                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0733
                               Filed May 11, 2016


JOHN ROBERT GEORGE,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Iowa County, Patrick R. Grady,

Judge.




      John George appeals the order denying his application for postconviction

relief. AFFIRMED.




      John J. Bishop, Cedar Rapids, for appellant.

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

General, for appellee State.




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

        John George appeals the order denying him postconviction relief (PCR)

for his 2012 conviction of driving while suspended. He claims his conviction must

be vacated in the interest of justice based on a material fact not previously

presented or heard. See Iowa Code § 822.2(1)(d) (2013). Stated succinctly,

George argues his conviction should be vacated because the officer who cited

him for the 2012 offense—after observing a person he believed to be George in

the driver’s seat of a vehicle—mistakenly identified and cited George for driving

while barred in 2014. The 2014 charge was dismissed on the State’s motion

after the police department advised the county attorney that the driver of the

vehicle in question was mistakenly identified as George. George now claims that

had this subsequent misidentification by the officer, made “under similar

circumstances to his initial conviction for driving under suspension, been

available to the magistrate court in making credibility determinations in arriving at

a verdict, the outcome of his trial would have been a not guilty verdict.”

        A claimant who seeks PCR based on newly discovered evidence must

show:

        (1) that the evidence was discovered after the verdict; (2) that it
        could not have been discovered earlier in the exercise of due
        diligence; (3) that the evidence is material to the issues in the case
        and not merely cumulative or impeaching; and (4) that the evidence
        probably would have changed the result of the trial.

Harrington v. State, 659 N.W.2d 509, 516 (Iowa 2003). However, to qualify as

newly discovered evidence, the evidence must have existed at the time of the

challenged trial proceeding. See Grissom v. State, 572 N.W.2d 183, 184 (Iowa

Ct. App. 1997). The officer’s misidentification of the driver in the 2014 incident
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occurred subsequent to the trial on George’s driving-while-suspended offense

and therefore does not qualify as newly discovered evidence. Id. Recognizing

this, George attempts to invoke an exception to this rule. He asserts this is an

extraordinary case “when an ‘utter failure of justice will unequivocally result’ if the

new evidence is not considered or where it is no longer just or equitable to

enforce the prior judgment.”     Id. at 185 (quoting Benson v. Richardson, 537

N.W.2d 748, 762-63 (Iowa 1995)).

       After a hearing, the PCR court concluded,

               Here, the new evidence is totally based on events that took
       place after the trial. Further, the evidence is merely impeaching of
       [the officer’s] prior identification of George as the driver of the
       vehicle. Finally, [the officer’s] ability to observe George at the
       library [in 2012] was significantly greater than while passing on the
       road [in 2014] and, thus, knowledge of the subsequent
       misidentification of George is not sufficient to establish that it would
       probably have changed the verdict. Finally, this Court does not find
       that there would be a failure of justice if the Court was to set aside
       the conviction.

We wholeheartedly agree. The PCR court did not err in denying and dismissing

George’s application. We therefore affirm.

       AFFIRMED.
