Eric Bonita Peppers v. State of Iowa ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0966
Filed July 21, 2021
ERIC BONITA PEPPERS,
Plaintiff-Appellant,
vs.
STATE OF IOWA,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Chad Kepros,
Judge.
Eric Peppers appeals the dismissal of his application for postconviction
relief on statute-of-limitations grounds. AFFIRMED.
Webb L. Wassmer of Wassmer Law Office, PLC, Marion, for appellant.
Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney
General, for appellee.
Considered by Doyle, P.J., and Mullins and May, JJ.
2
MULLINS, Judge.
In June 2000, sentence was imposed upon Eric Peppers’s convictions of
second-degree sexual abuse, domestic abuse assault while displaying a weapon,
and false imprisonment. On direct appeal, Peppers argued, among other things,
his trial counsel was ineffective in failing to file a motion to dismiss for violation of
his speedy-trial rights; we affirmed but preserved the speedy-trial claim for
postconviction relief (PCR). See generally State v. Peppers, No. 00-283, 2001 WL
810740 (Iowa Ct. App. July 18, 2001). Procedendo issued in November 2001.
In April 2002, Peppers filed his first PCR application, repeating his speedy-
trial claim. The claim was not developed, the court found it waived, and Peppers’s
application was dismissed. The issue was also not raised on appeal, and we
affirmed. See generally Peppers v. State, No. 07-0865, 2008 WL 2042504 (Iowa
Ct. App. May 14, 2008). Procedendo issued in July 2008.
Peppers filed his second PCR application in January 2012, in which he
reprised his speedy-trial claim and alleged first PCR counsel was ineffective in
handling the issue. The State moved for dismissal on statute-of-limitations
grounds. The court found the argument was available to each of Peppers’s prior
attorneys within the limitations period and did not amount to a new ground of fact
or law sufficient to toll the statute of limitations. The court dismissed the
application. On appeal, we considered Peppers’s contentions that his “speedy trial
rights were violated and his first [PCR] attorney was ineffective in failing to raise
the claim.” Peppers v. State, No. 12-1197, 2013 WL 6116815, at *1 (Iowa Ct. App.
Nov. 13, 2013). We affirmed, concluding “[t]he fact that Perppers[’s] [PCR] counsel
3
did not pursue the issue was a matter Peppers could have taken up with him at the
time,” “[h]e elected not to do so,” so he could not “revive the speedy trial issue by
belatedly repackaging it as an ineffective-assistance-of-counsel claim.” Id. at *2.
Peppers filed his third application in November 2014, again raising the
speedy-trial argument. The State moved for summary disposition. The court
dismissed the application, concluding Peppers failed to present a ground of fact or
law that would except him from the statute of limitations. We affirmed the dismissal
of his application as untimely. See generally Peppers v. State, No. 16-0715, 2017
WL 1400877 (Iowa Ct. App. Apr. 19, 2017).
Peppers filed the application precipitating this appeal, his fourth, in June
2019, alleging: (1) ineffective assistance of PCR counsel under Allison v. State1
and (2) newly discovered evidence based on victim recantation. As to the former
claim, he argued his first PCR attorney was ineffective in “dropping the ball” on his
speedy-trial claim. In his amended application, he asserted Allison amounts to a
change in the law excepting him from the statute of limitations. In its answer, the
State argued the speedy-trial claim was already subject to final adjudication and
the claim was time-barred. In his resistance to the State’s motion for summary
1 See 914 N.W.2d 866, 891 (Iowa 2018) (holding that where a timely application is
filed within the statute of limitations alleging ineffective assistance of trial counsel,
the filing of a successive application that alleges ineffective assistance of
postconviction-relief counsel in presenting the ineffective-assistance-of-trial-
counsel claim, the filing of the second application relates back to the time of the
filing of the original application so long as the successive application is filed
promptly after the conclusion of the original action); see also Iowa Code § 822.3(2019) (noting “applications must 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”).
4
disposition, Peppers argued Allison’s purported status as a change in the law
entitled him to three years after that decision to raise his claim. The court
dismissed the application, concluding Peppers’s application was not “promptly”
filed within the meaning of Allison and was therefore time-barred.
Peppers appeals.
Appellate review of PCR proceedings is typically for correction of errors at
law, but where claims of ineffective assistance of counsel are forwarded, our
review is de novo. See Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017).
On appeal, Peppers argues “Allison constituted a change in the law which
restarted [his] three-year statute of limitations.” While the State does not stress
the point, we do not believe error was preserved on this specific argument, as the
court did not specifically rule upon the question of whether Allison amounts to a
new ground of law sufficient to restart the statute of limitations upon its issuance,
it only addressed whether Peppers’s situation falls within Allison’s parameters for
promptness. See Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“It is a
fundamental doctrine of appellate review that issues must ordinarily be both raised
and decided by the district court before we will decide them on appeal. When a
district court fails to rule on an issue properly raised by a party, the party who raised
the issue must file a motion requesting a ruling in order to preserve error for
appeal.” (quoting Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002))); see also
Top of Iowa Co-op v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (noting
interests protected by error preservation rules allow appellate courts to consider
error preservation sua sponte). The proper procedure to preserve error was to file
5
a motion raising the court’s failure to decide the issue prior to appealing. See
Lamasters, 821 N.W.2d at 863. In an abundance of caution, however, we will
address the merits.
Allison, by its own terms does not support Peppers’s claim. To begin, the
Allison court specifically ruled successive PCR applications are timely if filed
“promptly” after the conclusion of the original PCR action. 914 N.W.2d at 891.
Allison considered whether the statute of limitations “applies where a [PCR]
petitioner files an untimely second application for PCR, alleging counsel for his
timely filed first petition for PCR was ineffective.” Id. at 867–68 (emphasis added).
The court only held a
successive PCR petition alleging [first PCR] counsel was ineffective
in presenting the ineffective-assistance-of-trial-counsel claim, the
timing of the filing of the second PCR petition relates back to the
timing of the filing of the original PCR petition . . . if the successive
PCR petition is filed promptly after the conclusion of the first PCR
action.
Id. at 891 (emphasis added). The court later reiterated the Allison relation-back
doctrine applies “when an applicant alleges in a second PCR proceeding brought
outside the three-year time frame that the attorney in the first PCR proceeding was
ineffective in presenting the same claim was raised in the second proceeding.”
Goode v. State, 920 N.W.2d 520, 525 (Iowa 2018) (emphasis added). Based on
Allison’s own language, we have consistently denied relief when a third or
subsequent application is involved. Moon v. State, No. 19-2037, 2021 WL 610195,
at *4 (Iowa Ct. App. Feb. 17, 2021) (collecting cases), further review denied (Apr.
12, 2021).
6
So does the plain language of Allison save Peppers from the statute of
limitations? We answer that question in the negative. First, this is his fourth
application, not his second. See id. Even if Allison applies to third or subsequent
applications, procedendo on Peppers’s first application issued in 2008, and the
application now before us was not filed until about ten years later. That is not
prompt, nor were his second and third applications, filed in 2012 and 2014,
respectively. See, e.g., Polk v. State, No. 18-0309, 2019 WL 3945964, at *2 (Iowa
Ct. App. Aug. 21, 2019) (noting a gap in the neighborhood of six months does not
meet the definition of prompt); see also Johnson v. State, No. 19-1949, 2021 WL
210700, at *2 (Iowa Ct. App. Jan. 21, 2021) (collecting cases on the meaning of
“filed promptly”).
So we turn to Peppers’s claim that he had three years after the Allison
decision to file a timely PCR application. Again, Allison’s plain language does not
support this claim, as it is only “[u]pon the conclusion of the first action [that] the
three-year statute of limitations commences to run again.” Allison, 914 N.W.2d at
891. Even if the clock did restart when the Allison decision issued, as noted,
Allison does not apply to third or subsequent applications.
7
We affirm the denial of Peppers’s PCR application. 2
AFFIRMED.
2 We note section 822.3 was amended, effective July 1, 2019, after the filing of
Peppers’s application but before judgment thereon was entered, to arguably
overrule Allison outright, to provide: “An allegation of ineffective assistance of
counsel in a prior case under this chapter shall not toll or extend the limitation
periods in this section nor shall such claim relate back to a prior filing to avoid the
application of the limitation periods.” 2019 Iowa Acts ch. 140, § 34 (codified at
Iowa Code § 822.3 (Supp. 2019)). The supreme court has ruled “statutes
controlling appeals are those that were in effect at the time the judgment or order
appealed from was rendered.” State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019)
(citation omitted). The State notes we do not need to decide the amendment’s
applicability because Peppers cannot prevail under the current or former statute.
Because we agree Peppers’s situation does not fall within the confines of Allison,
we need not address the amendment’s applicability. See Palmer v. State, No. 19-
1487, 2021 WL 811161, at *1 n.1 (Iowa Ct. App. Mar. 3, 2021) (noting ruling was
filed after effective date of amendment but not addressing it based on agreement
with district court that Allison did not save the application); Moon, 2021 WL 610195,
at *4 n.6 (“This amendment appears to abrogate Allison, although it is not yet clear
what PCR applications the amended legislation applies to.”); Johnson v. State,
No. 19-1949, 2021 WL 210700, at *3 (Iowa Ct. App. Jan. 21, 2021) (finding it
unnecessary to address the amendment’s applicability because application was
time-barred under either the prior or new version of the statute).