Anthony James Hollen v. State of Iowa ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1303
Filed July 13, 2023
ANTHONY JAMES HOLLEN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Lars Anderson and
Mitchell Turner, Judges.
An applicant appeals the denial of his first postconviction relief application.
AFFIRMED.
Mark C. Meyer, Cedar Rapids, for appellant.
Brenna Bird, Attorney General, and Linda J. Hines, Assistant Attorney
General, for appellee.
Considered by Schumacher, P.J., Buller, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
2
SCHUMACHER, Presiding Judge.
On February 28, 2005, Anthony Hollen entered an Alford plea to second-
degree sexual abuse, first-degree burglary, and second-degree theft. The court
accepted the plea and sentenced him to two twenty-five-year sentences and one
five-year sentence, to be run consecutively.1 The twenty-five-year sentence for
second-degree sexual abuse carried a seventy percent mandatory minimum,
seventeen-and-a-half years. Hollen did not appeal his convictions.
Hollen filed a postconviction-relief (PCR) application, his first, on
August 1, 2018. In it, he alleged his sentence was illegal. He also claimed his trial
counsel was ineffective, in part by informing Hollen that he “realistically could be
paroled out after” the seventeen-and-a-half-year mandatory minimum was served.
Hollen claims he accepted the Alford plea on the belief he would be paroled about
seventeen years into his sentence. He asserts it was only after he inquired about
moving to short-term housing in 2016 that he was informed he would not be eligible
for parole until about 2040.
The State filed a pre-answer motion to dismiss, claiming the PCR
application was time-barred. The court determined that Hollen could challenge an
illegal sentence at any time. The court also noted that, as to Hollen’s ineffective-
assistance claim, the statutory time bar “seems to apply.” The court denied the
motion to dismiss, highlighting that a challenge to an illegal sentence could be
brought at any time.
1 The sentences ran consecutively to a ten-year sentence from a separate
conviction.
3
The State filed a motion in limine in June 2022, seeking to prohibit Hollen
from arguing his ineffective-assistance-of-counsel claim because it was untimely.
The court granted the motion. Shortly thereafter, Hollen dismissed his illegal-
sentence claim. The court, taking the motion in limine ruling as effectively a
summary disposition, dismissed Hollen’s application.2 Hollen appeals, claiming
his ineffective-assistance-of-counsel claim is not time barred.
An applicant must bring all claims within three years of the conviction
becoming final. See Iowa Code section 822.3 (2018). Because Hollen brought
his application in 2018, about thirteen years after his conviction was final in 2005,
it would generally be time barred. “However, this limitation does not apply to a
ground of fact or law that could not have been raised within the applicable time
period.” Id.
Hollen claims a new ground of fact arose, namely that he did not know until
2016 that his attorney’s estimate for the length of his sentence was incorrect. He
argues that an applicant has three years from the time they were “alerted to [a]
potential ground” of fact to bring their claims. See Hogan v. State, 454 N.W.2d
360, 361 (Iowa 1990), overruled in part by Harrington v. State, 659 N.W.2d 509,
521 (Iowa 2003).
We determine that Hollen’s reading of Hogan takes that case’s holding too
far. It is true that Hogan was affirmatively alerted to the time bar requirement found
in a predecessor to section 822.3. Id. (noting that Hogan was informed of a
2 The district court noted the procedural oddity, but treated the motion as a
summary disposition after an opportunity for argument was provided to the parties.
And Hollen does not challenge the procedural aspect of the motion.
4
potential ground for relief two years prior to a statutory deadline). But Hogan does
not establish a requirement that the applicant be alerted to a ground of law.
Instead, we look to whether an applicant “could have raised the [new] ground of
fact” within the three-year limit. See Moon v. State, 911 N.W.2d 137, 143 (Iowa
2018). Indeed, section 822.3, by its own terms, only permits the exception for a
ground of fact or law “that could not have been raised.” (Emphasis added).
Here, there is no reason Hollen could not have discovered the length of his
sentence or parole eligibility prior to when the three-year limitation expired in 2008.
The order in his underlying conviction set out the lengths of his sentences. And
any error counsel committed when they informed Hollen of the estimate for parole
could have been discovered within three years of Hollen’s convictions. As a result,
the length of his sentence and parole eligibility is not a new ground of fact that
could not have been raised within three-years of his conviction. Hollen’s
application as it related to his ineffective-assistance claim was untimely. We affirm
the dismissal of Hollen’s application.
AFFIRMED.