                    IN THE COURT OF APPEALS OF IOWA

                                      No. 18-0777
                                  Filed June 5, 2019


STATE OF IOWA,
     Plaintiff-Appellee,

vs.

LEIGH LAZ LEPON,
     Defendant-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Story County, Timothy J. Finn,

Judge.



       The defendant appeals the dismissal of his untimely third motion for new

trial; we treat it as a petition for writ of certiorari. WRIT ANNULED.



       Leigh Laz LePon, Fort Madison, pro se appellant.

       Thomas J. Miller, Attorney General, and Benjamin Parrott, Assistant

Attorney General, for appellee.



       Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                            2


BLANE, Senior Judge.

       Leigh LePon appeals the district court dismissal of his third motion for new

trial, filed more than two years after judgment and sentence were imposed on his

conviction for second-degree murder. In this appeal, LePon raises a number of

claims as to why the district court erred in dismissing his motion, mostly procedural

complaints, and why we should exercise jurisdiction in this appeal. For the reasons

discussed below, we treat LePon’s notice of appeal as a petition for writ of

certiorari, grant the petition, address the issues raised under the appropriate legal

standards, find the trial court did not act illegally, and annul the writ.

I. Factual and procedural background.

       The State charged LePon with first-degree murder for shooting Devlin

Lockman. LePon pleaded not guilty. On November 17, 2015, a jury found LePon

guilty of second-degree murder. LePon filed a motion for judgment of acquittal

and his first motion for new trial, which were denied. On January 4, 2016, the

district court entered judgment and sentenced LePon.

       On January 14, 2016, LePon appealed his conviction, raising eight issues

through counsel as well as pro se. Our court affirmed his conviction. See State v.

LePon, No. 16-0117, 2017 WL 4049829, at *1 (Iowa Ct. App. Sept. 13, 2017).

LePon then filed an application for further review with the Iowa Supreme Court.

On November 20, 2017, while his application for further review was pending,

LePon pro se filed a second motion for new trial in the district court. The motion

cited Iowa Rule of Civil Procedure 2.24 and referenced newly-discovered

evidence.
                                           3


         On November 21, the district court entered an order that it could not rule on

this second motion for new trial because it lacked jurisdiction over the case as the

application for further review was pending and jurisdiction was with the appellate

court. On December 4, LePon filed a motion to reconsider or enlarge the order

denying his second motion for new trial. On that same date, the district court

entered an order denying this motion for the same reason it had denied the motion

for new trial.

         On December 11, LePon then petitioned the Iowa Supreme Court for

certiorari review of the district court’s denial of his second motion for new trial. On

January 5, 2018, by order of one justice, LePon’s petition for certiorari was denied.

On January 16, LePon requested review of his certiorari petition by a three-justice

panel.

         On January 17, the Iowa Supreme Court declined further review of the Iowa

Court of Appeals’ opinion affirming LePon’s conviction.          Procedendo issued

January 17, 2018.

         On January 26, a three-justice panel confirmed the denial of LePon’s

certiorari petition as to his second motion for new trial.

         On February 9, LePon pro se filed a third motion for new trial, again citing

Iowa Rule of Criminal Procedure 2.24 and mentioning newly-discovered evidence.

Since the earlier appealed issues had all been resolved, the district court had

resumed jurisdiction and set the motion for a hearing on February 26, 2018. LePon

filed two motions for transport (the first through a “next friend”), each requesting

an order to transport LePon from prison so he could personally appear at the

hearing. The district court denied the first motion as the “next friend” lacked
                                          4


standing and implicitly denied the second motion by holding the hearing with

LePon participating by telephone. The State did not file a written resistance to the

motion for new trial but orally resisted at the hearing.

       During the hearing, LePon asserted a constitutional right to be personally

present, made an oral motion for the judge to recuse himself, and asked for an ex

parte hearing in support of his motion for appointment of an investigator. LePon

reasserted these oral requests in his post-hearing brief. He did not disclose the

nature of his claimed new evidence.

       On March 16, the district court filed a written order that dismissed LePon’s

third motion for new trial as untimely having been filed more than two years after

“final judgment of sentence” and no good cause existing to ignore the deadline.

The court also denied LePon’s motion to recuse.

       On March 28, LePon filed a motion to reconsider or enlarge. LePon moved

the court to address his right to be present at the hearing, to decide whether he

had notice and an opportunity to be heard on the issue of the timeliness of the

motion for new trial, to find good cause existed to excuse the two-year deadline,

and again for the judge to recuse himself. By order on April 23, the district court

denied the motion to reconsider or enlarge.

       On May 3, LePon filed his pro se notice of appeal from the denial of his third

motion for new trial. The supreme court transferred the appeal to our court, which

is now before us.

II. Discussion.

       LePon raises nine appeal issues in appellant’s brief. The State initially

contends that we lack jurisdiction of this appeal because LePon is not entitled to
                                           5


appeal from denial or dismissal of an untimely post-sentencing motion for new trial.

It is an appellate court’s “duty to dismiss or refuse to consider an appeal which the

court has no jurisdiction to entertain.” State v. Coughlin, 200 N.W.2d 525, 526

(Iowa 1972). We must address this issue first. Hedlund v. State, 875 N.W.2d 720,

724 (Iowa 2016) (“We consider challenges to our jurisdiction before other issues

in a case.”).

III. Appellate jurisdiction.

       The State argues that we are without jurisdiction to hear the appeal because

LePon does not have a right of appeal from the dismissal of the untimely-filed post-

judgment motion for new trial.       “[T]he right of appeal is not an inherent or

constitutional right; it is a purely statutory right that may be granted or denied by

the legislature as it determines.” James v. State, 479 N.W.2d 287, 290 (Iowa

1991); see also Wissenberg v. Bradley, 229 N.W. 205, 209 (Iowa 1929) (“At

common law, the right of appeal was unknown. It is purely a creature of statute.”).

“Unless the statute makes provision therefor, expressly or by plain implication,

there is no right of appeal.” Boomhower v. Cerro Gordo Cty. Bd. of Adjustment,

163 N.W.2d 75, 76 (Iowa 1968); State v. Olsen, 162 N.W. 781, 782 (Iowa 1917)

(“The right of appeal is purely statutory.”).

       In a criminal case, appeal as a matter of right only arises from a “final

judgment of sentence.” Iowa Code § 814.6(1)(a) (2018). Our supreme court has

discussed what constitutes a final judgment of sentence.

       Pertinent to this case, a criminal defendant has the “right of appeal”
       from “[a] final judgment of sentence.” [Iowa Code § 814.6.] A
       previous version of the statute provided that “[a]n appeal can only be
       taken from the final judgment, and within sixty days thereafter.” Iowa
       Code § 793.2 (1954). The statute was thereafter amended to include
                                              6

       the clarifying language “judgment of sentence.” Iowa Code § 814.6
       (1983) (emphasis added). This language continues today. See Iowa
       Code § 814.6(1)(a) (2017).
              This is consistent with the general rule that the “[f]inal
       judgment in a criminal case means sentence.” “In criminal cases, as
       well as civil, the judgment is final for the purpose of appeal ‘when it
       terminates the litigation between the parties on the merits’ and
       ‘leaves nothing to be done but to enforce by execution what has been
       determined.’” In contrast, “decisions, opinions, findings, or verdicts
       do not constitute a judgment or decree.”

State v. Propps, 897 N.W.2d 91, 96 (Iowa 2017) (first and third alterations in

original) (citations omitted from second paragraph). Final judgment in this case

occurred when the district court sentenced LePon on January 4, 2016. This is

evidenced by LePon’s direct appeal at that time and our court’s affirmance of his

conviction. Based upon Propps, the order denying LePon’s third motion for new

trial is not a “final judgment of sentence.”

       The rules of appellate procedure also do not support a right to appeal here.

In Coughlin, the Iowa Supreme Court interpreted 1971’s Iowa Rule of Civil

Procedure 331, which is materially identical to Iowa Rule of Appellate Procedure

6.103. 200 N.W.2d at 526. Despite the broad language of the rule, the Coughlin

court held there was no appeal as a matter of right from an order granting a new

trial in a criminal case. See id. at 526–27. Coughlin remains controlling because

the rules are virtually identical.1




1
  Compare Iowa R. Civ. P. 331 (1971) (“[A]ny order granting a new trial . . . and any order
denying a new trial shall be deemed a final decision.”), with Iowa R. App. P. 6.103(1) (“An
order granting or denying a new trial is a final order.”). However, the scope of Iowa Rule
of Appellate Procedure 6.103 is limited by the text of the rule: “All final orders and
judgments of the district court involving the merits or materially affecting the final decision
may be appealed to the supreme court, except as provided in this rule, rule 6.105, and
Iowa Code sections 814.5 and 814.6.” Iowa R. App. P. 6.103(1) (emphasis added).
                                            7


       LePon anticipates this appellate jurisdiction issue.2 In his appeal brief, he

argues that Iowa Code section 814.6 is unconstitutional as it violates his right to

equal protection provided in article I, section 6 of the Iowa Constitution and the

Fourteenth Amendment to the United States Constitution. He contends that the

State being permitted to appeal the grant of a defendant’s motion for new trial,3

while a defendant is denied the right to appeal a denial of such a motion violates

equal protection.4 As our above analysis shows, this is only true regarding a

defendant’s post-sentencing motion for new trial, since a defendant may appeal a

pre-sentencing denial of a motion for new trial within the appeal of his conviction.

See Iowa Code § 814.6(1)(a).

       The constitutionality of a statute is reviewed de novo. State v. Mitchell, 757

N.W.2d 431, 434 (Iowa 2008). “Statutes are presumed to be constitutional, and a

challenger must prove unconstitutionality beyond a reasonable doubt.” Id. (citation

omitted). “The challenger must refute every reasonable basis upon which the

statute could be found constitutional, and if the statute may be construed in more

than one way, we adopt the construction that does not violate the constitution.” Id.

(citation omitted).

       The “constitutional promise of equal protection ‘is essentially a direction that

all persons similarly situated should be treated alike.’” Varnum v. Brien, 763

N.W.2d 862, 878 (Iowa 2009) (citation omitted). “[T]he constitutional pledge of




2
  By raising this issue LePon appears to recognize a problem with his notice of appeal.
3
  Iowa Code section 814.5(1)(c) provides: “Right of appeal is granted the state from . . .
[a]n order arresting judgment or granting a new trial.”
4
  Iowa Code section 814.6(1)(a) provides: “Right of appeal is granted the defendant from
. . .[a] final judgment of sentence . . . .”
                                           8

equal protection does not prohibit laws that impose classifications.” Id. at 882.

“Instead, equal protection demands that laws treat alike all people who are

‘similarly situated with respect to the legitimate purposes of the law.’” Id. (citation

omitted).   A “threshold test” to the equal-protection analysis under the Iowa

Constitution requires a party to show “as a preliminary matter that they are similarly

situated” to the class of persons enjoying the legal benefit the party desires. Id.;

Nguyen v. State, 878 N.W.2d 744, 758 (Iowa 2016) (“The first step in our equal

protection analysis under the Iowa Constitution is to determine whether there is a

distinction made between similarly situated individuals.”).

       If the statute treats similarly situated persons differently, the court must then

determine what level of review is required—strict scrutiny, intermediate scrutiny,

or rational basis. See, e.g., Varnum, 763 N.W.2d at 880. A statute is subject to

strict-scrutiny analysis—the State must show the classification is narrowly tailored

to a compelling state interest—when it classifies individuals “in terms of their ability

to exercise a fundamental right or when it classifies or distinguishes persons by

race or national origin.” In re Det. of Williams, 628 N.W.2d 447, 452 (Iowa 2001).

Intermediate scrutiny “has been applied to statutes classifying on the basis of

gender or illegitimacy and requires the party seeking to uphold the statute to

demonstrate the challenged classification is substantially related to the

achievement of an important governmental objective.” Varnum, 763 N.W.2d at

880. All other statutory classifications are subject to rational-basis review in which

case the person challenging the statute must show the classification “bears no

rational relationship to a legitimate government interest.” Williams, 628 N.W.2d at

452. “A classification is reasonable if it is ‘based upon some apparent difference
                                         9


in situation or circumstances of the subjects placed within one class or the other

which establishes the necessity or propriety of distinction between them.’” State

v. Dudley, 766 N.W.2d 606, 615 (Iowa 2009) (citation omitted).           Under this

deferential standard, the law is valid “unless the relationship between the

classification and the purpose behind it is so weak the classification must be

viewed as arbitrary or capricious.” King v. State, 818 N.W.2d 1, 28 (Iowa 2012)

(citation omitted). “A statute is presumed constitutional and the challenging party

has the burden to ‘negat[e] every reasonable basis that might support the disparate

treatment.’” State v. Willard, 756 N.W.2d 207, 213 (Iowa 2008) (alteration in

original) (citation omitted). Since the right to appeal is purely statutory–not a

fundamental right—and the law in question does not treat different genders or

races differently, we apply rational basis review here.

       We note that this issue—which ultimately boils down to whether we have

appellate jurisdiction—was not raised before the trial court, nor could it have been.

Although the role of the court of appeals is to apply existing law—not change it—

we are not aware of any prior challenges to the constitutionality of section 814.6

or of any Iowa Supreme Court rulings on it. Thus, we will not be contradicting any

prior opinion by the supreme court. The issue has been raised, and we are

obligated to consider it.

       LePon bases his argument on a comparison of Iowa Code section 814.5,

which sets out the State’s right to appeal, with section 814.6, which sets out the

defendant’s right to appeal. He argues that the State is given the right to appeal

from the court’s granting of a defendant’s motion for new trial, while the defendant

is only given the right to appeal from “a final judgment of sentence.” LePon
                                         10


contends that he and the State must be treated equally in the right to appeal,

thereby requiring us to recognize his notice of appeal and address the issues he

raises on appeal. As we have noted, this difference in ability to appeal only arises

when the criminal defendant has filed a motion for new trial after the final judgment

of sentence.

       In support of his argument, LePon cites to Shortridge v. State, 478 N.W.2d

613 (Iowa 1991), superseded by statute as stated in James v. State, 541 N.W.2d

864, 868 (Iowa 1995). There, the supreme court relied on earlier precedent and

stated:

              It is true that the right of appeal is purely statutory, not
       constitutional, and may be granted or denied by the legislature as it
       determines. This court has held, however, that once a right of appeal
       is provided “[i]t may not be extended to some and denied to others.”
       When procedures enacted by the State serve to deny one person the
       right of appeal granted to another, equal protection of the law is
       denied.

Shortridge, 478 N.W.2d at 615 (alteration in original) (citations omitted). However,

in Shortridge, the court did not undertake a rational basis analysis where the

defendant was obligated to show the classification bore no rational relationship to

a legitimate governmental interest.

       Under the facts in this case, we find that LePon and the State are not

similarly situated. First, as noted, the two statutes under comparison allow both

the State and LePon to appeal from an adverse judgment. The difference is when

the defendant in LePon’s position files a post-sentencing motion for new trial. If

the motion is granted, a defendant is entitled to a new trial. If the State did not

have the statutory authority to appeal the grant of the new trial, the State would

then be required to muster up the witnesses and evidence and prepare and
                                                11


proceed to a retrial, and the trial court required to expend precious judicial

resources. If the motion was erroneously granted, the only way to avoid the retrial

is for the State to obtain a review by the appellate courts—by being allowed to

appeal the post-sentencing motion for new trial. If the post-sentencing motion for

new trial is denied, the defendant, who has already had a right to appeal, remains

in the same position—convicted and sentenced. Thus, the State and a defendant

in LePon’s situation are not similarly situated, and LePon fails to meet the threshold

question.       See Nguyen, 878 N.W.2d at 758 (“This requirement of equal

protection—that the law must treat all similarly situated people the same—has

generated a narrow threshold test. Under this threshold test, if [a party] cannot

show as a preliminary matter that he or she are similarly situated, courts do not

further consider whether their different treatment under a statute is permitted under

the equal protection clause.” (citation omitted)).

          Even though Iowa Code section 814.6 does not provide LePon an appeal

as a matter of right from the adverse ruling on his post-sentencing motion for new

trial, this does not end our inquiry. Iowa Code section 814.6(2)(e) provides that

“discretionary review may be available” in some cases, including “[a]n order raising

a question of law important to the judiciary and the profession.” Further, under

Iowa Rule of Appellate Procedure 6.108, we may treat LePon’s notice of appeal

as an application for discretionary review or a petition for writ of certiorari.5 See


5
    Iowa Rule of Appellate Procedure 6.108 provides:
                  If any case is initiated by a notice of appeal, an application for
         interlocutory appeal, an application for discretionary review, or a petition for
         writ of certiorari and the appellate court determines another form of review
         was the proper one, the case shall not be dismissed, but shall proceed as
         though the proper form of review had been requested. The court may treat
         the documents upon which the action was initiated as seeking the proper
                                           12

State v. Clausen-Klutse, No. 10-2128, 2011 WL 3196300, at *1 (Iowa Ct. App. July

27, 2011).

       These possible options have been discussed in two of our prior cases. In

State v. Perez-Castillo, No. 15-1400, 2017 WL 362596, at *2 (Iowa Ct. App. Jan.

25, 2017), a panel of our court determined that a defendant who had filed a notice

of appeal from denial of a post-sentencing motion for new trial where none was

authorized was without jurisdiction and dismissed the appeal. This was done after

looking at whether the notice of appeal should be treated as discretionary review

or as a petition for writ of certiorari under Iowa Rule of Appellate Procedure 6.108.

The court found that discretionary review did not apply and certiorari was not

appropriate because “Perez-Castillo [did] not allege the district court exceeded its

jurisdiction or acted illegally.” Perez-Castillo, 2017 WL 362596, at *2.

       In State v. Anderson, No. 14-1767, 2016 WL 3272143, at *3 (Iowa Ct. App.

June 15, 2016), like LePon, the defendant filed a post-sentencing rule 2.24 motion

for new trial based on new evidence more than two years after the final judgment

of sentence. A panel of this court held:

       Rather, an appeal from the denial of a post-judgment motion for new
       trial must be taken either: (1) by application for discretionary review
       under Iowa Rule of Appellate Procedure 6.106 of “[a]n order raising
       a question of law important to the judiciary and the profession” as
       permitted by Iowa Code section 814.6(2)(e), or (2) on petition for writ
       of certiorari under Iowa Rule of Appellate Procedure 6.107, as a
       claim the district court exceeded its jurisdiction or otherwise acted
       illegally.




      form of review and, in appropriate cases, may order the parties to file
      jurisdictional statements. Nothing in this rule shall operate to extend the
      time for initiating a case.
(Emphasis added.)
                                          13

Anderson, 2016 WL 3272143, at *3 (alteration in original).

       However, the facts in Anderson have one critical difference from this appeal.

In Anderson, the district court addressed the merits of the defendant’s motion for

new trial even though it was filed more than two years after sentence was entered;

the motion was not dismissed as untimely. Id. at *1. As our court noted in the

Anderson opinion, the State did not move to dismiss the motion as untimely filed

and therefore waived the issue. Id. at *2. Further, in Anderson, our court noted

that such a motion could be filed beyond the two-year deadline if there was good

cause, and the district court did not make a specific finding that there was not good

cause to do so. Id. Since the trial court proceeded to rule on the motion rather

than dismiss it as untimely, our court took this to imply that the trial court found

good cause for the motion to be filed beyond the two-year deadline. Id. Based on

this analysis, our court determined that the district court “had jurisdiction” to rule

on Anderson’s motion for new trial and to address the appeal as a petition for writ

of certiorari. Id. As we discuss later, LePon claims he had good cause for a

belated filing beyond the two years, or alternatively, that the two-year deadline is

a statute of limitation that the State had to affirmatively assert.

       The Anderson court further found that to treat the notice of appeal as an

application for discretionary review, the issues had to be important to the judiciary

and the profession. Id. at *3. The court decided the appeal did not involve an

important issue and determined that it would treat the notice of appeal as a petition

for writ of certiorari—not an application for discretionary review. Id. Our supreme

court has granted discretionary review “in criminal cases only when it involves

questions of law, either substantive or procedural, whose determination will be
                                           14

beneficial to the bench and bar as a guide in the future.” See State v. Warren, 216

N.W.2d 326, 327 (Iowa 1974) (citing examples). After discussing these same rules

and statutes, the supreme court in Propps decided to treat the notice of appeal as

a petition for writ of certiorari because it was not an important issue to either the

judiciary or the profession.     897 N.W.2d at 97; accord Anderson, 2016 WL

3272143, at *3. Based upon this authority and a review of this appeal, we do not

find the issues important to the judiciary and the profession. Allowing the notice of

appeal to be treated as discretionary review is not appropriate.

       This leaves us to determine whether we should treat LePon’s notice of

appeal as a petition for writ of certiorari. See Iowa R. App. P. 6.108. Comparing

Anderson and Propps to Perez-Castillo, we find it appropriate to exercise

jurisdiction over this matter as if LePon’s notice of appeal is a petition for writ of

certiorari. We grant the writ and proceed to consider LePon’s challenges to the

court’s dismissal of his third motion for new trial on the record.

       The primary difference in applying certiorari legal principles under this rule,

as opposed to discretionary review, is that our review is limited to whether the

judge “exceeded the judge’s jurisdiction or otherwise acted illegally.” See Iowa R.

App. P. 6.107(1)(a).

               A writ of certiorari is limited to triggering review of the acts of
       an inferior tribunal on the basis the inferior tribunal exceeded its
       jurisdiction or otherwise acted illegally. Our power to review lower
       court actions by issuing writs of certiorari is discretionary. Once this
       court exercises its discretionary power to grant certiorari, we engage
       in review of the action of the inferior tribunal and either sustain or
       annul it. No other relief may be granted.

Crowell v. State Pub. Def., 845 N.W.2d 676, 682 (Iowa 2014) (citations omitted).

LePon does not challenge the judge’s jurisdiction, so we limit our review to whether
                                         15


that court “acted illegally” in refusing LePon’s request to be personally present at

the hearing, finding the motion for new trial untimely and dismissing it, and denying

the motion for recusal.

IV. Whether LePon had a constitutional right to be personally present at the
hearing.

       LePon claims he had a constitutional right to be personally present at the

hearing on his motion for new trial. Although LePon’s motions to be transported

to the courthouse for the hearing were not granted, he participated in the hearing

on the motion for new trial by telephone. Review of the constitutional right to be

present is de novo. State v. Hendren, 311 N.W.2d 61, 62 (Iowa 1981).

       A defendant has a right to be present at all critical stages of a criminal

proceeding “where his absence might frustrate the fairness of the proceeding.”

Tennessee v. Lane, 541 U.S. 509, 523 (2004) (citation omitted). A post-sentencing

hearing may be a critical stage of the criminal proceedings. See State v. Alspach,

554 N.W.2d 882, 884 (Iowa 1996) (determining restitution hearing after sentencing

at which the State has compiled statement of pecuniary damages under Iowa Code

section 910.3 was critical stage). A relevant consideration for whether a stage is

“critical” is whether the defendant may lose certain rights if they are not exercised

at that stage. Mempa v. Rhay, 389 U.S. 128, 135 (1967).

       Further, a critical “stage of the trial” includes “all pretrial and post-trial

proceedings when fact issues are presented or when their dispositions, for some

other reason, will be significantly aided by the defendant’s presence.” State v.

Foster, 318 N.W.2d 176, 179 (Iowa 1982); cf. State v. Orozco, 290 N.W.2d 6, 9

(Iowa 1980) (providing that due process requires an accused to be present
                                         16


“‘whenever his presence has a relation, reasonably substantial, to the fullness of

his opportunity to’ present his defense” (citation omitted)).

       That being said, even if a defendant had a right to be present for a post-

sentencing hearing, if the State has shown beyond a reasonable doubt the error

complained of did not contribute to the decision, he or she was not prejudiced by

not being personally in front of the judge and such error was harmless. State v.

Ezell, No. 11-1530, 2012 WL 5954592, at *1–2 (Iowa Ct. App. Nov. 29, 2012)

(citing State v. Walls, 761 N.W.2d 683, 686 (Iowa 2009)).

       We find the State established beyond a reasonable doubt that LePon was

not prejudiced and it was harmless error for him not to be personally present in the

courthouse for the hearing. No witnesses were called that LePon needed to

confront or question, and no exhibits were presented that he needed to offer or

examine. The hearing consisted of argument on his motion for new trial. LePon

was allowed to participate by telephone and make his arguments, as well as make

oral motions, including recusal of the judge. LePon filed a post-hearing brief in

which he further supported and argued his motions. LePon did not need to be

personally present to confer with an attorney as he was self-represented. The

court’s rulings on the motions were based on legal reasoning—that the third motion

for new trial had been filed beyond the two-year deadline which was readily

determinable from the court record—the date of final judgment of sentence and

filing date of the post-sentencing motion for new trial. LePon’s motion to recuse

was based solely on his perception of the judge’s conduct. LePon’s participation

by telephone as opposed to being personally present did not frustrate the fairness

of the proceedings. We conclude the court did not violate LePon’s constitutional
                                           17


right to be present or act illegally when LePon was not personally present in the

courtroom for the hearing.

V. Whether LePon had a right under Iowa Rule of Criminal Procedure 2.27 to be
present at the hearing.

       Review of the rule-based right is for correction of errors at law. See State

v. Bruce, 795 N.W.2d 1, 2 (2011) (“To the extent this case turns on the question of

the proper interpretation of our rules of criminal procedure, review is for correction

of errors at law.”). LePon argues that a reading of Iowa Rule of Criminal Procedure

2.27(1) and (3) requires that he be present for the hearing on his post-judgment

motion for new trial. The State challenges such interpretation, pointing out that

rule 2.27(1) does not require a defendant’s presence at post-judgment hearings.

It reads:

              In felony cases the defendant shall be present personally or
       by interactive audiovisual closed circuit system at the initial
       appearance, arraignment and plea, unless a written arraignment
       form as provided in rule 2.8(1) is filed, and pretrial proceedings, and
       shall be personally present at every stage of the trial including the
       impaneling of the jury and the return of the verdict, and at the
       imposition of sentence, except as otherwise provided by this rule. In
       other cases the defendant may appear by counsel.

Iowa R. Crim. P. 2.27(1). We agree with the State, as there is no specific mention

in this rule that requires a criminal defendant to be present for a hearing on post-

judgment motions. LePon contends that since the exceptions for when presence

is not required are specifically set out in rule 2.27(3)6 and it does not include

hearings on post-judgment motions, his presence was required. But this would




6 Iowa Rule of Criminal Procedure 2.27(3) provides that a defendant’s presence is not
required in two situations: “A corporation may appear by counsel for all purposes” and
“The defendant’s presence is not required at a reduction of sentence under rule 2.24.”
                                           18


only be true if rule 2.27(1) required his presence. Since it does not, the exceptions

in rule 2.27(3) do not apply to LePon. In addition, the rule requiring a defendant in

a felony prosecution be present at all stages of trial must be considered together

with the rule of harmless error.     State v. Blackwell, 238 N.W.2d 131, 136 (Iowa

1976) (“The rule requiring a defendant in a prosecution for a felony to be present

at all stages of the trial must be considered together with the rule of harmless

error.”). As we have discussed above, LePon’s participation by telephone was

adequate, and any error in his not being personally present constitutes harmless

error. The trial court did not act illegally in not having LePon personally present

for the hearing.

VI. Whether the court failed to determine that LePon’s waiver of counsel was
knowing, intelligent, and voluntary.

       LePon contends that since his motion for new trial was filed in the criminal

case, and even though he filed it personally as self-represented, the trial court had

an obligation to determine that he was knowingly, intelligently, and voluntarily

waiving his right to be represented by counsel. Constitutional issues related to

right to counsel are reviewed de novo. State v. Rater, 568 N.W.2d 655, 657 (Iowa

1997). We note that LePon’s brief argues under both the Iowa Constitution (art. I,

sections 9 and 10) and the Federal Constitution (Sixth and Fourteenth

Amendments) right to counsel. We must first determine if LePon had a right to

counsel; if he did not, then his claim that the court violated that right by not properly

determining his waiver was knowing, intelligent, and voluntary has no basis.

       The Sixth Amendment to the United States Constitution guarantees that “in

all criminal prosecutions, the accused shall enjoy the right . . . to have the
                                          19


Assistance Of Counsel for his defense.” U.S. Const. amend. VI. However, the

right to court-appointed counsel under the Sixth Amendment has been limited to

apply only through the first appeal: “Our cases establish that the right to appointed

counsel extends to the first appeal of right, and no further.” Pennsylvania v. Finley,

481 U.S. 551, 555 (1987). Since LePon’s third motion for new trial was filed post-

appeal, he has no right to counsel based on the Federal Constitution. Thus, we

need only address the right to counsel on this post-judgment motion under state

constitution or statutory authority.

       The Iowa Constitution provides:

               In all criminal prosecutions, and in cases involving the life, or
       liberty of an individual the accused shall have a right to a speedy and
       public trial by an impartial jury; to be informed of the accusation
       against him, to have a copy of the same when demanded; to be
       confronted with the witnesses against him; to have compulsory
       process for his witnesses; and, to have the assistance of counsel.

Iowa Const., art. I, § 10. LePon does not argue that the Iowa Constitution’s right

to counsel should be interpreted more broadly than that afforded by the Federal

Constitution. Under those circumstances, Iowa appellate courts usually construe

the rights coextensively.    Nguyen, 878 N.W.2d at 757; see also Doerflein v.

Bennett, 145 N.W.2d 15, 18 (Iowa 1966) (noting Iowa Constitution contains

“substantially the same provisions” as Federal Constitution regarding the

constitutional right to counsel).

       The State argues that if the Iowa Constitution is interpreted and the right to

counsel is construed the same as the federal right, then LePon was not entitled to

court-appointed counsel on his third motion for new trial that was filed post-appeal.
                                          20


We also note that Iowa Rule of Criminal Procedure 2.28 assists in defining the right

to counsel in Iowa.

             Every defendant, who is an indigent person as defined in Iowa
       Code section 815.9, is entitled to have counsel appointed to
       represent the defendant at every stage of the proceedings from the
       defendant’s initial appearance before the magistrate or the court
       through appeal, including probation revocation hearings, unless the
       defendant waives such appointment.

       Our supreme court has interpreted the Iowa Constitution’s right to counsel

more broadly than the Federal Constitution.         Specifically, it has held that an

indigent defendant is entitled to court-appointed counsel post-appeal when the

issue involves restitution, but only if the restitution was imposed as part of the

criminal sentence. Alspach, 554 N.W.2d at 884. The court reasoned:

       If restitution had been finalized at the time of sentencing, he would
       have had benefit of counsel to advance these challenges. Yet the
       State is authorized by section 910.3 to compile a statement of further
       damages after sentencing. The defendant, at this later date, should
       not be denied counsel simply because the amount of pecuniary
       damages was unavailable on the day of sentencing. If the State’s
       reasoning were adopted, the mere fortuity of whether restitution
       figures were available at sentencing would determine an indigent
       defendant’s right to appointed counsel on restitution issues.
                We do not mean to suggest by this opinion that a defendant
       is entitled under all circumstances to court-appointed counsel when
       challenging restitution orders. Our ruling is limited to challenges to
       restitution imposed as part of the original sentencing order, or
       supplemental orders, under Iowa Code section 910.3. When,
       pursuant to Iowa Code section 910.7, a later action is initiated to
       modify the plan or extend its completion date, the suit is civil in nature
       and not part of the criminal proceedings. The offender would
       ordinarily have no right to appointed counsel under such
       circumstances.

Id. The supreme court further refined its position as to what it meant in Alspach in

State v. Blank, stating, “Our decision was strictly limited, however, to challenges

aimed at the original sentence, and supplements thereto; later modifications to the
                                              21


restitution plan, sought by offenders or corrections officials, are governed by the

civil remedies afforded under section 910.7.” 570 N.W.2d 924, 926 (Iowa 1997).

       The situation described in Alspach and Blank is similar to what is present

here. LePon’s current motion is an attack on his conviction and sentence. Under

rule 2.24(2)(b)(8), LePon could file a motion for new trial in his criminal case based

upon newly-discovered evidence up to two-years after he was sentenced.7

Criminal defendants do not always control when newly-discovered evidence

comes to their knowledge. The rule—as well as the post-conviction-relief statute—

recognizes that such evidence may be discovered after sentencing. See Iowa

Code chapter 822. If the motion for new trial is filed in the criminal proceedings, a

logical extension of the reasoning in Alspach would dictate that LePon was entitled

to court-appointed counsel, since the motion is a direct attack on the validity of his

conviction. In addition, the rule further provides that the defendant can avoid the

two-year limitation: “but such motion may be considered thereafter upon a showing

of good cause.” Iowa R. Crim. P. 2.24(2)(b)(8.)                It makes sense that court-

appointed counsel may not only assist with the motion but also with the showing

of good cause for filing beyond the two-year deadline.


7 The legislature has extended to criminal defendants two separate opportunities to attack
a conviction based upon new evidence—Iowa Rule of Criminal Procedure 2.24(2)(b)(8)
and Iowa Code section 822.2—the former within the criminal case and the latter under
civil postconviction relief. However, even if filed under chapter 822, the applicant is entitled
to court-appointed counsel. See Iowa Code § 822.5 (“Unless the applicant is confined in
a state institution and is seeking relief under section 822.2, subsection 1, paragraphs ‘e’
and ‘f’, the costs and expenses of legal representation shall also be made available to the
applicant in the preparation of the application, in the trial court, and on review if the
applicant is unable to pay. However, nothing in this section shall be interpreted to require
payment of expenses of legal representation, including stenographic, printing, or other
legal services or consultation, when the applicant is self-represented or is utilizing the
services of an inmate.”).
                                           22


       Based on the foregoing, we assume without deciding LePon had a right to

counsel and return to LePon’s waiver issue. LePon argues the court failed to follow

established case precedent to determine that he knowingly, intelligently, and

voluntarily waived his right to counsel.

       Unlike the Sixth Amendment right to counsel, which is in effect until
       waived, the right of self-representation is not effective until asserted.
       The Eighth Circuit Court of Appeals has held that “to invoke his or
       her right to represent himself or herself, a defendant must knowingly,
       intelligently, voluntarily, and unequivocally waive his right to counsel
       and state his intentions to represent himself.”

State v. Rater, 568 N.W.2d 655, 658 (Iowa 1997) (citations omitted). We observe

that LePon does not claim on appeal that his waiver was not knowing, intelligent

and voluntary—only that the court failed to conduct the colloquy on the record to

establish such. We conduct a de novo review to determine this claim. Id. at 657.

       “The Sixth Amendment does not provide merely that a defense shall be

made for the accused; it grants to the accused personally the right to make his

defense.” Faretta v. California, 422 U.S. 806, 819 (1975). Although most criminal

defendants would fare better with counsel, the defendant will suffer the

consequences of a conviction—making the right a personal one.              Id. at 820.

Because a defendant choosing to represent himself relinquishes the benefits

associated with the assistance of counsel, he or she must “knowingly and

intelligently” waive that right. Id. at 835. To ensure a waiver of counsel is knowing,

intelligent, and voluntary, the district court “must investigate [the request to

proceed self-represented] as long and as thoroughly as the circumstances of the

case before [it] demand.” State v. Cooley, 608 N.W.2d 9, 15 (Iowa 2000) (citation

omitted). “The degree of inquiry necessary to assure a valid waiver varies with the
                                             23


nature of the offense and the ability of the accused to understand the process.”

State v. Stephenson, 608 N.W.2d 778, 782 (Iowa 2000); see also State v.

Hindman, 441 N.W.2d 770, 772 (Iowa 1989) (allowing that a limited inquiry may

be sufficient depending on the circumstances).

       The United States Supreme Court has taken a “pragmatic approach” to the

waiver-of-counsel question and to evaluating “the type of warnings and procedures

that should be required before a waiver of that right will be recognized.” Patterson

v. Illinois, 487 U.S. 285, 298 (1988). The inquiry is not designed to test the

competency or skill of a defendant in effectively representing himself; rather, it is

a safeguard to ensure that the defendant seeking to represent himself “knows what

he is doing and his choice is made with eyes open.” Adams v. U.S. ex rel. McCann,

317 U.S. 269, 279 (1942). Substantial compliance is sufficient. See State v.

Milton, No. 04-0753, 2005 WL 1630040, at *5–6 (Iowa Ct. App. July 13, 2005).

       The State argues that upon a review of the entire record, under the facts of

this case, LePon made a knowing, intelligent, and voluntary waiver. Our review

discloses the following. First, in his motion for new trial, LePon stated: “Mr. LePon

elects to proceed pro se in regard to the instant motion, however, the defendant

asks the court to appoint standby counsel. The Defendant does not relinquish his

right to proceed pro se, and asserts that the appointment of counsel shall only be

in the form of standby.”8        LePon’s request to proceed self-represented was

unequivocal.




8 We note that appointment of standby counsel is discretionary with the court. “Although
‘[p]articipation by counsel with a pro se defendant’s approval is . . . constitutionally
unobjectionable,’ the trial court is not constitutionally required to appoint standby counsel.”
                                         24


       In his criminal case, before trial, LePon filed a motion to proceed pro se. On

November 14, 2014, the court held a lengthy hearing during which the trial judge

conducted an exchange with LePon on the record that followed the colloquy

suggested by our supreme court to establish a knowing and voluntary waiver of

counsel. See State v. Martin, 608 N.W.2d 445, 450 (Iowa 2000) (suggesting courts

use a colloquy found in the federal judges’ bench book to make sure the waiver is

knowing, intelligent, and voluntary). At the conclusion of that hearing, the court

found LePon had the capacity to knowingly, intelligently, and voluntarily waive

counsel and allowed him to proceed self-represented, while also appointing

standby counsel. LePon self-represented for the next two and one-half months,

until shortly before trial, when he again requested appointed counsel.

       After his conviction, on appeal, even though represented by court-appointed

counsel, LePon filed an extensive pro se supplemental brief. He also personally

filed the second motion for new trial and, after its dismissal, filed the petition for

writ of certiorari with the supreme court. He also filed the motion to have the single

justice order denying his writ reviewed by a three-justice panel. LePon personally

filed this third motion for new trial, participated in the hearing, and pursued this

appeal without the assistance of counsel. During all of these proceedings, at no

time does the record reflect LePon challenged any court action by complaining that




State v. Johnson, 756 N.W.2d 682, 687 (Iowa 2008) (alteration in original) (quoting
McKaskle v. Wiggins, 465 U.S. 168, 182–83 (1984)).
                                          25


the courts failed to make a record to assure that his self-representation was

knowing, intelligent, and voluntary.9

       The advanced stage of these proceedings and the limited nature of the third

motion for new trial and hearing suggest a limited duty on the court to determine

the voluntariness of LePon’s waiver. The court knew LePon understood the nature

of the proceedings—he initiated them. LePon argued for a right to be physically

present at the hearing and buttressed his argument with the fact that he was acting

as his own attorney. Most important, earlier in this criminal case, the trial court

had engaged LePon in the required colloquy and determined his waiver of counsel

was knowing, intelligent, and voluntary. Under these facts, we find that another

such exchange with LePon was unnecessary. The trial court had earlier complied

with the requirement of determining LePon’s waiver was knowing and voluntary

and that process did not need to be repeated again with respect to self-

representation on his third motion for new trial. The court did not act illegally in not

engaging LePon to determine at this late stage of the criminal case that his self-

representation was knowing and voluntary.

VII. Whether the court in this appeal is again required to address LePon’s second
motion for new trial.

       In a convoluted argument in his appeal brief, LePon argues that his second

motion for new trial should be addressed on this appeal and that he is entitled to

remand. This is an obvious attempt to resurrect the second motion in order to



9
  We note that the cases dealing with waiver of counsel are at the trial court level. We
discern no case that requires a similar colloquy with a self-represented litigant at the
appellate level. Most of the questions proposed for the on-the-record colloquy with a
defendant to determine a voluntary waiver of counsel concern knowledge of the rules and
procedures related to a jury trial.
                                            26


avoid the two-year deadline in Iowa Rule of Criminal Procedure 2.24(2)(b)(8), to

which his third motion for new trial succumbed. We do not accept LePon’s request

for a number of reasons.

       First, the matter before us is on a writ of certiorari, which limits us to

reviewing whether the trial court acted illegally in dismissing LePon’s third motion

for new trial. See Iowa R. App. P. 6.107(1)(a). Second, LePon did not preserve

the issue for consideration here. See Meier v. Senecaut, 641 N.W.2d 532, 537

(Iowa 2002). Finally, the supreme court, both by a single justice and confirmed by

a three-justice panel, denied LePon’s petition for writ of certiorari from the trial

court’s dismissal of his second motion due to lack of jurisdiction since LePon’s

direct appeal of his conviction and sentence was pending. See State v. Mallett,

677 N.W.2d 775, 777 (Iowa 2004).10 The supreme court’s denial of the petition for

writ of certiorari procedurally ended the second motion for new trial. We are neither

at liberty to review the earlier disposition of LePon’s second motion for new trial,

see Hunter v. City of Des Moines, 300 N.W.2d 121, 123 (Iowa 1981) (providing the

principles of res judicata), nor allowed to review an order by our supreme court.

VIII. Whether the two-year time limit to file a motion for new trial contained in Iowa
Rule of Criminal Procedure 2.24(2)(b)(8) is a statute of limitations that had to be
raised as an affirmative defense.

       LePon contends that the two-year time limit to file a motion for new trial

contained in Iowa Rule of Criminal Procedure 2.24(2)(b)(8) is a statute of

limitations that had to be raised as an affirmative defense. If it is a statute of




10LePon claims that Mallett was incorrectly decided. Our court is not at liberty to reverse
opinions of the supreme court. State v. Beck, 854 N.W.2d 56, 64 (Iowa Ct. App. 2014).
                                           27


limitations, as LePon claims, then the fact that the motion for new trial is filed

beyond the two years does not automatically result in a lack of jurisdiction in the

trial court and require dismissal on that basis. Rather, LePon contends the State

had to assert the statute of limitation as an affirmative defense and since it failed

to do so, the defense was waived.

       Under supreme court precedent, however, the two-year period set out in the

rule is not a statute of limitation. See State v. Olsen, 794 N.W.2d 285, 287 (Iowa

2011). As explained in Olsen, the reason this is so is because final judgment has

already been entered and the rule provides a deadline for filing the post-judgment

motion:

       As discussed below, however, our cases maintain that, absent a
       valid post-judgment motion, a district court loses jurisdiction over a
       matter once a final judgment is rendered.
              ....
              . . . Thus, absent a rule or motion retaining jurisdiction in the
       court following a final order, “[a] final judgment puts it beyond the
       power of the trial court to return the parties to their original positions.”

794 N.W.2d at 287–88 (alteration in original) (emphasis added) (citations omitted).

Thus, as Olsen holds, if the post-judgment motion is not timely filed, the court loses

jurisdiction since final judgment had previously been entered. State v. Mandicino,

509 N.W.2d 481, 482 (Iowa 1993) (“Want of subject matter jurisdiction can be

raised at any time. . . . [S]ubject matter jurisdiction is a statutory matter and cannot

be waived by consent, waiver, or estoppel.” (citation omitted)). LePon did not

timely file the current post-judgment motion for new trial,11 and the court found that

LePon presented no basis for a filing beyond the two-year period, therefore the


11
   LePon’s judgment of sentence was entered on January 4, 2016, and he did not file his
third motion for new trial until February 9, 2018, more than two years later.
                                             28


court did not have jurisdiction to act upon the motion. The trial court did not act

illegally in entering the dismissal order.

IX. Whether the district court committed reversible error in sua sponte raising and
ruling upon timeliness and good cause.

       LePon claims his due process rights were violated by the trial court when it

entered a ruling dismissing his motion without first giving notice that jurisdiction

would be addressed by the court. Review of issues implicating a constitutional

right is de novo. State v. Smith, 546 N.W.2d 916, 920 (Iowa 1996).

       LePon’s argument in this division is an extension of his argument in the

previous division—that the two-year filing requirement from judgment of sentence

is a statute of limitation. But as noted above, our supreme court held in Olsen that

failure to timely file a post-judgment motion is jurisdictional. 794 N.W.2d at 287–

88. Our case law further holds that the courts may address jurisdiction issues at

any time. Mandicino, 509 N.W.2d at 482. We find that the trial court did not violate

LePon’s right to due process in sua sponte addressing the jurisdiction of the court

and dismissing LePon’s motion and, thus, did not act illegally.

X. Whether the district court violated LePon’s due process rights regarding fair
notice and an opportunity to be heard.

       LePon contends that before dismissing his motion for new trial based on his

failure to file it within the rule-prescribed two-year period, the court was obligated

under due process to give him notice of this issue and an opportunity to be heard.

As LePon claims a due process violation, our review is de novo. Smith, 546

N.W.2d at 920.

       LePon relies on the due process provisions in article I, section 9 of the Iowa

Constitution and the Fifth and Fourteen Amendments to the United States
                                          29


Constitution. We again note that the premise of LePon’s argument relates back to

his arguments in previous divisions of his brief—that the two-year period for filing

the motion for new trial is a statute of limitation that had to be raised by the State

as an affirmative defense or waived. We have already addressed this argument

and based upon supreme court precedent in Olsen decided it adversely to LePon.

       Upon review of LePon’s motion for new trial, in the first paragraph he cites

rule 2.24(2)(b)(8), which contains the two-year deadline for filing the motion or the

good-cause exception.       LePon was familiar with this rule and the two-year

deadline, and by simple calculation from dates readily known to him, he knew or

should have known the motion was being filed late. When he dated his signature

on February 7, 2018, the motion was already past the deadline. A review of the

transcript for the hearing on the motion held on February 26, 2018, reveals that

LePon did not present any argument or facts to excuse the late filing.

       Following the court’s order dismissing LePon’s third motion for new trial,

LePon filed a motion to enlarge. In the motion, LePon raised the procedural history

of his criminal case— particularly his second motion for new trial, its denial, and

the petition for writ of certiorari with the supreme court, which was denied—as

creating a procedural gauntlet that constituted good cause for filing the current

motion beyond the two years. He also argues a relation-back doctrine, which we

discuss below, between his second and third motions for new trial to get around

the two-year deadline.

       As expressed in the rule, the burden was upon LePon to show good cause

for the late filing of his third motion for new trial. Upon our review of the record, we

do not find LePon had good cause for the late filing. The arguments LePon raised
                                          30


in his motion to enlarge do not constitute good cause for not filing within the two-

years provided in the rule. The court may sua sponte consider jurisdiction, and

LePon, after receiving the court ruling, failed to establish good cause. In our review

of this issue on appeal, we conclude LePon was afforded his constitutional rights

of notice and hearing. The district court did not act illegally in this regard.

XI. Whether the relation-back doctrine or principles related to Iowa’s saving statute
should apply in this case.

       LePon contends that the court’s failure to apply either a savings statute or

relation-back rule to his last-filed motion for new trial was a violation of his Iowa

and federal substantive and procedural due process rights. Iowa Const, art. I §§ 6,

9; U.S. Const. amends. V, XIV. Since LePon frames this as a due process claim,

our review is de novo. Smith, 546 N.W.2d at 920.

       LePon again appears to recognize that his third motion for new trial was

untimely and tries to save it by asserting a novel argument—that savings statutes

and relation-back rules of procedure that apply only to pleadings should be applied

to his motion. LePon concedes in his appeal brief: “There are several variations

of the savings statute in the Iowa Code, and though no individual saving statute is

exactly on point here, there is no reason why the rationale behind the principle of

the statutes could not apply.”12 Iowa Code section 614.10 provides:

              If, after the commencement of an action, the plaintiff, for any
       cause except negligence in its prosecution, fails therein, and a new
       one is brought within six months thereafter, the second shall, for the
       purposes herein contemplated, be held a continuation of the first.




12
  Although LePon states there are “several variations of the savings statute in the Iowa
Code,” he only points us to section 614.10. He also cites us to Furnald v. Hughes, 804
N.W.2d 273 (Iowa 2011), but that case also only discusses section 614.10.
                                          31


The statute specifically limits its application to the “commencement of an action.”

Iowa Code § 614.10.

       The relation-back doctrine is found in Iowa Rule of Civil Procedure 1.402.

The title of the rule is “General rules of pleading.” Subsection 5, which contains

the relation-back doctrine is entitled “Making and construing amendments.” It, too,

limits its application to pleadings when it states the pleading “relates back to the

date of the original pleading.” Iowa R. Civ. P. 1.402(5) (emphasis added). It also

provides, “An amendment changing the party against whom a claim is asserted

relates back . . . and . . . the party to be brought in by amendment. . . .” Id.

(emphasis added). Our supreme court has held that the relation-back doctrine

governs only pleadings. Estate of Kuhns v. Marco, 620 N.W.2d 488, 491 (Iowa

2000). Motions are not pleadings. Stanton v. City of Des Moines, 420 N.W.2d

480, 482 (Iowa 1988). Iowa Rule of Civil Procedure 1.401 defines pleadings and

does not include motions for new trial.

       LePon’s motion was not entitled to the application of either the savings

statute in Iowa Code section 614.10 or the relation-back doctrine in Iowa Rule of

Civil Procedure 1.402(5). Therefore, there was no due process violation under

either the Iowa or Federal Constitution in not applying either to LePon’s motion.

The district court did not act illegally in ruling on and dismissing LePon’s third

motion for new trial.

XII. Whether the district court acted illegally in failing to grant LePon’s motion to
recuse.

       LePon made an oral motion during the hearing on his motion for new trial

for the judge to recuse himself. LePon further argued the recusal motion in his
                                          32


post-hearing brief. When the court entered its ruling denying the recusal motion,

as well as dismissing the motion for new trial, LePon again raised the recusal issue

in his motion to enlarge the court’s ruling. Review of denial of a motion to recuse

is for abuse of discretion. State v. Milsap, 704 N.W.2d 426, 432 (Iowa 2005). The

court abuses its discretion when its decision is based on untenable grounds or it

has acted unreasonably. Id. “A ground or reason is untenable when it is not

supported by substantial evidence or when it is based on an erroneous application

of the law.” Id. (citation omitted). Our review on certiorari is whether the trial court

acted illegally in denying the recusal motion. Iowa R. App. P. 6.107.

       LePon claims that the court failed to comply with Rule 51:2.2 of the Iowa

Code of Judicial Conduct entitled “Impartiality and fairness,” which states: “A judge

shall uphold and apply the law, and shall perform all duties of judicial office fairly

and impartially.” LePon criticizes the judge’s “minimalist” approach in his rulings.

He also complains that his motion for new trial was set for hearing by another judge

and then Judge Finn presided over the hearing. He argues that the judge that set

the hearing had the responsibility to hold the hearing, and that because Judge Finn

presided over that hearing, LePon believes he had some special bias against him.

He also argues that the hearing must have been assigned to Judge Finn through

an ex parte communication, which LePon contends violates Iowa Code of Judicial

Conduct rule 51.2.9 against ex parte communications.            LePon lacks a basic

understanding of how the judicial system and case assignments operate. We find

no violation of judicial conduct in this regard.

       We have reviewed the record, particularly the transcript of the hearing held

on February 26, 2018, when LePon made his oral motion for recusal.                 It is
                                          33


interesting to note that during the hearing, Judge Finn comments that he does not

believe he has previously met LePon. LePon confirms this and states: “I’m only

basing [the motion to recuse] as far as what has been the state of proceedings

thus far.” It is obvious from LePon’s statement that he made the recusal motion

solely on Judge Finn’s participation in his official judicial capacity in the case.

       As to a judge’s recusal, “[t]he test is whether a reasonable person would

question the judge’s impartiality.” McKinley v. Iowa Dist. Ct., 542 N.W.2d 822, 827

(Iowa 1996). We note that in the order denying LePon’s oral recusal motion, the

court cites the supreme court case of Milsap, which succinctly summarizes the law

regarding judicial recusal:

       Accordingly, Iowa’s Code of Judicial Conduct provides that “[a] judge
       should disqualify himself or herself in a proceeding in which the
       judge’s impartiality might reasonably be questioned.” This test for
       disqualification is an objective one. The burden of showing grounds
       for recusal is on the party seeking recusal.
              . . . Only personal bias or prejudice stemming from an
       extrajudicial source constitutes a disqualifying factor. Judicial
       predilection or an attitude of mind resulting from the facts learned by
       the judge from the judge’s participation in the case is not a
       disqualifying factor. In addition, “actual prejudice must be shown
       before a recusal is necessary.”

704 N.W.2d at 432 (citations omitted).

       Based upon our review, we find Judge Finn did not have a personal bias or

prejudice stemming from an extrajudicial source. His only dealings with LePon

were within the judicial context. LePon concedes this. The burden was on LePon

to establish an actual prejudice of the judge, and he did not do so. Thus, the district

court did not abuse its discretion in denying LePon’s motion for recusal and did not

act illegally in so ruling.
                                           34


XIII. Conclusion.

       Having given due consideration to each issue raised by LePon on the

certiorari review, we find the trial court did not act illegally and annul the writ.

       WRIT ANNULED.
