                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1355
                                Filed July 9, 2015


TUAN MINH TRAN,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Judge.



      An applicant appeals from the trial court’s dismissal of his petition for

postconviction relief. AFFIRMED.



      Michael H. Said of Law Offices of Michael H. Said, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, Kelli A. Huser, Assistant Attorney

General, John P. Sarcone, County Attorney, and Celene Gogerty, Assistant

County Attorney, for appellee State.




      Considered by Danilson, C.J., Doyle, J., and Goodhue, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, S.J.

      Tuan Minh Tran appeals from the trial court’s dismissal of his petition for

postconviction relief granted pursuant to the State’s motion for summary

judgment.

   I. Background Facts and Proceedings

      In May 1999 Tran pled guilty to possession of crack cocaine, a serious

misdemeanor.    Tran had only resided in the United States since 1990, and

Vietnamese was his native language. He asserts he did not speak or understand

English very well at the time the plea was taken. He further asserts that the

interpreter provided to him was Laotian, and although the interpreter spoke a

dialect similar to Vietnamese, the translation was such that Tran did not

understand everything that was said. However, with the help of the interpreter,

Tran entered a written plea of guilty.       Tran was not represented by counsel

during the proceeding. The recording of the proceeding was waived. The plea

was accepted, and Tran was sentenced. He did not appeal.

      In April 2014 Tran filed an application for postconviction relief.    Tran

contends that the plea should be set aside because the proceeding violated

procedural due process. Specifically, he asserts that he did not understand what

was transpiring because of the inadequate interpreter and further because no

recording was made of the proceedings. He requests that the plea should be set

aside for the reason that it was not knowingly and intelligently made. The State

filed a motion for summary judgment contending that the application had not

been filed within three years after the date of the conviction and was therefore
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time-barred. See Iowa Code § 822.3 (2013). Tran resisted the motion, but it was

granted.

    II. Error Preservation

         It is generally considered that an issue must be raised and ruled on by the

trial court for error to have been preserved. Meier v. Senecaut, 641 N.W.2d 532,

537 (Iowa 2002).         The trial court granted the State’s motion for summary

judgment over Tran’s objection.

    III. Appeals from Denial of a Postconviction-Relief Application

         Appeals from denial of a postconviction-relief application, including

summary dismissals, are ordinarily reviewed for corrections of errors at law.

Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011). When constitutional issues

are raised, they are reviewed de novo. Lamasters v. State, 821 N.W.2d 856, 862

(Iowa 2012).

    IV. Discussion

         The only issue before the court is whether the trial court erred in granting

summary judgment rather than allowing the matter to proceed to resolution by

trial.

         The district court may grant summary judgment in a postconviction action

if “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. If no disputed fact exists, the

reviewing court must determine if the district court correctly applied the

applicable law. Miner v. State, 819 N.W.2d 383, 393 (Iowa 2012). There is no

disputed fact as to when Tran was convicted, nor when he filed his application for

postconviction relief.
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      The trial court reached its decision by applying the three-year bar for

postconviction proceedings. Iowa Code § 822.3. Trancontends that his case

presents a statutory exception to the three-year bar because he has requested

relief based on “a ground of fact or law that could not have been raised within the

applicable time period.” Id.

      Iowa Code section 622A.2 provides that an interpreter be provided for any

party to a legal proceeding if that party cannot speak or understand English. A

recording of the proceeding is to be made. Iowa Code § 622A.8. The lack of a

recording of the proceeding and the lack of an adequate interpreter has

previously been raised as a basis for postconviction relief. Perez v. State, 2011

WL 3925682 at *1 (Iowa Ct. App. Sept. 8, 2011), aff’d, Perez v. State, 816 N.W

2d 354, 356, n.4 (Iowa 2012) (letting court of appeals decisions stand on these

issues).   The Perez court noted that Perez logically knew he required an

interpreter when he entered his plea. Id. at *2. The court also noted that the

requirements of section 622A.2 were not new. Id. The same reasoning applies

as to Tran.    Tran surely knew at the time of the plea that he needed an

interpreter and that he was unable to communicate through the interpreter

provided, if such was the case. The facts were present at the time the plea was

entered.

      Tran contends that for a plea to be valid it must be made voluntarily and

knowingly. Boykin v. Alabama, 395 U.S. 238, 242 (1969); State v. Cisco, 169

N.W.2d 542, 545 (Iowa 1969).         Tran contends that because he did not

understand the less-than-adequate interpreter, his plea of guilty was not

voluntarily made.   The contention fails for the same reason as his previous
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contention failed.   If he could not understand the interpreter, nothing has

transpired since the plea was entered that would have made the translation’s

inadequacy any more evident than it was the day the plea was entered. There is

“no new ground of fact or law” that could have not been raised within the three-

year period after the plea was entered.

      Even on a direct appeal it is unlikely that a reviewing court will grant relief

based on the inadequate translation of the proceeding or the defendant’s inability

to understand the translator, absent a contemporary objection. Thongvanh v.

State, 494 N.W.2d 679, 682 (Iowa 1993). To hold otherwise would present an

open invitation for abuse. Id. (quoting Valladares v. United States, 871 F.2d

1564, 1566 (11th Cir. 1989)).

      AFFIRMED.
