                    IN THE COURT OF APPEALS OF IOWA

                                  No. 13-0802
                              Filed July 30, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

DAVID J. BORGSTEDE,
     Defendant-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Clinton County, Gary D.

McKenrick, Judge.



       David Borgstede appeals his convictions and sentence for indecent

contact with a child and sexual abuse in the third degree. AFFIRMED.



       Matthew L. Noel of The Noel Law Firm, P.C., Maquoketa, for appellant.

       Thomas J. Miller, Attorney General, Heather R. Quick, Assistant Attorney

General, Michael L. Wolf, County Attorney, and Ross Barlow, Assistant County

Attorney, for appellee.



       Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
                                               2



BOWER, J.

          David Borgstede appeals his convictions and sentence for indecent

contact with a child and sexual abuse in the third degree. Borgstede claims his

counsel was ineffective by failing to file a motion in arrest of judgment when he

was not properly advised of the full consequences of his guilty plea. We find

Borgstede’s appeal is related to his original guilty plea, more than ten years ago,

and not to the recent correction of his sentence. The proper method for raising

his ineffective assistance of counsel claim was either on direct appeal from the

initial conviction and sentencing or by an application for postconviction relief.

Having failed to present his claims through either one of those procedures, we

affirm.

I.        Background Facts and Discussion

          On June 12, 2003, David Borgstede pleaded guilty to indecent contact

with a child and sexual abuse in the third degree. He was later sentenced to a

term not to exceed ten years in prison on each count, to be served consecutively.

At the time of sentencing Borgstede was not made aware of the additional two

years of probation or work release required by Iowa Code section 901A.2(7)

(2001).

          On March 22, 2013, the department of corrections (DOC) sent an

unsolicited letter to the district court raising the section 901A.2(7) issue. The

district court set the matter for hearing and resentenced Borgstede to an

additional two-year term of parole or work release.1



1
     The requirement is currently found in section 901A.2(8) (2013).
                                          3



       Borgstede, on appeal, claims his counsel, during the initial plea and

sentencing proceedings, was ineffective by failing to file a motion in arrest of

judgment as a response to the court’s failure to advise him of the section

901A.2(7) requirement.2

       The case stands on an unusual position. The sentence was not corrected

through a motion to correct sentence, but at the suggestion of the DOC.

Borgstede does not appeal from any alleged error or irregularity in the

resentencing, but rather from the original plea and sentencing more than ten

years ago. He has not preserved error on those claims because he did not

timely appeal from those proceedings. See Iowa R. App. P. 6.101(1)(b) (notice

of appeal must be filed within thirty days of the final order or judgment). Our

supreme court has held our appellate courts have a “duty to refuse, on our own

motion, to entertain an appeal” not timely filed. See Doland v. Boone Cnty., 376

N.W.2d 870, 876 (Iowa 1985).          Because Borgstede’s claims relate to the

performance of counsel during the 2003 hearing and he has failed to timely

appeal from those proceedings, or after a denial of an application for post-

conviction relief, we do not have authority to address his claims.

       AFFIRMED.

       Vaitheswaran, P.J., concurs; Tabor, J., concurs specially.




2
  Borgstede also contends error was preserved by filing notice of appeal in this case.
Filing notice of appeal does not preserve error. See Thomas A. Mayes & Anuradha
Vaitheswaran, Error Preservation in Civil Appeals in Iowa: Perspectives on Present
Practice, 55 Drake L. R. 39, 48 (Fall 2006).
                                           4



TABOR, J. (concurs specially)

       I agree with the panel’s decision to affirm Borgstede’s convictions and

sentences, but I would preserve his claim of ineffective assistance of counsel for

postconviction-relief proceedings. Attorney Murray Bell represented Borgstede

at his guilty plea hearing in 2003.      At that hearing the district court did not

accurately notify Borgstede concerning the maximum possible punishment. Bell

failed to file a motion in arrest of judgment to challenge the misinformation in the

plea colloquy.

       In 2013, Borgstede learned for the first time that he faced an additional

two-year term of parole under Iowa Code section 901A.2(8). The court again

appointed Bell to represent Borgstede.3 At the hearing on the allegedly illegal

sentence, Bell objected to modification, but did not articulate any argument on

behalf of his client, saying: “I’m not going to state a legal basis. Leave that wide

open for somebody else to decide.”

       Borgstede claims Bell provided ineffective assistance by not filing a motion

in arrest of judgment to challenge the original guilty plea. The State counters that

Bell would not have been permitted to file a motion in arrest of judgment ten

years after the plea was entered and argues Borgstede cannot attack his original

plea on appeal from the correction of an illegal sentence.            Borgstede finds




3
  Borgstede wrote a letter to the court—dated April 21, 2013 and file stamped April 24,
2013—claiming Bell had a conflict of interest and asking for a different court-appointed
attorney. Nevertheless, on April 24, 2013, the court appointed Bell to represent
Borgstede at the resentencing hearing set for May 9, 2013.
                                           5



himself in a Catch-22.4      The court did not tell him about the special parole

sentence at the plea hearing, which the State admits was a mistake. By the time

Borgstede was notified of the additional punishment ten years after his

conviction, it was too late to complain about not being told, and to further

complicate matters, the court appointed the same attorney who let the

misinformation go uncorrected.

       Trial counsel’s ineffective assistance may serve as a ground-of-fact

exception to the three-year statute of limitations for postconviction relief actions

under Iowa Code section 822.3. See Dible v. State, 557 N.W.2d 881, 884 (Iowa

1996) abrogated on other grounds by Harrington v. State, 659 N.W.2d 509, 521

(Iowa 2003). In a postconviction action with the benefit of different counsel,

Borgstede should be able to critique Bell’s performance and its impact on his

decision to enter guilty pleas.

       Therefore, I would preserve his claim for postconviction-relief proceedings.




4
  As our supreme court noted in State v. Neiderbach, 837 N.W.2d 180, 225 n.9 (Iowa
2013), this phrase finds its roots in a Joseph Heller novel describing a “problematic
situation for which the only solution is denied by a circumstance inherent in the problem
or by a rule.”
