undisputed
facts.” Berte v. Bode, 692 N.W.2d 368, 370 (Iowa 2005) (citation omitted). The
record is viewed “in the light most favorable to the nonmoving party” and we “draw
all legitimate inferences from the evidence in favor of the nonmoving party.”
Schmidt, 909 N.W.2d at 784.
Johnston seems to argue his claim of actual innocence based on purported
newly discovered evidence serves as a ground of fact that could not be raised in
the limitations period and is sufficient to except him from the statute of limitations.
That evidence is one of his codefendant’s January 2020 deposition testimony that
Johnston did not have an intent to kill the victim, he left the scene before the victim
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was killed, and the codefendant did not form an intent to kill the victim until after
Johnston left. He also argues the supreme court’s 2018 Schmidt decision,
amounts to a new ground of law that could not have been raised within the
limitations period excepting him from the statute of limitations based on his actual
innocence claim.
Assuming the codefendant’s testimony was true, it would have certainly
been within Johnston’s knowledge before the limitations period expired, and even
before he pled guilty. The deposition testimony shows the codefendant was
interviewed by Johnston’s counsel, provided the same information, had actually
been lined up to testify to the same information on Johnston’s behalf in the criminal
trial, and was transported to the courthouse for that purpose during the trial. By
that point, Johnston decided to plead guilty. While Johnston claims the record is
insufficient to show whether his counsel advised him of the codefendant’s planned
testimony, Johnston was at the scene of the crime and would have known there
might be potentially available testimony from the codefendant.
“We have found Schmidt does not apply to overcome the statute of
limitations where the evidence put forward to support a claim of actual innocence
was available to the applicant or could have been discovered with due diligence
within the limitations period.” Quinn v. State, 954 N.W.2d 75, 77 (Iowa Ct. App.
2020).
The new-ground-of-fact analysis is a component of a claim of actual
innocence based upon alleged newly discovered evidence found
after the three-year limitations period, and the ground-of-fact
exception only overcomes the statute of limitations if it could not have
been raised within the limitations period. The evidence presented to
support [Johnston’s] claim of actual innocence [and urged within this
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appeal] was unquestionably available to him within the limitations
period.
Id. So, upon our review, we agree with the district court that the evidence that
could have shown Johnston withdrew from the conspiracy was available to him
within the limitations period and did not serve as a new ground of fact or law to
except him from the statute of limitations.
We affirm the summary disposition of Johnston’s application for
postconviction relief.
AFFIRMED.