                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1124
                               Filed March 6, 2019


TROY ALAN HARTSON,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Lars Anderson and

Chad Kepros, Judges.



      Troy Hartson appeals the dismissal of his application for postconviction

relief. AFFIRMED.




      Wallace L. Taylor of Law Offices of Wallace L. Taylor, Cedar Rapids, for

appellant.

      Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee State.



      Considered by Doyle, P.J., and Mullins and McDonald, JJ.
                                             2


MULLINS, Judge.

         Troy Hartson appeals the dismissal of his application for postconviction

relief (PCR) on statute-of-limitations grounds. He argues his application is based

on newly-discovered evidence and he is therefore excepted from the statute of

limitations. See Iowa Code § 822.3 (2017) (noting “limitation does not apply to a

ground of fact . . . that could not have been raised within the applicable time

period”); see also Moon v. State, 911 N.W.2d 137, 143–45 (Iowa 2018) (discussing

ground-of-fact-exception in relation to newly-discovered evidence); Harrington v.

State, 659 N.W.2d 509, 520–21 (Iowa 2003) (same). He also argues the court

erred in dismissing his application without affording him a hearing.

         In 2004 and 2005, Hartson was charged with second-degree sexual abuse

and lascivious acts with a child. State v. Hartson, No. 05-1390, 2006 WL 1751028,

at *1 (Iowa Ct. App. June 28, 2006). Hartson moved for a competency hearing

prior to trial, he was evaluated, the district court found him competent to stand trial,

and he was ultimately convicted. Id. at *1–2. In 2006, this court affirmed the

competency finding and Hartson’s convictions. Id. at *3.

         Hartson filed a pro se PCR application in September 2017.1 The claim he

raised in his application relevant to this appeal was that medical professionals were

dishonest in their testimony at his competency hearing, as shown by the allegation

that “immediately after [his] incarceration, contrary to their stated diagnosis for the

court,” the same medical professionals began treating him for the same issues he

claimed rendered him incompetent to stand trial. The State moved for dismissal,



1
    Hartson has filed various PCR applications over the years.
                                          3


arguing, among other things, Hartson’s application was barred by the three-year

statute of limitations contained in Iowa Code section 822.3.

       In January 2018, the court entered a proposed dismissal ruling generally

concluding that the alleged newly-discovered evidence was available to Hartson

within the limitations period and Hartson therefore was not excepted from the

statute of limitations. The court allowed Hartson thirty days to submit a response

to the proposed dismissal order.      Hartson’s court-appointed counsel filed an

amended application referencing, among other things, “material new evidence of

client’s mental condition as stated in his pro se application.” PCR counsel moved

for a hearing on dismissal. The State filed a supplemental motion to dismiss the

amended application, which Hartson resisted. The court denied the request for a

hearing, but allowed Hartson the opportunity to supplement his resistance to

dismissal. Hartson did not do so. In June, the court entered an order dismissing

Hartson’s PCR application. Hartson appeals. Our review is for correction of errors

at law. Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011).

       On appeal, Hartson argues the fact that he “was immediately placed in

psychiatric custody in prison and treated for the very conditions the witnesses

minimized” at his competency hearing amounts to newly-discovered evidence

sufficient to entitle him to the ground-of-fact exception to the three-year statute of

limitations. However, Hartson is not entitled to tolling if the ground of fact could

“have been raised within the applicable time period.” See Iowa Code § 822.3. The

ground of fact alleged here became known to Hartson, according to his application,

“immediately after [his] incarceration” commenced. Consequently, this is not a

“ground of fact . . . that could not have been raised within the applicable time
                                         4

period.” Id. It could have been raised within the limitations period and therefore

does not serve to toll the statute of limitations. See Wilkins v. State, 522 N.W.2d

822, 824 (Iowa 1994) (noting exception is limited to “a ground that the applicant

was at least not alerted to in some way”).

      We turn to the claim that the district court erred in dismissing the application

without a hearing. The district court followed the dismissal procedure contained in

paragraph two of Iowa Code section 822.6 by advising of its intention to dismiss

the application and the reasons for dismissal, and providing Hartson an opportunity

to respond. This is all that is required under a paragraph two dismissal. See

Anderson v. State, No. 16-0394, 2016 WL 7393900, at *2–3 (Iowa Ct. App. Dec.

21, 2016).   In any event, the requirements of section 822.6 do not apply to

dismissals on statute-of-limitations grounds, and Hartson only appears to argue he

was entitled to a hearing on the claim involved in this appeal, which was dismissed

on that ground. See id.; Ramirez v. State, No. 13-1847, 2015 WL 4936386, at *2

(Iowa Ct. App. Aug. 19, 2015).

      We affirm the dismissal of Hartson’s PCR application.

      AFFIRMED.
