                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1492
                               Filed July 27, 2016


CHARLES DEAN WHITE,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Page County, Jeffrey L. Larson,

Judge.



      Charles White appeals from the district court’s grant of summary judgment

to the State in this postconviction relief proceeding.       REVERSED AND

REMANDED.




      Marti D. Nerenstone, Council Bluffs, for appellant.

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

General, for appellee State.




      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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DANILSON, Chief Judge.

       Charles White appeals from the district court’s grant of summary judgment

to the State in this postconviction relief (PCR) proceeding. Because the State did

not prove material facts are undisputed, we reverse and remand for further

proceedings.

       On June 5, 2012, following a jury trial, judgment and sentence were

entered upon White’s conviction for three counts of second-degree sexual abuse

and one count of lascivious acts with a child based on offenses committed

against a seven-year-old child. Additional facts are set out in our opinion dealing

with White’s direct appeal, in which White made two claims of ineffective

assistance of trial counsel, and also contested the admission of allegedly

prejudicial evidence. State v. White, No. 12-1256, 2013 WL 4504896, at *1-2

(Iowa Ct. App. Aug. 21, 2013).       The ineffectiveness claims raised on direct

appeal were that trial counsel failed to object to the undifferentiated sexual abuse

counts in the trial information and marshalling instructions, and failed to object to

the prosecutor’s closing argument. Id. at *3. We rejected these ineffectiveness

claims. Id. at *3-5.

       On October 23, 2014, White filed a pro se PCR application, asserting six

additional claims of ineffective assistance of trial counsel.     The State filed a

motion for summary judgment, asserting (1) the ineffectiveness claims “were

addressed and disposed of by direct appeal” and (2) the allegations “regarding

depositions being withheld and sufficiency of the evidence are without merit.”

White—now represented by counsel—resisted, contending the claims of

ineffective assistance of trial counsel raised in the PCR application had not been
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resolved, and the affidavit submitted of White’s trial counsel (stating White had

access to the transcript of the victim’s deposition) does not negate White’s claim

that counsel was ineffective in failing to utilize the deposition.   PCR counsel

asserted White should be allowed to depose trial counsel at least to question

counsel about the failure to use contradictory statements made by the victim.

       The PCR court granted the State’s motion for summary judgment,

concluding White was barred from raising an ineffectiveness claim in the PCR

action because he had already alleged counsel was ineffective in other respects

on direct appeal. White appeals the grant of summary judgment.

              We normally review postconviction proceedings for errors at
       law. Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010). This
       includes summary dismissals of applications for postconviction
       relief. Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002).
       Applications for postconviction relief that allege ineffective
       assistance of counsel, however, raise a constitutional claim. State
       v. Nitcher, 720 N.W.2d 547, 553 (Iowa 2006).            We review
       postconviction proceedings that raise constitutional infirmities de
       novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

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

       “The standards for summary judgment in postconviction relief actions are

analogous to summary judgment in civil proceedings.” Id. at 793. “Under these

standards, summary judgment is proper when the record reveals only a conflict

over the legal consequences of undisputed facts.” Id. “In determining whether

summary judgment is warranted, the moving party has the burden of proving the

material facts are undisputed.” Id. at 792. Moreover, the facts are viewed in the

light most favorable to the nonmoving party. Id.

       The PCR court ruled, “Because this issue has already been raised on

direct appeal, it is barred and cannot be relitigated here.”
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       True, “[o]ur decision on direct appeal is . . . final as to all issues decided

therein, and is binding upon both the postconviction court and this court in

subsequent appeals.” Holmes v. State, 775 N.W.2d 733, 735 (Iowa Ct. App.

2009) (emphasis added). But res judicata will bar only ineffectiveness claims

already litigated on direct appeal. See id.

       The ineffectiveness claims raised in the PCR action are not the same

claims addressed on direct appeal and are thus properly raised in an initial PCR

action. See Iowa Code § 814.7 (2013) (“An ineffective assistance of counsel

claim in a criminal case shall be determined by filing an application for

postconviction relief pursuant to chapter 822, except as otherwise provided in

this section. The claim need not be raised on direct appeal from the criminal

proceedings in order to preserve the claim for postconviction relief purposes.”);

State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (“[W]e hold defendants are

no longer required to raise ineffective-assistance claims on direct appeal, and

when they choose to do so, they are not required to make any particular record in

order to preserve the claim for postconviction relief.”). The State concedes the

PCR court erred, but argues summary judgment could be granted nonetheless.

We disagree.

       The applicant asserted trial counsel was ineffective in failing to use the

child’s inconsistent deposition testimony at trial. Trial counsel’s affidavit does not

address this issue.      Rather, trial counsel asserts White had access to the

deposition. As PCR counsel noted, this “begs the question of was the attorney

ineffective in not utilizing that deposition.”
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      On appeal, the State acknowledges it is undisputed that a deposition was

taken of the child prior to trial; that despite containing possible impeachment

testimony, neither the deposition nor any of these other documents were used at

trial; and the child was not impeached by use of her deposition on cross-

examination. Nonetheless, the State argues that White cannot prevail on his

ineffectiveness claim because “the use of the deposition at trial could not have

changed White’s fate in light of the strength of the evidence against him.”

      We believe this conclusion is premature.       We do not have the child’s

deposition in evidence. Nor does criminal trial counsel’s affidavit address the

contents of the deposition. While further inquiry may establish trial counsel’s

decisions were a reasonable strategy or there was no prejudice, the State has

failed to carry its burden to prove there is no genuine issue of fact for trial.

Because the district court erred in concluding White’s ineffectiveness claims were

res judicata, and because the State has not met its burden to warrant summary

judgment, we reverse and remand for further proceedings.

      REVERSED AND REMANDED.
