                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-1930
                                Filed June 24, 2015

ROBERT E. ARMSTRONG,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Clinton County, Nancy S. Tabor

(order) and Marlita A. Greve (dismissal), Judges.



       Applicant appeals the district court decision dismissing his application for

postconviction relief on the ground of untimeliness. AFFIRMED.



       Blake Parker of Parker Law Office, Clinton, for appellant.

       Robert E. Armstrong, Fort Madison, appellant pro se.

       Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney

General, Mike Wolf, County Attorney, and Ross Barlow, Assistant County

Attorney, for appellee.



       Considered by Vogel, P.J., Mullins, J., and Sackett, S.J.* Tabor, J., takes

no part.

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

       Applicant Robert Armstrong appeals the district court decision dismissing

his application for postconviction relief on the ground of untimeliness. The district

court did not abuse its discretion by not appointing new postconviction counsel.

Also, Armstrong’s application was properly dismissed as untimely under Iowa

Code section 822.3 (2013).          We affirm the court’s decision dismissing

Armstrong’s postconviction-relief proceedings.

       I.     Background Facts & Proceedings

       Armstrong was convicted of two counts of second-degree sexual abuse

and two counts of third-degree sexual abuse. His conviction was affirmed on

appeal. State v. Armstrong, No. 07-0122, 2008 WL 238944, at *1 (Iowa Ct. App.

Jan. 30, 2008). Procedendo from that appeal was issued on April 1, 2008.

       Armstrong filed the present application for postconviction relief on May 2,

2013.1 He claimed the trial information in his criminal action was deficient due to

the lack of sufficient factual specificity.   He also claimed the trial information

improperly included the terms “unlawfully” and “willfully,” which were not statutory

elements of the offenses. Armstrong asserted he had not raised this issue earlier

due to the ineffective assistance of his previous postconviction relief counsel.

       Armstrong requested the appointment of counsel. On May 10, 2013, the

court appointed Tom O’Flaherty to represent him. Armstrong filed a motion on

July 10, 2013, seeking the dismissal of O’Flaherty and requesting the


1
     Armstrong had previously sought postconviction relief. His appeal of the prior
postconviction action, Armstrong v. State, No. 12-0918, was dismissed by the Iowa
Supreme Court on February 20, 2013. Procedendo in that case was issued on March
15, 2013.
                                           3



appointment of new counsel. O’Flaherty also filed a motion to withdraw, stating

he believed Armstrong’s postconviction application was untimely.

         The district court entered an order on July 29, 2013, stating the application

appeared to be untimely and “no purpose would be served by further

proceedings in this matter.”      The court indicated its intention to dismiss the

application pursuant to section 822.6. Armstrong and the State were given sixty

days to respond to the pending dismissal. The court granted O’Flaherty’s motion

to withdraw. The court ordered Armstrong’s “request for new counsel shall be

stayed until such time as the Court determines that this matter should remain on

file.”

         Armstrong filed a pro se resistance and objection to the court’s intent to

dismiss. The district court entered an order on October 28, 2013, finding the

postconviction-relief application should be dismissed because it was untimely.

Armstrong filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2),

which was denied by the court. Armstrong now appeals.

         II.    Standard of Review

         Proceedings for postconviction relief are civil proceedings at law and are

ordinarily reviewed for the correction of errors at law.        Jones v. State, 479

N.W.2d 265, 271 (Iowa 1991).

         III.   Appointment of Counsel

         Armstrong contends the district court should have appointed new counsel

when O’Flaherty was permitted to withdraw. He states he had a statutory right to
                                           4



counsel under section 822.5. Armstrong asserts he was denied the assistance of

counsel at a critical stage of his postconviction proceeding.

       There is no constitutional right to counsel in a postconviction proceeding.

Fuhrmann v. State, 433 N.W.2d 720, 722 (Iowa 1988). The right to counsel

arises from section 822.5, which provides, “the costs and expenses of legal

representation shall also be made available to the applicant in the preparation of

the application, in the trial court, and on review if the applicant is unable to pay.”

       A trial court has discretion in determining whether to appoint counsel for

an indigent postconviction applicant. Leonard v. State, 461 N.W.2d 465, 467

(Iowa 1990). In general, counsel should be appointed because “it benefits the

applicant, aids the trial court, is conducive to a fair hearing, and certainly helpful

in event of appeal.” Furgison v. State, 217 N.W.2d 613, 615 (Iowa 1974). On

the other hand, “[I]f an application, in light of the State’s response, raises no

claim cognizable in a postconviction proceeding, it is wasteful to appoint counsel

to determine solely if the applicant has some grounds for relief not stated in his

original application.” Wise v. State, 708 N.W.2d 66, 69 (Iowa 2006).

       A court must examine an application for postconviction relief in a light

most favorable to the application to determine whether there is a substantial

issue of law or fact. Fuhrmann, 433 N.W.2d at 722. “In event it thus appears a

substantial issue of law or fact may exist, then counsel should be at once

appointed.” Furgison, 217 N.W.2d at 615-16.

       The issue in the present case is similar to that found in Fuhrmann, 433

N.W.2d at 721, “whether the district court must appoint counsel for [an] applicant
                                          5



for postconviction relief when the petition shows on its face that the action is

barred by the statute of limitations.” The court determined the applicant did not

come within the three-year statute of limitations and had not shown that any of

the grounds raised in his application “could not have been raised before the

limitation period had expired.”     Fuhrmann, 433 N.W.2d at 723.           The court

concluded the district court had not erred in failing to appoint postconviction

counsel and in dismissing the application for postconviction relief. Id.

       Under section 822.3 a postconviction relief action should 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.” After Armstrong’s direct

appeal, procedendo was issued on April 1, 2008. He filed this postconviction

action on May 2, 2013, more than five years later.         Thus, his application is

untimely unless it comes within the exception for claims based on “a ground of

fact or law that could not have been raised within the applicable time period.”

See Iowa Code § 822.3. Armstrong’s application claimed his trial information

was defective because (1) it lacked sufficient factual specificity; and (2) it

included the terms “unlawfully” and “willfully,” which were not found in the statute.

The district court did not err in concluding these claims could have been raised

within the three-year time period. Armstrong would have been aware of the trial

information at the time it was filed back in 2006.2




2
   Our decision on Armstrong’s direct appeal states, “On August 21, 2006, Armstrong
was charged with four counts of sexual abuse.” Armstrong, 2008 WL 238944, at *1.
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       IV.       Issue of Material Fact

       In a pro se brief, Armstrong asserts the district court should not have

dismissed his application for postconviction relief because there was an issue of

material fact.     He contends the trial information in his criminal case was so

deficient the court lacked subject matter jurisdiction to try his case. He asserts

that because his claim is based on subject matter jurisdiction it may be raised at

any time, and so his application should not have been dismissed as untimely.

       “A challenge to subject matter jurisdiction may be made at any time.”

State v. Oetken, 613 N.W.2d 679, 686 (Iowa 2000). “Subject matter jurisdiction

refers to the power of a court ‘to hear and determine cases of the general class

to which the proceedings in question belong, not merely the particular case then

occupying the court’s attention.’” State v. Mandicino, 509 N.W.2d 481, 482 (Iowa

1993) (citation omitted). Unlike subject matter jurisdiction, a lack of authority to

hear a particular case may be obviated by consent, waiver, or estoppel. Id. at

483.

       A trial information that adequately describes a proceeding as a criminal

case, which is a type of case a district court has jurisdiction to hear, is sufficient.

See State v. Ambrose, 861 N.W.2d 550, 561 (Iowa 2015).                 A defendant’s

complaints concerning the sufficiency of the charges in a trial information is a

challenge to the court’s authority to hear a particular case and should be raised

prior to trial. See id. We conclude the district court was not lacking subject

matter jurisdiction in Armstrong’s criminal case.      We consequently determine

Armstrong’s postconviction-relief proceedings could be dismissed as untimely.
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We affirm the decision of the district court.

AFFIRMED.
