                    IN THE COURT OF APPEALS OF IOWA

                                      No. 16-0394
                               Filed December 21, 2016


MONTRELL ANDERSON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,

Judge.



      Montrell   Anderson      appeals   the   dismissal   of   his   application   for

postconviction relief. AFFIRMED.




      Andrew J. Boettger of Hastings, Gartin & Boettger, L.L.P., Ames, for

appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik, Assistant Attorney

General, for appellee State.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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DANILSON, Chief Judge.

       Montrell   Anderson    appeals    the   dismissal   of     his   application   for

postconviction relief (PCR).      Anderson contends the PCR court erred in

dismissing his application without notice or allowing him sufficient time to

respond pursuant to Iowa Code section 822.6 (2015). Because section 822.6

does not apply to this action, we conclude the PCR court did not err in dismissing

Anderson’s PCR application as time-barred under Iowa Code section 822.3.

       Anderson was sentenced on May 30, 2007, after being convicted by jury

trial for third-degree sexual abuse, in violation of Iowa Code section 709.4.

Anderson’s conviction was affirmed on appeal in 2008. This PCR application—

Anderson’s second PCR application—was filed May 28, 2015. On January 11,

2016, the PCR court entered an order setting trial on Anderson’s PCR

application. The State filed a motion to dismiss the PCR application on January

19, 2016, asserting the application was time-barred under Iowa Code section

822.3. Anderson did not file a resistance to the motion to dismiss. On February

1, 2016, without setting a hearing on the motion, the PCR court entered an order

dismissing the PCR application “[u]pon oral application of the County Attorney or

pursuant to plea negotiations, and in the interest of justice.”

       On February 2, 2016, Anderson filed a motion to enlarge and amend

findings, arguing the PCR court’s dismissal did not comply with Iowa Code

section 822.6 because the court did not give prior indication of its intention to

dismiss the application and did not allow Anderson an opportunity to reply. In an

order entered February 16, 2016, the PCR court explained Iowa Code section

822.6 did not apply to the dismissal because
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       the court made no determination that [Anderson] would not have
       been entitled to relief on the merits, if his claims were not time
       barred, or that no purpose would be served by further proceedings.
       The application was not dismissed on the merits but because
       [Anderson] did not deny his claims were time barred by filing a
       resistance to [the State]’s motion to dismiss. Had he done so, the
       motion and resistance would have been promptly set for hearing.
       Sec[tion] 822.6 does not purport to create an exception to the Rules
       of Civil Procedure relieving a petition[er] from resisting motions duly
       filed and served but, rather, precludes the court from spontaneously
       dismissing an application on the merits without prior notice to the
       applicant and an opportunity to respond.[1]

       Upon our review for correction of errors at law, Manning v. State, 654

N.W.2d 555, 558-59 (Iowa 2002), we conclude the PCR court’s holding comports

with the law and affirm the order dismissing Anderson’s PCR application.

       Iowa Code section 822.6 provides two methods for summary disposition of

a PCR application on the merits without a trial. Manning, 654 N.W.2d at 559.

Paragraph two of section 822.6 allows a PCR court, on its own initiative, to

dismiss a PCR application where it is satisfied “the applicant is not entitled to

postconviction relief and no purpose would be served by any further

proceedings.” Iowa Code § 822.6. A paragraph-two dismissal requires the court

to “indicate to the parties its intention to dismiss the application” and provide the

applicant “an opportunity to reply to the proposed dismissal.”2 Id.


1
  The court further explained the language of the motion to dismiss—dismissing the PCR
application “[u]pon oral application of the County Attorney or pursuant to plea
negotiations, and in the interest of justice”—was incorrectly included because the order
was a modified EDMS “template intended for dismissing criminal cases on account of
plea negotiations or otherwise and [the order’s] references to oral applications by the
county attorney or to plea negotiations do not apply.” The court explained the order
should have “simply stated that respondent’s motion to dismiss petitioner’s application
as time barred . . . was granted because there was no resistance.”
2
   “The second method, found in paragraph three of section 822.6, allows for such
disposition on the motion of either party. The goal here ‘is to provide a method of
disposition once the case has been fully developed by both sides, but before an actual
trial.’” Manning, 654 N.W.2d at 559 (citation omitted).
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       However, section 822.3 provides for dismissal of a PCR application if it is

not “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” unless “a

ground of fact or law that could not have been raised within the applicable time

period” is being asserted. See id. § 822.3.

       Anderson contends the PCR court erred in dismissing his PCR application

without providing Anderson notification of its intention to do so or allowing

Anderson time to reply. However, as the PCR court indicated, the requirements

of section 822.6 do not apply to dismissals pursuant to section 822.3.           See

Ramirez v. State, No. 13-1847, 2015 WL 4936386, at *2 (Iowa Ct. App. Aug. 19,

2015) (“It is apparent that the PCR court’s ruling was not one of summary

disposition. In its ruling the court found the application was time barred under

section 822.3 ‘and is therefore dismissed.’ The court did not consider the merits

of [the applicant]’s claims as is required for summary disposition, and therefore,

[the applicant]’s reliance on Manning is misplaced.”).

       We addressed a similar argument in Weatherly v. State, No. 14-1890,

2016 WL 1130043 (Iowa Ct. App. Mar. 23, 2016). In Weatherly, the applicant

alleged the PCR court erred in dismissing the PCR application as untimely

without a reported hearing or notice to the applicant of the issues the court would

consider. 2016 WL 1130043, at *2 n.1. This court held the PCR court did not err

in dismissing a PCR application as time-barred fourteen days after the motion to

dismiss was filed, although the motion was not resisted and a hearing was not

held. Id. at *2. The Weatherly court explained:
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       [The applicant] complains the court failed to give him “an
       opportunity to reply to the proposed dismissal”; however, the
       portion of Iowa Code section 822.6 cited by [the applicant] pertains
       to dismissal initiated on the court’s initiative. . . . When a motion to
       dismiss a PCR application has been filed, proper service has been
       made on the nonmoving party, and the nonmoving party has been
       afforded an adequate time to respond and fails to do so, the court
       may summarily dismiss the application as a matter of default
       judgment.

Id. at *2, n.1 (citing Brown v. State, 589 N.W.2d 273, 275 (Iowa 1998)).

       Here, the State filed a motion to dismiss the PCR application, Anderson

does not contest whether proper service of the motion was made, and Anderson

did not reply to the motion to dismiss despite having adequate time to do so.

       Further, Anderson’s PCR application was filed approximately seven years

after procedendo was issued and is unquestionably time-barred under section

822.3. Anderson’s application alludes to “a ground of fact or law that could not

have been raised within the applicable time period.” However, his application,

his motion to amend and enlarge, and his brief on appeal fail to give any

indication what this evidence is or why it could not be raised earlier. On this

record we cannot conclude the court erred.

       We conclude the requirements of section 822.6 do not apply to the PCR

court’s dismissal of Anderson’s PCR application as untimely.             We further

conclude the PCR court did not err in dismissing the PCR application as it was

filed well outside the requisite three-year period. The order dismissing the PCR

application is affirmed.

       AFFIRMED.
