                    IN THE COURT OF APPEALS OF IOWA

                              No. 3-1243 / 13-0126
                              Filed March 26, 2014


MICHAEL SHAWN REYNA,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

       Appeal from the Iowa District Court for Polk County, Douglas F. Staskal,

Judge.



       Michael Shawn Reyna appeals the district court ruling denying his

application for postconviction relief. AFFIRMED.



       Jesse Macro of Gaudineer, Comito & George LLP, West Des Moines, for

appellant.

       Thomas J. Miller, Attorney General, Bridget Chambers, Assistant Attorney

General, John Sarcone, County Attorney, and Non Horvat, Assistant County

Attorney, for appellee.



       Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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BOWER, J.

       Michael Shawn Reyna appeals the district court ruling denying his

application for postconviction relief.   Reyna claims the district court erred in

finding his application was time-barred by the statute of limitations, and his trial

attorney was not ineffective for waiving his defenses and constitutional rights.

We find the application was time-barred, however, the State failed to raise the

defense at any time.     We also find the transcript of the criminal proceeding

makes clear Reyna was properly informed of his constitutional rights and his

attorney performed appropriately. We affirm.

I.     Background Facts and Proceedings

       Michael Reyna was charged with three counts of attempted murder and

one count of injury and/or interference with a police service dog.           Reyna

eventually filed a notice of diminished responsibility and later agreed to execute a

written waiver of his right to jury trial. By agreement of the parties, the court

considered a stipulated record consisting of the minutes of testimony,

depositions, and police reports. Reyna also waived the use of a pre-sentence

investigation so he could be sentenced immediately.         On February 3, 2006,

following an in-court colloquy, and pursuant to the terms of a plea agreement,

Reyna was sentenced to three concurrent twenty-five year terms of imprisonment

for attempted murder. The injury and/or interference with a police service dog

charge was dismissed on the State’s motion. Reyna did not appeal.

       On May 16, 2011, Reyna filed an application for postconviction relief. In it,

he claimed his trial attorney was ineffective in several ways, all of which were
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denied. In this appeal, Reyna claims his attorney was ineffective by failing to

explain the practical effects of a waiver of his constitutional rights, specifically his

right to confront and cross-examine witnesses, to present evidence and testify on

his own behalf.    He also claims the effect of his stipulation to a trial on the

minutes of testimony was not properly explained to him. The district court denied

the application finding it was: time-barred by the statute of limitations; denied the

claims on the merits; found the trial court had adequately informed Reyna of his

rights; found the waiver of the right to jury trial was properly obtained; and his

attorney was not ineffective by allowing Reyna to accept a plea bargain.

II.    Standard of Review

       We review postconviction relief proceedings for errors at law except for

when the basis of relief is constitutional, in which case our review is de novo.

Harrington v. State, 659 N.W.2d 509, 519 (Iowa 2003).

III.   Discussion

       A.     Statute of Limitations

       Before deciding the merits of his claims, the district court found the

application should be denied as it was time-barred by the statute of limitations.

Reyna claims the statute of limitations is an affirmative defense that was waived

as it was not raised by the State.

       Applications for postconviction relief 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 (2011). An exception

exists for grounds of fact or law that could not have been raised within the
                                         4



required period. Id. Because no such ground of fact or law was claimed by

Reyna, the district court correctly determined the application was filed outside the

three-year limitation period.   However, Reyna is correct that the affirmative

defense was waived by the State’s failure to seek dismissal of the action.

       Discussing the limitation defense in a postconviction relief proceeding, our

supreme court has restated the general rule that the “defense must be

affirmatively asserted by a responsive pleading.” Davis v. State, 443 N.W.2d

707, 708 (Iowa 1989). The Davis court supported the rule by citing to Pride v.

Peterson, 173 N.W.2d 549, 554 (Iowa 1970), which held the limitation defense “is

primarily an affirmative defense to be specially asserted in a separate division of

the responsive pleading to the claim for relief.”     Id.   In situations where the

defense is obviously applicable, the responding party is allowed to raise the

defense by filing a motion to dismiss. See Davis, 443 N.W.2d at 708; Pride, 173

N.W.2d at 554.

       The State did not raise the limitation defense in its answer1 or in a motion

to dismiss. In fact, the issue was not discussed during the postconviction relief

trial. The State claims the issue was raised during the deposition of Reyna, the

transcript of which was introduced during the postconviction relief trial.

Considering the issue was not raised and discussed in any pleading or during the

trial, we find the State waived the affirmative defense and the district court erred

by applying the statute of limitations sua sponte.2



1
 No answer by the State appears in the record provided on appeal.
2
 The district court also found Reyna had waived his arguments because they could
have been raised in an earlier proceeding. Our supreme court has long held, and the
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       B.      Constitutional Issues

       Reyna claims his trial attorney was ineffective for failing to object or

explain the waiver of his constitutional rights, specifically the right to confront and

cross-examine witnesses, the right to present evidence and testify on his own

behalf. He also claims the true nature of his stipulation to a trial on the minutes

was not explained to him.

       To establish his ineffective-assistance-of-counsel claim, Reyna must

demonstrate his trial counsel failed to perform an essential duty and that failure

prejudiced him.       See State v. Hopkins, 576 N.W.2d 374, Strickland v.

Washington, 378; 466 U.S. 668, 687 (1984).                The burden is on Reyna to

establish, by a preponderance of the evidence, both prongs. See State v. Cook,

565 N.W.2d 611, 613–14 (Iowa 1997). We employ a strong presumption counsel

performed reasonably and competently. Id. at 614. Counsel cannot perform

ineffectively by “merely failing to make a meritless objection.” State v. Bearse,

748 N.W.2d 211, 215 (Iowa 2008).

       Reyna claims his trial attorney was ineffective by failing to object to the

proceeding or explain to him there would be a limited record and the effect of the

stipulated record.      He claims his attorney was similarly ineffective by not

explaining the waiver of his right to confront witnesses, present evidence, and

testify on his own behalf. We find each of these rights was sufficiently explained

to him by the district court during the colloquy. The trial court judge asked Reyna


Iowa Code establishes, because trial counsel cannot be expected to raise a claim
against himself or herself, ineffective assistance claims may be raised for the first time in
an application for postconviction relief. See Iowa Code § 814.7(1); State v. Lucas, 323
N.W.2d 228, 232 (Iowa 1982).
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if he needed more time to discuss the issues with his attorney and whether

Reyna was satisfied with the performance of his attorney. Reyna responded by

replying the issues had been adequately discussed and he was satisfied with the

services of his attorney. The court then went on to explain Reyna was waiving

his right to a jury, to issue subpoenas and require witnesses to testify on his

behalf, to testify (or not) on his own behalf, and to confront witnesses for the

State through cross-examination. Reyna understood and waived each of these

rights. The extent of the waiver was adequately discussed by the trial court

judge and further explanation by his attorney would have accomplished nothing.

An objection to the proceeding by his attorney would have been meritless and

not required.

       Reyna also complains his trial attorney was ineffective by agreeing to “an

unholy hybridization of guilty plea, [and] trial by judge and trial by minutes.” This

type of trial is not the equivalent of a guilty plea, and guilty plea type procedures

are not required. State v. Sayre, 566 N.W.2d 193, 195 (Iowa 1997). There is

nothing in the record indicating Reyna intended to plead guilty by stipulating to

the minutes of testimony, which might require a different procedure. See id. at

196. The trial court in this case complied with the requirements of Sayre during

the colloquy and the nature of the proceeding was adequately explained to

Reyna.    Reyna’s attorney was under no additional duty to object to the

proceeding or engage in further in-court explanations. Additionally, considering

the plea bargain offered by the State, and ultimately followed by the court,
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counsel’s suggestion to proceed with a trial on the minutes of testimony was

reasonable.3

       Having found Reyna was properly advised of his rights during the in-court

colloquy, we affirm the decision of the district court.

       AFFIRMED.




3
  Reyna gives us no testimony from his trial counsel that might allow us to more
accurately assess counsel’s reasons for proceeding with a bench trial on the minutes.
We will not speculate as to an improper or ineffective motive on counsel’s part.
