                    IN THE COURT OF APPEALS OF IOWA

                                    No. 18-1818
                               Filed January 9, 2020


JOSEPH LEE MILLER,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.



      Joseph Miller appeals the denial of postconviction relief. AFFIRMED.




      G. Brian Weiler, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee State.




      Considered by Bower, C.J., and May and Greer, JJ.
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BOWER, Chief Judge.

      Joseph Miller appeals the denial of his application for postconviction relief

(PCR). Because Miller’s PCR application was filed more than three years after his

conviction was final and he has asserted no ground of fact material to his

substantive claim that could not have been presented within the three-year time

frame, see Iowa Code § 822.3 (2017), we affirm.

      On July 31, 2007, pursuant to a written plea Miller entered a plea of guilty

to third-degree sex abuse (count 1) and indecent exposure (count 2).           The

memorandum of plea agreement—which bears Miller’s signature—states, in part:

      All sentencing concessions part of the Agreement:
              State recommends [ten] year suspended sentence with
      lifetime parole on count 1. Defendant shall be screened for
      [residential correctional facility] RCF and must participate in sex
      abuse therapy. State recommends a jail sentence of 300 days in the
      Scott County Jail on count 2.

(Emphasis added.)

      At the August 8 plea hearing, the following colloquy occurred:

             THE COURT: Okay. There is a plea agreement here which
      states—that you have signed and your attorney has signed it—that
      states that you are pleading guilty to two charges, sex abuse third
      degree and indecent exposure, which we are doing now, and that the
      State recommends a ten-year suspended sentence with lifetime
      parole on count 1, and you will be screened for the RCF, and you
      have to participate in sex abuse therapy and that you get a sentence
      of 300 days in the Scott County jail on, I assume, that’s count 2. Do
      you understand that’s what the State is recommending?
             THE DEFENDANT: Yes.

(Emphasis added.) On September 6, Miller was sentenced in conformity with the

plea agreement, including lifetime parole. He was allowed to move to Illinois and

be supervised there.
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       In September 2009, Miller’s two-year term of probation was extended for an

additional year for Miller to complete sex-abuse therapy and pay costs.

       Miller wrote a letter to the Iowa court noting in part, “Recently I was informed

that I will be under lifetime parole supervision & basically be on house arrest

forever. . . . Under what legal realm is this possible?” On September 22, 2009,

Judge Mark Smith authored a letter to Miller which states:

       In response to your undated letter to the undersigned, I have
       reviewed your file and find that on September 6, 2007, you were
       given a suspended sentence based on your guilty plea to the charge
       of sexual abuse in the third degree in violation of Iowa Code section
       709.4(2)(c)(4) [(2005)]. Pursuant to section 903B.1, Iowa Code, you
       were then informed that you were placed on parole for the rest of
       your life. Since you pled guilty to a class “C” felony as a sex offender,
       you must register under the sex offender registry.

       On April 19, 2017, Miller filed an application for PCR, claiming plea counsel

was ineffective in failing to inform him of the lifetime parole sentence. Counsel

was appointed, and an amended application was filed on July 11, adding a claim

that the trial court “failed to admonish Miller that he could have to serve a sentence

of lifetime parole as part of his plea agreement.”

       The State answered, “[Miller] cannot argue that he was not notified by his

attorney that he would have to serve the lifetime parole—it was written and

memorialized in the plea agreement that the defendant signed. Therefore, there

is no valid claim of ineffective assistance of counsel.” The State also asserted

affirmative defenses of failure to state a claim and that the claim was barred by the

statute of limitations.

       Miller’s response to the State’s statute-of-limitation defense states in part:

       Iowa Code [section] 822.3 [(2017)] also states that “this limitation
       does not apply to a ground of fact or law that could not have been
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       raised within the applicable time period.” The facts pled in the
       amended application, which were verified by applicant in his pro se
       application, could have been discovered after the applicable time
       period ran. Applicant would respectfully request an evidentiary
       hearing on this issue because only applicant’s testimony could verify
       this.

       PCR trial was set for October 19, 2018. Miller testified he did not file his

PCR application until 2017

       [b]ecause I didn’t know that I could file anything. I was in prison, and
       a guy that was sharing a cell with me, I told him my case, and he told
       me that I should file a [PCR]. I didn’t know anything about a time
       limit or anything. I don’t know much about court stuff.

       The district court denied Miller’s request for relief, ruling:

       A post-conviction relief applicant relying on the ground-of-fact
       exception to three-year statute of limitations for post-conviction relief
       applications must show the ground of fact is relevant to the
       challenged conviction. . . .
              ....
              Miller’s lack of knowledge of Iowa’s [PCR] statute cannot
       qualify as a ground of fact because his knowledge of the law is not
       material evidence. Such an understanding is simply not evidence
       material to his guilt or innocence of the underlying conviction. The
       court therefore FINDS that Miller has failed to carry his burden of
       establishing an exception to the limitation on filing his [PCR] claim
       and said claim is time barred pursuant to 822.3.

       On appeal, Miller objects to the court’s ruling, claiming he was denied due

process by the court setting a hearing on the merits but ignoring the merits and

ruling the claim was time barred.

       Our review of the district court’s denial of PCR on a statute-of-limitations

ground is for correction of errors at law. Harrington v. State, 659 N.W.2d 509, 519

(Iowa 2003). “Thus, we will affirm if the trial court’s findings of fact are supported

by substantial evidence and the law was correctly applied.” Id. at 520.
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       Chapter 822 of the Iowa Code provides for and governs postconviction-

relief actions. Section 822.3 places a limitation on the commencement of such

actions. Most applications for postconviction relief must be filed within three years.

Iowa Code § 822.3. Exceptions exist, however, for grounds “of fact or law that

could not have been raised within the applicable time period.” Id. Exceptions

found within the section act as an escape clause when an applicant had “no

opportunity” to assert the claim within the limitations period. Id. at 611. When a

party claims a limitations exception applies, they must plead and prove the

exception by showing they were not or should not have been alerted to the

potential claim before the period expired. Id. at 610–11.

       “In addition to the obvious requirement that an applicant relying on section

822.3 must show the alleged ground of fact could not have been raised earlier, the

applicant must also show a nexus between the asserted ground of fact and the

challenged conviction.” Harrington, 659 N.W.2d at 520.

       Miller’s only claim to avoid the limitations period is he “didn’t know that [he]

could file anything.” This “fact” is not material to his ineffective-assistance claim

and, consequently, Miller is not entitled to the escape clause of section 822.3. Cf.

id. at 521 (“[A] postconviction-relief applicant relying on the ground-of-fact

exception must show the ground of fact is relevant to the challenged conviction.

By ‘relevant’ we mean the ground of fact must be of the type that has the potential

to qualify as material evidence for purposes of a substantive claim under section

822.2.” (citations omitted)). The PCR court did not err in concluding the claim was

time barred.
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       On appeal, Miller claims the PCR court performed a “bait and switch” on

him and denied him due process by not ruling on the merits of his application.

Miller relies on Manning v. State, 654 N.W.2d 555, 561 (Iowa 2002). Manning is

not on point. In Manning, the applicant was notified a hearing on the motion to

dismiss had been set but the court then dismissed the PCR application on the

merits of his ineffective-assistance claim. 654 N.W.2d at 560–61. On appeal, this

court determined Manning had not been properly notified he would need to present

proof on his ineffectiveness claim, only that he needed to present evidence in

response to the State’s motion to dismiss. Id. at 561. Thus, the court found the

PCR court’s rejection of Manning’s ineffective-assistance-of-counsel claims was

improper. Id. at 561–62.

       Here, the court held an evidentiary hearing and heard evidence. But the

court could not reach the merits of Miller’s PCR claim (ineffective assistance of

counsel) because Miller failed to show he was entitled to avoid the three-year

limitations bar despite Miller’s testimony.    Because the court did not err in

concluding Miller’s claim was barred by the statute of limitations, we affirm.

       AFFIRMED.
