                    IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1816
                               Filed April 5, 2017


GUY DELL SUDDUTH,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, Kellyann M.

Lekar, Judge.



       Guy Sudduth appeals the district court’s dismissal of his application for

postconviction relief. REVERSED AND REMANDED.




       Ryan J. Mitchell of Orsborn, Milani, Mitchell & Goedken, L.L.P., Ottumwa,

for appellant.

       Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.




       Considered by Danilson, C.J., and Vogel and Vaitheswaran, JJ.
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VAITHESWARAN, Judge.

       In 2005, Guy Sudduth entered Alford pleas1 to two counts of criminal

transmission of human immunodeficiency virus and three counts of third-degree

sexual abuse. In 2014, Sudduth filed a postconviction relief application alleging

his plea lacked a factual basis and his attorney was ineffective in allowing him to

enter the plea and in failing “to complete a competent investigation.” The district

court dismissed the application as time-barred. Sudduth appealed.

       Postconviction relief 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.” See Iowa Code § 822.3 (2014). “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.

       Sudduth essentially concedes his application did not fall within the three-

year limitations period but argues an Iowa Supreme Court opinion decided in

2014 “creates new law that [he] could not have argued within the three-year

statute of limitations.” See Rhoades v. State, 848 N.W.2d 22 (Iowa 2014). In

other words, he invokes the “ground of law” exception to the time bar.

       In Rhoades, the supreme court evaluated the factual basis for a plea to

transmission of human immunodeficiency virus. Id. at 32. A person committed

the crime “if the person, knowing that the person’s human immunodeficiency

virus status [was] positive, . . . [e]ngag[ed] in intimate contact with another



1
  An Alford plea is a variation of a guilty plea where the defendant does not admit
participation in the acts constituting the crime but consents to the imposition of a
sentence. North Carolina v. Alford, 400 U.S. 25, 37 (1970).
                                           3

person.” See Iowa Code § 709C.1(1)(a).2 “Intimate contact” was defined as “the

intentional exposure of the body of one person to a bodily fluid of another person

in a manner that could result in the transmission of the human immunodeficiency

virus.” Id. § 709C.1(2)(b). As in this case, the district court asked Rhoades if he

had intimate contact with the victim but did not ask whether he exchanged bodily

fluids with the victim or whether he intentionally exposed the victim to his bodily

fluid in a manner that could result in the transmission of HIV. See Rhoades, 848

N.W.2d at 30. The court concluded “the district court’s reference to intimate

contact and Rhoades’ acknowledgment he had intimate contact does not

establish the necessary factual basis.” Id.

       In reaching this conclusion, the court acknowledged its prior opinions

“filled in the gaps in the factual basis” by judicially noticing adjudicative facts “that

HIV may be transmitted through contact with an infected individual’s blood,

semen or vaginally fluid, and that sexual intercourse is one of the most common

methods of passing the virus.” Id. at 32. But the court stated,

       With the advancements in medicine regarding HIV between 2003
       and 2008, we are unable to take judicial notice of the fact that HIV
       may be transmitted through contact with an infected individual’s
       blood, semen or vaginally fluid, and that sexual intercourse is one
       of the most common methods of passing the virus to fill in the gaps
       to find a factual basis for Rhoades’ guilty plea.

Id. at 33.

       The State argues Rhoades did not change the law. This court has held

otherwise. In Stevens v. State, No. 15-1033, 2016 WL 1696909, at *3-4 (Iowa

Ct. App. Apr. 27, 2016), we reversed the district court’s dismissal of a

2
 This provision has since been repealed. See Acts 2014 (85 G.A.) ch. 1119, S.F. 2297,
§ 9, eff. May 30, 2014.
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postconviction relief application as time-barred after concluding Rhoades “was

not merely ‘a clarification of the law’ or ‘an application of preexisting law’” but “a

change in the law” “that could not have been raised within the applicable time

period” and affected “the validity of [Stevens’s] conviction.” Id. We stated, “What

the jury was once able to accept as common knowledge with no further proof

required from the State, now requires the State to offer “expert medical testimony

on the likelihood of transmission of HIV.” Id. at *3. We remanded the case for

consideration of whether “the Rhoades case should be retroactively applied.” Id.

at *4.

         The Supreme Court did not accept further review of Stevens and the

opinion became final in mid-2016. While not precedential, Stevens is persuasive

authority in support of Sudduth’s request for reversal.

         We conclude Sudduth has asserted a ground of law that could not have

been raised within the applicable time period. His application falls within the

“ground of law” exception to the three-year time bar.

         Sudduth seeks a remand “for trial on [his] Application for Post-Conviction

Relief.” We reverse the district court’s dismissal of the application and remand

for a postconviction relief hearing.3




3
 We recognize that, in Stevens, we remanded for a preliminary determination of whether
Rhoades should be applied retroactively. We relied on dispositional language in Nguyen
v. State, 829 N.W.2d 183, 189 (Iowa 2013), where the question of retroactive application
of Heemstra was explicitly raised. Here, neither side has raised the issue. Additionally,
following the 2013 Nguyen decision, the supreme court filed another opinion in his case
resolving his retroactivity arguments. See Nguyen v. State, 878 N.W.2d 744, 753
(Iowa 2016), reh'g denied (June 2, 2016). Accordingly, the language in the 2013
Nguyen opinion on which we relied in Stevens is no longer applicable.
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REVERSED AND REMANDED.

Vogel, J., concurs; Danilson, C.J., dissents.
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DANILSON, Chief Judge. (dissenting)

       I respectfully dissent.   On June 13, 2014, the Iowa Supreme Court

decided in Rhoades v. State, 848 N.W.2d 22, 32 (2014), it was no longer

appropriate to take judicial notice of the same adjudicatory fact because the

science had changed. The court stated:

       The judicial notice we took in previous cases is subject to a
       reasonable dispute here; thus, it is improper for us to similarly take
       judicial notice in this case. With the advancements in medicine
       regarding HIV between 2003 and 2008, we are unable to take
       judicial notice of the fact that HIV may be transmitted through
       contact with an infected individual’s blood, semen or vaginal fluid,
       and that sexual intercourse is one of the most common methods of
       passing the virus to fill in the gaps to find a factual basis for
       Rhoades’s guilty plea.

Id. at 33. Thus, the court concluded in Rhoades, “It was not apparent in 2009, at

the time of the plea, that this fact was ‘capable of accurate and ready

determination by resort to sources whose accuracy’ could not reasonably be

questioned.” Id. at 32 (quoting Iowa R. Evid. 5.201(b)).

       However, here Sudduth’s pleas were taken on December 8, 2005.

Although Sudduth has filed his application for postconviction relief within three

years of the Rhoades decision, the Iowa Supreme Court concluded in Rhoades

that as of 2009, it was no longer appropriate “to take judicial notice of the fact

that HIV may be transmitted through contact with an infected individual’s blood,

semen or vaginal fluid” without expert testimony on the likelihood of transmission

of HIV. Rhoades, 848 N.W.2d at 33. Because Sudduth’s pleas were entered in

2005 when it remained appropriate to take judicial notice of the adjudicatory fact,

I would conclude any challenge to the factual basis for the pleas via Sudduth’s

application for postconviction relief was untimely. I would affirm.
