                   IN THE COURT OF APPEALS OF IOWA

                                      No. 15-1702
                                Filed November 9, 2016


NAPOLEON HARTSFIELD,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Joel W. Barrows,

Judge.



      Napoleon     Hartsfield     appeals   the   district   court’s   denial   of   his

postconviction-relief application. AFFIRMED.




      Courtney T. Wilson of Gomez May LLP, Davenport, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee State.




      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MULLINS, Judge.

      Napoleon     Hartsfield     appeals       the   district   court’s   denial   of   his

postconviction-relief (PCR) application. We affirm.

      I.     Background Facts and Proceedings

      On August 22, 2001, undercover officers purchased crack cocaine from

Hartsfield as part of a special investigation targeting street-level narcotics

dealers. See Hartsfield v. State, No. 07-2118, 2009 WL 2424640, at *1 (Iowa Ct.

App. Aug. 6, 2009). As a uniformed officer approached Hartsfield, the officer

observed Hartsfield drop a piece of white paper to the ground; the paper later

tested positive for cocaine. Id. Hartsfield was placed under arrest for possession

of a controlled substance, transported to the police station, questioned, issued a

nontraffic citation for possession of a controlled substance, and released. Id.

      On October 10, Hartsfield was arrested on an unrelated charge and

served with an arrest warrant for delivery of a controlled substance, arising from

the August 22 events.       Id.    On October 16, Hartsfield was charged with

possession of a controlled substance, to which Hartsfield pled guilty. Id. On

October 18, a trial information was filed charging Hartsfield with delivery of a

controlled substance, for which he was subsequently convicted by a jury trial. Id.

Hartsfield appealed, and his appeal was dismissed as frivolous. Id. Procedendo

issued in February 2003. Hartsfield then filed his first PCR application, which

was denied by the district court and that denial was affirmed on appeal. See id.

at *1, 4. Hartsfield filed his current PCR application on December 27, 2010. In

October 2015, a hearing was held.
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       At the hearing on Hartsfield’s present PCR application, Hartsfield alleged

his appellate counsel was ineffective for failing to file a petition for further review

after this court affirmed the district court’s denial of his first PCR application. In

his first PCR application, Hartsfield alleged, in relevant part, “his trial counsel was

ineffective in . . . failing to move for dismissal of the delivery charge for a speedy

indictment violation” because, at the time he was arrested for the charge of

possession, he believed he was also arrested for delivery. Id. at *2. This was

the challenge Hartsfield wanted raised in his application for further review.

Hartsfield testified he instructed his appellate counsel to file an application for

further review because “the law wasn’t clear at the time” and he intended to seek

federal habeas corpus relief. Hartsfield further testified he did not learn of this

court’s affirmance of the denial of his first PCR action in a timely manner, as he

received the decision from the clerk of court weeks after the decision was

entered.

       The State argued Hartsfield’s present PCR application was time barred by

Iowa Code section 822.3 (2009), as it was filed outside the three-year statute of

limitations. See Iowa Code § 822.3 (providing “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 issue”).

       In its ruling, the district court denied the State’s request for summary

disposition based upon section 822.3, stating, “[w]hile this case is arguably

barred by the statute of limitations given [Hartsfield’s] reference to [the underlying

criminal case] in his application, the court is inclined to give [Hartsfield] the
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benefit of the doubt given the somewhat confusing procedural history of this

case.” The district court went on to rule on the merits, finding

               [Hartsfield’s] case centers around his allegation that his
       [appellate counsel] failed to seek further review from an
       unfavorable ruling in his [first PCR appeal]. It is [Hartsfield’s]
       contention that [his appellate counsel] should have sought further
       review anticipating the outcome of State v. Wing, 791 N.W.2d 243
       (Iowa 2010). In other words, [Hartsfield] feels that his case should
       have been Wing before Wing was Wing.
               ....
               The underlying factual issues related to a Wing analysis that
       might have supported [Hartsfield] were resolved in favor of the
       State in [his first PCR appeal]. [Hartsfield] has failed to show that
       [his appellate attorney] failed to perform an essential duty and that
       prejudice resulted. [His appellate counsel] was not obligated to
       pursue further review that he could rightly consider frivolous, and
       his failure to do so was not ineffective assistance.

Hartsfield appeals.

       II.    Standard and Scope of Review

       PCR proceedings, including summary dismissal of PCR applications, are

generally reviewed for errors at law. See Castro v. State, 795 N.W.2d 789, 792

(Iowa 2011). We review ineffective-assistance-of-counsel claims de novo. See

State v. Tompkins, 859 N.W.2d 631, 636 (Iowa 2015). In order to prove an

ineffective-assistance-of-counsel   claim,   an   appellant   must   show      by   a

preponderance of the evidence that counsel (1) failed to perform an essential

duty and (2) prejudice resulted.       Id. at 637.    We can resolve ineffective-

assistance-of-counsel claims under either prong. State v. Ambrose, 861 N.W.2d

550, 556 (Iowa 2015); see also Dockery v. State, No. 13-2067, 2016 WL 351251,

at *3 (Iowa Ct. App. Jan. 27, 2016).
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       III.   Analysis

       On appeal, the State maintains its claim Hartsfield’s present PCR

application is barred by the statute of limitations.    As procedendo issued in

February 2003, and Hartsfield did not institute the current PCR action until 2010,

this matter is clearly untimely under section 822.3. “[I]neffective assistance of

counsel does not provide an exception to the limitation period set forth in section

822.3.” Bergantzel v. State, No. 15-1273, 2016 WL 2745065, at *2 (Iowa Ct.

App. May 11, 2016) (citing Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994));

see also Jackson v. State, No. 12-1496, 2013 WL 4505114, at *2 (Iowa Ct. App.

Aug. 21, 2013) (“Our courts have repeatedly held that ‘an application for

postconviction relief cannot circumvent the effect of the three-year time bar by

merely claiming the ineffective assistance of postconviction counsel.’” (quoting

Smith v. State, 542 N.W.2d 853, 854 (Iowa Ct. App. 1995))). Hartsfield alleges

the untimeliness is excused because his claim is based upon “a ground of fact or

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

Code § 822.3. Specifically, Hartsfield argues his postconviction counsel was

ineffective for failing to file an application for further review based on State v.

Wing, 701 N.W.2d 243 (Iowa 2010).

       Hartsfield’s appeal of his first PCR action was decided by this court on

August 6, 2009. The Iowa Supreme Court decided Wing on December 3, 2010,

well after the statutory time to seek further review had expired. See State v.

Schoelerman, 315 N.W.2d 67, 72 (Iowa 1982) (“We recognize that an attorney

need not be a ‘crystal gazer’ who can predict future changes in established rules

of law in order to provide effective assistance to a criminal defendant.”). Further,
                                           6


the conduct of Hartsfield’s PCR appellate counsel cannot constitute a “new

ground of fact” for section 822.3 purposes. See Kelly v. State, No. 12-0838,

2014 WL 4224731, at *1 (Iowa Ct. App. Aug. 27, 2014) (considering claim of

“ineffective assistance of postconviction appellate counsel for not seeking further

review of [the court of appeals’s] decision affirming dismissal of the first

application for postconviction relief” and finding “[l]ong-standing precedent by our

surpreme court is contrary to [claimant’s] position” that the ground-of-fact

exception applied); Jackson, 2013 WL 4505114, at *2 (“Jackson argues his case

is distinguishable as he is claiming his postconviction appellate counsel is

ineffective, but our case law is clear that postconviction counsel’s conduct does

not have a direct impact on the validity of the criminal conviction and does not

qualify as a ground of fact that will avoid the limitations period.”).    Hartsfield

claims Wing constitutes new law; therefore, his current PCR application is timely

because it was instituted within three years of the supreme court’s decision in

Wing. Even assuming Wing did constitute new law sufficient to toll the statute of

limitations, it does not serve to rescue Hartsfield’s claim.

       In Wing, the Iowa Supreme Court considered when a defendant is

arrested for purposes of the speedy indictment rule. 791 N.W.2d at 247. The

defendant claimed an earlier encounter with police constituted an arrest, which

started the clock by which a speedy indictment had to be filed and made the

indictment filed untimely.     Id.     The Iowa Supreme Court considered what

circumstances constituted an arrest sufficient to trigger speedy indictment

protections and concluded the defendant’s earlier encounter with police did

constitute an arrest. Id. at 247-53.
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       Here, the parties do not dispute Hartsfield was arrested for possession on

August 22, 2001, and issued a nontraffic citation for possession.            Instead,

Hartsfield claims he believed he was also arrested for delivery.         The record

establishes Hartsfield was arrested for possession. Hartsfield was subsequently

arrested in October and served with an arrest warrant for the delivery charge. As

we stated in our prior opinion:

       The facts are clear that the warrantless arrest on August 22, 2001,
       was for possession of crack cocaine, not for the separate offense of
       delivery . . . . The arresting officers only served a non-traffic
       citation for possession. The fact that those officers may have
       known of the earlier delivery of cocaine, or had probable cause to
       have arrested the applicant on that charge, does not amount to an
       arrest.
               There is no language in the speedy indictment rule that
       suggests or infers that it extends to an offense that had not resulted
       in an arrest. The arrest for the delivery offense occurred on
       October 10, rather than on August 22, as Hartsfield contends.
       Even if it were proven that there was some other motive for the
       arrest on August 22, 2001, that arrest is not transformed into an
       arrest for a separate offense.

Hartsfield, 2009 WL 2424640, at *2-3 (citations omitted); see also id. at *3

(“Hartsfield was not arrested on August 22, 2001 for delivery of a controlled

substance, the charge relevant to this appeal. Rather, Hartsfield was arrested on

October 10, 2001, and a trial information was filed on October 18, 2001. There

was no speedy indictment violation.”).

       As explained by our supreme court in State v. Penn-Kennedy, 862 N.W.2d

384, 389 (Iowa 2015), the question addressed in Wing was “whether the speedy

indictment rule requires the indictment to be filed within forty-five days of the time

when the person reasonably believes he was arrested.” In Penn-Kennedy, the

defendant argued “he reasonably believed he was arrested for [operating while
                                          8


intoxicated] during his police encounter on January 19, 2012.” 862 N.W.2d at

389. Specifically, he claimed “the Wing rule applies to preclude the prosecution

of all crimes a person reasonably believes can be the basis for the arrest if that

belief is formed before the police inform the person of the specific crime of arrest

and prosecution is commenced on that crime.” Id. at 389. The supreme court

disagreed, noting the concerns addressed in Wing—“the anxiety and other

pitfalls of a suspended prosecution sought to be ameliorated by the speedy

indictment rule”—were not present in Penn-Kennedy—where the defendant

faced “the power of the prosecutor or grand jury to bring a separate indictment

charging a different criminal offense any time within the statute-of-limitations

period.” Id. The supreme court reasoned:

               The speedy indictment rule serves to protect against the
       pitfalls associated with a suspended prosecution. The rule does
       not impinge on the power of the prosecutor to select the crime to be
       prosecuted. Thus, the reasonable-person rule used to determine
       the time of a warrantless arrest in Wing is narrow and limited to
       those cases in which an arrest is not promptly followed by any
       prosecution.

Id. at 390 (emphasis added); see also State v. Dennison, 571 N.W.2d 492, 497

(Iowa 1997) (“Clearly, [the defendant’s] arrest on the other charges did not

preclude the State from filing separate charges arising out of the same incident

or episode after the forty-five-day period had expired.”).      The supreme court

reiterated its previous holding “that the forty-five-day period to bring an indictment

applies only to the public offense for which the defendant was arrested and any

lesser included offenses.” Penn-Kennedy, 862 N.W.2d at 390 (emphasis added)

(citing State v. Sunclades, 305 N.W.2d 491, 494 (Iowa 1981)).             The Penn-

Kennedy court concluded,
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               In this case, unlike Wing, the prosecution following the arrest
        was not suspended or delayed by the failure of the State to proceed
        to an initial appearance based on a complaint charging a public
        offense. Instead, the State pursued a criminal prosecution for
        public intoxication, a simple misdemeanor that did not require an
        indictment, and [the defendant] was in no different position than all
        other defendants who face the possibility of multiple criminal
        prosecutions arising out of the same episode.

Id. The same is true here. Hartsfield was arrested for possession, for which he

received a nontraffic citation. He was subsequently arrested and timely indicted

for the delivery offense. The circumstances of Wing do not apply to Hartsfield’s

case.

        Accordingly, we affirm the district court’s denial of Hartsfield’s PCR action

as this action was untimely and no exception applies to his claim. See Grefe &

Sidney v. Watters, 525 N.W.2d 821, 826 (Iowa 1994) (“[W]e are obliged to affirm

an appeal where any proper basis appears in the record for a trial court’s

judgment, even though it is not one upon which the court based its holding.”).

        AFFIRMED.
