                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0292
                           Filed September 27, 2017


RAYMOND E. THOMAS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Michael D. Huppert,

Judge.



      Raymond Thomas appeals from the summary dismissal of his second

application for postconviction relief. AFFIRMED.




      Jessica Maffitt of Benzoni Law Office, P.L.C., Des Moines, for appellant.

      Raymond E. Thomas, Fort Madison, pro se.

      Thomas J. Miller, Attorney General, and Thomas J. Ogden, Assistant

Attorney General, for appellee State.




      Considered by Vaitheswaran, P.J., Doyle, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
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MAHAN, Senior Judge.

       Raymond Thomas appeals from the summary dismissal of his second

application for postconviction relief (PCR).

       We generally review PCR proceedings for correction of errors at

law. Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016). However, when an

applicant raises constitutional claims, such as claims of ineffective assistance of

counsel, we apply a de novo review. See id.; Bonilla v. State, 791 N.W.2d 697,

699 (Iowa 2010).

       Summary disposition under Iowa Code section 822.6 (2011) is analogous

to the summary judgment procedure provided in our rules of civil procedure. See

State v. Manning, 654 N.W.2d 555, 559-60 (Iowa 2002).                 “Therefore, the

principles underlying summary judgment procedure apply to motions of either

party for disposition of an application for postconviction relief without a trial on the

merits.” Id. at 560.     Summary disposition is only proper when “there is no

genuine issue of material fact and the moving party is entitled to judgment as a

matter of law.” Iowa Code § 822.6; accord Iowa R. Civ. P. 1.981(3).

       Thomas was sentenced to a term of imprisonment not to exceed thirty-five

years after being convicted of first-degree burglary, second-degree robbery,

third-degree kidnapping, assault with intent to commit sexual abuse causing

bodily injury, and two counts of assault on a peace officer. The convictions were

upheld on direct appeal. State v. Thomas, No. 06-0582, 2007 WL 3376888, at *1

(Iowa Ct. App. Nov. 15, 2007). On direct appeal, this court rejected his claims

that the evidence was insufficient to sustain the convictions, the verdicts were
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against the weight of the evidence, and that trial counsel was ineffective. Id. at

*5-8. Procedendo issued on December 14, 2007.

       In his first PCR application, Thomas contended appellate counsel was

ineffective in failing to appeal from the denial of his motion to sever the several

charges against him. Thomas v. State, No. 11-0275, 2012 WL 836839, at *1

(Iowa Ct. App. Mar. 14, 2012). This district court rejected the claim, and we

upheld that ruling on appeal. Id. at *7-8.

       In this second PCR application, which was filed on June 4, 2012, Thomas

asserted there were numerous errors in the jury instructions and that defects in

the trial information deprived the criminal court of subject-matter jurisdiction.

Finally, he alleged ineffective assistance of all prior counsel. In an amended

application, appointed counsel asserted Thomas was subject to an illegal

sentence due to errors in the jury instructions.

       The State moved for summary judgment on grounds the claims were time

barred and that a challenge to jury instructions is not a claim of illegal sentence

that would survive outside the statute of limitations.

       Through counsel, Thomas resisted, asserting “additional facts” precluded

summary judgment:

              1. [Thomas’s] Amended Application for Post-Conviction
       Relief contains four (4) counts pled by [Thomas’s] counsel.
              2. Counsel’s first count is illegal sentence for failure to
       include proper jury instructions.
              3. Counsel’s second count is illegal sentence for failure to
       include proper jury instructions.
              4. Counsel’s third count is illegal sentence for failure to
       include proper jury instructions.
              5. Counsel’s fourth count is illegal sentence for failure to
       include proper jury instructions.
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               6. An illegal sentence is not subject to the statute of
       limitations.
               7. The mens rea for Iowa Code section 708.3A(3) is
       “knowing,” meaning the offender must know the peace officer is a
       peace officer to be convicted under 708.3A(3).
               8. The jury instruction number fifty-six (56) for count 5 in
       [Thomas’s] underlying criminal case did not include the word
       “knowing.”
               9. The jury instruction number fifty-eight (58) for count 6 in
       [Thomas’s] underlying criminal case did not include the word
       “knowing.”
               10. [Thomas] was charged with burglary in the first degree in
       violation of Iowa Code section 713.1 and 713.3.
               11. An essential element of burglary is that the place entered
       was an occupied structure and such occupied structure or place
       was not open to the public.
               12. The jury instruction number thirty (30) and thirty-two (32)
       for count 2 in [Thomas’s] underlying criminal case did not include or
       explain that an occupied structure must not be open to the public.
               13. [Thomas] was prejudiced by improper jury instructions.
               14. Because of prejudicial jury instructions the [Thomas] was
       improperly convicted, rendering his sentence illegal and
       unenforceable.

In a separate pro se response, Thomas also asserted the trial court was without

authority or jurisdiction due to defects in the charging instrument. He urged the

district court to “rule, please.”

       The PCR court concluded, “The sole basis for summary adjudication of

this postconviction relief action is that it is time-barred as having been brought

outside the three-year limitations period set forth in Iowa Code section 822.3.”

The court explained further:

               Subject matter jurisdiction/void judgment. While it is true
       that the issue of subject matter jurisdiction can be raised at any
       time, see DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002), and a
       void judgment can be the subject of a collateral attack and may be
       disregarded, Peterson v. Eitzen, 173 N.W.2d 848, 850 (Iowa 1970),
       the claimed defects in the trial information do not result [in] an
       invalidity of the resulting judgment of conviction. Assuming without
       deciding that the trial information was inartfully worded, the rules of
       criminal procedure are unmistakably clear that such defect would
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not result in his ability to challenge the court’s subject matter
jurisdiction or the voidness of the resulting conviction:
                 No indictment is invalid or insufficient, nor can
         the trial, judgment, or other proceeding thereon be
         affected by reason of any defect or imperfection in a
         matter of form which does not prejudice a substantial
         right of the defendant.
Iowa R. Crim. P. 2.4(7) [last unnumbered paragraph]; see also Iowa
R. Crim. P. 2.5(5) ([stating] rules regarding indictments applicable
to trial informations). [Thomas] has failed to establish how he has
been prejudiced in any manner from the wording of the trial
information as alleged. In addition, it is well settled that the
inadequacy of a trial information does not affect the court’s ability to
hear a general class of cases (i.e., its subject matter jurisdiction),
but is a case-specific objection to the court’s authority which is
waived if not timely made. Brown v. State, No. 13-0244, 2014 WL
3511741, at *2 (Iowa Ct. App. July 16, 2014) ([holding]
postconviction action time-barred under § 822.3; dismissal
affirmed). [Thomas]’s claim that his objections to the wording of the
trial information may be pursued outside the limitations period of
Iowa Code [section] 822.3 has no merit.
         Jury instructions/illegal sentence. “An illegal sentence is one
that is not permitted by statute.” State v. Copenhaver, 844 N.W.2d
442, 447 (Iowa 2014). . . . Claims of an illegal sentence are not
meant “to re-examine errors occurring at the trial or other
proceedings prior to the imposition of the sentence.” Id. at 871-72
(citation omitted). Accordingly, issues regarding jury instructions, if
otherwise time-barred pursuant to Iowa Code [section] 822.3, may
not be resurrected under the guise of an argument premised on
those instructions resulting in an illegal sentence. “Challenges to
jury instructions do not implicate the legality of a sentence.” James
v. State, 858 N.W.2d 32, 33 (Iowa Ct. App. 2014) [(rejecting PCR
applicant’s attempt to use a claim of an illegal sentence as a
vehicle “to re-examine errors occurring at the trial or other
proceedings prior to the imposition of the sentence” (quoting State
v. Bruegger, 773 N.W.2d 862, 871-72 (Iowa 2009))).]
         As was addressed in the previous section of this ruling, any
claim that the trial court lacked the power to impose [Thomas]’s
sentences has failed. What remains are [Thomas]’s arguments that
the aforementioned claimed defects in the jury instructions resulted
in an illegal sentence. Iowa law is squarely to the contrary. There
is simply no basis for this court to conclude that the present claims
come within an exception to the three-year time limit of Iowa Code
[section] 822.3. Accordingly, summary disposition and dismissal is
appropriate pursuant to Iowa Code [section] 822.6.
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       Finding no error in the court’s reasoning or application of law, we affirm

without further opinion.

       AFFIRMED.
