                   IN THE SUPREME COURT OF IOWA
                                  No. 15–1408

                            Filed March 23, 2018


JACOB LEE SCHMIDT,

         Appellant,

vs.

STATE OF IOWA,

         Appellee.



         On review from the Iowa Court of Appeals.



         Appeal from the Iowa District Court for Woodbury County, Edward

A. Jacobson, Judge.



         A defendant seeks further review of a court of appeals decision

affirming summary dismissal/summary judgment of his postconviction-

relief   action.      DECISION    OF   COURT    OF   APPEALS   VACATED;

DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED.


         Mark C. Smith, State Appellate Defender, and Martha J. Lucey,

Assistant Appellate Defender, for appellant.



         Thomas J. Miller, Attorney General, Sheryl Soich, Assistant

Attorney General, for appellee.
                                     2

     Erica A. Nichols Cook of the State Public Defender’s Office,

Des Moines, for amicus curiae Exoneration Project at the University of

Chicago Law School.

     Lance W. Lange, Jesse Linebaugh, and Mitch G. Nass of Faegre

Baker Daniels, LLP, Des Moines, for amici curiae The Innocence Network

and The Innocence Project of Iowa.
                                          3

WIGGINS, Justice.

       An applicant filed a postconviction-relief action claiming he was

actually innocent although he knowingly and voluntarily pled guilty to

the charged crimes.          He based his actual-innocence claim on a

recantation by the victim. The district court granted the State’s motion

for summary dismissal/summary judgment, ruling the applicant cannot

use the recantation to attack his knowing and voluntary guilty pleas

because the recantation was extrinsic to the pleas.                  The applicant

appealed, and we transferred the case to our court of appeals. The court

of appeals affirmed.       The applicant sought further review, which we

granted.

       On further review, we overrule our cases holding that defendants

may only attack the intrinsic nature—the voluntary and intelligent

character—of their pleas.        We now hold the Iowa Constitution allows

freestanding claims of actual innocence, so applicants may bring such

claims to attack their pleas even though they entered their pleas

knowingly and voluntarily. Accordingly, we adopt a freestanding claim of

actual innocence that applicants may bring under our postconviction-

relief statute. 1 Therefore, we vacate the decision of the court of appeals,

reverse the judgment of the district court, and remand the case to the

district court for further consideration consistent with this opinion.

       I. Background Facts and Proceedings.

       On December 19, 2006, the State filed a trial information charging

Jacob Lee Schmidt with sexual abuse in the third degree in violation of

       1We   do not think Class v. United States, 583 U.S. ___, 138 S. Ct. 798 (2018),
affects our decision today. In that case, the United States Supreme Court held a guilty
plea does not bar a federal criminal defendant from challenging on direct appeal the
constitutionality of the statute of conviction. Id. at ___, 138 S. Ct. at 803–05. Our
decision involves an actual-innocence claim under the Iowa Constitution based on
newly discovered evidence.
                                     4

Iowa Code section 709.4(1) (2005). On March 23, 2007, the State moved

to amend the trial information to charge Schmidt with two additional

counts of sexual abuse in the third degree in violation of section

709.4(2)(b) (counts II and III) and one count of incest in violation of

section 726.2 (count IV). The district court granted the motion.

      The minutes of testimony attached to the original trial information

and the police offense report reveal that witnesses would provide the

following testimony.      On February 25, 2006, Schmidt, then age

seventeen, visited the home of his stepfather, Peter, and his newly turned

fourteen-year-old half-brother, B.C., with whom Schmidt shares the

same mother. Peter is B.C.’s father. Peter left Schmidt and B.C. alone at

the house to visit his girlfriend. Upon Peter’s departure, Schmidt ordered

B.C. into the bedroom and forced him to get on his knees on the

mattress with his pants down. B.C. complied. Schmidt then removed

his own pants, got on his knees behind B.C., and attempted anal sex.

      Peter realized he had forgotten his cigarettes and went back home

to retrieve them. Once inside, he saw neither Schmidt nor B.C. in the

living room, where they had been up until his departure. Peter thought

this was strange, so he looked around the home and eventually opened

the bedroom door and saw Schmidt attempting to penetrate B.C. anally.

Peter yelled, “What the hell are you doing!” and told Schmidt to “get the

hell out of the house.”    Schmidt left the house, and Peter called the

police.

      Officers Todd Ferry and Kevin Heineman responded. Officer Ferry

took Peter out to the squad car to interview him while Officer Heineman

spoke to B.C. inside the home. Because Peter could not write or spell

well, Officer Ferry used the in-car camera to record Peter’s interview.
                                         5

       Meanwhile,    B.C.    recounted       what   had   happened   to    Officer

Heineman.     B.C. stated he was “not afraid,” and Schmidt had only

threatened   him    on   a   previous    occasion     when   Schmidt      actually

penetrated him approximately two or three months ago.            Schmidt had

told B.C. not to tell anyone unless B.C. wanted to get hurt. B.C. defined

“penetrate” as “when he actually went inside his anal area.” B.C. stated

he was “positive” Schmidt did not penetrate him this time and “no part of

his body hurt.”     All B.C. wanted was for the police to arrest Schmidt.

Officer Heineman asked B.C. to fill out a witness statement and realized

B.C. had difficulty with spelling and writing. Officer Heineman did not

have B.C. continue writing the witness statement after B.C. had written

three or four words.

       Peter’s home landline phone rang, and Officer Heineman answered

it.   Shanna, Schmidt and B.C.’s mother, was on the other end of the

phone. She stated Schmidt had come to her home and she was going to

take him to Mercy Hospital because he was having suicidal thoughts. At

the hospital, Shanna advised Officer Ferry that Schmidt said Peter was

lying about the whole incident.

       Officer Christopher Groves followed up on the case. He asked to

interview Schmidt who declined on the advice of his lawyer.                Officer

Groves described B.C. as “lower functioning” and stated he did not

interview him because it was “very evident” he could “lead him [to]

answers.” Officer Groves thus scheduled B.C. for an interview with the

Child Advocacy Center, which conducted a videotaped interview on

March 2.

       During the March 2 interview, B.C. told the interviewer “[Schmidt]

tried to molest him.” B.C. stated Schmidt had penetrated him on at least

one occasion, and “it hurt and he tried to escape.” He was thirteen at the
                                      6

time. B.C. stated he had sucked Schmidt’s penis before but could not

say how many times this occurred.

          On April 2, 2007, Schmidt entered into a plea agreement.         He

agreed to plead guilty to assault with intent to commit sexual abuse, an

aggravated misdemeanor in violation of Iowa Code section 709.11

(amended count I) and incest (count IV). The State agreed to dismiss the

two other counts of sexual abuse in the third degree (counts II and III)

given the district court sentenced Schmidt according to the plea

agreement.

          That same day, during the combined plea and sentencing hearing,

the court reviewed the consequences of pleading guilty with Schmidt.

Schmidt informed the court he understood the rights he was giving up

and wished to plead guilty to the charges. Schmidt acknowledged the

minutes of testimony accurately described what he did.             The court

reviewed the factual basis for each count, and Schmidt confirmed he

understood. The court accepted Schmidt’s pleas and convicted him of

assault with intent to commit sexual abuse and incest. Pursuant to the

plea agreement, the court entered sentences of incarceration to run

consecutively for a total term not to exceed seven years. Schmidt did not

appeal this decision.

          On June 23, 2014, Schmidt filed an application for postconviction

relief under Iowa Code section 822.2(1)(d) (2014).        In support of his

application, he contended B.C. recanted his story by “com[ing] forward

with the truth.” Schmidt further claimed, “I was not guilty. I was scared

so I pled guilty [be]cause I was fac[ing] over [fifty] years.” Schmidt alleged

the victim’s recantation was new evidence supporting postconviction

relief.     In its answer, the State denied “each and every ground for

postconviction relief.”
                                     7

       On May 14, 2015, the State filed a motion for summary

dismissal/summary judgment, making two arguments. First, the State

argued the three-year statute of limitations pursuant to Iowa Code

section   822.3   procedurally   barred    Schmidt’s   postconviction-relief

application.

       Second, on the merits, the State asserted Schmidt’s “application

[was] in direct contradiction to the record as well as in direct

contradiction to his voluntary and knowing plea[s] of guilty.” It claimed

Schmidt pled guilty after an extensive colloquy, knowing his involvement

or noninvolvement in the alleged sexual act and the evidence against

him.

       On May 28, Schmidt filed a resistance, arguing B.C.’s recantation

was “new evidence [that] prevented earlier filing [of his postconviction-

relief application] and [that] establishes actual innocence.”          Schmidt

included B.C.’s affidavit. In his affidavit, B.C. stated under oath,

       When I was 21 years old, I told other people that [Schmidt]
       had never touched me in a sexual way or sexually abused
       me. I didn’t tell anyone before that date that nothing had
       really happened, and so [Schmidt] couldn’t have known
       before then. I decided to tell people when I turned 21 since I
       was a full adult at that time.

       On July 30, the district court granted the State’s motion for

summary dismissal/summary judgment. It did not rule on the statute of

limitations. Rather, relying on an unpublished court of appeals decision,

it stated that “newly discovered exculpatory evidence does not provide

grounds to withdraw a guilty plea unless intrinsic to the plea itself.” In

other words, the court decided Schmidt waived his claim of actual

innocence by pleading guilty. Schmidt appealed.

       We transferred the case to the court of appeals.       Affirming the

district court’s grant of summary dismissal/summary judgment, the
                                    8

court of appeals reasoned the alleged recantation was not intrinsic to

Schmidt’s guilty pleas.    It therefore concluded, “[B]ecause Schmidt’s

convictions were entered following his guilty pleas, he cannot challenge

those convictions in a [postconviction-relief] action on the basis of newly

discovered evidence in the form of his alleged victim’s recantation.”

Schmidt filed an application for further review, which we granted.

      II. Scope of Review.

      “[T]he principles underlying [a] summary judgment procedure

apply to motions of either party for disposition of an application for

postconviction relief without a trial on the merits.”   Manning v. State,

654 N.W.2d 555, 560 (Iowa 2002).        In other words, for a summary

disposition to be proper, the State must be able to prevail as if it were

filing a motion for summary judgment in a civil proceeding. Castro v.

State, 795 N.W.2d 789, 793 (Iowa 2011) (“The standards for summary

judgment in postconviction[-]relief actions are analogous to summary

judgment in civil proceedings.”).

      We review summary dismissals of postconviction-relief applications

for errors at law. Id. at 792. Applying summary judgment principles,

summary disposition is proper “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if

any, show . . . there is no genuine issue of material fact and . . . the

moving party is entitled to a judgment as a matter of law.”       Davis v.

State, 520 N.W.2d 319, 321 (Iowa 1994) (quoting Iowa R. Civ. P. 237(c),

now r. 1.981(3)). The moving party bears the burden of showing that no

material fact exists. C & J Vantage Leasing Co. v. Wolfe, 795 N.W.2d 65,

73 (Iowa 2011). We view the record in the light most favorable to the

nonmoving party. Eggiman v. Self-Insured Servs. Co., 718 N.W.2d 754,

758 (Iowa 2006).     We also draw all legitimate inferences from the
                                     9

evidence in favor of the nonmoving party. C & J Vantage, 795 N.W.2d at

73.

      III. Analysis.

      A.    Whether Schmidt’s Guilty Pleas Preclude Him from

Pursuing His Actual-Innocence Claim.          The broad issue we must

decide is whether Schmidt’s pleas preclude him from pursuing a

postconviction-relief action.   The narrow issue we must address is

whether Schmidt’s pleas preclude him from bringing his actual-

innocence claim because such a challenge is extrinsic to his pleas.

      Under our current law,

      [w]hen a criminal defendant has solemnly admitted in open
      court that he is in fact guilty of the offense with which he is
      charged, he may not thereafter raise independent claims
      relating to the deprivation of constitutional rights that
      occurred prior to the entry of the guilty plea. He may only
      attack the voluntary and intelligent character of the guilty
      plea . . . .

State v. Utter, 803 N.W.2d 647, 651 (Iowa 2011) (alteration in original)

(quoting Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608

(1973)). It is on this basis the district court dismissed and the court of

appeals affirmed the dismissal of Schmidt’s postconviction-relief action.

The time has come to reevaluate this law in regards to an actual-

innocence claim. We now turn to the first issue and begin our analysis

by examining our postconviction-relief statute.

      Iowa Code section 822.2 provides, “Any person who has been

convicted of, or sentenced for, a public offense and who claims any of the

following may institute, without paying a filing fee, a proceeding under

this chapter to secure relief.” Iowa Code § 822.2(1).
                                     10

      We have previously discussed the meaning of the term “conviction”

under section 822.2 in Daughenbaugh v. State, 805 N.W.2d 591, 597–99

(Iowa 2011). There we said,

      We begin our discussion of Iowa law by examining our
      approach to statutory interpretation of the term “conviction.”
      Like many other jurisdictions, we have emphasized that
      “conviction” has an “equivocal meaning” that depends upon
      the context in which it is used. Like many other states, we
      have said that, when the word is used in its general and
      popular sense, conviction means the establishment of guilt
      independent of judgment and sentence. On the other hand,
      when the term “conviction” is used in its technical legal
      sense, it requires a formal adjudication by the court and the
      formal entry of a judgment of conviction.

Id. at 597 (citations omitted). We then stated our postconviction statute

uses the word conviction in its “ ‘strict legal sense’ and not in its broader

popular context.” Id. at 598–99. Thus, the technical legal sense of the

word conviction requires adjudication of guilt and the entry of a

judgment. Id. at 599.

      In another case, we stated the acceptance by the court of a

defendant’s plea “constitutes a conviction of the highest order” and

authorizes the court to sentence the defendant as though the factfinder

returned a guilty verdict. State v. Kobrock, 213 N.W.2d 481, 483 (Iowa

1973). That is what happened here: Schmidt entered his pleas, the court

accepted his pleas, and sentenced him accordingly.         In doing so, the

court adjudicated him guilty and entered judgment.         Adjudication and

entry of judgment constitute conviction, and conviction is a requirement

for filing a postconviction-relief action under section 822.2.           See

Daughenbaugh, 805 N.W.2d at 599.           Thus, Schmidt’s pleas do not

preclude him from filing a postconviction-relief action.
                                     11

         The second issue is whether Schmidt faces any other barriers to

filing his postconviction-relief action after pleading guilty.   Specifically,

the issue is whether Schmidt may attack his pleas by bringing an actual-

innocence claim even though such a challenge is extrinsic to his pleas.

First, we discuss the current state of our caselaw regarding challenges to

pleas.     Second, we examine the implication of State v. Alexander,

463 N.W.2d 421 (Iowa 1990), on the possibility of challenging a plea in a

postconviction-relief action based on newly discovered evidence. Third,

we discuss the phenomenon of pleading guilty despite actual innocence.

Lastly, we examine our legislature’s codification of section 81.10, which

allows postconviction-DNA testing.

         A valid plea “waive[s] all defenses and the right to contest all

adverse pretrial rulings.” State v. Morehouse, 316 N.W.2d 884, 885 (Iowa

1982), overruled on other grounds by State v. Kress, 636 N.W.2d 12, 20

(Iowa 2001). However, the defendant may attack his or her plea when

the plea itself contains intrinsic irregularities or the trial information

charges no offense. See State v. Mattly, 513 N.W.2d 739, 740–41 (Iowa

1994); Morehouse, 316 N.W.2d at 885.

         We fashioned the general rule precluding extrinsic challenges to

pleas on the premise that “[a] defendant plead[s] guilty in open court,

with assistance of counsel, knowingly and understandingly.” State v.

Delano, 161 N.W.2d 66, 73 (Iowa 1968). Thus, the defendant waives his

or her rights “with respect to conduct of criminal prosecution and any

objection to prior proceedings which may include a violation of his [or

her] rights.” Id. This waiver could preclude certain postconviction-relief

actions under section 822.2(1)(a), which provides relief for a “conviction

or sentence [that] was in violation of the Constitution of the United

States or the Constitution or laws of this state.” Iowa Code § 822.2(1)(a).
                                     12

      It does not preclude relief under section 822.2(1)(d), which

provides relief when “[t]here exists evidence of material facts, not

previously presented and heard, that requires vacation of the conviction

or sentence in the interest of justice.” Id. § 822.2(1)(d); accord Alexander,

463 N.W.2d at 423 (referring to Iowa Code section 663A.2(4) (1989), now

codified at section 822.2(1)(d) (2014)).

      In Alexander, the defendant pled guilty to going armed with a

dangerous weapon. 463 N.W.2d at 421. After his plea and sentencing,

the defendant filed a motion for new trial based on newly discovered

evidence in the form of witness testimony supporting a theory of

justification or self-defense. Id. at 422. We examined then rule 23(2)(a)

of our rules of criminal procedure. That rule stated,

      The application for a new trial . . . shall be made not later
      than forty-five days after plea of guilty [or] verdict of
      guilty, . . . but in any case not later than five days before the
      date set for pronouncing judgment, but where based upon
      newly discovered evidence may be made after judgment as
      well.

Id. (quoting Iowa R. Crim. P. 23(2)(a), now r. 2.24(2)(a) (emphasis added)).

      We reasoned “[l]ogic would suggest that the concept of new trial
should have as its predicate the existence of a former trial.” Id. Based

on the legislative history, we then concluded inclusion of the phrase

“plea of guilty” in rule 23(2)(a) was inadvertent and erroneous, and

therefore held rule 23(2)(a) as written did not allow for a new trial

following a guilty plea. Id. at 422–23. We buttressed this conclusion by

stating,

             We are confident that the legislature did not intend to
      give admittedly guilty persons the unfettered right to recant
      their admission and proceed to trial on the ground of newly
      discovered evidence or any other ground not intrinsic to the
      plea.
                                     13

Id. at 423.

      We reasoned “[n]otions of newly discovered evidence simply have

no bearing on a knowing and voluntary admission of guilt.”               Id.

However, we noted the defendant was not without a remedy.          Id.   We

stated the remedy the defendant sought was available under Iowa Code

section 663A.2(4) (1989), now codified at section 822.2(1)(d) (2014), when

challenging his plea based on newly discovered evidence. Id. Thus, in

Alexander, we left the door open for challenging a plea in a

postconviction-relief action based on newly discovered evidence.

      We now examine the phenomenon of actually innocent people

pleading guilty.     The National Registry of Exonerations reported that

seventy-four exonerations in 2016 arose from pleas.           The National

Registry      of   Exonerations,   Exonerations   in   2016    2    (2017),

www.law.umich.edu/special/exoneration/Documents/Exonerations_in_2

016.pdf.

      We have stated “criminal cases in general, and guilty pleas in

particular, are characterized by considerable uncertainty[.]”      State v.

Carroll, 767 N.W.2d 638, 642 (Iowa 2009).

      [T]he decision to plead guilty before the evidence is in
      frequently involves the making of difficult judgments. All the
      pertinent facts normally cannot be known unless witnesses
      are examined and cross-examined in court. Even then the
      truth will often be in dispute. In the face of unavoidable
      uncertainty, the defendant and his counsel must make their
      best judgment as to the weight of the State’s case. Counsel
      must predict how the facts, as he understands them, would
      be viewed by a court. If proved, would those facts convince a
      judge or jury of the defendant’s guilt? On those facts would
      evidence seized without a warrant be admissible? Would the
      trier of fact on those facts find a confession voluntary and
      admissible? Questions like these cannot be answered with
      certitude; yet a decision to plead guilty must necessarily rest
      upon counsel’s answers, uncertain as they may be. Waiving
      trial entails the inherent risk that the good-faith evaluations
                                            14
       of a reasonably competent attorney will turn out to be
       mistaken either as to the facts or as to what a court’s
       judgment might be on given facts.

Id. (quoting McMann v. Richardson, 397 U.S. 759, 769–70, 90 S. Ct.

1441, 1448 (1970)).

       Pleading     guilty    despite    actual     innocence      is   not   limited    to

uncertainty. One of our recent cases recognizes that actually innocent

people plead guilty for many different reasons.                See Rhoades v. State,

880 N.W.2d 431, 436–38 (Iowa 2016).

       People have been known to confess to crimes they did not commit

during police interrogations 2 and such confessions bleed into their

decisions to plead guilty. “A false coerced confession may undermine the

accuracy of a guilty plea . . . .” Kevin C. McMunigal, Guilty Pleas, Brady

Disclosure, and Wrongful Convictions, 57 Case W. Res. L. Rev. 651, 656

(2007). Because such a confession increases the chances of conviction

at trial, defendants face pressure to plead guilty even when they are

actually innocent. Id.; see also Rodney Uphoff, Convicting the Innocent:

Aberration or Systemic Problem?, 2006 Wis. L. Rev. 739, 796 (2006)

[hereinafter Uphoff] (“The difficulty of overcoming so-called confessions

and of successfully attacking a positive eyewitness identification are just
two of a host of factors that may push a defendant into a guilty plea

regardless of his or her actual innocence.”).

       Moreover, innocent defendants plead guilty for reduced charges

and shorter sentences. Rachel E. Barkow, Separation of Powers and the

Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006) [hereinafter Barkow];

       2A   number of factors contribute to a false confession, such as “duress,”
“coercion,” “intoxication,” “diminished capacity,” “mental impairment,” “ignorance of the
law,” “fear of violence,” “the actual infliction of harm,” “the threat of a harsh sentence,”
[and] “misunderstanding the situation.”          Innocence Project, False Confessions or
Admissions, https://www.innocenceproject.org/causes/false-confessions-admissions/
[https://perma.cc/66JM-T4L9].
                                          15

see also Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract,

101 Yale    L.J.   1909,    1912     (1992)    [hereinafter    Scott   &   Stuntz]

(“Defendants accept bargains because of the threat of much harsher

penalties after trial; they are thus forced to give up the protections that

the trial system’s many formalities provide.”).               The reality of plea

bargaining is that “[defendants] who do take their case to trial and lose

receive longer sentences than even Congress or the prosecutor might

think appropriate, because the longer sentences exist on the books

largely for bargaining purposes.” Barkow, 58 Stan. L. Rev. at 1034.

       Simply put, in economic terms, defendants engage in a cost–benefit

analysis.   Entering into a plea agreement is not only rational but also

more attractive than dealing with the uncertainty of the trial process and

the possibility of harsher sentences.          Indeed, “even with competent

counsel, going to trial can be incredibly risky business.”                 Uphoff,

2006 Wis. L. Rev. at 799. We stated in Rhoades that “[w]hen the deal is

good enough, it is rational to refuse to roll the dice, regardless of whether

one believes the evidence establishes guilt beyond a reasonable doubt,

and regardless of whether one is factually innocent.”              880 N.W.2d at

436–37 (alteration in original) (quoting Russell D. Covey, Longitudinal
Guilt: Repeat Offenders, Plea Bargaining, and the Variable Standard of

Proof, 63 Fla. L. Rev. 431, 450 (2011)); accord Jed S. Rakoff, Why

Innocent People Plead Guilty, N.Y. Rev. Books (Nov. 20, 2014),

www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-

guilty/ [https://perma.cc/LT8T-XKAV] (“If [the defendant’s] lawyer can

obtain a plea bargain that will reduce his likely time in prison, he may

find it ‘rational’ to take the plea.”).
                                          16

       A plea does not weed out the innocent. Rather, a plea is an explicit

agreement 3 between the prosecutor and the defendant that “establishes a

‘going rate.’ ”    John L. Kane, Plea Bargaining and the Innocent, The

Marshall          Project       (Dec.          26,     2014,         1:05        PM),

https://www.themarshallproject.org/2014/12/26/plea-bargaining-and-

the-innocent       [https://perma.cc/R5FU-Y3T4].               Specifically,    “[t]he

anticipated sentence is the central concern in the negotiation[,]” but

“[t]he problem . . . is that both innocent and guilty defendants are placed

in the same pot and the goal is to achieve the appearance of justice, not

the realization of it.” Id.; see also Missouri v. Frye, 566 U.S. 134, 144,

132 S. Ct. 1399, 1407 (2012) (“In today’s criminal justice system . . . the

negotiation of a plea bargain, rather than the unfolding of a trial, is

almost always the critical point for a defendant.”). Pleading guilty does

not automatically mean the defendant is actually guilty. Sometimes, an

innocent defendant is choosing the lesser of two evils: pleading guilty

despite his or her actual innocence because the odds are stacked up

against him or her, or going to trial with the risk of losing and the

prospect of receiving a harsher sentence.

       Innocent defendants may also plead guilty in the face of pressure

from prosecutors and even their own defense counsels.                   Today, “our

criminal justice system is almost exclusively a system of plea bargaining,

negotiated behind closed doors and with no judicial oversight.” Jed S.

Rakoff, Why Innocent People Plead Guilty, N.Y. Rev. Books (Nov. 20,

2014).    Behind these closed doors, prosecutors have broad discretion:

“the   prosecutor-dictated       plea   bargain      system,   by    creating    such

inordinate pressures to enter into plea bargains, appears to have led a

       3Two scholars have gone as far to describe the plea bargaining process as “horse
trading.” Scott & Stuntz, 101 Yale L.J. at 1912.
                                      17

significant number of defendants to plead guilty to crimes they never

actually committed.”     Id.; see also Innocence Project, Why Are People

Pleading Guilty to Crimes They Didn’t Commit? (Nov. 25, 2015),

https://www.innocenceproject.org/why-are-people-pleading-guilty-to-

crimes-they-didnt-commit/ [https://perma.cc/3CEX-WEW2].

        H. Lee Sarokin, a former federal judge, described the plea

bargaining process as involving “intimidation by the prosecution and

incompetence by the defense.” H. Lee Sarokin, Why Do Innocent People

Plead      Guilty?,    HuffPost     (May      29,    2012,     4:39       PM),

https://www.huffingtonpost.com/judge-h-lee-sarokin/innocent-people-

guilty-pleas_b_1553239.html       [https://perma.cc/6PSQ-6QW4].            He

illustrated,

        The defendant, frightened, most often poor, uneducated, a
        minority member is advised that a trial is likely to end with a
        conviction and a long sentence, whereas a plea will
        guarantee a much shorter sentence.                Despite his
        protestations of innocence, the defendant seeks guidance
        frequently from an over-worked, underpaid defense lawyer
        who would much prefer a quick deal rather than a long
        drawn out trial. Of course, not all defense counsel fit that
        description. Many do not, but even the best and most
        devoted are required to put this draconian choice to their
        clients—a guaranteed short sentence versus a potentially
        long one—possibly life in prison.

Id. We again emphasize the prosecutor’s promise of a shorter sentence is

more attractive than going to trial and possibly losing. Defendants, even

those who are actually innocent and especially those who are indigent,

have more to lose by going to trial than by pleading guilty.

        Finally, we review the current legislative policy regarding guilty

pleas and actual innocence.       In 2005, in passing Iowa Code section

81.10, the legislature recognized a person who pleads guilty could be

actually innocent. See 2005 Iowa Acts ch. 158, § 10 (codified at Iowa
                                            18

Code § 81.10).       Section 81.10 allows a convicted defendant to make a

motion that, if granted, would require DNA testing “on evidence collected

in the case for which the person stands convicted.” Iowa Code § 81.10

(2014). The motion must state the following:

            b. The facts of the underlying case, as proven at trial
      or admitted to during a guilty plea proceeding.

               ....

            h. The type of inculpatory evidence admitted into
      evidence at trial or admitted to during a guilty plea
      proceeding.

               ....

             l. Why the DNA evidence would have changed the
      outcome of the trial or invalidated a guilty plea if DNA
      profiling had been conducted prior to the conviction.

Id. § 81.10(2)(b), (h), and (l) (emphases added).

      After the convicted defendant files the motion and the county

attorney files an answer to the motion, the court may order a hearing on

the motion. Id. § 81.10(3), (6). The court must grant the motion if all of
the requirements of section 81.10(7) apply.              One of the requirements

recognizes     the     applicability   of   DNA      exoneration    to   pleas.   Id.

§ 81.10(7)(d). Section 81.10(7)(d) provides, “The evidence subject to DNA

analysis is material to, and not merely cumulative or impeaching of,

evidence included in the trial record or admitted to at a guilty plea

proceeding.”    Id. (emphasis added).            This legislation reaffirms the fact

that even actually innocent persons do in fact plead guilty and should

have a chance for exoneration.

      In   light      of   these   recent   developments,      we   hold    convicted

defendants can attack their pleas when claiming actual innocence even if

the attack is extrinsic to the pleas. We know people plead guilty for all
                                         19

sorts of reasons. Many of these reasons are unrelated to whether the

defendant actually committed the crime. Additionally, the legislature has

set the policy that the state should not incarcerate actually innocent

people if DNA evidence exonerates them, regardless of their pleas. We

see no reason why we should treat people exonerated by DNA evidence

differently from people exonerated by other reliable means. For example,

when the court determines the police planted evidence, such as drugs,

why should that defendant remain in prison simply because he or she

pled guilty to a reduced charge in light of the overwhelming evidence of

his or her guilt?

       What kind of system of justice do we have if we permit actually

innocent people to remain in prison? See Engesser v. Young, 856 N.W.2d

471, 484 (S.D. 2014) (“Punishment of the innocent may be the worst of

all injustices.”    (quoting Jenner v. Dooley, 590 N.W.2d 463, 471 (S.D.

1999))); see also In re Kaufmann, 157 N.E. 730, 733 (N.Y. 1927) (noting

that in circumstances in which a convicted individual establishes his

innocence, “the administration of justice would be subject to reproach if

an implacable law of remedies were to close the door forever upon the

hope of vindication”). 4 It is time that we refuse to perpetuate a system of

justice that allows actually innocent people to remain in prison, even

those who profess guilt despite their actual innocence.

       Accordingly, we overrule our cases that do not allow defendants to

attack their pleas based on extrinsic grounds when they claim actual




       4We   acknowledge these two cases involved defendants who went to trial. We
discuss this distinction later in the opinion. In any event, we believe the principles
reflected in Engesser and In re Kaufmann apply equally to defendants who claim actual
innocence following trial and those who claim actual innocence following a guilty plea
proceeding.
                                    20

innocence.   Therefore, we hold Schmidt’s pleas do not preclude his

actual-innocence claim merely because he pled guilty to the charges.

      B. An Actual-Innocence Claim Under Iowa Law. We have never

addressed whether, under our postconviction-relief statute, a claim of

actual innocence constitutes a gateway claim or a freestanding claim

implicating the Iowa Constitution.        Additionally, we have neither

discussed the standard courts must apply when confronted with actual-

innocence claims nor the vehicle defendants may use to bring such

claims.

      1. Freestanding claim versus gateway claim. In the federal system,

a habeas petitioner may overcome a procedural bar to habeas review by

bringing a gateway claim of actual innocence such that the petitioner

may obtain review of the underlying constitutional merits of his or her

procedurally defaulted claim.     Herrera v. Collins, 506 U.S. 390, 404,

113 S. Ct. 853, 862 (1993); see also In re Davis, 557 U.S. 952, 955,

130 S. Ct. 1, 3 (2009) (Scalia, J., dissenting). “Federal habeas review of

state convictions has traditionally been limited to claims of constitutional

violations occurring in the course of the underlying state criminal

proceedings.” Herrera, 506 U.S. at 416, 113 S. Ct. at 869. The United

States Supreme Court has declined to stretch the reach of federal habeas

review to freestanding claims of actual innocence when there is a state

avenue to provide for pardons. Montoya v. Ulibarri, 163 P.3d 476, 482

(N.M. 2007); People v. Cole, 765 N.Y.S.2d 477, 484 (Sup. Ct. 2003).

      To overcome a procedural bar to federal habeas review, a petitioner

must generally show “cause for the default and prejudice from the

asserted error.” House v. Bell, 547 U.S. 518, 536, 126 S. Ct. 2064, 2076

(2006). “Cause” turns on the question of “whether the prisoner can show

that some objective factor external to the defense impeded counsel’s
                                     21

efforts to comply with the State’s procedural rule.”     Murray v. Carrier,

477 U.S. 478, 488, 106 S. Ct. 2639, 2645 (1986).         The United States

Supreme Court has vaguely defined “prejudice” but “prejudice” at least

entails an “actual prejudice” standard that requires a showing that “is

‘greater than the showing required to establish plain error on direct

appeal.’ ” Engle v. Isaac, 456 U.S. 107, 134–35, 102 S. Ct. 1558, 1575

(1982) (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730,

1736–37 (1977)).

      Absent the showing of cause and prejudice,

      a court may not reach the merits of: (a) successive claims
      that raise grounds identical to grounds heard and decided
      on the merits in a previous petition, . . . ; (b) new claims, not
      previously raised, which constitute an abuse of the writ, . . . ;
      or (c) procedurally defaulted claims in which the petitioner
      failed to follow applicable state procedural rules in raising
      the claims[.]

Sawyer v. Whitley, 505 U.S. 333, 338, 112 S. Ct. 2514, 2518 (1992)

(citations omitted).

      The procedural default doctrine arises from the principles of comity
and finality, and the conservation of judicial resources. House, 547 U.S.

at 536, 126 S. Ct. at 2076.     However, in certain circumstances, such

principles “must yield to the imperative of correcting a fundamentally

unjust incarceration.” Id. (quoting Carrier, 477 U.S. at 495, 106 S. Ct. at

2649); see Kuhlmann v. Wilson, 477 U.S 436, 454, 106 S. Ct. 2616, 2627

(1986) (holding the miscarriage-of-justice exception allows successive

claims given the petitioner shows “under the probative evidence he has a

colorable claim of factual innocence”); Carrier, 477 U.S. at 496, 106 S.

Ct. at 2649 (holding “in an extraordinary case, where a constitutional

violation has probably resulted in the conviction of one who is actually

innocent,” the merits of a procedurally defaulted claim could be reached).
                                        22

For purposes of this appeal, we focus on the fundamental-miscarriage-of-

justice, or actual-innocence, exception.

      In Schlup v. Delo, in considering a petitioner’s actual-innocence

claim accompanied by an assertion of constitutional violations at trial,

the Supreme Court explained what constitutes a gateway claim and

articulated the gateway standard. 513 U.S. 298, 315–17, 326–27, 115

S. Ct. 851, 861–62, 867 (1995).          The Court defined the petitioner’s

gateway claim of actual innocence as “not itself a constitutional claim,

but instead a gateway through which a habeas petitioner must pass to

have his otherwise barred constitutional claim considered on the merits.”

Id. at 315, 115 S. Ct. at 861 (quoting Herrera, 506 U.S. at 404, 113 S. Ct.

at 862). In other words, the petitioner’s claim of actual innocence does

not alone provide a basis for a court to vacate his conviction. See id.

Rather, his claim of actual innocence depends on the validity of his

underlying constitutional claims. See id.

      Schlup    held   a   petitioner   asserting   a   gateway   claim   must

demonstrate that in light of all the evidence, including the new evidence,

“it is more likely than not that no reasonable juror would have found

petitioner guilty beyond a reasonable doubt.” Id. at 327, 115 S. Ct. at

867 (adopting “the Carrier ‘probably resulted’ standard”); accord Kenfield

v. State, 377 P.3d 1207, 1211–12 (Mont. 2016); Berry v. State, 363 P.3d

1148, 1155 (Nev. 2015); In re Personal Restraint of Weber, 284 P.3d 734,

740 (Wash. 2012) (en banc).             This more-likely-than-not standard

“ensures that petitioner’s case is truly ‘extraordinary,’ . . . while still

providing petitioner a meaningful avenue by which to avoid a manifest

injustice.”    Schlup, 513 U.S. at 327, 115 S. Ct. at 867 (quoting

McCluskey v. Zant, 499 U.S. 467, 494, 111 S. Ct. 1454, 1470 (1991)).

The petitioner does not need to establish with absolute certainty that he
                                     23

or she is innocent.    House, 547 U.S. at 538, 126 S. Ct. at 2077.       In

declining to adopt a clear and convincing standard, the Court stated that

actual-innocence claims “pose less of a threat to scarce judicial resources

and to principles of finality and comity than do claims that focus solely

on the erroneous imposition of the death penalty.” Schlup, 513 U.S. at

324, 115 S. Ct. at 865.

      Based on the foregoing, we carefully distinguish between the two

forms of an actual-innocence claim: a gateway claim of actual innocence

with an underlying constitutional challenge and a freestanding claim of

actual innocence that is itself the substantive basis for relief.

      2.   Freestanding claims of actual innocence in Iowa.         Schmidt

argues the “in the interest of justice” language of Iowa Code section

822.2(1)(d), unlike federal habeas, gives a substantive basis for actual-

innocence claims.     Schmidt states section 822.2(1)(a) also provides a

means to raise a freestanding claim of actual innocence because “[i]f a

person is convicted of a crime he did not commit[,] such a conviction

violates the Iowa Constitution.”    Thus, Schmidt contends, because his

claim of actual innocence is itself a substantive claim, it does not need to

pass through the actual-innocence gateway.

      The federal circuit courts of appeals remain unsettled on the

question of whether a freestanding claim of actual innocence exists.

John M. Leventhal, A Survey of Federal and State Courts’ Approaches to a

Constitutional Right of Actual Innocence: Is There a Need for a State

Constitutional Right in New York in the Aftermath of CPL § 440.10(1)(G-1)?,

76 Alb. L. Rev. 1453, 1464–65 nn.83–95 (2013) (citing cases).          If a

freestanding claim of actual innocence exists, it would have to overcome

an “extraordinarily high threshold.” Id. at 1464 & n.85 (collecting cases);

see also Carriger v. Stewart, 132 F.3d 463, 476 (9th Cir. 1997)
                                             24

(“Requiring affirmative proof of innocence is appropriate, because when a

petitioner makes a freestanding claim of innocence, he is claiming that

he is entitled to relief despite a constitutionally valid conviction.”).

        At the state level, a number of jurisdictions acknowledge

freestanding claims of actual innocence. Engesser, 856 N.W.2d at 481

n.3 (collecting cases and statutes that allow freestanding claims of actual

innocence).         States that do recognize freestanding claims of actual

innocence apply varying standards.                Compare People v. Washington,

665 N.E.2d 1330, 1337 (Ill. 1996) (holding the defendant must present

new evidence that is “ ‘of such conclusive character’ as would ‘probably

change the result on retrial’ ” (quoting People v. Silagy, 507 N.E.2d 830,

834 (Ill. 1987))), with State ex rel. Amrine v. Roper, 102 S.W.3d 541, 548

(Mo. 2003) (en banc) (holding the petitioner must “make a clear and

convincing showing of actual innocence that undermines confidence in

the correctness of the judgment”).

        In Washington, the Illinois Supreme Court explicitly addressed

whether a freestanding claim of actual innocence based on new evidence

implicated         the   due   process   clause     of   the   Illinois    Constitution.

665 N.E.2d at 1335–37. In regards to procedural due process, the court

reasoned “to ignore such a claim would be fundamentally unfair.” Id. at

1336.

        In    terms      of    substantive    due    process,     the      court   stated

“[i]mprisonment of the innocent would also be so conscience shocking as

to trigger operation of substantive due process.”                Id.      It stated, “The

[United States] Supreme Court rejected substantive due process as

means to recognize freestanding innocence claims because of the idea

that a person convicted in a constitutionally fair trial must be viewed as

guilty.”     Id.    In declining to adopt the reasoning of the United States
                                      25

Supreme Court, the court stated, “The stronger the claim—the more

likely it is that a convicted person is actually innocent—the weaker is the

legal construct dictating that the person be viewed as guilty.”         Id.

Because “no person convicted of a crime should be deprived of life or

liberty given compelling evidence of actual innocence[,]” the court held

the due process clause of the Illinois Constitution gives credence to

freestanding claims of actual innocence and affords convicted defendants

additional process. Id. at 1336–37.

      In Montoya, the New Mexico Supreme Court held the New Mexico

Constitution, specifically the due process clause and the prohibition

against infliction of cruel and unusual punishment, provides protection

to actually innocent people.     163 P.3d at 484.    The court reasoned it

would be “fundamentally unfair” to convict, incarcerate, or execute an

innocent person. Id. The court further reasoned “the incarceration of an

innocent person [fails to] advance[] any [acceptable] goal of punishment,

and . . . the punishment is indeed grossly out of proportion to the

severity of the crime.” Id.

      We now turn to the Iowa Constitution.         First, we note the Iowa

Constitution vests authority to grant pardons with the Governor. Iowa

Const. art. IV, § 16; State v. Ragland, 836 N.W.2d 107, 118 (Iowa 2013).

Thus, the incarceration of an actually innocent person in Iowa does not

violate the Federal Constitution.     See Montoya, 163 P.3d at 482; Cole,

765 N.Y.S.2d at 484.          We therefore address the possibility of a

freestanding claim of actual innocence pursuant to Iowa constitutional

jurisprudence.

      The Iowa Constitution affords individuals greater rights than does

the United States Constitution. See, e.g., State v. Lyle, 854 N.W.2d 378,

395 (Iowa 2014) (noting “we expanded the reach of the Supreme Court’s
                                     26

reasoning in a trilogy of juvenile justice cases decided under the Iowa

Constitution”).   Moreover, we have discretion to construe the Iowa

Constitution in such a way as to “provid[e] greater protection for our

citizens’ constitutional rights.”   Nguyen v. State, 878 N.W.2d 744, 755

(Iowa 2016). Because we “jealously” safeguard our authority to interpret

the Iowa Constitution on our own terms, we do not employ a lockstep

approach in following federal precedent although United States Supreme

Court cases are “persuasive.” See State v. Ochoa, 792 N.W.2d 260, 267

(Iowa 2010).

      Article I, section 9 of the Iowa Constitution prohibits the

deprivation of liberty without due process of law. Iowa Const. art. I, § 9

(due process clause). We have enforced “the due process clause of article

I, section 9 . . . in a wide variety of settings.”        Godfrey v. State,

898 N.W.2d 844, 871 (Iowa 2017).          In fact, “[t]he Iowa constitutional

provision regarding due process of law is . . . not a mere hortatory

command, but it has been implemented, day in and day out, for many,

many years.” Id. We see no reason why article I, section 9 would not be

enforceable for purposes of vindicating defendants who prove they are

factually innocent and believe their incarceration triggers the due

process clause.

      An innocent person has a constitutional liberty interest in

remaining free from undeserved punishment. Holding a person who has

committed no crime in prison strikes the very essence of the

constitutional guarantee of substantive due process.              See Cole,

765 N.Y.S.2d at 485 (holding “the conviction or incarceration of a

guiltless person violates elemental fairness, deprives that person of

freedom of movement and freedom from punishment[,] and thus runs

afoul of the due process clause of the [New York] State Constitution”).
                                    27

      Even if defendants allege substantive due process violations, they

must meet the demanding actual-innocence standard to prove the

validity of their actual-innocence claims—a standard we articulate in the

next section. Thus, there are limits on actual-innocence claims.

      Moreover, actually innocent people should have an opportunity to

prove their actual innocence.    Montoya, 163 P.3d at 484 (holding “the

conviction, incarceration, or execution of an innocent person violates all

notions of fundamental fairness” and thus actually innocent people

“must be permitted to assert a claim of actual innocence”).             The

incarceration of actually innocent people therefore implicates procedural

due process.

      Article I, section 17 of the Iowa Constitution prohibits cruel and

unusual punishment.       Iowa Const. art. I, § 17 (cruel and unusual

punishment).    This prohibition “embraces a bedrock rule of law that

punishment should fit the crime.”        Lyle, 854 N.W.2d at 384 (quoting

State v. Bruegger, 773 N.W.2d 862, 872 (Iowa 2009)); accord Roper v.

Simmons, 543 U.S. 551, 560, 125 S. Ct. 1183, 1190 (2005) (“[T]he Eighth

Amendment guarantees individuals the right not to be subjected to

excessive sanctions.”).    Applying this bedrock principle, we believe

“punishing an actually innocent person is disproportionate to the crime

(or lack of crime) committed and violates the cruel and inhuman

treatment clause.” Cole, 765 N.Y.S.2d at 485; accord Herrera, 506 U.S.

at 431, 113 S. Ct. at 876 (Blackmun, J., dissenting) (noting punishment

“grossly out of proportion to the severity of the crime” is unconstitutional

and excessive (quoting Coker v. Georgia, 433 U.S. 584, 592, 97 S. Ct.

2861, 2866 (1977) (plurality opinion))).

      Furthermore, we agree with Justice Blackmun’s dissent in Herrera

that “it is crystal clear that the execution of an innocent person is ‘at
                                          28

odds with contemporary standards of fairness and decency.’ ” 506 U.S.

at 431, 113 S. Ct. at 876 (quoting Spaziano v. Florida, 468 U.S. 447, 465,

104 S. Ct. 3154, 3165 (1984), overruled on other grounds by Hurst v.

Florida, 577 U.S. ___, ___, 136 S. Ct. 616, 621 (2016)).                 We believe

Justice Blackmun’s reasoning also applies to the conviction and

incarceration of an innocent person because “the basic concept

underlying the prohibition against cruel and unusual punishment ‘is

nothing less than the dignity’ of humankind.” Lyle, 854 N.W.2d at 384

(quoting Trop v. Dulles, 356 U.S. 86, 100, 78 S. Ct. 590, 597 (1958)).

       We reject the notion that the rationale used in cases involving

trials cannot be applied to those involving pleas. 5 We find these cases

informative because the same policy reason informs convictions based

after trials as those based on pleas. See Ex parte Tuley, 109 S.W.3d 388,

391–92 (Tex. Crim. App. 2002); see also People v. Tiger, 48 N.Y.S.3d 685,

700–01 (App. Div. 2017) (citing Ex parte Tuley, 109 S.W.3d at 393)

(holding a defendant’s plea does not bar the defendant from bringing a

freestanding claim of actual innocence). This policy reason is protecting

against violations of constitutional principles.

       The Texas Court of Criminal Appeals permits freestanding claims
of actual innocence even if the applicant pled guilty.              Ex parte Tuley,

109 S.W.3d at 393.        In Tuley, the applicant pled guilty to aggravated

sexual assault.        Id. at 390.       Years later, the applicant pursued

postconviction relief when the complainant recanted her allegation. Id.

The court sought to answer the question of whether the applicant’s plea

precluded his freestanding actual-innocence claim. Id. It reasoned the


       5For example, the following cases involved convictions after trials: Washington,
665 N.E.2d at 1331; Montoya, 163 P.3d at 478; In re Kaufmann, 157 N.E. at 731;
Engesser, 856 N.W.2d at 473.
                                         29

policy behind allowing freestanding actual-innocence claims was to

protect   innocent   individuals       from   punishment.      Id.   at   390–91.

Specifically, the court reasoned, this policy “is the same for an applicant

regardless of whether his case was heard by a judge or jury or whether

he [pled] guilty or not guilty.” Id.

      The court further reasoned that “[c]onvicting courts should . . . give

great respect to knowing, voluntary, and intelligent pleas of guilty.” Id. at

391. However, “we should not foreclose relief because a defendant [pled]

guilty when the policy behind granting relief on a bare innocence claim is

the same.” Id. Moreover, “[t]here is nothing equitable about permitting

an innocent person to remain in prison when he produces new evidence

that unquestionably shows that he did not commit the offense for which

he is incarcerated.” Id. at 392. Thus, the court held an applicant must

“show[] by clear and convincing evidence that, despite the evidence of

guilt that supports the conviction, no reasonable juror could have found

the applicant guilty in light of the new evidence.” Id. We agree with the

Texas Court of Criminal Appeals that the same rudimentary policy

reason—safeguarding       against      violations   of   due   process—form    a

substratum for claims of actual innocence, regardless of whether

defendants pled guilty or went to trial.

      Therefore, we now find the Iowa Constitution permits freestanding

claims of actual innocence. Furthermore, freestanding claims of actual

innocence permitted by the Iowa Constitution are available to applicants

even though they pled guilty.

      3. The standard to apply to freestanding actual-innocence claims.

States that have adopted freestanding actual-innocence claims require a

higher burden than that of a gateway claim for an applicant to succeed.

We again note the United States Supreme Court adopted a more-likely-
                                           30

than-not standard in proving gateway claims of actual innocence.

Schlup, 513 U.S at 327, 115 S. Ct. 851 at 867.

       In Jamison v. State, a case involving newly discovered evidence

that would allegedly support an applicant’s self-defense theory, the

South Carolina Supreme Court adopted a stringent standard. 6                         765

S.E.2d 123, 130 (S.C. 2014).

       There the court held,

       [W]hen a [postconviction-relief] applicant seeks relief on the
       basis of newly discovered evidence following a guilty plea,
       relief is appropriate only where the applicant presents
       evidence showing that (1) the newly discovered evidence was
       discovered after the entry of the plea and, in the exercise of
       reasonable diligence, could not have been discovered prior to
       the entry of the plea; and (2) the newly discovered evidence is
       of such a weight and quality that, under the facts and
       circumstances of that particular case, the “interest of justice”
       requires the applicant’s guilty plea to be vacated. In other
       words, a [postconviction-relief] applicant may successfully
       disavow his or her guilty plea only where the interests of
       justice outweigh the waiver and solemn admission of guilt
       encompassed in a plea of guilty and the compelling interests
       in maintaining the finality of guilty-plea convictions.

Id. (emphasis added).

       We believe the standard the South Carolina Supreme Court has

adopted is not only amorphous but also impractical. What does it mean

for the “interests of justice” to outweigh the guilty plea waiver?                   The

permutations are endless.           The standard set by the South Carolina

Supreme Court does not appear to be any different from altogether

barring an applicant’s postconviction-relief action.

       Similarly, the California Supreme Court requires applicants to

meet a high burden such that the evidence “undermine[s] the entire

       6We  realize this case did not involve an actual-innocence claim but rather a self-
defense theory. We think it is nevertheless informative in constructing a standard for
freestanding actual-innocence claims in Iowa.
                                      31

prosecution case and point[s] unerringly to innocence or reduced

culpability.” In re Clark, 855 P.2d 729, 739 (Cal. 1993); accord In re Bell,

170 P.3d 153, 157 (Cal. 2007).

      The Texas Court of Criminal Appeals originally adopted a very

burdensome standard, requiring applicants claiming actual innocence to

demonstrate “based on the newly discovered evidence and the entire

record before the jury that convicted him, no rational trier of fact could

find proof of guilt beyond a reasonable doubt.” State ex rel. Holmes v.

Honorable Ct. of Appeals, 885 S.W.2d 389, 399 (Tex. Crim. App. 1994)

(en banc), overruled by Ex parte Elizondo, 947 S.W.2d 202, 206 (Tex.

Crim. App. 1996) (en banc).

      However, in lowering the burden of proof, the court in Ex parte

Elizondo stated the Holmes standard was too high because it would be

“theoretically impossible” to attain relief. Ex parte Elizondo, 947 S.W.2d

at 205. The court reasoned “exculpatory evidence can never outweigh

inculpatory evidence under [the] standard” set in State ex rel. Holmes. Id.

Thus, the court adopted a clear and convincing standard requiring “the

petitioner must show by clear and convincing evidence that no reasonable

juror would have convicted him in light of the new evidence.” Id. at 209.

      A number of states apply the Elizondo clear and convincing

standard.    See, e.g., Roper, 102 S.W.3d at 548; Montoya, 163 P.3d at

486; Cole, 765 N.Y.S.2d at 486; Miller v. State, 340 P.3d 795, 796 (Utah

Ct. App. 2014) (per curiam); see also Miller v. Comm’r of Corr., 700 A.2d

1108, 1130–31 (Conn. 1997) (adopting a clear and convincing standard

and also requiring the petitioner to show that “no reasonable fact finder

would find the petitioner guilty”).

      Other jurisdictions have codified freestanding claims of actual

innocence.    The Maryland statute uses a standard of “substantial or
                                    32

significant possibility that the result may have been different.”      Md.

Code. Ann., Crim. Proc. § 8-301(a)(1) (West, Westlaw through ch.1–4

2018 Reg. Sess.). The statute gives the court discretion to “set aside the

verdict, resentence, grant a new trial, or correct the sentence.” Id. § 8-

301(f)(1).   The Maryland Court of Special Appeals, however, held a

defendant who has pled guilty could not petition for a writ of actual

innocence. Yonga v. State, 108 A.3d 448, 460 (Md. Ct. Spec. App. 2015),

aff’d 130 A.3d 486, 492 (Md. 2016).

      In discussing freestanding claims of actual innocence, the District

of Columbia statute explicitly assigns different remedies upon meeting

the respective standards.    D.C. Code Ann. § 22-4135 (West, Westlaw

through Feb. 20, 2018). If the court determines “it is more likely than

not that the movant is actually innocent of the crime,” the remedy is to

grant a new trial. Id. § 22-4135(g)(2). If the court determines “by clear

and convincing evidence that the movant is actually innocent of the

crime,” the remedy is to vacate the conviction. Id. § 22-4135(g)(3). Thus,

the District of Columbia statute requires a more stringent standard to

vacate a conviction but fashions this stronger remedy upon the movant

meeting his or her burden of proof. Moreover, “[i]f the conviction resulted

from a plea of guilty, and other charges were dismissed as part of a plea

agreement, the court shall reinstate any charges of which the defendant

has not demonstrated that the defendant is actually innocent.” Id. § 22-

4135(g)(4). Thus, the District of Columbia statute minimizes unfairness

to the government by counterbalancing the movant’s interest—vacating a

wrongful conviction and ensuring a factually innocent person is not

incarcerated—and the government’s interest—allowing reinstatement of

charges the government otherwise would have pursued if the movant had

not pled guilty.
                                    33

      After reviewing the differing standards our sister states have

adopted, we find that after pleading guilty, applicants claiming actual

innocence must meet the clear and convincing standard. We reach this

conclusion for a number of reasons.        In House, the United States

Supreme Court mentioned the required proof to establish actual

innocence as a freestanding claim is greater than that required to

establish a gateway claim of actual innocence.          547 U.S. at 555,

126 S. Ct. at 2087; accord In re Weber, 284 P.3d at 741 (“[A]ny standard

by which a free-standing actual innocence claim must be proved will be

higher than that applied in the gateway context.”).

      In light of House, a clear and convincing standard is the

appropriate burden of showing a freestanding claim of actual innocence.

This standard is heavier than the more-likely-than-not standard

governing gateway claims of actual innocence. It makes sense to have a

lower standard for gateway claims because such claims have underlying

claims that allege constitutional defects in the trial or plea colloquy.

However, an applicant bringing a freestanding claim of actual innocence

is claiming he or she is factually and actually innocent, despite a fair,

constitutionally compliant trial or plea colloquy free of constitutional

defects.

      Additionally, a clear and convincing standard balances the interest

of an innocent defendant and that of the state. Although the interests of

both parties are important, we believe “it is far worse to convict an

innocent person than to acquit a guilty one” such that “the scale tips in

favor of the [defendant’s] interest.” Miller, 700 A.2d at 1133. Thus, we

simultaneously vindicate this principle and recognize the interest of the

state in finality of criminal litigation by adopting a clear and convincing

standard.
                                    34

      Finally, the higher burden answers the problems posed by the

Colorado Supreme Court regarding claims of newly discovered evidence

after a defendant has pled guilty.       In People v. Schneider, the court

stated,

      In the circumstance in which there never was a trial on the
      charges, the trial court is hampered in that assessment.
      Furthermore, there must be some consequence attached to
      the decision to plead guilty. A defendant who voluntarily and
      knowingly enters a plea accepting responsibility for the
      charges is properly held to a higher burden in demonstrating
      to the court that newly discovered evidence should allow him
      to withdraw that plea.

25 P.3d 755, 761–62 (Colo. 2001) (en banc) (emphasis added). However,

by adopting a higher burden of proof—a clear and convincing standard—

we account for the differences.

      We now adopt the clear and convincing standard to prove a

freestanding actual-innocence claim. For an applicant to succeed on a

freestanding actual-innocence claim, the applicant must show by clear

and convincing evidence that, despite the evidence of guilt supporting the

conviction, no reasonable fact finder could convict the applicant of the

crimes for which the sentencing court found the applicant guilty in light

of all the evidence, including the newly discovered evidence.
      4. Vehicle to bring freestanding actual-innocence claims. We now

address whether our postconviction-relief statute provides a means to

raise a freestanding claim of actual innocence. Outside of our current

statutory scheme in chapter 822, we need not decide or specify other

vehicles applicants may use to bring their freestanding actual-innocence

claims as independent actions. We emphasize sections 822(1)(a) and (d)

are not the exclusive vehicles to bring freestanding actual-innocence

claims because applicants may file such claims independently of chapter
                                    35

822.   However, at this point, the legislature has provided the present,

appropriate vehicle in chapter 822. The Code provides,

              1. Any person who has been convicted of, or
       sentenced for, a public offense and who claims any of the
       following may institute, without paying a filing fee, a
       proceeding under this chapter to secure relief:

              a. The conviction or sentence was in violation of the
       Constitution of the United States or the Constitution or laws
       of this state.

             ....

             d. There exists evidence of material facts, not
       previously presented and heard, that requires vacation of the
       conviction or sentence in the interest of justice.

Iowa Code § 822.2(1)(a), (d).

       The Iowa Constitution gives a floor to bring freestanding claims of

actual innocence under our postconviction-relief statute, specifically

sections 822.2(1)(a) and (d).     Cf. Washington, 665 N.E.2d at 1337

(holding the due process clause of the Illinois Constitution provides a

footing to assert freestanding actual-innocence claims based on newly

discovered evidence under the Post-Conviction Hearing Act).             A

conviction of an innocent person violates the Iowa Constitution,

specifically the due process clause and the prohibition against infliction

of cruel and unusual punishment.         Thus, section 822.2(1)(a) is one

vehicle to bring an actual-innocence claim. Additionally, conviction of an

innocent person infringes upon the “interest of justice” precisely because

it violates the Iowa Constitution.       Therefore, section 822.2(1)(d) is

another vehicle to assert an actual-innocence claim.

       In sum, we hold subsections 822.2(1)(a) and (d) provide avenues

for freestanding actual-innocence claims.
                                     36

      IV. Application of Legal Principles.

      We first address the statute of limitations issue and then the

question of how to proceed under our new standard.

      A. Statute of Limitations.          Our postconviction-relief statute

specifies its own limitations of action.      The Iowa Code provides in

relevant part,

      All . . . applications must be filed within three years from the
      date the conviction or decision is final or, in the event of an
      appeal, from the date the writ of procedendo is issued.
      However, this limitation does not apply to a ground of fact or
      law that could not have been raised within the applicable
      time period.

Iowa Code § 822.3.

      Thus, to avoid the three-year statute of limitations contained in

section 822.3, an applicant must show he or she could not have raised

the ground of fact within the applicable time period.        Additionally, “a

postconviction-relief applicant relying on the ground-of-fact exception

must show the ground of fact is relevant to the challenged conviction.”

Harrington v. State, 659 N.W.2d 509, 521 (Iowa 2003). This is the nexus

requirement. Id. at 520. We made it clear a ground of fact is “relevant” if

it is the type of fact “that has the potential to qualify as material evidence

for purposes of a substantive claim under section 822.2.” Id. at 521.

      We explicitly and “specifically reject[ed] any requirement that an

applicant must show the ground of fact would likely or probably have

changed the outcome of the underlying criminal case in order to avoid a

limitations defense.” Id. The ultimate determination as to whether the

applicant is entitled to relief “must await an adjudication, whether in a

summary proceeding or after trial, on the applicant’s substantive claim

for relief.” Id.   In other words, we do not reach the merits of a claim
                                     37

based on a new ground of fact in deciding whether the exception to the

three-year statute of limitations applies.

      Here, B.C.’s recantation was not available to Schmidt within the

three-year period following the date of his conviction and Schmidt could

not have discovered the recantation earlier than he did in the exercise of

due diligence. Additionally, the recantation has the potential to qualify

as material evidence that probably would have changed the outcome of

Schmidt’s case. See id. at 521 (holding the undisclosed police reports

and the recantations “are the type of facts having the potential to qualify

as material evidence that probably would have changed the outcome of

[the defendant’s] trial”).

      We ultimately decided Harrington based on the withheld police

reports in order to resolve the due process issue of whether the

prosecution suppressed material evidence that was favorable to the

defendant. Id. at 521–25. As for the statute-of-limitations analysis, we

held both the recantation evidence and the police reports were sufficient;

and thus, the defendant was not time barred from bringing his action.

Id. at 521.

      Based on the foregoing, section 822.3 does not time bar Schmidt’s

freestanding claim of actual innocence.

      B. Application of Standard Regarding Schmidt’s Freestanding

Actual-Innocence Claim.       The district court ruled on Schmidt’s case

after the State filed a motion for summary dismissal/summary judgment.

Section 822.6 allows for a summary disposition. The statute states in

relevant part,

            The court may grant a motion by either party for
      summary disposition of the application, when it appears
      from the pleadings, depositions, answers to interrogatories,
      and admissions and agreements of fact, together with any
                                    38
      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.

      At the time the court ruled on the State’s motion, it decided the

case as a matter of law relying on our jurisprudence that defendants who

knowingly and voluntarily plead guilty cannot attack their pleas with

challenges extrinsic to the pleas. Today, we have reversed this line of

cases and created a new standard for freestanding actual-innocence

claims.

      Generally, when we create a new standard, we remand the case to

the district court to apply the standard. See McQuistion v. City of Clinton,

872 N.W.2d 817, 819–20 (Iowa 2015) (adopting a new standard for the

evaluation of a pregnancy claim and remanding the case to the district

court to apply that standard); cf. State v. Ary, 877 N.W.2d 686, 707 (Iowa

2016) (remanding the case to the district court to apply the appropriate

standard when it initially applied the wrong standard).

      Here, we have created a new standard. Thus, the proper result is

to remand the case to the district court to apply the standard to the

State’s motion for summary dismissal/summary judgment.           The court

should allow the parties to supplement the record, if a party so desires,

to provide other evidence or affidavits to support their respective

positions.   See Iowa R. Civ. P. 1.981(5) (setting forth the methods to

present evidence in a summary judgment proceeding).

      We are not commenting on the merits of Schmidt’s claim.

Contrary to the other opinions filed in this case, both parties are entitled

to their day in court to litigate their positions under the new standard we

have adopted today. We will address any unanswered questions when a

party presents the court with actual cases raising those issues. That is
                                    39

how the law progresses in this state. We do not issue advisory opinions.

See Linn v. Montgomery, 903 N.W.2d 337, 344 (Iowa 2017).

      It is for the district court to determine whether the recantation, in

light of any other evidence that meets the requirements of rule 1.981,

creates a genuine issue of material fact.    We are not in a position to

decide the merits of this case by assuming that certain evidence, which

may or may not comply with the requirements of rule 1.981, shows there

is no genuine issue as to any material fact in order to affirm the

summary disposition in favor of the State. Prohibiting the parties here

from the benefit of the procedural processes provided to litigants is no

better than incarcerating an innocent person.

      Only after the parties develop a record in a summary proceeding

can the court decide if a genuine issue of material fact exists. If it does,

then a trial may be necessary to resolve Schmidt’s claim.

      V. Disposition.

      We vacate the decision of the court of appeals and reverse the

judgment of the district court granting the State’s motion for summary

dismissal/summary judgment. We remand the case to the district court

for further proceedings consistent with this opinion.

      DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT JUDGMENT REVERSED AND CASE REMANDED.

      Cady, C.J., Hecht and Appel, JJ., join this opinion.      Cady, C.J.,

files a special concurrence. Waterman, J., files a dissenting opinion in

which Mansfield and Zager, JJ., join.      Mansfield, J., files a separate

dissenting opinion in which Waterman and Zager, JJ., join.
                                      40
                                              #15–1408, Schmidt v. State
CADY, Chief Justice (concurring specially).

      The process of justice must always be fair. This case stands tall as

the embodiment of this fundamental principle of law. It is a substantial

step forward in our constitutional march to become better.       Innocent

people should always have a forum to prove their innocence.        I fully

concur in the opinion of the court.

      Yet, the actual process of justice available to Schmidt to now

pursue the new claim given to him must also be fair. This fairness is the

reason the case must be remanded to the district court for it to decide if

summary adjudication should be granted.       I write separately only to

explain this important part of the case more fully and why the actual-

innocence claim cannot now be decided on appeal.

      Going forward, when an actual-innocence claim based on the

recantation of a witness is brought in our courts, summary judgment will

remain a viable procedural vehicle for the state to ask the court to

resolve the claim. Consistent with all summary judgment proceedings,

the legal issue will be whether the moving party is entitled to summary

judgment, under a set of facts assumed to be undisputed for the

purposes of the motion, because a reasonable juror could still conclude

the defendant is guilty of the crime.        For purposes of summary

adjudication of witness recantation claims, the undisputed facts needed

to support the motion will normally center on the remaining evidence of

guilt from other witnesses found in the minutes of testimony. In many

cases, the remaining evidence may support summary judgment, as a

reasonable juror could still convict the defendant based on the surviving

evidence.
                                    41

      In this case, the assumed undisputed facts, at this time, may

support   summary      judgment.      In   his   plea   colloquy,   Schmidt

acknowledged the minutes of testimony were true and accurate.

Significantly, the minutes included a witness who was an eyewitness to

the assault. With only the recantation evidence offered by Schmidt at

this point to prove his innocence, a reasonable fact finder could still

conclude Schmidt committed the crime.

      Nevertheless, it would be unfair to Schmidt for us to apply the new

standard to the existing record to decide the actual-innocence claim now

on appeal.     At the time the State brought its motion for summary

judgment in this case, it argued Schmidt’s claim was barred by the

three-year statute of limitations under Iowa Code section 822.3 (2014)

and the recantation evidence identified in his petition for postconviction

relief was discoverable within the limitation period.    Thus, at the time

Schmidt resisted the summary judgment motion, the legal issue before

the court was whether the recantation was discoverable within the three-

year period.   The district court granted the summary judgment after

concluding the exculpatory evidence was extrinsic to the plea and could

not be grounds for relief.

      Although Schmidt claimed his actual innocence in the summary

judgment proceedings, the legal issue he was responding to was whether

the recantation evidence was discoverable within the three-year statute

of limitations. He was not responding to a substantive claim by the State

that his recantation evidence would still be insufficient as a matter to law

to support a claim of actual innocence. In fact, recantation as a claim of

innocence has still not been teed up by the State, and Schmidt has not

been alerted to the requirement to submit all evidence of innocence in

direct response to such claim. Thus, the record does not show Schmidt
                                     42

has had a full and fair opportunity to present all new evidence to resist

summary judgment.

       Likewise, the State has not had a full and fair opportunity to

specifically identify its evidence to support summary adjudication under

the actual-innocence standard. See Iowa Code § 822.6. Even though the

state asked the district court in the summary judgment proceedings to

take judicial notice of the complete record in the case, the state must still

identify those portions of the record it relies on to support summary

judgment. See id.

       The case needs to be remanded to the district court so the State

can amend its motion for summary judgment to claim Schmidt has failed

to bring a claim of actual innocence that survives summary adjudication.

The district court needs to consider the motion after Schmidt has filed an

amended response. This procedure is required to ensure the process of

justice is fair.
                                          43
                                                        #15–1408, Schmidt v. State
WATERMAN, Justice (dissenting).

       I respectfully dissent and would affirm the district court’s

summary judgment and the court of appeals decision affirming it under

our long-standing precedent enforcing the legal effect of guilty pleas. I

join Justice Mansfield’s separate dissent. This year, the United States

Supreme Court resoundingly reiterated a fundamental legal tenet: a valid

guilty plea waives the defendant’s constitutional right to trial and right to

confront witnesses and “relinquishes any claim that would contradict the

‘admissions necessarily made upon entry of a voluntary plea of guilty.’ ”

Class v. United States, 583 U.S. ___, ___, 138 S. Ct. 798, 805 (2018)
(quoting United States v. Broce, 488 U.S. 563, 573–74, 109 S. Ct. 757,

764 (1989)). A guilty plea precludes a defendant from a later challenge in

which he would “deny that he engaged in the conduct to which he

admitted.” Id. All nine justices agreed with that proposition. See id. at

___, 138 S. Ct. at 815 (Alito, J., dissenting). 7 When Schmidt confessed in

open court and pled guilty, he closed the door to his subsequent claim

that he is factually innocent, that is, that he really did not do what he

admitted doing. The majority today errs by relying on cases in which the

defendant steadfastly maintained his or her innocence through trial and

all subsequent appeals.

       7The  Class Court held the defendant’s guilty plea alone did not bar his challenge
to his conviction on grounds the statute of conviction was unconstitutional. ___ U.S. at
___, 138 S. Ct. at 803 (majority opinion). Iowa appears to recognize the same exception
because we allow the defendant who pled guilty to later assert that the indictment or
information charges no offense. See, e.g., State v. Burgess, 639 N.W.2d 564, 567 (Iowa
2001). This is a matter intrinsic to the plea because it does not require resort to
anything other than the trial information and the plea of guilty.
         Schmidt makes no such constitutional challenge to the statutes he pled guilty to
violating. The Class Court made clear that a defendant who pleads guilty waives any
right to later contest his factual guilt, challenge the evidence against him, or retreat
from factual admissions in the guilty plea. 583 U.S. at___, 138 S. Ct. at 804, 805–06;
id. at ___, 138 S. Ct. at 812–13 (Alito, J., dissenting.
                                       44

      I would also affirm summary judgment based on the statute of

limitations because Schmidt knew what really happened in the bedroom

and knew when he pled guilty whether his victim, B.C., and the

eyewitness, Peter, were lying. Schmidt knowingly and voluntarily waived

his right to challenge their allegations when he pled guilty in a detailed

colloquy with the court while represented by effective defense counsel.

Iowa law has always provided innocent people a forum to prove their

innocence—through a trial.      Schmidt is an admittedly guilty man who

chose to give up his right to trial.

      The majority undermines the finality of guilty pleas and eviscerates

the three-year statute of limitations for postconviction-relief (PCR)

actions. Today’s decision will have bad consequences, as counsel for the

State warned, including fewer plea bargains, renewed turmoil for victims

and their families years after the crime, and a flood of PCR applications.

The majority, by remanding this case instead of itself applying its new

standard on the existing record, needlessly leaves district courts in the

dark on whether evidentiary hearings or new trials will be required

whenever a victim or other witness recants years after a defendant, ably

represented by competent counsel, formally confessed to the crime in

open court through a guilty plea devoid of legal error. Soon, we will see

PCR applications by defendants who pled guilty to domestic assault and

now bully the survivors into recanting.

      Courts    appropriately    regard     recantations   with   the   utmost

suspicion—especially those involving intrafamily sexual abuse.          In my

view, summary judgment can and should be affirmed on the existing

record after remand under the majority’s newly adopted test for actual

innocence.     This is because Schmidt cannot show, despite B.C.’s

“recantation,” that no reasonable juror could convict him based on
                                           45

Peter’s unrecanted eyewitness account of catching Schmidt in the act

and   B.C.’s      contemporaneous         statements      and    forensic    interview

describing the sexual assault.              Indeed, Iowa juries, even without

eyewitness testimony, have convicted defendants charged with domestic

abuse based solely on what the victim said happened right after the

abuse, disbelieving the victim’s subsequent recantation at trial. 8 B.C.’s

quasi-recantation essentially can be paraphrased as, “I said it happened

back then, but now that my much bigger brother is getting out of prison

I’m telling people it didn’t happen—you guess which story is true.” This

equivocal recantation should be insufficient to vacate Schmidt’s guilty

plea. I would wait for a better test case to adopt a standard for relief

under an actual-innocence theory.

     I. The District Court Properly Granted Summary Judgment
Based on Schmidt’s Guilty Plea.

      The majority is unable to find fault with the manner in which

Schmidt pled guilty.         Schmidt raises no claim that his counsel was

ineffective and alleges no defect or constitutional infirmity in connection

with his guilty plea.       The majority, nevertheless, allows Schmidt, and

presumably any other convicted offender, to belatedly challenge a guilty

plea based solely on someone’s subsequent recantation.                   The majority

thereby upends Iowa law on the finality of guilty pleas and does so

without acknowledging the many built-in protections our legal system

employs to ensure the validity of plea-based convictions and without

quoting Schmidt’s in-court colloquy showing those safeguards were

followed to the letter in his case.




      8See,   e.g., State v. Smith, 876 N.W.2d 180, 183–84, 190 & n.4 (Iowa 2016).
                                     46

      Until today, it had been “well settled that a plea of guilty ‘waives all

defenses or objections which are not intrinsic to the plea itself.’ ” State v.

Alexander, 463 N.W.2d 421, 422 (Iowa 1990) (quoting State v.

Morehouse, 316 N.W.2d 884, 885 (Iowa 1982), overruled on other grounds

by State v. Kress, 636 N.W.2d 12, 20 (Iowa 2001)). I would honor stare

decisis and affirm Schmidt’s conviction under the foregoing precedent.

             Generally, a criminal defendant waives all defenses
      and objections to the criminal proceedings by pleading guilty
      ....    One exception to this rule involves irregularities
      intrinsic to the plea—irregularities that bear on the knowing
      and voluntary nature of the plea.

Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011) (citation omitted)

(addressing when ineffective assistance of counsel constitutes an

irregularity intrinsic to the plea by rendering it involuntary or

unknowing). Schmidt does not dispute the district court’s finding that

his guilty plea was knowing and voluntary, and he has never alleged

ineffective assistance of counsel.

      “A plea colloquy that covers the specific ground subsequently

raised in a postconviction relief application would normally support

summary judgment on those grounds.” Id. at 795. The district court
properly considered Schmidt’s admissions in his plea colloquy and the

legal effect of his guilty plea in granting the State’s motion for summary

disposition of the PCR action. See id. Schmidt was not entitled to an

evidentiary hearing on the veracity of B.C.’s recantation without first

establishing that his guilty plea was unknowing or involuntary.          It is

undisputed that Schmidt pled guilty and admitted to the crimes in the

plea colloquy. The legal effect of his guilty plea is a question of law the

district court correctly decided by summary judgment on the existing

PCR record. See id. at 793, 795–96.
                                    47

      Nothing B.C. says now or said in 2006 may be regarded as an

irregularity intrinsic to Schmidt’s guilty plea.      “Any subsequently-

discovered deficiency in the State’s case that affects a defendant’s

assessment of the evidence against him, but not the knowing and

voluntary nature of the plea, is not intrinsic to the plea itself.” State v.

Speed, 573 N.W.2d 594, 596 (Iowa 1998). “Notions of newly discovered

evidence simply have no bearing on a knowing and voluntary admission

of guilt.” Alexander, 463 N.W.2d at 423. New exculpatory evidence does

not alter “a defendant’s understanding of what a plea means.” Speed,

573 N.W.2d at 596 (distinguishing the “defendant’s tactical rationale for

pleading guilty”). Thus, “[a] guilty plea is normally understood as a lid

on the box, whatever is in it, not a platform from which to explore further

possibilities.” Kyle v. State, 322 N.W.2d 299, 304 (Iowa 1982) (quoting

United States v. Bluso, 519 F.2d 473, 474 (4th Cir. 1975)). I would keep

the proverbial lid on the box. When a tenable claim of actual innocence

comes along, we will know it. This is not such a case.

      The majority upends our long-standing precedent on guilty pleas.

I find it astounding that neither the majority nor the special concurrence

ever mentions stare decisis, the doctrine that provides stability,

predictability, and legitimacy to our law.   Just months ago, our court

unanimously reiterated, “From the very beginnings of this court, we have

guarded the venerable doctrine of stare decisis and required the highest

possible showing that a precedent should be overruled before taking

such a step.” State v. Iowa Dist. Ct., 902 N.W.2d 811, 817 (Iowa 2017)

(quoting McElroy v. State, 703 N.W.2d 385, 394 (Iowa 2005)); see also Bd.

of Water Works Trs. v. Sac Cty. Bd. of Supervisors, 890 N.W.2d 50, 61

(Iowa 2017) (“Legal authority must be respected . . . because it is

important that courts, and lawyers and their clients, may know what the
                                      48

law is and order their affairs accordingly.” (quoting State v. Liddell, 672

N.W.2d 805, 813 (Iowa 2003))). We may overrule a decision found to be

“clearly erroneous” when “compelling reasons exist” to do so.        State v.

Williams, 895 N.W.2d 856, 859–60 (Iowa 2017) (overruling State v. Wing,

791 N.W.2d 243 (Iowa 2010)). In Wing, a divided court had overturned

long-standing Iowa precedent and adopted a new interpretation of the

speedy indictment rule that proved unworkable in practice; by overruling

Wing, our court restored the prior long-standing Iowa rule that worked

well.    See id. at 867–68 (Mansfield, J., specially concurring).          The

Williams majority devoted a section of the opinion to stare decisis. See

id. at 859–60 (majority opinion).          The dissent lectured about the

importance of the doctrine and pointedly “call[ed] for the restoration of

the principle of stare decisis in Iowa jurisprudence.” Id. at 870 (Wiggins,

J., dissenting). Yet today the same members of this court say nothing

about stare decisis and overrule countless decisions without showing

that our guilty plea precedent was clearly erroneous or unworkable.

        Iowa law requires a detailed guilty plea colloquy to satisfy the court

that the defendant’s plea is knowing and voluntary and that there is a

factual basis for the crime. See Iowa R. Crim. P. 2.8(2)(b); see also Diaz

v. State, 896 N.W.2d 723, 732–34 (Iowa 2017) (vacating guilty plea based

on ineffective assistance of counsel because plea colloquy failed to

address     the   postdeportation    immigration    consequences      of   the

conviction). Iowa Rule of Criminal Procedure 2.8 requires the court to

determine “the plea is made voluntarily and intelligently and has a

factual basis.” Iowa R. Crim. P. 2.8(2)(b). Before accepting a plea, the

court must address the defendant in open court and determine if he or

she understands
                                     49
             (1) The nature of the charge to which the plea is
      offered.
            (2) The mandatory minimum punishment, if any, and
      the maximum possible punishment provided by the statute
      defining the offense to which the plea is offered.
            (3) That a criminal conviction, deferred judgment, or
      deferred sentence may affect a defendant’s status under
      federal immigration laws.
             (4) That the defendant has the right to be tried by a
      jury, and at trial has the right to assistance of counsel, the
      right to confront and cross-examine witnesses against the
      defendant, the right not to be compelled to incriminate
      oneself, and the right to present witnesses in the defendant’s
      own behalf and to have compulsory process in securing their
      attendance.
            (5) That if the defendant pleads guilty there will not be
      a further trial of any kind, so that by pleading guilty the
      defendant waives the right to a trial.

Id. The court also must inquire “whether the defendant’s willingness to

plead guilty results from prior discussions between the attorney for the

state and the defendant or the defendant’s attorney” and disclose the

plea agreement on the record.        Id. r. 2.8(2)(c).   Schmidt alleges no

violation of rule 2.8 in this PCR action.

      Here, the district court fully complied with rule 2.8 in accepting

Schmidt’s guilty plea.     The district court described the legal rights

Schmidt would have if he withdrew the plea and went to trial, and

Schmidt informed the court he understood his rights and wished to plead

guilty to the charges.    The court reviewed the factual basis for each

count.     The prosecutor recited the elements of assault with intent to

commit sexual abuse and the maximum and minimum penalties for that

offense.     After confirming Schmidt understood, the court inquired

whether the minutes of testimony were accurate concerning this offense:

            THE COURT: . . . What I am trying to find out is with
      regard to the elements of this crime, I’m talking about
      assault with intent to commit sexual abuse, and we have
      described those elements to you, in connection with those
                             50
elements, do the Minutes of Testimony, that is what the
witnesses would say at trial, do they accurately and
truthfully tell us what you did?
      THE DEFENDANT: Yes, sir.
      ....
      THE COURT: Just tell me what you did that makes
you think you are guilty.
      THE DEFENDANT: I grabbed a child and tried to
perform a sex act against his will.
      ....
      THE COURT: Is [B.C.] the person you tried to commit a
sex act with?
      THE DEFENDANT: Yes, sir.
     THE COURT: Did      this   occur   on    or        about
February 25th, 2006, in Woodbury County, Iowa?
      THE DEFENDANT: Yes, sir.
      THE COURT: Do you understand that by grabbing
him, the state alleges you assaulted him by that grabbing?
Do you understand that?
      THE DEFENDANT: Yes, sir.
      THE COURT: The state claims that by grabbing him
and making this attempt, that this was offensive to [B.C.].
Do you agree that [B.C.] could have found this grabbing
offensive?
      THE DEFENDANT: Probably, sir.
      THE COURT: The state claims that when you grabbed
him, you did so with the specific intent to commit a sex act,
and you said that you did grab him in an attempt to commit
a sex act; is that correct?
      THE DEFENDANT: Yes, sir.
     THE COURT: So was that your specific intent? That
was your intention at the time?
      THE DEFENDANT: Yes, sir.
      THE COURT: Now, a sex act in this case, the state
alleges that you were attempting to make contact between
your penis and anus of [B.C.].      That’s what they are
claiming. Is that what happened?
      THE DEFENDANT: Yes, sir.
      ....
       THE COURT: Mr. Schmidt, are you telling me you are,
in fact, guilty to this crime of assault with intent to commit
sexual abuse?
                                     51
               THE DEFENDANT: Yes, sir.

      Next, the prosecutor recited the elements of incest and the

maximum        and    minimum   penalties.   After   confirming   Schmidt

understood, the court engaged in another colloquy:

            THE COURT: . . . With regard to the elements of this
      crime of incest, do these summaries of what the witnesses
      would say with regard to the elements of that crime,
      truthfully and accurately describe what you did?
            THE DEFENDANT: Okay. I performed the sex act—Yes,
      sir. Those are accurate.
               ....
             THE COURT: Now I need to have you tell me in your
      own words what you did that makes you think that you are
      guilty of this charge.
               THE DEFENDANT: I performed a sex act on a minor
      child.
               ....
            THE COURT: The state claims that the sex act that
      you performed was contact between your penis and [B.C.’s]
      anus. Do you agree that that was the contact that was
      performed?
               THE DEFENDANT: Yes, sir.
               ....
            THE COURT: Do you agree that at the time that you
      performed the sex act upon [B.C.] that he was your brother?
               THE DEFENDANT: Yes, sir.

      Schmidt told the court he was satisfied with the services of his

counsel. The court accepted Schmidt’s guilty plea, finding the plea was

“made voluntarily and intelligently” and Schmidt “underst[ood] the legal

rights that he [was] giving up by pleading guilty to each of these two

charges.” Schmidt does not challenge those findings, which the district

court and court of appeals correctly determined required the summary

dismissal of his PCR action.

      A plea must “be a genuine one, by a defendant who is guilty; one

who understands his situation, his rights, and the consequences of the
                                    52

plea, and is neither deceived nor coerced.” State v. Hinners, 471 N.W.2d

841, 843 (Iowa 1991) (quoting State v. Whitehead, 163 N.W.2d 899, 902

(Iowa 1969)). A guilty plea is effectively a confession of committing the

crime made under judicial oversight with representation by defense

counsel. See Woods v. State, 379 P.3d 1134, 1141 (Kan. Ct. App. 2016).

That is what we have here.     As the United States Supreme Court has

held, “A plea of guilty is more than a voluntary confession made in open

court. It also serves as a stipulation that no proof by the prosecution

need b[e] advanced . . . . It supplies both evidence and verdict, ending

controversy.” Boykin v. Alabama, 395 U.S. 238, 242 n.4, 89 S. Ct. 1709,

1712 n.4 (1969) (alteration in original) (quoting Woodard v. State, 171

So. 2d 462, 469 (Ala. Ct. App. 1965)); see also Class, 583 U.S. at ___,

138 S. Ct. at 804 (majority opinion) (“The plea of guilty is, of course, a

confession of all the facts charged in the indictment, and also of the evil

intent imputed to the defendant.” (quoting Commonwealth v. Hinds, 101

Mass. 209, 210 (1869))).    For this reason, the United States Supreme

Court and, until today, our court has upheld knowing and voluntary

guilty pleas. See Brady v. United States, 397 U.S. 742, 757, 90 S. Ct.

1463, 1473 (1970) (“A defendant is not entitled to withdraw his plea

merely because he discover[ed] long after the plea has been accepted that

his calculus misapprehended the quality of the State’s case or the likely

penalties attached to alternative courses of action.”); Speed, 573 N.W.2d

at 597 (“The fact that an accused may elect to plead guilty to a lesser

offense when he is also charged with a more serious offense does not

make his plea coerced.” (quoting State v. Lindsey, 171 N.W.2d 859, 865

(Iowa 1969))).

      Schmidt relies on People v. Whirl, which allowed postconviction

claims to proceed to challenge a conviction resulting from a guilty plea
                                    53

following a confession coerced by police torture.      39 N.E.3d 114, 117

(Ill. App. Ct. 2015). That case is inapposite because Schmidt claims no

torture, coercion, or other constitutional violation in connection with his

guilty plea.

       [W]hen a defendant pleads guilty, the case is effectively
       closed. The [prosecutor] believes that he or she will no
       longer need to develop the case for presentation to a jury,
       and investigation and witness identification ceases.
       Similarly, victims believe that the case is over. Unlike a
       conviction by trial, which the defendant can appeal and
       continue to contest vigorously, when a defendant enters a
       plea, he or she admits wrongdoing.

People v. Schneider, 25 P.3d 755, 760 (Colo. 2001) (en banc); see also

Commonwealth v. Martinez, 539 A.2d 399, 401 (Pa. Super. Ct. 1988)

(“After a defendant has entered a plea of guilty the only cognizable issues

in a [postconviction] proceeding are the validity of the plea of guilty and

the legality of the sentence.”). The State should be able to rely on the

finality of guilty pleas such as Schmidt’s entered in compliance with Iowa

law.   As Justice Alito observed, “Roughly 95% of felony cases in the

federal and state courts are resolved by guilty pleas.        Therefore it is

critically important that defendants, prosecutors, and judges understand

the consequences of these pleas.” Class, 583 U.S. at___, 138 S. Ct. at
807 (Alito, J., dissenting).

       The majority’s holding undermines the value of guilty pleas. “One

of the benefits to the state from a plea bargain is finality.” Rhoades v.

State, 880 N.W.2d 431, 447–49 (Iowa 2016) (holding guilty plea barred

recovery for wrongful imprisonment).          Other “factors favoring pleas

include risk avoidance, conservation of prosecution and court resources,

efficiency, and timeliness of disposition.”     Id. at 449.   The State (and

victims) can no longer rely on the finality of guilty pleas. If Schmidt had

gone to trial in 2007, the State presumably would have proven its case
                                     54

then, and trial testimony would have been preserved for any retrial. Not

so when trial preparation is short-circuited by a guilty plea and no trial

takes place. See id. (noting the lack of a trial record when the defendant

pleads guilty).

      The majority fails to confront the proof problems that arise when a

defendant is allowed to renege on a guilty plea years later and there is no

prior trial record because of his guilty plea.     Other courts avoid such

problems by enforcing the guilty plea. See Weeks v. Bowersox, 119 F.3d

1342, 1355 (8th Cir. 1997) (Loken, J., concurring) (acknowledging the

“inherent paradox in the notion that someone who has stood in open

court and declared, ‘I am guilty,’ may turn around years later” and claim

postconviction relief); Norris v. State, 896 N.E.2d 1149, 1153 (Ind. 2008)

(noting the difficulty in “harmoniz[ing] th[e] new position taken by the

defendant with the fact that he originally admitted to committing the

crime by his guilty plea,” given that “[b]oth his confession and his new

claims cannot be true”); Yonga v. State, 108 A.3d 448, 461–63 (Md. Ct.

Spec. App. 2015) (explaining that new evidence cannot be compared to a

nonexistent trial record), aff’d 130 A.3d 486, 492 (Md. 2016) (concluding

“that a person who has pled guilty may not later avail himself or herself

of the relief afforded by the Petition for a Writ of Actual Innocence”).

      The district court correctly granted the State’s motion for summary

judgment. Relying on the court of appeals recent decision in Walters v.

State, the district court found that “newly-discovered exculpatory

evidence does not provide grounds to withdraw a guilty plea ‘unless it is

intrinsic to the plea itself.’ ” No. 12–2022, 2014 WL 69589, at *3 (Iowa

Ct. App. Jan. 9, 2014) (quoting Speed, 573 N.W.2d at 596). The court of

appeals correctly affirmed the district court’s summary judgment

dismissing Schmidt’s PCR action.          The court of appeals found “the
                                       55

analysis and reasoning in Walters to be spot-on” and held that “because

Schmidt’s convictions were entered following his guilty pleas, he cannot

challenge those convictions in a PCR action on the basis of newly

discovered evidence in the form of his victim’s alleged recantation.”           I

agree.

         Nothing in today’s majority opinion should preclude the State from

introducing     Schmidt’s   guilty   plea   colloquy   into   evidence   at   the

postremand hearing. In my view, Schmidt’s admissions of guilt in 2007

entitle the State to summary dismissal of his PCR claims. See Castro,

795 N.W.2d at 795.

      II. B.C.’s “Recantation” Is Insufficient to Vacate Schmidt’s
Guilty Plea.

         We have never vacated a guilty plea based on the victim’s

recantation. The majority fails to mention that “[w]e have repeatedly held

that a witness’ recantation testimony . . . is looked upon with the utmost

suspicion.”     Jones v. State, 479 N.W.2d 265, 275 (Iowa 1991).              Our

skepticism of recantations is widely shared.       Haouari v. United States,

510 F.3d 350, 353 (2d Cir. 2007) (“It is axiomatic that witness

recantations ‘must be looked upon with the utmost suspicion.’ ” (quoting
Ortega v. Duncan, 333 F.3d 102, 107 (2d Cir. 2003))); see also Yonga,

108 A.3d at 475 (noting “post-trial recantation[s] of witnesses are looked

on with the utmost suspicion” (quoting Carr v. State, 387 A.2d 302,

305–06 (Md. Ct. Spec. App. 1978), rev’d on other grounds, 397 A.2d 606

(Md. 1979))); Addai v. State, 893 N.W.2d 480, 483 (N.D. 2017) (“This

Court reviews recanting testimony with suspicion and disfavor.”).

         This is because recantations “upset[] society’s interest in the
         finality of convictions, [are] very often unreliable and given
         for suspect motives, and most often serve[] merely to
         impeach cumulative evidence rather than to undermine
         confidence in the accuracy of the conviction.”
                                      56

Haouari, 510 F.3d at 535 (alterations in original) (quoting Dobbert v.

Wainwright, 468 U.S. 1231, 1233–34, 105 S. Ct. 34, 36 (1984)

(Brennan, J., dissenting from denial of certiorari)).

      Our distrust is heightened when the recanting victim is a child

sexually abused by a family member. See, e.g., State v. Kostman, 585

N.W.2d 209, 210 (Iowa 1998) (per curiam) (“The victim further admitted

he once recanted the allegations because he and Kostman ‘went camping

together and always had fun and [he] didn’t want to see nothing happen

to him and it was just—[he] was just kind of scared.’ ” (Alteration in

original.)). In State v. Tharp, the defendant’s stepdaughter recanted her

testimony that he had sexually abused her. 372 N.W.2d 280, 282 (Iowa

Ct. App. 1985). The district court denied his motion for new trial. Id.

The court of appeals affirmed, observing,

             A witness’ recantation of her testimony is looked upon
      with the utmost suspicion, and does not necessarily entitle
      the defendant to a new trial. The trial court must make its
      decision based on the facts of the whole trial and those in
      conjunction with the motion. The victim was a 15 year old
      stepdaughter of defendant. In cases of this type, where
      families are torn apart, there is great pressure on the child to
      “make things right.”

Id. (footnote omitted) (citations omitted).
      This view too is widely shared. See United States v. Provost, 969

F.2d 617, 621 (8th Cir. 1992) (“Recantation is particularly common when

family members are involved and the child has feelings of guilt or the

family members seek to influence the child to change her story.”); Myatt

v. Hannigan, 910 F.2d 680, 685 n.2 (10th Cir. 1990) (“[T]he child’s

recanting of her statement to family members is not atypical in sex abuse

cases.”); Schneider, 25 P.3d at 763 (“Skepticism about recantations is

especially applicable in cases of child sexual abuse where recantation is

a recurring phenomenon.”); State v. Gallagher, 554 A.2d 221, 225 (Vt.
                                           57

1988) (allowing hearsay exception for child victims of sex crimes because

of “the high probability of a child victim recanting a statement about

being abused sexually”); see also Norris, 896 N.E.2d at 1155 (Boehm, J.

concurring) (viewing recantation of victim’s mother as “inherently

somewhat suspect, coming as it does after the fact and from [a] relative[]

of the defendant”). 9

       Recantations are especially common with victims of domestic

violence. See State v. Smith, 876 N.W.2d 180, 187–88 (Iowa 2016) (citing

authorities concluding many victims of domestic violence recant); id. at

194 (Waterman, J., dissenting) (“The rate of recantation among domestic

violence victims has been estimated between eighty and ninety percent.”).

After today, we can expect that offenders who already pled guilty will try

to pressure their victims to recant.

       Mindful of the law’s appropriate distrust of recantations by victims

of child sex abuse, I conclude B.C.’s fainthearted “recantation” is




        9One study showed twenty-two percent of children recant allegations, but

ninety-two percent of those who recanted eventually reaffirmed the abuse. Teena
Sorensen & Barbara Snow, How Children Tell: The Process of Disclosure in Child Sexual
Abuse Cases, 70 Child Welfare 3, 11 (1991). The influence of family pressure and
familial relationships outweighs other factors in the victim’s likelihood to recant.
Margaret H. Shiu, Unwarranted Skepticism: The Federal Courts’ Treatment of Child
Sexual Abuse Accommodation Syndrome, 18 S. Cal. Interdisc. L.J. 651, 674 (2009); cf.
Lindsay C. Malloy et al., Filial Dependency and Recantation of Child Sexual Abuse
Allegations, 46 J. Am. Acad. Child & Adolescent Psychiatry 162, 167 (2007)
(“Recantation appears to reflect susceptibility to pressures from influential adults, a
pattern that complements and extends decades of research on children’s suggestibility.
However, whereas the latter research emphasizes the dangers of false allegations of
abuse that can result from external pressures, our study suggests that pressures can
lead truly abused children to recant.”). A victim may also recant to avoid confronting
his or her abuser in the legal system. See Anoosha Rouhanian, A Call for Change: The
Detrimental Impacts of Crawford v. Washington on Domestic Violence and Rape
Prosecutions, 37 B.C. J.L. & Soc. Just. 1, 37 (2017) (“[A] rape victim may recant for any
number of reasons other than because they were lying about the rape itself. . . . [R]ape
victims might recant . . . because they fear confronting their attackers, whether directly
or indirectly, through legal proceedings.”).
                                      58

insufficient to vacate Schmidt’s guilty plea. B.C.’s affidavit stated in its

entirety:

                I, [B.C.], being first duly sworn hereby depose and
         state as follows:
               I was the victim in Woodbury County Criminal Case
         FECR054257, State of Iowa vs. Jacob Schmidt. Jacob
         Schmidt is my brother. I am currently 23 years of age, but
         was a child at the time of the criminal case. At the time of
         the original criminal case, I had told various people that
         Jacob had sexually abused me. When I was 21 years old, I
         told other people that Jacob had never touched me in a
         sexual way or sexually abused me. I didn’t tell anyone
         before that date that nothing had really happened, and so
         Jacob couldn’t have known before then. I decided to tell
         people when I turned 21 since I was a full adult at that time.
         I want to see my brother and tell him I am sorry that I
         couldn’t tell anyone before then.

Notably, B.C. never stated under oath which story he told is true. Nor

did B.C. claim that police or his family induced him to lie in 2007. The

timing of B.C.’s new story seven years later coincides with Schmidt’s

expected release from prison.      On February 25, 2006, the night Peter

caught Schmidt in the act of attempting to rape B.C., Schmidt stood six

foot, three inches tall and weighed between 350 and 400 pounds. B.C.,

who had just celebrated his fourteenth birthday, was four feet, six inches

tall and weighed between seventy-five and ninety pounds.          While B.C.

may have added some pounds and inches since then, I can understand

his motivation to make peace with his much larger half-brother before

Schmidt’s release from prison.

         Perhaps an evidentiary hearing on remand will bring this matter to

a swift conclusion.       “The trial court is not required to believe the

recantation . . . .” State v. Compiano, 261 Iowa 509, 517, 154 N.W.2d

845, 849 (1967). To the contrary, if the court believes the recantation is

false,
                                     59
      and is not reasonably well satisfied that the testimony given
      by the witness [at] trial was false, . . . it is not at liberty to
      shift upon the shoulders of another jury the responsibility to
      seek out the truth of that matter.

Id.

      We    have   repeatedly    affirmed    denials   of   applications   for

postconviction relief based on witness recantations.         See Jones, 479
N.W.2d at 275 (affirming district court’s denial of application for PCR

because “Jones’ entire claim is based upon an assumption that

Coleman’s trial testimony was in fact false,” but “[t]he postconviction

court is certainly not required to believe the recantation”); State v. Folck,

325 N.W.2d 368, 377 (Iowa 1982) (“Recantation of trial testimony is

viewed with suspicion, and the trial court has broad discretion in looking

to the whole record to determine if defendant had a fair trial.”); see also

State v. Frank, 298 N.W.2d 324, 329 (Iowa 1980) (noting testimony later

recanted still had probative value); State v. Taylor, 287 N.W.2d 576, 578

(Iowa 1980) (affirming denial of motion for new trial because a

recantation is “not really based on newly discovered evidence”); State v.

Jackson, 223 N.W.2d 229, 234 (Iowa 1974) (“The general rule is a

witness’ recantation should be looked upon with utmost suspicion.”).

      When the witness’s original testimony is corroborated by other

evidence supporting the conviction following a jury trial, a subsequent

recantation seldom warrants relief.       See Adcock v. State, 528 N.W.2d

645, 648 (Iowa Ct. App. 1994) (affirming district court’s denial of

postconviction relief when witness recanted because “there was other

evidence connecting Adcock to the crime”); see also Frank, 298 N.W.2d at

329–30 (affirming conviction when independent evidence corroborated

witness’s original testimony that she later recanted). Peter’s unrecanted

eyewitness account corroborates B.C.’s original contemporaneous report
                                     60

to the police and forensic interviewer. Schmidt therefore is not entitled

to relief from his conviction.

      III. Schmidt’s PCR Action Is Untimely.

      I would also affirm the summary judgment because Schmidt’s

PCR—filed seven years after his conviction—is time-barred under Iowa

Code section 822.3’s three-year statute of limitations. The majority holds

it is not time-barred because Schmidt could not know within the

limitations period that B.C. would later recant. But Schmidt did know

what happened in the bedroom in 2006 and knew then whether the

allegations made by Peter and B.C. were false.

      PCR actions “must be filed within three years from the date the

conviction or decision is final or, in the event of an appeal, from the date

the writ of procedendo is issued.”        Iowa Code § 822.3 (2014).       An

exception is made for applications claiming “a ground of fact or law that

could not have been raised within the applicable time period.” Id. The

three-year time-bar “limit[s] postconviction litigation in order to conserve

judicial resources, promote substantive goals of the criminal law, foster

rehabilitation, and restore a sense of repose in our system of justice.”

Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994) (quoting State v.

Edman, 444 N.W.2d 103, 106 (Iowa Ct. App. 1989)). A corollary purpose

is “ ‘to reduce injustices occurring as a result of lost witnesses’ necessary

to resolve factual issues arising in postconviction proceedings and upon

retrial of cases where convictions have been overturned.” Dible v. State,

557 N.W.2d 881, 885 (Iowa 1996) (quoting Brewer v. Iowa Dist. Ct., 395

N.W.2d 841, 843 (Iowa 1986)), abrogated on other grounds by Harrington

v. State, 659 N.W.2d 509, 521 (Iowa 2003).

      To further those goals, the exception to the three-year time-bar in

section 822.3 is limited to claims in which the applicant had “no
                                     61

opportunity to test the validity of the conviction in relation to [the ground

of fact or law that allegedly could not have been raised within the time

period].”   Wilkins, 522 N.W.2d at 824 (alteration in original) (quoting

Edman, 444 N.W.2d at 106). An applicant may not assert a claim he or

she has “at least been alerted to” in the prior action. Id. This promotes

repose and conserves judicial resources.         See id. (holding second

application for relief was time-barred when applicant should have been

alerted to “ground of fact” in prior postconviction application); see also

Dible, 557 N.W.2d at 886 (barring action when applicant was aware of

ground of fact because “[a]ny other decision would result in an endless

procession of postconviction actions, and the legislature’s hope to avoid

stale claims and to achieve a sense of repose in the criminal justice

system would not be realized”).

      The State filed a two-pronged motion for summary judgment to

dismiss Schmidt’s PCR action, arguing that his (1) guilty plea barred

relief and (2) PCR application was barred by the three-year statute of

limitations. The State correctly argued B.C.’s statements were not “new

evidence” that could not have been discovered through the exercise of

due diligence:

             Here, by the very nature of the case and the sexual
      abuse claims leveled against the applicant by his younger
      family member, there can be no doubt that he would have
      known about his own involvement or non-involvement in the
      alleged sexual acts against his family member. He would
      have known what the victim or any other witness would or
      would not testify to if the case were to proceed to jury trial.
      He would have known that the victim’s father was prepared
      to testify that he caught the applicant in the act with his
      pants down, penis exposed, and kneeling right behind the
      bare anus of the victim in the bedroom. He would have
      known that the victim had given a recorded interview to
      Mercy CAC stating that the sexual acts did in fact occur. All
      of this would have been readily available to the applicant at
      the time of his plea of guilty and subsequent conviction and
                                          62
       as such he would have known about the veracity of said
       statements.

I agree.

       “[T]he objective of the escape clause of section 822.3 is to provide

relief from the limitation period when an applicant had ‘no opportunity’

to assert the claim before the limitation period expired.” Cornell v. State,

529 N.W.2d 606, 611 (Iowa Ct. App. 1994) (quoting Wilkins, 522 N.W.2d

at 823–24). “[T]he focus of our inquiry has been whether the applicant

was or should have been ‘alerted’ to the potential claim before the
limitation period expired.”       Id. (quoting Wilkins, 522 N.W.2d at 824).10

Schmidt was alerted to his own actual-innocence claim and chose to

abandon it by pleading guilty.            He knew when he entered his plea

whether Peter and B.C. were telling the truth and gave up his right to a

trial to cross-examine them.

       This is not a case in which a new, disinterested witness has come

forward. See State v. Burgess, 237 Iowa 162, 164–65, 21 N.W.2d 309,

310 (1946) (allowing new trial based on subsequent discovery of

disinterested alibi witness, a train conductor, when the defendant “was

the only witness who testified at the trial that he was on the train at the

time the state’s witnesses testified the crime was committed [elsewhere,

because c]learly the evidence of the conductor of the train, placing the


        10Exculpatory evidence known but unavailable to the defendant at the time of

his original conviction is not considered “newly discovered” when it becomes available
years later. See Jones v. Scurr, 316 N.W.2d 905, 910 (Iowa 1982). In that case, one
codefendant took the Fifth Amendment and another was a fugitive when Rubin Jones
was convicted of first-degree murder in a jury trial in 1976. Id. at 906–07. Years later,
both codefendants came forward with exculpatory evidence. Id. The district court
denied postconviction relief, and we affirmed, holding the codefendants’ exculpatory
statements “although unavailable, [were] known to defendant, and cannot be
considered newly discovered.” Id. at 910. We noted Jones had failed to exercise due
diligence to secure their testimony at his trial. Id. at 910 n.1. Similarly, Schmidt knew
what B.C. knew and could have gone to trial and cross-examined B.C. but chose not to
do so.
                                            63

[defendant] on the train at the time of the commission of the crime, was

not cumulative”).         And this is not the case of a mere he-said, he-said

account without another witness to the incident. 11 Peter walked in on

and witnessed Schmidt’s attempted assault on B.C.

        Nor has Schmidt come forward with new physical evidence or new

scientific developments that were previously undiscovered. 12 See More v.

State, 880 N.W.2d 487, 508 (Iowa 2016) (considering as newly discovered

evidence       FBI      announcement      that     previous     testimony      on       bullet

identification was “not scientifically supportable”).

        B.C.’s recantation is “not new evidence in the real sense.”

Compiano, 261 Iowa at 517, 154 N.W.2d at 849. “On the contrary, it is

but an assertion by affidavit that the former testimony given by the


        11By  contrast, the Arizona Court of Appeals affirmed a trial court ruling allowing
the defendant to withdraw his Alford plea in an unwitnessed sexual assault based on
the victim’s recantation, which the trial court found credible in an evidentiary hearing.
State v. Fritz, 755 P.2d 444, 446 (Ariz. Ct. App. 1988). “[T]he victim stated that he had
lied about his accusations and had acted under duress from someone seeking revenge
against the defendant.” Id. The appellate court noted that “[i]f the sole basis for the
strength of the state’s case is the credibility of the victim, as is usually the case in non-
witnessed sexual assaults . . . the trial court does not abuse its discretion by allowing a
plea to be withdrawn [so] that the victim’s credibility [can] be tested in the crucible of
trial.” Id.
        12When new DNA evidence is discovered, the defendant may proceed under Iowa
Code section 81.10, which provides in relevant part,
               1. A defendant who has been       convicted of a felony or aggravated
        misdemeanor and who has not been         required to submit a DNA sample
        for DNA profiling may make a motion      to the court for an order to require
        that DNA analysis be performed on        evidence collected in the case for
        which the person stands convicted.
                 ....
                9. Results of DNA analysis conducted pursuant to this section
        shall be reported to the parties and to the court and may be provided to
        the board of parole, department of corrections, and criminal and juvenile
        justice agencies, as defined in section 692.1, for use in the course of
        investigations and prosecutions, and for consideration in connection with
        requests for parole, pardon, reprieve, and commutation.
Id. § 81.10(1), (9).
                                       64

witness was false.” Id.; see also Taylor, 287 N.W.2d at 578 (same). As

the Kansas Court of Appeals stated,

      By entering a plea of guilty, Woods was well aware of the
      facts of the case. In fact, he knew the extent of his
      involvement in the events of the evening better than anyone
      else. Based on the preliminary hearing, the pretrial motions
      filed with the court, and the documents exchanged by the
      parties, Woods knew that at least on the planned day of trial
      . . . some witnesses were going to testify on his behalf and
      some were not. He freely and voluntarily chose not to take
      his chances with a trial. The fact that at some point on or
      after [the trial date], some—though not all—witnesses appear
      to have recanted previous incriminating statements or
      returned to original statements does not change the fact that
      Woods decided not to risk the consequences of facing a trial
      ....

Woods, 379 P.3d at 1141.

      Our decision in Harrington, 659 N.W.2d 509, does not require a

different result.    In Harrington, we stated that newly discovered,

previously undisclosed police reports together with recantations by three

trial witnesses qualified as a ground of fact that could not have been

raised within the three-year window. 659 N.W.2d at 521. A jury found

Terry Harrington guilty of murder in 1978. Id. at 514. Harrington had

presented an alibi defense at trial that was undermined by several
witnesses who placed him with accomplices on the night of the murder.

Id. at 515. Over twenty years later, Harrington filed an application for

postconviction relief. Id. Three witnesses had come forward, recanting

their trial testimony that placed him with accomplices. Id. at 516–17.

One recanting witness “claim[ed] he gave a contrary story at trial because

he was pressured by the prosecutors and police.” Id. at 517. Another

“said he lied [at trial] to obtain a $5000 reward . . . and to avoid being

charged with the crime.” Id. Harrington’s counsel also discovered Brady

violations—eight    police   reports   containing   exculpatory   information
                                          65

withheld by the state. 13 Id. at 518–19. “Harrington argued this newly

discovered evidence warranted vacation of his conviction.”                Id. at 518.

Concluding we were bound by the district court’s factual findings, we

stated,

      With respect to both the undisclosed police reports and the
      recantation evidence, the [district] court held, in ruling on
      Harrington’s substantive claims, that he had proved they
      were discovered after the verdict in his criminal trial and
      that they could not have been discovered earlier than they
      were discovered in the exercise of due diligence. These
      findings are clearly supported by substantial evidence, which
      we have reviewed above, and so are binding under the
      standard of review applicable to the statute-of-limitations
      issue.

Id. at 521.     We concluded Harrington’s PCR application was not time-

barred, see id., but went on to determine the Brady violations alone

entitled him to a new trial, id. at 525.

      Harrington is distinguishable. Schmidt alleges no Brady violations.

No unrecanting eyewitness caught Harrington in the criminal act. The

district court made no finding B.C.’s recantation was newly discovered
evidence. And B.C. makes no claim he was paid or pressured to testify

falsely when Schmidt was charged. Most significantly, unlike Schmidt,

Harrington did not plead guilty but steadfastly maintained his innocence.

Id. at 523 & n.10.

      IV. Schmidt’s Actual-Innocence Claim Fails.

      The majority today adopts for the first time a freestanding actual-

innocence claim for postconviction relief. Under this new standard,

      [f]or an applicant to succeed on a freestanding actual-
      innocence claim, the applicant must show by clear and
      convincing evidence that, despite the evidence of guilt
      supporting the conviction, no reasonable fact finder could
      convict the applicant of the crimes for which the sentencing

      13See   Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97 (1963).
                                      66
      court found the applicant guilty in light of all the evidence,
      including the newly discovered evidence.

In my view, Schmidt fails to meet this standard as a matter of law.

      The Supreme Court has stated that an applicant claiming actual

innocence    must   present    “new    reliable   evidence—whether     it    be

exculpatory scientific evidence, trustworthy eyewitness accounts, or

critical physical evidence—that was not presented at trial.”       Schlup v.

Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 865 (1995).         Requiring new

reliable evidence significantly reduces “[t]he threat to judicial resources,
finality, and comity posed by claims of actual innocence.” Id. at 324, 115

S. Ct. at 866.   Assessing reliability, “the court may consider how the

timing of the submission and the likely credibility of the affiants bear on

the probable reliability of that evidence.” Id. at 332, 115 S. Ct. at 869.

      Moreover, to succeed on an actual-innocence claim, the applicant

also must show that “a constitutional violation has probably resulted in

the conviction of one who is actually innocent.” Murray v. Carrier, 477

U.S. 478, 496, 106 S. Ct. 2639, 2649 (1986). The court must therefore

assess the merits of the claim, considering “ ‘all the evidence,’ old and

new, incriminating and exculpatory, without regard to whether it would

necessarily be admitted under ‘rules of admissibility that would govern at

trial.’ ” House v. Bell, 547 U.S. 518, 538, 126 S. Ct. 2064, 2077 (2006)

(quoting Schlup, 513 U.S. at 327–28, 115 S. Ct. at 867).                Most

importantly, the applicant must show it is “more likely than not that no

reasonable juror would have convicted him in the light of the new

evidence.” Id. at 556, 126 S. Ct. at 2087 (Roberts, C.J., concurring in

part and dissenting in part) (quoting Schlup, 513 U.S. at 327, 115 S. Ct.

at 867).    This requires more than a showing that “reasonable doubt

exists in the light of the new evidence.” Schlup, 513 U.S. at 329, 115
                                     67

S. Ct. at 868.     Rather, the applicant must prove “no juror, acting

reasonably, would have voted to find him guilty beyond a reasonable

doubt.” Id. This standard is “demanding and permits review only in the

‘extraordinary’ case.”    House, 547 U.S. at 538, 126 S. Ct. at 2077

(majority opinion) (quoting Schlup, 513 U.S. at 327, 115 S. Ct. at 867).

Because the inquiry “involves evidence the trial [court] did not have

before it, the inquiry requires the . . . court to assess how reasonable

jurors would [have] react[ed] to the overall, newly supplemented record.”

Id. at 538, 126 S. Ct. at 2078.

      Schmidt cannot show it is more likely than not in light of B.C.’s

recantation that no reasonable juror would have convicted him.          Peter

personally witnessed Schmidt’s attempt to sexually assault B.C., literally

catching   them    with    their   pants   down.    Police   officers   took

contemporaneous statements from Peter and B.C. at the scene within

minutes of the incident.     The police officers could have testified as to

what B.C. and Peter described minutes after the incident under the

excited utterance exception to the hearsay rule.       See Iowa R. Evid.

5.803(2) (defining excited utterance as “[a] statement relating to a

startling event or condition, made while the declarant was under the

stress of excitement that it caused”); see also State v. Richards, 809

N.W.2d 80, 95 (Iowa 2012) (holding domestic violence victim’s statement

to daughter about choking while victim’s neck was still red was

admissible as an excited utterance).       Moreover, B.C. gave a recorded

forensic interview five days later in which he detailed the events of the

night and disclosed Schmidt’s past assaults. That video, recorded while

his memory was fresh, could be used to impeach his subsequent

recantation.     See Iowa R. Evid. 5.613(b) (“Extrinsic evidence of a

witness’s prior inconsistent statement is admissible only if the witness is
                                    68

given an opportunity to explain or deny the statement and an adverse

party is given an opportunity to examine the witness about it, or if justice

so requires.”); see also State v. Austin, 585 N.W.2d 241, 243–44 (Iowa

1998) (concluding district court properly admitted videotape of child

victim describing sexual abuse recorded shortly after it occurred, when

defense counsel opened the door by cross-examining the child about

inconsistent statements); Chambers v. State, 805 S.W.2d 459, 461 (Tex.

Crim. App. 1991) (en banc) (allowing jury to consider recorded statement

of child discussing abuse despite child’s recantation at trial); State v.

Church, 708 A.2d 1341, 1342 (Vt. 1998) (allowing state to present

rehabilitating testimony from witness whom child told she had been

abused after defendant attempted to show child had recanted her

testimony).

      Schmidt’s claim of actual innocence in this PCR action must be

evaluated in light of that evidence and, as the special concurrence

acknowledges, Schmidt’s guilty-plea colloquy in which he admitted to the

facts in the minutes of testimony establishing his crimes. See Castro,

795 N.W.2d at 795 (approving use of plea colloquy in summary

disposition).   Schmidt cannot succeed on his actual-innocence claim

based solely on B.C.’s recantation; he cannot show no reasonable juror

would convict him. I would hold that the district court properly granted

the State’s motion for summary dismissal of Schmidt’s petition for

postconviction relief.

      This case falls outside the typical categories of cases of actual

innocence. In Rhoades, we reviewed a growing body of scholarship on

wrongful convictions. 880 N.W.2d at 434–39. Retrospective studies of

cases following DNA exonerations found the wrongful convictions “were

frequently based upon false confessions obtained from the defendant
                                          69

[during police interrogations], eyewitness identification that proved to be

unreliable, failure of the state to turn over exculpatory evidence, use of

unreliable informant testimony, and ineffective assistance of counsel.”

Id. at 435–36 (footnotes omitted). Schmidt alleges none of those.

       Most wrongful convictions followed trials in which the defendant

(unlike Schmidt) steadfastly maintained his or her innocence. 14                    Yet

“[t]hirteen percent of all wrongful convictions listed in the National

Registry of Exonerations are the result of guilty pleas.” Id. at 437. We

stated,   “Many      scholars     now    recognize     that    at   least   in   some

circumstances, an innocent person may rationally decide to plead guilty.”

Id. at 436. Several of those circumstances are inapplicable to Schmidt:

pleas to obtain immediate release for time served or pleas based on

misunderstanding the elements of the crime or facts alleged. See id. at

437. Rather, Schmidt claims he pled guilty to avoid the risk of a thirty-

five-year prison sentence.         See id. at 436 (“[W]hen the deal is good

enough, it is rational to refuse to roll the dice . . . regardless of whether

       14See David L. Strauss, Barbarous Souls (2010) [hereinafter Strauss], for a
chilling example of a life ruined by a pre-Miranda interrogation. The book chronicles
the story of Darrel Parker, who came home from work in Lincoln, Nebraska, on
December 14, 1955, to find his wife, Nancy, strangled in their bed. Police had reason to
suspect an ex-convict, Wesley Peery, who had installed a fence at the Parker home the
preceding week. Id. at 34–35, 98. Nevertheless, police investigator, John Reid, was
brought in from Chicago and interrogated the grieving Mr. Parker for hours, using
manipulative psychological techniques until he confessed. He recanted the next day
and steadfastly maintained his innocence thereafter, but was convicted at trial based on
his confession. See Parker v. Sigler, 413 F.2d 459, 465–66 (8th Cir. 1969) (holding
confession involuntary), overruled on procedural grounds by Sigler v. Parker, 396 U.S.
482, 90 S. Ct. 667 (1970). Parker was released in 1970 after serving thirteen years in
prison. Strauss, at 216. Peery ultimately confessed to the Nancy Parker murder. Id. at
224. Parker is now an eighty-seven-year-old resident of Moline, Illinois. Id. at 245.
       The Reid interrogation techniques that prompted his false confession in 1955
are described in the Eighth Circuit decision holding Parker’s confession to be
involuntary, see Parker, 413 F.2d at 465, and discussed at length by the Miranda
Court, see Miranda v. Arizona, 384 U.S. 436, 449–58, 86 S. Ct. 1602, 1614–19 (1966).
Jacob Schmidt is no Darrel Parker, and today’s decision involves no counterpart to
John Reid.
                                       70

one is factually innocent.” (quoting Russell D. Covey, Longitudinal Guilt:

Repeat Offenders, Plea Bargaining, and the Variable Standard of Proof, 63

Fla. L. Rev. 431, 450 (2011))).         But, we previously made clear the

pressure a defendant faces to plea bargain to avoid a much longer prison

sentence does not render his guilty plea involuntary or justify

withdrawing a plea based on newly discovered exculpatory evidence. See

Speed, 573 N.W.2d at 597 (“Speed’s concern that he must choose

between trial on a murder charge and pleading guilty to a lesser charge

has no bearing upon the voluntariness of his plea.”). Schmidt’s is a poor

test   case   to   adopt   an    actual-innocence    pathway     to     vacating   a

constitutionally valid guilty plea.

       Accordingly, I would not use this case to decide whether to

recognize a freestanding or gateway actual-innocence claim under the

Iowa Constitution for postconviction-relief actions because under any

such test, Schmidt cannot satisfy the showing required for procedural or

substantive relief from his guilty plea.           Our court should exercise

restraint today rather than trying to set the table now for a meritorious

actual-innocence claim that may come to us in the future. As we stated

in State v. Keeton, “fundamental principles of judicial restraint limit our

role to deciding each case on the issues presented, and we refrain from

deciding issues not presented by the facts.”         710 N.W.2d 531, 533–34

(Iowa 2006).       I would wait for a case presenting compelling proof of

actual   innocence      before    deciding   the    parameters        for   allowing

postconviction challenges to defect-free guilty pleas.            As our court

unanimously reiterated in Keeton,

       [w]e recognize the law to be an evolving process that often
       makes the resolution of legal questions a composite of
       several cases, from which appellate courts can gain a better
       view of the puzzle before arranging all the pieces. The
                                    71
      wisdom of this process has been revealed time and again,
      and we continue to subscribe to it today.

Id. at 534 (quoting State v. Williams, 695 N.W.2d 23, 30 (Iowa 2005)).

      For all these reasons, I dissent.

      Mansfield and Zager, JJ., join this dissent.
                                        72
                                                  #15–1408, Schmidt v. State
MANSFIELD, Justice (dissenting).

         I   respectfully   dissent.   Constitutional   interpretation   is   not

Darwinian evolution, and a decision of this court today is not superior to

the decisions that preceded it just because it is more recent. Whether

this court is on a “constitutional march to become better” should be

determined by others, not by ourselves.

         While it is tempting to agree that “[i]nnocent people should always

have a forum to prove their innocence,” the realities of any criminal

justice system are more complex. Even the majority does not take this

statement literally. For example, even the majority accepts for now the

limits in Iowa Code chapter 822 on claims brought by those who say they

are actually innocent.

         I join Justice Waterman’s dissent, and write separately only to

highlight several points.

         First, this case does not involve an actual recantation.

         Second, the rule that a guilty plea waives all defenses and

objections which are not intrinsic to the plea is both long-standing and

sound.

         Third, the court has provided no doctrinal basis for grounding an

actual-innocence claim in the Iowa Constitution.

         Fourth, the court leaves many questions unanswered that will

have to be sorted out by our district judges in the coming years.

         I. The Supposed Recantation Is Not a Recantation.

         Here is the so-called recantation that is launching a thousand

ships:

         I was the victim in [case number]. Jacob Schmidt is my
         brother. I am currently 23 years of age, but was a child at
         the time of the criminal case. At the time of the original
                                       73
       criminal case, I had told various people that Jacob had
       sexually abused me. When I was 21 years old, I told other
       people that Jacob had never touched me in a sexual way or
       sexually abused me. I didn’t tell anyone before that date
       that nothing had really happened, and so Jacob couldn’t
       have known before then. I decided to tell people when I
       turned 21 since I was a full adult at that time. I want to see
       my brother and tell him I am sorry that I couldn’t tell anyone
       before then.

This is hardly a recantation. Nowhere does Schmidt’s brother deny that

the sexual assault actually occurred.          He merely states that he has

recently been telling people it didn’t occur. Nor does the brother explain

why he changed his story.

       Just two years ago, in Estate of Gray ex rel. Gray v. Baldi, we

applied the “contradictory affidavit rule.” 880 N.W.2d 451, 463–64 (Iowa

2016).    Under this rule, an affidavit that contradicts prior sworn

testimony   does   not   create   an   issue    of   fact    if   it     “clearly   and

unambiguously contradicts [the] earlier sworn testimony” unless the

affiant offers “a reasonable explanation for any apparent contradiction.”

Id.   Since the court purports to be applying civil summary judgment

standards, Estate of Gray may well indicate that there is no issue of fact

here, even if a change in our long-standing law on guilty pleas were

appropriate.

      II. We Should Stand by Our Existing Law on the Finality of
Guilty Pleas.

       A change in the law is not needed. Our court should adhere to its

long-standing rule that “a defendant’s guilty plea waives all defenses and

objections which are not intrinsic to the plea.”            State v. Carroll, 767

N.W.2d 638, 641 (Iowa 2009).

       A. Our Precedent Is Clear and Well-Settled.                      In Carroll, we

accurately said that this rule is “well-established.”             Id.     I would not

abandon our settled precedent, unanimously reaffirmed eight years ago
                                     74

in Carroll and two years after that in State v. Utter. See State v. Utter,

803 N.W.2d 647, 651 (Iowa 2011) (quoting Carroll with approval and

explaining its significance); see also Castro v. State, 795 N.W.2d 789, 792

(Iowa 2011) (“Generally, a criminal defendant waives all defenses and

objections to the criminal proceedings by pleading guilty.”); State v.

Mattly, 513 N.W.2d 739, 740–41 (Iowa 1994) (stating that “a valid guilty

plea waives all defenses and objections (except that the information or

indictment charges no offense or any irregularities intrinsic in the plea

itself)”); State v. Garner, 469 N.W.2d 698, 699 (Iowa 1991) (“By pleading

guilty . . . , Garner waived the right to challenge those convictions on any

ground not intrinsic to the pleas.”); State v. Everett, 372 N.W.2d 235, 237

(Iowa 1985) (“[A] guilty plea would have waived all defenses or objections

which were not intrinsic to the plea itself.”); State v. Boge, 252 N.W.2d

411, 413 (Iowa 1977) (“[B]y entering a plea of guilty, defendant waived

any defense or objection which is not intrinsic to the plea itself.”).

        What does “intrinsic to the plea” mean? It means a defendant who

pleads guilty can later argue that the plea was “unintelligent or

involuntary.” Carroll, 767 N.W.2d at 642–44. This includes the situation

where the defendant received ineffective assistance of counsel “in

connection with the plea.” Id. at 642. All such matters are intrinsic to

the plea. But later-discovered evidence—by definition—is extrinsic to the

plea.

        In State v. Speed, 573 N.W.2d 594 (Iowa 1998), we specifically held

that new exculpatory evidence is not intrinsic to the plea and cannot be

used to challenge a guilty plea. We explained,

              Speed asserts new exculpatory evidence bears upon a
        defendant’s plea because the amount of evidence the State
        has against a defendant affects the defendant’s decision to
        plead guilty. This argument fails to distinguish between a
                                    75
      defendant’s tactical rationale for pleading guilty and a
      defendant’s understanding of what a plea means and his or
      her choice to voluntarily enter the plea. Any subsequently-
      discovered deficiency in the State’s case that affects a
      defendant’s assessment of the evidence against him, but not
      the knowing and voluntary nature of the plea, is not intrinsic
      to the plea itself.

Id. at 596.
      State v. Alexander, 463 N.W.2d 421 (Iowa 1990), likewise reiterated

that “a plea of guilty ‘waives all defenses or objections which are not

intrinsic to the plea itself.’ ” Id. at 422 (quoting State v. Morehouse, 316

N.W.2d 884, 885 (Iowa 1982), overruled on other grounds by State v.

Kress, 636 N.W.2d 12, 20 (Iowa 2001)). In Alexander, we relied on this

rule to hold that a motion for new trial based on newly discovered

evidence was not available for a defendant who had pled guilty. Id. at

422–23. We said, “Notions of newly discovered evidence simply have no

bearing on a knowing and voluntary admission of guilt.” Id. at 423.

      It is true that Alexander contains the following enigmatic sentence

at the end of the opinion: “The remedy Alexander seeks is available to

him in the form of postconviction relief.     See Iowa Code § 663A.2(4)

(1989) [now Iowa Code § 822.2(1)(d) (2014)].” Id. The majority seizes on

this single sentence to find that a defendant who pleads guilty can attack

his or her guilty plea in postconviction-relief proceedings under Iowa

Code section 822.2(1)(d) based on newly discovered evidence.

      I am not persuaded.      The one-sentence dictum from Alexander

cannot be right and, indeed, is inconsistent with the rest of the

Alexander opinion. See 463 N.W.2d at 422. One can attack a guilty plea

on grounds extrinsic to the plea or one cannot—the case cannot stand

for both propositions.   Given our many other decisions upholding the

rule against extrinsic attacks on a plea, including not just Alexander but

also decisions that preceded and followed Alexander, the stray sentence
                                    76

from Alexander must be regarded as an error.           Certainly, it has been

treated as a legal dead end. In the nearly thirty years since we decided

Alexander, that sentence has never been quoted or cited by our court.

Instead, for decades, until today, we have consistently followed the rule

that a guilty plea waives all defenses and objections which are not

intrinsic to the plea.

       Westlaw will be busy tracking down and flagging the decisions of

our court that, after today, are no longer good law.

       B. Our Precedent Is Sound. The rule limiting challenges to guilty

pleas is not just our precedent, it is the correct precedent, especially

when one considers the interests of both defendants and the state.

Although the majority in my view unfairly disparages plea agreements,

painting the whole process as predatory, plea negotiations are a vital

element of our justice system, and they ultimately benefit—and protect—

defendants.      See Susan R. Klein et al., Waiving the Criminal Justice

System: An Empirical and Constitutional Analysis, 52 Am. Crim. L. Rev.

73, 114 (2015) (noting “that plea agreements are an integral part of the

criminal justice system, conserving judicial resources and providing

defendants the opportunity to obtain often much-needed reductions in

sentences or dismissal of charges in return for a plea and the waivers of

all trial rights”).

       I acknowledge that in the real world, defendants do at times plead

guilty to offenses which, in a final reckoning, they did not commit.

Typically, there are two reasons why this occurs.         One is a strategic

decision by the defendant to avoid other, more serious convictions or

additional, more severe penalties that would result from going to trial.

See, e.g., State v. Ceretti, 871 N.W.2d 88, 89 (Iowa 2015) (noting that the

defendant was charged with first-degree murder but pled guilty to
                                     77

voluntary manslaughter, attempted murder, and willful injury causing

serious injury). The other is when the defendant committed a crime to

which she or he intended to plead guilty but the wrong crime was

charged by mistake. See, e.g., State v. Nall, 894 N.W.2d 514, 525 (Iowa

2017) (“Under these facts, a factual basis may exist for a charge under

section 714.1(6) (theft by check), but not under section 714.1(1).”).

Neither of these scenarios calls for the drastic change in the law that the

majority has announced today.

      The majority cites one case from South Dakota and one case from

New York before asking, rhetorically, “What kind of system of justice do

we have if we permit actually innocent people to remain in prison?”

Despite this sloganeering, the fact remains that both cases involved

defendants who went to trial. See In re Kaufmann, 157 N.E. 730, 730–31

(N.Y. 1927); Engesser v. Young, 856 N.W.2d 471, 473 (S.D. 2014).

      Before a defendant pleads guilty, the law protects that defendant in

several ways. First, a detailed colloquy is required. See Iowa R. Crim. P.

2.8(2)(b). The defendant is informed he or she is giving up the right to a

trial and there will not be a further trial of any kind. Id. r. 2.8(2)(b)(4)–

(5). Until today, those were true statements.

      Second, the record must show a factual basis for each charge to

which the defendant is pleading guilty.     See, e.g., Nall, 894 N.W.2d at

525; Rhoades v. State, 848 N.W.2d 22, 33 (Iowa 2014); State v. Gines,

844 N.W.2d 437, 441 (Iowa 2014).

      Third, as discussed above, the plea must be voluntary and

intelligent, and if counsel was ineffective in some manner that rendered

the plea involuntary or unintelligent, that can be raised. See Castro, 795

N.W.2d at 793–94; Carroll, 767 N.W.2d at 642–43.
                                         78

       In my view, these safeguards serve their intended purpose. “Once

a defendant has waived his right to a trial by pleading guilty, the State is

entitled to expect finality in the conviction.” State v. Mann, 602 N.W.2d

785, 789 (Iowa 1999); see also State v. Straw, 709 N.W.2d 128, 138 (Iowa

2006).

       While I expect today’s decision to lead to a new wave of

applications for postconviction relief, and more work for appointed

counsel, prosecutors, and the courts, I do not see the need. Why are the

legal grounds already established by this court and the legislature for

relief from guilty pleas not enough? 15           Certainly, the present case—

involving a fishy nonrecantation by the victim (and no recantation at all

by the eyewitness father)—doesn’t demonstrate the need.

       The     majority    underplays      the    critical   distinction     between

defendants who claim actual innocence following a jury trial conviction

and those who claim actual innocence following a guilty plea. Most of

the decisions cited by the majority involve a defendant who was

convicted after a trial.      See Miller v. Comm’r of Corr., 700 A.2d 1108,

1110–11 (Conn. 1997); People v. Washington, 665 N.E.2d 1330, 1331 (Ill.

1996); State ex rel. Amrine v. Roper, 102 S.W.3d 541, 543–44 (Mo. 2003)
(en banc); Montoya v. Ulibarri, 163 P.3d 476, 478 (N.M. 2007); In re

Kaufmann, 157 N.E. at 730–31; Engesser, 856 N.W.2d at 473.                          In


       15The  majority observes that in 2005, the general assembly enacted legislation
that appears to authorize a defendant who has pled guilty, as well as a defendant who
was convicted after trial, to seek a court order requiring DNA analysis to be performed
on evidence. See 2005 Iowa Acts ch. 158, § 10 (codified at Iowa Code § 81.10). Yet the
legislation nowhere indicates that a defendant who pled guilty would have a
postconviction-relief remedy based on the outcome of such analysis. See id. To the
contrary, this law was enacted when our precedent on finality of guilty pleas was
already well-established. I trust in our executive branch to do the right thing in the
event a person who pled guilty were to be fully exonerated by DNA evidence. I presume
the legislature in 2005 had the same level of trust. This is a far cry from allowing a
nonrecanting recantation to disturb a guilty plea.
                                     79

Jamison v. State, 765 S.E.2d 123, 130 (S.C. 2014), the Supreme Court of

South Carolina did open the door to actual-innocence claims by persons

who had pled guilty but it established a very high burden for them—one

the majority characterizes as “too stringent.” Also, in People v. Tiger, 48

N.Y.S.3d 685, 700–01 (App. Div. 2017), the court recognized an actual-

innocence claim by a defendant who had pled guilty, although New

York’s highest court has clearly not gone that far, see People v. Plunkett,

971 N.E.2d 363, 366 (N.Y. 2012) (“Consistently, we have deemed

appellate claims challenging what is competently and independently

established by a plea forfeited.”); see also People v. DePerno, 51 N.Y.S.3d

641, 643 (App. Div. 2017) (finding by a different department of the

appellate division that an actual-innocence claim after a guilty plea was

foreclosed). The majority also discusses Ex parte Tuley, 109 S.W.3d 388,

393 (Tex. Crim. App. 2002), a 5–4 Texas decision that opened the door to

actual-innocence claims following a guilty plea, and People v. Schneider,

25 P.3d 755, 757 (Colo. 2001) (en banc), a Colorado decision that did the

same.

        Iowa is not alone in giving finality to guilty pleas notwithstanding

claims of actual innocence. See, e.g., Williams v. State, 530 S.W.3d 844,

846 (Ark. 2017) (“Williams’s argument that he is actually innocent of the

offense to which he pleaded guilty does not establish a ground for the

writ because it constitutes a direct attack on the judgment.”); Norris v.

State, 896 N.E.2d 1149, 1153 (Ind. 2008) (rejecting an actual innocence

claim and stating that “[a] plea of guilty thus forecloses a post-conviction

challenge to the facts adjudicated by the trial court’s acceptance of the

guilty plea and resulting conviction”); Woods v. State, 379 P.3d 1134,

1142 (Kan. Ct. App. 2016) (stating that a claim of actual innocence is

“insufficient to override the longstanding rule that a freely and
                                       80

voluntarily entered guilty plea bars a collateral attack on the sufficiency

of the evidence”).

        One should also read the articles cited by the majority. One of the

articles is written by a senior federal judge and another by a former

federal judge. Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. Rev.

Books (Nov. 20, 2014), www.nybooks.com/articles/2014/11/20/why-

innocent-people-plead-guilty/[https://perma.cc/LT8T–XKAV];         H.   Lee

Sarokin, Why Do Innocent People Plead Guilty?, Huffington Post (May 29,

2012,      4:39      PM),    https://www.huffingtonpost.com/judge-h-lee-

sarokin/innocent-people-guilty-pleas_b_1553239.html/[https://perma.

cc/6PSQ–6ZW4]. As participants in the system, the views of these two

authors deserve our consideration.           Yet neither of these authors

recommends today’s solution—i.e., a freestanding claim of innocence as

a way to challenge guilty pleas. To the contrary, Judge Rakoff advocates

“involving judges in the plea-bargaining process,” while Mr. Sarokin

insists “[t]he only solution is vigilance by all involved.”

        Reexamining a guilty plea years after the fact is far different from

reviewing a trial. Unlike with a case that actually went to trial, no trial

transcript can be relied on if the witnesses no longer are around, have

forgotten the events, or no longer are motivated to remember them. See

Rhoades, 880 N.W.2d at 449 (acknowledging the difficulty in accurately

determining a claim of actual innocence when there has been a plea

bargain and no trial record exists).

        Under Maryland law, convicted persons may not petition for a writ

of actual innocence if they have pled guilty. Md. Code Ann., Crim. Proc.

§ 8–301 (West, Westlaw through ch. 1–4 2018 Reg. Sess.). The Maryland

Court of Special Appeals has noted,
                                     81
      Under most circumstances, the facts alleged in a petition for
      postconviction relief will necessarily, in part, be drawn from
      the trial record. However, when there was a guilty plea,
      there is no detailed trial record, no witness testimony, and
      often there is only a minimal factual investigation on the
      part of the State and defense counsel. Thus, both the
      defense’s factual quest to establish innocence as well as the
      State’s attempt to refute innocence are hindered by the
      inherent gaps available in evidence in cases in which the
      petitioner pled guilty. Petitions stemming from a conviction
      following a guilty plea should thus be denied.

Yonga v. State, 108 A.3d 448, 461 (Md. Ct. Spec. App. 2015) (emphasis

omitted)   (quoting   Nicholas    Phillips,   Comment,      Innocence    and
Incarceration: A Comprehensive Review of Maryland’s Postconviction DNA

Relief Statute and Suggestions for Improvement, 42 U. Balt. L.F. 65, 93–

94 (Fall 2011) (footnotes omitted)), aff’d, 130 A.3d 486 (Md. 2016).

      Changes in the law intended to benefit defendants can end up

harming them. Now that we have allowed guilty pleas to be set aside

based on newly discovered evidence, the state has a powerful incentive

not to accept such pleas, despite the benefits to defendants discussed

above. The advantages of a plea from the state’s perspective are that it

provides certainty, closure, and finality. See Blackledge v. Allison, 431

U.S. 63, 71, 97 S. Ct. 1621, 1627–28 (1977). That is why the state is

often willing to bargain down the original charges as part of a deal. Take

away those advantages, and more cases may go to trial on more charges.

See id. (noting that the advantages of plea negotiations to judges,

prosecutors, and defendants “can be secured . . . only if dispositions by

guilty plea are accorded a great measure of finality”).

     III. Grounding an Actual-Innocence             Claim    in   the   Iowa
Constitution Is Highly Problematic.

      The majority maintains that an actual-innocence claim for those

who plead guilty is required by the Iowa Constitution, specifically

article I, section 9 and article I, section 17. It is noteworthy that Schmidt
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barely argues Iowa constitutional law at all and then only in the

supplemental brief which we invited.

      The majority’s constitutional reasoning is thin and, to me,

unpersuasive.    I begin with article I, section 9, the Iowa due process

clause. The majority initially asserts that convicting an actually innocent

person violates article I, section 9’s constitutional guarantee of

substantive due process.     According to the majority, it is a matter of

substantive due process because the violation consists of the mere fact

an innocent person has been convicted.

      But the majority can’t literally mean that—otherwise there would

be no limits on actual-innocence claims. Thus, the majority shifts to the

position that innocent people need to have an opportunity to prove they

are innocent. That’s a matter of procedural due process. Yet our justice

system already has many procedures in place to protect innocent people

from being convicted. These include the trial, the guilty plea colloquy,

the right to counsel, and so forth.

      So what the majority is really saying is that the Iowa due process

clause requires one more procedure, i.e., the one devised today, to protect

the innocent from being convicted. Why? Why is one more procedure so

important as to be of constitutional dimension? The majority does not

explain.

      Weaker still is the majority’s invocation of article I, section 17.

This section prohibits cruel and unusual punishments.        Yet the issue

before this court is not the punishment for Schmidt’s crime, but whether

Schmidt should have a new opportunity to prove he didn’t commit that

crime.     Unless we are going to ignore the fundamental distinctions

among the different rights within our own constitution, article I, section

17 has no bearing on today’s case.
                                      83
     IV. The     Majority    Opinion       Results   in    Many       Unanswered
Questions.
      Having demonstrated enough self-confidence to tear up an

established rule of law, the majority now claims to be too modest to tell

us what today’s decision means. That’s not good enough. One way to

test the soundness of a decision is to consider the implications of that

decision.

      Here are a few questions raised by today’s decision.

      What does “actual innocence” mean?               The majority opinion is
unclear and inconsistent concerning the meaning of “actual innocence.”

At the end the majority states,

      [T]he applicant must show by clear and convincing evidence
      that, despite the evidence of guilt supporting the conviction,
      no reasonable fact finder could convict the applicant of the
      crimes for which the sentencing court found the applicant
      guilty in light of all the evidence, including the newly
      discovered evidence.

      Yet earlier, the majority says, “Holding a person who has

committed no crime in prison strikes the very essence of the

constitutional   guarantee   of    substantive   due      process.”     The   two

statements do not line up. Where are we?

      Obviously, at a minimum, the defendant must prove he or she did

not commit the crime to which he or she pled guilty. Must the defendant

also prove his or her conduct does not amount to a different crime (even

a much less serious one)?         And what if the defendant pled guilty to

several charges at once? Must the defendant establish that none of the

incidents involve a crime committed by that defendant?

      What is “evidence” at the summary judgment stage? The court

directs the parties to provide “other evidence or affidavits” in support of

their positions, before the district court rules on the State’s motion for

summary judgment. What is evidence? The majority indicates that the
                                      84

requirements of rule 1.981 apply. In that event, do minutes of testimony

count as evidence, even if the defendant did not previously acknowledge

they were true?    The special concurrence seems to indicate that the

minutes are treated as evidence.

      What is “evidence” at the trial stage?          If a claim of actual

innocence gets past summary judgment, must all evidence used at the

postconviction-relief trial comply with the rules of evidence?       Again,

what’s the status of minutes of testimony?

      If the normal rules of evidence for summary judgment and

trial proceedings do not apply, how does the district court handle

the resulting apples-to-oranges comparisons? If minutes of testimony

are allowed as evidence, what weight are they given?         How are they

compared to affidavits and live testimony?

      Does a defendant need to do anything other than deny his or

her guilt to raise an actual-innocence claim and start the process?

According to the court, a freestanding actual-innocence claim can be

brought under Iowa Code section 822.2(1)(a). But if a claim of innocence

by itself is enough, the defendant doesn’t need a recantation or other

allegedly new evidence, unless the three-year time bar has passed. See

Iowa Code § 822.3. A mere denial of guilt is enough to get new counsel

appointed and get the ball rolling.

      What is the role of the defendant’s guilty plea counsel?

Typically, a claim of ineffective assistance of counsel waives the attorney–

client privilege. See Iowa R. Prof’l Conduct 32:1.6(b)(5). So, when the

defendant claims to have received ineffective assistance in connection

with a plea, former counsel can testify about his or her communications

with the defendant concerning the plea.       These communications may

have information bearing on the defendant’s actual innocence. Is such
                                    85

testimony now off-limits, since the defendant can challenge the guilty

plea without having to argue ineffective assistance of counsel?

      What about Alford pleas? An Alford plea “was designed to permit

a defendant to make a voluntary and intelligent decision to plead guilty

to a crime without admitting participation in the underlying facts which

constitute the crime.”     State v. Klawonn, 609 N.W.2d 515, 520 (Iowa

2000) (citing North Carolina v. Alford, 400 U.S. 25, 37–38, 91 S. Ct. 160,

167–68 (1970)). With an Alford plea, the defendant “claim[s] innocence”

but makes a “cost–benefit analysis of avoiding the risks associated with a

trial.” Id. at 520–21. After today, does someone who made an Alford plea

now get to raise an actual-innocence claim? That seems strange. After

all, nothing has changed. Such a defendant always maintained he or she

was innocent.       Or are Alford pleas now unconstitutional in light of

today’s decision?

      If the defendant succeeds, can other charges be reinstated?

Part of the established remedy when setting aside a guilty plea is to

reinstate all charges dismissed as part of any plea bargain. See State v.

Weitzel, 905 N.W.2d 397, 411 (Iowa 2017) (allowing the state to “reinstate

any charges dismissed in contemplation of a valid plea bargain”); Gines,

844 N.W.2d at 442 (“[W]e must put the State back in the position it was

in before making the plea agreement.”); see also Ceretti, 871 N.W.2d at

97; State v. Allen, 708 N.W.2d 361, 369 (Iowa 2006). So, if the defendant

establishes actual innocence and there was a plea bargain, does the state

get to reinstate other charges that were dismissed?

      The majority refuses to consider issues like these because it

doesn’t want to get into the merits of the case. But none of these matters

goes to the actual merits.       Some of them were discussed in the

supplemental briefing invited by this court.     If our court is going to
                                       86

change the law, it should clarify the change as much as possible and not

leave it to district courts to play a game of twenty questions. In other

decisions, we have given “protocols” to our district courts.    See, e.g.,

State v. Harrington, 893 N.W.2d 36, 45–46 (Iowa 2017) (describing a

“protocol” to use in the future); State v. Dahl, 874 N.W.2d 348, 353 (Iowa

2016) (same); Fagen v. Grand View Univ., 861 N.W.2d 825, 828 (Iowa

2015) (plurality opinion) (same); State v. Cashen, 789 N.W.2d 400, 403

(Iowa 2010) (same), superseded by statute, 2011 Iowa Acts ch. 8, § 2

(codified at Iowa Code § 622.10).

      V. Conclusion.

      From the State’s perspective, I am guessing it would have simply

preferred to try Schmidt all those years ago.       In the long run, I am

doubtful today’s decision will benefit defendants.      More importantly,

today’s decision needlessly overturns an established rule of law that was

fair to all parties and worked well.

      Waterman and Zager, JJ., join this dissent.
