                     IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1491
                            Filed December 21, 2016


RICHARD ALAN DEBATES,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


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

Judge.



       An applicant appeals the dismissal of his application for postconviction

relief. AFFIRMED.



       Eric D. Tindal of Nidey Erdahl Tindal & Fisher PLC, Williamsburg, for

appellant.

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

Attorney General, for appellee State.




       Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ. Tabor,

J., takes no part.
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VOGEL, Presiding Judge.

          Richard     Debates    appeals     the   dismissal     of   his   application    for

postconviction relief, asserting the statute of limitations should not have applied

based on newly discovered evidence that his counsel was ineffective. Because

we find Debates could have raised his claim within the statutory time frame, we

affirm.

          I.       Background Facts and Proceedings

          In May 2007, Debates pled guilty to sexual abuse in the third degree, in

violation of Iowa Code section 709.4 (2005).              Due to an error in his original

sentencing order, Debates was resentenced on October 4, 2007. Debates did

not file a direct appeal to his conviction. In March 2011, Debates filed a pro se

application for postconviction relief, which claimed his counsel was ineffective.

Specifically, Debates stated that he believed his attorney forged documents that

were submitted to the court. The application then sat unpursued until July 2015,

when Debates filed another pro se application for postconviction relief, asserting

the same grounds.1 An attorney was then appointed to represent Debates. The

State filed a motion to dismiss Debates’s application based on the applicable

three-year statute of limitations contained in Iowa Code section 822.2 (2011).

Debates claimed the limitations period did not apply because his application was

based on a ground of fact that could not have been raised during the limitations

period.        On August 7, 2015, the district court issued a ruling that found the

grounds for Debates’s application could have been discovered through due



1
    This pro se application is dated March 3, 2009; however, it was not filed until July 2015.
                                         3


diligence prior to the expiration of the limitations period and granted the State’s

motion to dismiss. Debates appeals.

       II.    Standard of Review

       Generally, we review decisions regarding applications for postconviction

relief for errors at law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).

This standard applies when we review a statute-of-limitations defense to

postconviction actions.    Harrington v. State, 659 N.W.2d 509, 519–20 (Iowa

2003). “However, when the applicant asserts claims of a constitutional nature,

our review is de novo.” Ledezma, 626 N.W.2d at 141.

       III.   Statute of Limitations

       Debates asserts the three-year statute of limitations did not apply to his

application because it was based on a ground of fact that could not have been

raised within the limitations period. Specifically, Debates claims he suspects his

attorney forged documents submitted to the court and that he could not have

discovered the alleged forgery within the limitations period. The State counters

that any forgery committed by Debates’s attorney could have been discovered

within the limitations period.

       Iowa Code section 822.3 provides:

       All other 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.

While section 822.3 does provide a potential exception to the statute of

limitations, the exception does not apply if the grounds for relief asserted could

have been raised within the three year time period. Iowa Code § 822.3; see
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Harrington, 659 N.W.2d at 521. Therefore, the ground-of-fact exception does not

apply if the applicant was aware of the fact prior to the expiration of the three-

year limitations period. See id.

       Debates does not identify what documents were allegedly forged, but the

district court identified three documents bearing Debates’s signature in the court

file: (1) the written arraignment, (2) the pretrial conference statement, and (3) the

plea agreement. The district court then found that Debates’s signature on the

written arraignment was notarized by someone other than his attorney, that

Debates was likely present at the pretrial conference, and that he was definitely

present at the taking of the guilty plea.

       Upon our review of the record, we agree with the district court that

Debates could have discovered “any ground of fact” relating to his attorney’s

alleged forgery within three years of his conviction. Any purported forgery should

have been immediately apparent to Debates at his pretrial conference, plea

hearing, or sentencing.      These proceedings provided Debates with ample

opportunity to review his file and raise any concerns to the court.         Further,

Debates could have discovered any forgery issue upon a cursory review of his

file, which could have occurred at any time following his plea and sentencing.

Finally, as the district court noted, concerns about Debates’s attorney’s actions in

forging documents surfaced in 2008 and became public in 2009. Debates could

have discovered this information through a variety of sources and been alerted to

a potential problem with his case. Despite these opportunities to exercise due

diligence and potentially discover the evidence on which Debates basis his claim,
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he did not file his application for postconviction relief until more than three years

after his conviction became final.

       IV.        Conclusion

       Because Debates based his application on a ground of fact that could

have been raised within the limitations period for postconviction actions, his

application was barred and was correctly dismissed. We therefore affirm the

district court.

       AFFIRMED.
