Bledsoe v. State , 1977 Iowa Sup. LEXIS 1129 ( 1977 )

HARRIS, Justice.

This application for postconviction relief followed petitioner’s conviction by his plea of guilty to the crime of breaking and entering in violation of § 708.8, The Code. The trial court denied postconviction relief because the petitioner failed to show why the grounds he now asserts were not asserted in a prior appeal to this court. We affirm the trial court.

Petitioner’s guilty plea was first offered November 12, 1974. A second guilty plea was entered January 16, 1975 to the same charge. After an extensive record discussion with petitioner the trial court accepted the second guilty plea. Thereafter petitioner filed notice of appeal to this court. After the appeal was docketed petitioner’s counsel filed an application for permission to withdraw under court rule 16.¹ Petitioner’s counsel (not the counsel appearing in these proceedings) stated in support of his application that the appeal was not meritorious. Petitioner was notified of the application and did not respond and did not request that his appeal be continued. On July 1, 1975 we dismissed petitioner’s original appeal.

On November 3,1975 petitioner filed this application for postconviction relief alleging he had been ill from the time of his arrest until the time his plea was entered and was incompetent to make a knowledgeable and voluntary plea because of his physical condition. He alleged he entered the plea because he believed all his prior sentences and convictions would be lumped into one concurrent sentence and believed he would be provided psychiatric care during incarceration. He further claimed he was in fear of his life and great bodily injury from his incarceration in the county jail at the time of the guilty plea proceeding and was exposed to violence and near death because of fire and suffocation. He concluded he entered his plea for the sole reason of getting out of the county jail. The State denied petitioner’s allegations and affirmatively alleged his guilty plea was made knowingly, intelligently, and voluntarily.

Hearing was held on petitioner’s postcon-viction application. At this hearing petitioner complained of such things as cold, flu, skin irritation, tooth trouble, and a rundown feeling from possible undernourishment. Certain other testimony was offered to support petitioner’s contention he believed he was in danger from other inmates in the county jail at the time.

Relying principally on Horn v. Haugh, 209 N.W.2d 119, 120-121 (Iowa 1973) and Rinehart v. State, 234 N.W.2d 649, 655-658 (Iowa 1975) the trial court denied postcon-viction relief. The trial court pointed out:

“In this case it was not developed at the hearing on the postconviction relief whether grounds now asserted by the defendant were asserted in the appeal to the Iowa Supreme Court. However, assuming that they were not * * * the defendant had the burden of proving a sufficient reason why the grounds he now asserts were not previously asserted. In this case the court concludes the defendant has failed to sustain his burden of proof necessary to bring him within the provisions of the last phrase of section 663A.8 of the Code. The court, therefore, concludes that the defendant’s application for postconviction relief should be denied.”

I. Our scope of review for postconviction proceedings was summarized in Rinehart, supra, 234 N.W.2d at 658 as follows:

“Postconviction review proceedings in this jurisdiction stand as an action at law, triable to the court. (Authority). Ordinarily, in such proceedings our review is not de novo. (Authority). However, when * * issues as to violation of constitutional safeguards are raised this court is obliged to make an independent evaluation of the totality of the relevant circumstances shown by the entire record under which rulings on those constitutional rights were made. That is, when a constitutional issue is presented, the evidence relevant to the issue is reviewed de novo. (Authorities).”

In the instant case we are not called upon to answer any constitutional question. Nor is a review of the facts crucial for determination of this appeal. The legal question presented is one of pure statutory construction. The controlling statute is § 663A.8, The Code, which provides:

“All grounds for relief available to an applicant under this chapter must be raised in his original, supplemental or amended application. Any ground finally adjudicated or not raised, or knowingly, voluntarily, and intelligently waived in the proceeding that resulted in the conviction or sentence, or in any other proceeding the applicant has taken to secure relief, may not be the basis for a subsequent application, unless the court finds a ground for relief asserted which for sufficient reason was not asserted or was inadequately raised in the original, supplemental, or amended application.”

Chapter 663A is Iowa’s adoption of the Uniform Postconviction Procedure Act. We have interpreted § 663A.8 in a number of cases. State v. Boge, 252 N.W.2d 411 (Iowa 1977); Rinehart, supra; Carstens v. Rans, 210 N.W.2d 663 (Iowa 1973); Horn, supra. Under these authorities, particularly under Rinehart, we require a party in a postconviction proceeding who asserts any ground for relief not previously asserted in any attempt to secure relief from his conviction to show why. That is, the petitioner has the burden of proof to establish a sufficient reason why any new ground now asserted was not previously asserted. This rule has been criticized on the claim it violates the principles announced in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). Rinehart v. Brewer, 421 F.Supp. 508 (S.D.Iowa 1976). We are not inclined to modify the rule announced in Rinehart, particularly in view of the recent pronouncement of the United States Supreme Court in Wainwright v. Sykes, U.S. -, 97 S.Ct. 2497, 53 L.Ed.2d 594 (filed June 23, 1977).

In Boge, supra, 252 N.W.2d at 414-415, we found sufficient reason appeared in the record to excuse a postconviction petitioner’s failure to previously raise an issue. The record in this case reveals no such justification.

Under this rule the trial court was right in holding the petitioner’s claim was barred because of his failure to sustain his burden of proving why the grounds he now asserts were not urged in his earlier appeal to this court.

Petitioner seeks to circumvent the effect of the rule because of the failure of the State to plead he had such a burden of proof in this postconviction proceeding. On the basis of language contained in Hack v. Auger, 228 N.W.2d 42, 44 (Iowa 1975) petitioner believes the State should be required to plead the petitioner’s failure to sustain his burden in order to rely upon it as a bar. The difficulty with this argument is that the interpretation petitioner hopes for in Hack, supra, was not borne out in our opinion in Rinehart, supra. Rinehart holds the failure is a bar notwithstanding the absence of any claim in the pleadings. Under Rine-hart the burden of proof is placed on petitioner to excuse his failure to raise a defense in a prior proceeding. Upon his failure to sustain that burden he is barred and the bar does not need to be pleaded in order to be effective.

For all the foregoing reasons the judgment of the trial court must be and is hereby affirmed.

AFFIRMED.

All Justices concur except McCORMICK, RAWLINGS, and LeGRAND, JJ., who dissent.

1 . Since July 1, 1977, rule 104 of the court rules.