                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1531
                             Filed August 15, 2018


CHAD STECHCON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Benton County, Chad A. Kepros

(motion to dismiss) and Christopher L. Bruns (order), Judges.



      Chad Stechcon appeals the district court’s summary dismissal of his

application for postconviction relief. REVERSED AND REMANDED.




      Mark C. Smith, State Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, and Darrel L. Mullins, Assistant

Attorney General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       A jury found Chad Stechcon guilty of first-degree burglary, domestic abuse

assault while using or displaying a dangerous weapon, and false imprisonment.

This court affirmed Stechcon’s convictions. See State v. Stechcon, No. 13-0049,

2013 WL 5951359, at *3-7 (Iowa Ct. App. Nov. 6, 2013). Procedendo issued on

December 9, 2013.

       The following year, Stechcon filed an application for appointment of

counsel, requesting “competent counsel to properly prepare his Application for

Post Conviction Relief, and bring the same into open court for a hearing.” He also

filed an application to proceed in forma pauperis and declaration in support. On

April 17, 2014, the district court granted the applications. The court specifically

noted, “Applicant did not include an actual Application for Post-Conviction Relief.”

The court cautioned Stechcon that, by appointing counsel, it was “making no ruling

that Applicant has a colorable claim for post-conviction relief” but was “simply

appointing [counsel] to represent Applicant to investigate whether Applicant has

such a claim and, if so, to prepare, file, and prosecute the claim.”

       The “case” languished, and Stechcon was notified that it would be

automatically dismissed pursuant to Iowa Rule of Civil Procedure 1.944. No action

was taken and the case was dismissed. Later, counsel moved to have it reinstated

and the motion was granted.

       On February 14, 2017, postconviction counsel filed what he characterized

as an “amended” postconviction-relief application, alleging trial counsel was

ineffective in failing to call Stechon as a witness. The State moved to dismiss the

application as untimely. Stechcon filed a reply acknowledging he “did not file an
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application for postconviction relief, but instead, merely . . . filed, on April 7, 2014,

an application to proceed in forma pauperis and an application for appointment of

post-conviction relief counsel.” He argued it would “be inequitable” to dismiss the

case because the clerk of court assigned a case number to the matter.

       The district court granted the dismissal motion, reasoning as follows:

               Applicant, who had counsel appointed to represent his
       interests as of April 17, 2014, was clearly informed that he must still
       prepare, file, and prosecute any alleged claim for post-conviction
       relief. . . . [O]n February 14, 2017, Applicant finally attempted to
       comply with the April 17 order. By that point in time, his claim was
       time barred as asserted by the State.

       On appeal from the summary dismissal order, Stechcon concedes a

postconviction relief application generally “must be filed within three years” of the

issuance of procedendo, which in his case was “on or before December 13, 2016.”

See Iowa Code § 822.3 (2017) (stating an application for postconviction relief

“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,” unless

the application raises “a ground of fact or law that could not have been raised within

the applicable time period”). He seeks to circumvent the time bar by arguing his

“court-appointed postconviction relief counsel was ineffective in failing to file his

application for postconviction relief in a timely fashion.”

       The Iowa Supreme Court recently addressed applicants’ efforts to sidestep

the section 822.3 time bar by alleging ineffective assistance of counsel. See

Allison v. State, 914 N.W.2d 866, 2018 WL 3198793, at *22 (Iowa 2018). The

court held:

       [W]here a [postconviction-relief (PCR)] petition alleging ineffective
       assistance of trial counsel has been timely filed per section 822.3
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       and there is a successive PCR petition alleging postconviction
       counsel was ineffective in presenting the ineffective-assistance-of-
       trial-counsel claim, the timing of the filing of the second PCR petition
       relates back to the timing of the filing of the original PCR petition for
       purposes of Iowa Code section 822.3 if the successive PCR petition
       is filed promptly after the conclusion of the first PCR action.

Id.   The court essentially invoked an equitable tolling doctrine to permit

consideration of a second postconviction relief application. Id.

       Although the black-letter holding of Allison does not apply here, the opinion

also contained broad language about the need for effective counsel to pursue

postconviction relief applications. See id. at ___ (noting “where the only counsel

provided to an applicant has been ineffective, a violation of the statute [requiring

counsel to be effective] occurs”); id. at ___ (discussing Wilkins v. State, 522

N.W.2d 822 (Iowa 1994) and its holding that an ineffective assistance of counsel

claim did not fall into the exceptions to the section 822.3 time bar and stating the

Wilkins court “gave no consideration to the constitutional implications of the

ruling”); id. at ___ (discussing Dible v. State, 557 N.W.2d 881 (Iowa 1996),

abrogated in part by Harrington v. State, 659 N.W.2d 509, 521 (Iowa 2003), and

its holding that the applicant failed to establish a ground of fact that could not have

been raised under the three-year time bar and qualifying the Dible holding after

noting it “gave no consideration to the fundamental constitutional interests at stake

when an accused alleges ineffective assistance of trial counsel and the PCR

proceeding is the first opportunity to raise the issue”).      Stechon’s ineffective-

assistance-of-postconviction-counsel claim implicates this language. He is not

challenging trial counsel’s errors—errors he should have known about before the
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expiration of the limitations period—but postconviction counsel’s error in failing to

timely file a postconviction application.

       This brings us to Lado v. State, 804 N.W.2d 248, 251-52 (Iowa 2011), cited

by Stechcon. There, the applicant filed a timely postconviction-relief application,

which was dismissed pursuant to Iowa Rule of Civil Procedure 1.944. Lado, 804

N.W.2d at 250. The court held “[c]ounsel’s failure to seek a continuance of the

case, or to apply to have the case reinstated, resulted from abdication, not

exercise, of professional judgment.” Counsel therefore breached an essential duty

resulting in the case being dismissed” and no showing of prejudice was required.

Id. at 251.

       The State argues Lado is inapposite because it presumed a timely

postconviction application and Stechcon did not file a timely postconviction-relief

application. But Lado’s holding turned on postconviction counsel’s failure to file

documents that would have avoided dismissal of the postconviction-relief

application.    Similarly, Stechon’s ineffective-assistance claim turns on his

postconviction attorney’s failure to timely file an application that would have

avoided summary dismissal of the postconviction application. In our view, there is

no material difference between Lado and Stechon’s case—both involved the

failure of postconviction counsel to prevent dismissal of a postconviction relief

application. Where Stechon is challenging counsel’s failure to timely file the

application, it would be anomalous to require a timely filed application before he

could proceed.

       Stechon’s postconviction attorney was appointed for the express purpose

of investigating and filing a postconviction-relief application. He filed an application
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two months after the statutory deadline. Postconviction counsel abdicated his

acknowledged duty to file a timely postconviction-relief application, effectively

leaving Stechon without counsel. We conclude postconviction counsel breached

an essential duty and the failure amounted to structural error. We reverse and

remand for adjudication of the merits of Stechon’s untimely filed postconviction

relief application. See id. at 253; Dockery v. State, No. 13-2067, 2016 WL 351251,

at *5 (Iowa Ct. App. Jan. 27, 2015) (reversing and remanding for consideration of

substantive claims where “although three attorneys were appointed to represent

Dockery in the PCR action, none made any substantive filings appropriate to a

PCR action during the three-and-one-half years the action was pending”).

      REVERSED AND REMANDED.
