                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1273
                              Filed June 10, 2015


WILLIAM CONRAD WHITE,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Michael D. Huppert,

Judge.




      William C. White appeals from the denial of his application for

postconviction relief, filed almost thirty years after he pled guilty to second-

degree murder. AFFIRMED.




      William C. White, Des Moines, appellant pro se.

      Thomas J. Miller, Attorney General, Alexandra Link, Assistant Attorney

General, John P. Sarcone, County Attorney, and Celene Gogerty, Assistant

County Attorney, for appellee State.




      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DOYLE, J.

       Five days after William C. White turned fourteen, the State filed a

delinquency petition alleging White committed three delinquent acts, including

first-degree murder. At the time the murder occurred, May of 1985, White was

thirteen.   Nevertheless, the State filed a motion to waive the juvenile court’s

jurisdiction and have White tried as an adult. White’s attorneys resisted, pointing

out that, although the juvenile code had been since reorganized and amended,

the Iowa Supreme Court in Stuart v. State ex rel. Jannings, 253 N.W.2d 910,

913-14 (Iowa 1977), had interpreted a similar statute and held:

       (1) [I]n determining whether a juvenile or district court has original
       jurisdiction over an individual, the person’s age at time of an
       alleged criminal act is decisive, not his age when correlative
       proceedings are commenced, and (2) when a juvenile court thus
       acquires jurisdiction it continues until the delinquency charge or
       charges have been properly heard and disposition thereof made, or
       the alleged violation is referred to the appropriate prosecuting
       authority for action under the criminal law, all as statutorily
       provided.

(citing with approval P.H. v. State, 504 P.2d 837, 841-42 (Alaska 1972)). The

juvenile court subsequently overruled White’s resistance, finding White

               was [thirteen] years of age on April 26 and May 1, 1985,
       when the alleged delinquent acts occurred. . . . [White] was
       [fourteen] years of age on September 27, 1985, when the petition
       and the State’s motion to waive jurisdiction were filed. . . .
               . . . The court finds that [Iowa Code section 232.45(6)
       (1985), which provides that at “the conclusion of the waiver hearing,
       the court may waive its jurisdiction over the child . . . if . . . [t]he
       child is fourteen years of age or older,”] is not ambiguous and that
       the age of the child at the conclusion of the waiver hearing is
       decisive.

White’s application for discretionary review to the Iowa Supreme Court was

denied in November 1985.
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       In December 1985, the juvenile court entered an order waiving its

jurisdiction and transferred the matter to adult court. White was then charged by

trial information in district court with first-degree murder in January 1986. The

State offered to let White plead guilty to the lesser-included offense of second-

degree murder and dismiss the first-degree-murder charge.             White and his

mother accepted the offer. Two days later, the district court entered its order

accepting White’s guilty plea, finding that, by its direct conversation with White,

White understood “the charge and its penal consequences, the constitutional

rights being waived, that there is a factual basis for the plea, and it is voluntary.”

White was sentenced to fifty years imprisonment in June 1986. He did not file a

motion in arrest of judgment prior to sentencing, nor did he file a direct appeal

thereafter.

       In 1988, White filed a pro se application for postconviction relief (PCR).

Among other things, White asserted his conviction or sentence was illegal,

arguing the State waited until he turned fourteen to file its delinquency petition so

it could seek jurisdictional waiver to try White as an adult while it immediately

filed charges against the other persons involved in the crime, all over the age of

fourteen. Shortly thereafter, White’s appointed PCR counsel filed a motion for

dismissal without prejudice, stating White directed him to terminate the PCR

proceedings after counsel “advised [White] that a victory in this [PCR] action

would likely be followed by prosecution on the original first degree murder

charge.”

       White served his sentence and was discharged by the Iowa Department of

Corrections in June 2004. While in prison, White obtained a G.E.D. and an
                                          4


Associate of Arts degree. After his release from prison, White continued his

education and received a Bachelor of Science degree.           White requested a

teaching certificate from the Iowa Board of Educational Examiners. In response,

the Department of Justice informed White that because he had been convicted of

murder, the Board was prohibited from granting him a teaching certificate

pursuant to Iowa Code section 272.2(14)(b)(1)(a). White was further informed

that unless the law was changed or he received a pardon for the offense, he was

not eligible to teach in Iowa. See Iowa Const. art. IV, § 16 (“The governor shall

have power to grant reprieves, commutations and pardons, after conviction, for

all offenses except treason and cases of impeachment.”).

       In 2014, almost twenty-eight years after his conviction, White filed a

second PCR application/“motion to dismiss illegal sentence.”         Among other

things, he argued Iowa Code section 232.45(6)(a) did not permit the waiver of

juvenile court jurisdiction if the child’s charged crime occurred when the child was

younger than fourteen years of age. White noted that although his sentence had

already been discharged, certain rights and liberties were automatically revoked

by the sentence he received.        His requested relief included that his murder

sentence be vacated, his case be transferred back to juvenile court, and his

rights and liberties be restored.

       White and the State filed dueling motions seeking summary judgment in

the PCR proceeding, and each resisted the other’s motion. Following a hearing

on the motions, the PCR court entered its ruling granting the State’s motion and

denying White’s motion.       Though the court recognized “[t]he juvenile court

waived White to district court on December 24, 1985, under the mistaken belief
                                            5


that waiver was permissible because White was fourteen at the time of the

waiver hearing, even though he was not fourteen at the time of the delinquent

act,” White never directly appealed from his plea or sentence nor did he maintain

his original PCR action.      The court explained “[t]hese failures foreclose any

opportunity White previously had to challenge the waiver or plea,” and his claim

was therefore time-barred by Iowa Code section 822.3. The PCR court went on

to find that in any event, White’s claims were moot because he had already

discharged his sentence.

       White now appeals, raising the same arguments here that he did before

the PCR court.1 It appears in this case that while he was a juvenile, the justice

system failed White at every step of the way.            Although we find his claims

innovative and his brief cogent and well-written, like the PCR court, we find our

hands tied by the three-year statute of limitations set forth in Iowa Code section

822.3. Simply put, this time-bar prevents us from righting a wrong.

       In Davis v. State, the Iowa Supreme Court explained “statutes of

limitations speak to matters of remedy and procedure, rather than the destruction

of fundamental rights” and

       find their justification in necessity and convenience rather than in
       logic. They represent expedients, rather than principles. They are
       practical and pragmatic devices to spare the courts from litigation of
       stale claims, and the citizen from being put to his defense after
       memories have faded, witnesses have died or disappeared, and
       evidence has been lost. They are by definition arbitrary, and their

       1
         We note White appears to have added claims in his reply brief that he did not
raise before the PCR court. Consequently, those claims are waived. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“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.”); State v. Walker, 574 N.W.2d 280, 288 (Iowa 1998).
Nevertheless, the claims are also time-barred pursuant to Iowa Code section 822.3.
                                          6


       operation does not discriminate between the just and the unjust
       claim, or the avoidable and unavoidable delay. They have come
       into the law not through the judicial process but through legislation.
       They represent a public policy about the privilege to litigate. Their
       shelter has never been regarded as what now is called a
       “fundamental” right or what used to be called a “natural” right of the
       individual. He may, of course, have the protection of the policy
       while it exists, but the history of pleas of limitation shows them to be
       good only by legislative grace and to be subject to a relatively large
       degree of legislative control.

443 N.W.2d 707, 709-10 (Iowa 1989) (quoting Chase Securities Corp. v.

Donaldson, 325 U.S. 304, 314, (1945)) (internal citation omitted). The Davis

court reasoned:

              One of the goals of our criminal justice system is to afford
       both the accused and the state fair and prompt trials, appeals and
       further proceedings to correct error. A legitimate concern is that the
       process also end within reasonable time limits. We believe that
       due process requires that the interest of the state and the
       defendant be balanced in determining the reasonableness of a
       period of limitations.

Id. at 710.   The court concluded the legislature “is the primary judge as to

whether the time allowed is reasonable” and “may determine the proper limitation

period” within its sound discretion. Id. at 711.

       The legislature has limited the time to file a PCR application to three years

unless the applicant asserts “a ground of fact or law that could not have been

raised within the applicable time period.” See Iowa Code § 822.3. White had a

remedy—the filing of a PCR application within three years of his conviction to

challenge the conviction.      Although White did timely file his original PCR

application, he later moved to dismiss the action.        By failing to maintain his

original PCR action, he effectively waived his right to now challenge his

conviction. See Davis, 443 N.W.2d at 709.
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      The PCR court did not err in granting the State’s motion for summary

dismissal and denying White’s second PCR application because the application

was filed beyond the three-year statute of limitations and raised no ground of law

that could not have otherwise been raised within that three-year period. Because

his claims are time-barred, we do not further address his other asserted claims.

Accordingly, we affirm the PCR court’s order granting of summary dismissal in

favor of the State and denying White’s PCR application.

      AFFIRMED.

      Vaitheswaran, J., concurs; Danilson, C.J., concurs specially.
                                           8


DANILSON, C.J. (concurring specially)

       I specially concur to add to this difficult resolution.

       I acknowledge White’s intriguing argument that he was illegally sentenced

and prosecuted for murder when the alleged offense was committed while he

was thirteen years old. But as the majority noted, White challenged the waiver

from juvenile court to district court on this very issue, his resistance was denied,

and his request for discretionary review by the supreme court was denied.

       Further, “irregularities in a waiver proceeding are impediments to the

district court’s authority that (1) do not deprive the district court of subject matter

jurisdiction over criminal proceedings involving the juvenile and (2) can be

waived if the juvenile pleads guilty.” State v. Yodprasit, 564 N.W.2d 383, 387

(Iowa 1997); see also State v. Emery, 636 N.W.2d 116, 121–23 (Iowa 2001).

Here, the ability to challenge the waiver proceedings was waived by White’s

entry of his guilty plea.

       White    subsequently     failed   to    appeal   and     dismissed   his   initial

postconviction-relief action. If any relief was possible, it may now be moot since

he has discharged his sentence. State v. Kurtz, No. 13–0715, 2014 WL 958033,

at *4 (Iowa Ct. App. Mar. 12, 2014).           I agree with the majority that White’s

present postconviction-relief action is untimely. Any relief that may be afforded to

him on his “motion to dismiss illegal sentence” due to the collateral

consequences appears suspect at best because only the sentence could be

vacated by such a motion. See Kurtz v. State, 854 N.W.2d 474, 479 (Iowa Ct.

App. 2014) (setting aside an illegal sentence does not render the conviction
                                         9

invalid); see also Kurtz, 2014 WL 958033 at *4 (collateral consequences arise

from the conviction not the sentence).

      Perhaps where, as here, it is not possible to impose a legal sentence, the

sentence could be adjudged illegal and the conviction be deemed void.

However, our supreme court has not authorized such a remedy in the past.

State v. Lyle, 854 N.W.2d 378, 403 (Iowa 2014) (where an illegal sentence is

imposed, the remedy is to resentence). We must abide by this precedent. See

State v. Miller, N.W.2d 841 N.W.2d 583, 584 n.1 (Iowa 2014); State v. Eichler, 83

N.W.2d 576, 578 (Iowa 1957) (“If our previous holdings are to be overruled, we

should ordinarily prefer to do it ourselves.”); State v. Hastings, 466 N.W.2d 697,

700 (Iowa Ct. App. 1990) (“We are not at liberty to overturn Iowa Supreme Court

precedent.”).

      Accordingly I must concur in the majority’s resolution.
