                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1217
                             Filed August 21, 2019


PABLO BENAVIDEZ,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Karen A. Romano,

Judge.



      Pablo Benavidez appeals a district court remand order with regard to his

application for postconviction relief. AFFIRMED.




      Christine E. Branstad of Branstad & Olson Law Office, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Richard J. Bennett, Assistant

Attorney General, for appellee State.



      Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.
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VAITHESWARAN, Presiding Judge.

       This is the fifth appeal relating to the first-degree murder conviction of Pablo

Benavidez, which resulted in a sentence of life in prison without parole. See

Benavidez v. State, No. 17-1079, 2018 WL 1182625, at *2 (Iowa Ct. App. Mar. 7,

2018); Benavidez v. State, No. 13-0109, 2014 WL 468021, at *2 (Iowa Ct. App.

Feb. 5, 2014); Benavidez v. State, No. 08-2039, 2010 WL 1875710, at *2 (Iowa Ct.

App. May 12, 2010); State v. Benavidez, No. 04-1782, 2005 WL 3478094, at *2

(Iowa Ct. App. Dec. 21, 2005). In the 2018 appeal, Benavidez challenged a penalty

imposed following the district court’s finding that his third postconviction-relief

application was frivolous. See Benavidez, 2018 WL 1182625, at *1. Specifically,

he argued that the district court impermissibly deducted fifty percent of the average

balance in his inmate account without first determining whether he had earned time

credits to deduct. See id. This court agreed with his argument. Id. at *1–2. We

remanded the case “for a determination as to the appropriate sanction.”

       On remand, the district court found that, when the district court entered its

original sanction order, Benavidez “had 5748.40 days of earned time.” The court

deducted 5000 days of those earned time credits.

       In this appeal from the remand order, the only issue is whether the district

court abused its discretion in deducting 5000 days of Benavidez’s earned time

credits as a penalty for filing a frivolous action. See Maghee v. Iowa Dist. Ct., 712

N.W.2d 687, 695 (Iowa 2006) (setting forth standard of review). Benavidez argues

the district court “only consider[ed] the position and information provided by [the

State], which is itself an abuse of discretion.”
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        Our statute on civil litigation by inmates and prisoners requires the

imposition of penalties on a finding that an action is frivolous. See Iowa Code

§§ 610A.2(1)(b) (authorizing dismissal of an action on a finding that “[t]he action .

. . is frivolous”); 610A.3(1) (stating the inmate “shall be subject to” the enumerated

penalties if an action is dismissed pursuant to section 610A.2) (2018).                       The

provision authorizes “[t]he loss of some or all of the earned time credits acquired

by the inmate or prisoner.” Id. § 610A.3(1)(a).

        At the remand hearing, the prosecutor recommended a deduction of “all”

the credits because, in her view, it was “not much [of] a sanction to begin with, for

someone who is serving a life sentence without the possibility of parole.” Contrary

to the State’s recommendation, the district court deducted “some” of Benavidez’s

accrued earned time credits, albeit a large “sum.”1                  The court exercised its

discretion, and we discern no abuse of discretion.

        We affirm the district court’s deduction of 5000 days of earned time credits

as a penalty for Benavidez’s frivolous filing.

        AFFIRMED.




1  In his reply brief, Benavidez attempts to re-litigate the district court’s original finding that
the third postconviction-relief application was frivolous. We do not consider the issue
because (1) his argument is an impermissible collateral attack on a final decision, see
Heishman v. Heishman, 367 N.W.2d 308, 309 (Iowa Ct. App. 1985) (“It is well-established
that a decree or judgment generally cannot be attacked collaterally”); (2) his trial attorney
informed the district court that he did “not dispute that the post-conviction relief action he
filed was frivolous”; and (3) we do not consider issues raised for the first time in a reply
brief, see Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992).
