                    IN THE COURT OF APPEALS OF IOWA

                                   No. 12-2049
                              Filed March 12, 2014


ROBERT ANTHONY RUAN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Cherokee County, David A. Lester,

Judge.



      Robert Ruan appeals from the summary dismissal of his application for

postconviction relief. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Robert P. Ranschau,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney

General, Ryan R. Koplin, County Attorney, and Kristal L. Phillips, Assistant

County Attorney, for appellee State.




      Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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DOYLE, J.

       Robert Ruan appeals from the summary dismissal of his application for

postconviction relief, contending there is a genuine issue of material fact as to

whether his guilty plea to two counts of third-degree sexual abuse as a habitual

offender was knowing and voluntary. We affirm.

I.     Background Facts and Proceedings

       Ruan was originally charged with two counts of sexual abuse in the third

degree, in violation of Iowa Code sections 709.1(3), 709.4(2)(b), and

709.4(2)(c)(4) (2007), class “C” felonies. The trial information was later amended

to charge Ruan with three counts of third-degree sexual abuse as a habitual

offender. Consistent with the terms of a plea agreement, Ruan pled guilty to two

counts of third-degree sexual abuse as a habitual offender, and the State

dismissed the remaining count as well as charges pending against Ruan in two

separate aggravated misdemeanor cases.           The plea memorandum provided

Ruan would be sentenced to a term not to exceed fifteen years on each count, 1

to run concurrent with each other, with credit for time served, and with a

mandatory minimum sentence “required pursuant to Iowa Code §903B.1 and

§902.8.”2

       Ruan appeared with counsel for the plea and sentencing hearing, where

the following colloquy took place:




1
   Iowa Code section 902.9(3) provided, “An habitual offender shall be confined for no
more than fifteen years.”
2
  Section 902.8 provided in part: “A person sentenced as an habitual offender shall not
be eligible for parole until the person has served the minimum sentence of confinement
of three years.”
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               COURT: Because you are charged with the same crime
       under Count II and under Count III, as it is enhanced by Count IV,
       I’m going to read the penalty to you one time. But they apply to
       each count. Do you understand that?
               DEFENDANT: Yes.
               COURT: All right then.      Two counts against you are
       classified as Class C felonies. As a Class C felony—a straight
       Class C felony, you would face up to a maximum term of
       imprisonment of up to 10 years. But because you are pleading
       guilty—you are charged and pleading guilty as a habitual offender,
       there’s an enhancement to the sentence. And at sentencing, rather
       than up to a maximum of 10 years imprisonment, you face up to a
       maximum of 15 years imprisonment. Do you understand that?
               DEFENDANT: Yes.
               COURT: If this were not being charged as a habitual
       offender, then there would be no minimum period you must serve
       before being eligible for parole. But this is an enhanced charge,
       and as a habitual offender, you must serve a minimum three-year
       term of incarceration before you will be eligible for parole. Do you
       understand the minimum sentence?
               DEFENDANT: Yes, your Honor.
               COURT: And do you understand that the minimum 3 years
       and the maximum 15 years are a result of the sentencing
       enhancement because of the charge against you of committing this
       crime as a habitual offender?
               DEFENDANT: Yes.

The district court accepted Ruan’s guilty plea and sentenced him in accordance

with the plea memorandum.3

       Ruan filed an application for postconviction relief challenging the

voluntariness of his plea and contending he received ineffective assistance of

counsel. Specifically, Ruan claimed his plea attorney misadvised him of the

mandatory minimum prison terms he faced; he alleged had he known the original

charges against him without a habitual offender enhancement did not have a

seventy percent mandatory minimum, he would not have agreed to the terms of

the plea memorandum under which he was ultimately sentenced.                    Ruan’s

3
 The court also asked Ruan if he was “satisfied with the services of [his] attorney,” to
which Ruan responded, “Yes.”
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requested relief was that he be allowed to plead guilty to the two original

charges, without habitual offender enhancements, and be sentenced to serve

concurrent ten-year terms.

      The State filed a motion for summary dismissal of Ruan’s application,

claiming the grounds urged by Ruan in his application “are in direct contradiction

to the record, court file and his guilty plea colloquy.” Ruan resisted the State’s

motion, contending “the record transcript will NOT show if he was told by his

counsel that he was facing charges that carried an enhancement,” and that

further gathering of evidence was necessary.

      Following a hearing, the postconviction court entered a ruling dismissing

Ruan’s application. The court found “Ruan has failed to carry his burden of

showing that a material factual issue exists” where “Ruan’s allegations in his

application for post-conviction relief are directly contradicted by the record made

during the plea taking and sentencing hearing held in the underlying criminal

case.” Ruan appeals.

II.   Standard of Review

      We review postconviction proceedings for errors at law. Everett v. State,

789 N.W.2d 151, 155 (Iowa 2010).            This includes summary dismissals of

applications for postconviction relief. Manning v. State, 654 N.W.2d 555, 560

(Iowa 2002).    However, we conduct a de novo review of applications for

postconviction relief raising constitutional infirmities, including claims of

ineffective assistance of counsel. Castro v. State, 795 N.W.2d 789, 792 (Iowa

2011). “In determining whether summary judgment is warranted, the moving
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party has the burden of proving the material facts are undisputed. We examine

the facts in the light most favorable to the nonmoving party.” Id.

III.   Discussion

       Summary disposition of a postconviction application is authorized “when it

appears from the pleadings, depositions, answers to interrogatories, and

admissions and agreements of fact, together with any affidavits submitted, that

there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law.” Iowa Code § 822.6 (2011). Disposition under this

provision is similar to the summary judgment procedure set forth in Iowa Rule of

Civil Procedure 1.981(3). See Manning, 654 N.W.2d at 559-60.

       Ruan essentially argues that summary disposition was inappropriate

because his application generated issues of material fact entitling him to an

evidentiary hearing. The State counters an evidentiary hearing is not required

where Ruan’s claim is “directly contradicted by the record” and he did not

challenge “the credibility of the record that was before the court.”      Ruan’s

application is based on misinformation he alleges his counsel gave him before

the plea hearing regarding mandatory minimums applicable to the original sexual

abuse in the third-degree charges. But the record reflects that the court provided

explicit and correct information on the same subject – applicable mandatory

minimum sentences for the original charges and for the charges to which he

entered his guilty pleas.

       “A plea colloquy that covers the specific ground subsequently raised in a

postconviction relief application would normally support summary judgment on

those grounds.” Castro, 795 N.W.2d at 795; see Wise v. State, 708 N.W.2d 66,
                                         6


71 (Iowa 2006) (indicating that statements made to court in plea colloquy

establish a presumption of the true facts on the record).       Where the record

directly contradicts the claim a guilty plea was unintelligent and involuntary, “the

applicant bears a special burden to establish the record is inaccurate.” See

Arnold v. State, 540 N.W.2d 243, 246 (Iowa 1995).

       In   dismissing   Ruan’s    application   for   postconviction   relief,   the

postconviction court specifically pointed out the “very detailed and meticulous

manner” in which the plea and sentencing proceeding was conducted. As the

court stated:

       Reasonable minds reviewing the record of the plea and sentencing
       proceedings could only conclude that Ruan was not only full[y]
       informed and cognizant of the plea agreement he reached with the
       State, but also was fully informed that the sexual abuse charges to
       which he was pleading guilty were subject to not only a minimum
       term of incarceration, but also a greater maximum term only
       because he was being charged and was agreeing to plead guilty as
       an habitual offender. As reflected by the transcript made during
       those proceedings, Ruan acknowledged that he fully understood
       that if he were not being charged as an habitual offender, his
       maximum term of imprisonment would be ten years, and there
       would be no minimum period of incarceration that he would be
       required to serve before being eligible for parole. Finally, when
       asked whether he had any questions about the possible penalties
       he was facing at the time of sentencing, after all the possible
       penalties were explained to him by [the court], Ruan responded,
       “No, Your Honor.”

       To avoid summary judgment, Ruan relies on Manning, 654 N.W.2d at 560-

61, in which the supreme court reversed the district court’s summary dismissal of

an application for postconviction relief and remanded for an evidentiary hearing

to determine whether the claims could be established. In Manning, however, the

State’s motion for summary judgment “presented nothing more than pure

allegations.” See id. at 561-62. In contrast, in this case the State presented the
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plea memorandum and the detailed colloquy that took place during the plea and

sentencing proceeding. Ruan failed to carry his “special burden to establish the

record is inaccurate.” See Arnold, 540 N.W.2d at 246.

       Upon our de novo review, we find no error. We affirm the postconviction

court’s ruling dismissing Ruan’s application for postconviction relief.

       AFFIRMED.
