                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0402
                           Filed September 10, 2015


NED WILLIAM REYNOLDS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Monona County, Duane E.

Hoffmeyer, Judge.



      Ned Reynolds appeals from the dismissal of his application for

postconviction relief. REVERSED AND REMANDED.




      Robert E. Peterson, Carroll, for appellant.

      Thomas J. Miller, Attorney General, Sharon K. Hall, Assistant Attorney

General, and Ian A. McConeghey, County Attorney, for appellee State.




      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, J.

       Ned Reynolds, found guilty of second-degree sexual abuse, had his

judgment and sentence affirmed by this court. See State v. Reynolds, No. 09-

1208, 2009 WL 1875740, at *1 (Iowa Ct. App. May 12, 2010).                  Reynolds

subsequently filed an application for postconviction relief raising several

ineffective-assistance-of-counsel claims.

       The State moved for summary judgment, which Reynolds’s attorney

resisted. The district court scheduled the matter for hearing and authorized the

parties to participate by telephone hearing, if they so desired. Although a judge

was specially assigned to the case, the parties agreed to have a different judge

consider the matter.

       The parties proceeded with discovery. Reynolds’s postconviction attorney

deposed his trial attorney and the State propounded interrogatories to Reynolds,

which he answered and signed.

       Counsel for the State and for Reynolds attended an unreported hearing on

the motion for summary judgment. There is no indication Reynolds was informed

of the hearing or participated in it.

       Following the hearing, the district court filed an order stating judicial notice

was taken of “the attachments to the motion for summary judgment,” including

the decision on direct appeal, the deposition transcript of Reynolds’s attorney,

Reynolds’s interrogatory answers, and the “entire underlying criminal file.”

Everything except the “entire criminal file” was proffered by the State. The court

denied each of Reynolds’s ineffective-assistance-of-counsel claims on the merits.
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          On appeal, Reynolds asserts his postconviction attorney was ineffective in

(1) waiving the specially-assigned judge, (2) waiving reporting of the summary

judgment hearing, and (3) failing “to inform [him] of the hearing and to ensure

that he was present.” These omissions, he argues, amounted to a denial of due

process. We find the third claim dispositive.

          The Iowa Supreme Court addressed a virtually identical issue in Manning

v. State, 654 N.W.2d 555, 559 (Iowa 2002).            There, a postconviction-relief

applicant resisted the State’s motion for summary judgment, asserting in part that

summary disposition was inappropriate.           The district court dismissed the

application without an evidentiary hearing. The dismissal order stated Manning’s

postconviction counsel appeared for Manning at the unreported proceeding. On

appeal, Manning argued the district court erred in failing to afford him an

evidentiary hearing. Manning, 654 N.W.2d at 558.

          The Iowa Supreme Court examined Iowa Code section 822.6, which

states:

                  The court may grant a motion by either party for summary
          disposition of [a PCR] application, when it appears from the
          pleadings, depositions, answers to interrogatories, and admissions
          and agreements of fact, together with any affidavits submitted, that
          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 (2013). According to the court, the “goal” of this method of

disposition of PCR applications “‘is to provide a method of disposition once the

case has been fully developed by both sides, but before an actual trial.’”

Manning, 654 N.W.2d at 559 (quoting Hines v. State, 288 N.W.2d 344, 346 (Iowa

1980)).
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       The court concluded “the district court should not have summarily

dismissed Manning’s application.” Id. at 562. The court reasoned, “Manning was

not properly notified that he would need to present proof on any issue other than

what was alleged in the State’s motion to dismiss,” Manning’s claims raised

genuine issues of material fact precluding entry of summary disposition, and

“when claims of ineffective assistance of counsel are properly raised in a

postconviction relief application, ‘an evidentiary hearing on the merits is ordinarily

required.’” Id. at 561-62 (citations omitted).

       As in Manning, there is no indication Reynolds’s postconviction attorney

informed Reynolds of the scheduled hearing on his postconviction-relief

application or made an effort to ensure his presence at the hearing. On our de

novo review, we conclude counsel breached an essential duty in failing to take

these steps. See Strickland v. Washington, 466 U.S. 668, 687 (Iowa 1984).

       In reaching this conclusion, we have considered two factual differences

between Manning and this case. First, in Manning, the State’s motion to dismiss

only raised procedural grounds for dismissal of the application.         Accordingly,

Manning had no warning the court might reach the merits of his application.

Manning, 654 N.W.2d at 560. Here, the State’s motion for summary judgment

addressed the merits of Reynolds’s ineffective-assistance-of-counsel claims and

included supporting documentation in the form of trial counsel’s deposition

transcript and Reynolds’s signed answers to interrogatories. Second, the court

never scheduled a hearing in Manning, whereas here, the district court afforded

Reynolds the opportunity to participate by telephone. But these seemingly stark

differences matter little if Reynolds was unaware of the scheduled hearing and of
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his right to present evidence controverting the allegations in the State’s motion.

Indeed, one of Reynolds’s signed answers to interrogatories, in which he listed

himself as a witness, highlighted his desire to testify. While it could be said those

answers effectively placed his side of the story before the court, the questions

were prepared by the State and the answers served as a poor substitute for his

live elaboration of his ineffective-assistance-of-counsel claims.

       Postconviction counsel’s failure to inform Reynolds of the hearing or

inquire about his desire to participate prejudiced Reynolds. See Strickland, 466

U.S. at 487. Time and again, the postconviction court’s ruling cited the absence

of evidence from Reynolds. For example, the court stated Reynolds offered “no

specific inconsistencies that he believes cross-examination of the experts could

have revealed,” “offered no specific testimony or evidence [a witness] could have

offered that might create a genuine issue of material fact for trial,” and “offered no

evidence of a ‘prior medical complaint’ beyond the medical record of the victim

created during her examination by [a medical professional].” Had Reynolds been

informed of the hearing, he may have offered evidence on these and other

subjects. We conclude he was not afforded an opportunity to “fully develop” his

case. See Manning, 654 N.W.2d at 559.1




1
  The State cites Webb v. State, 555 N.W.2d 824, 826 (Iowa 1996), for the proposition
that Reynolds had “no constitutional right to be present at a postconviction-relief
hearing.” Webb does not authorize a wholesale denial of the opportunity to participate.
Webb “refused to participate by telephone” and asked to be personally present. See
Webb, 555 N.W.2d at 825. The court concluded, “Webb was not denied any due
process or statutory rights to personally attend the postconviction hearing. He was
accorded opportunities to present testimony in compliance with principles of fundamental
fairness and he waived those opportunities.” Id. at 827.
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       We reverse and remand for an evidentiary hearing on Reynolds’s

postconviction-relief application.

       REVERSED AND REMANDED.
