                    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.
________________________________________________________________


      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.
