                    IN THE COURT OF APPEALS OF IOWA

                                    No. 16-2121
                              Filed October 25, 2017

HUBERT TODD,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, George L.

Stigler, Judge.



       The applicant appeals from the summary dismissal of his application for

postconviction relief. AFFIRMED.




       Tabitha L. Turner of Turner Law Firm, P.L.L.C., Des Moines, for appellant.

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

Attorney General, for appellee State.




       Considered by Vogel, P.J., Mullins, J., and Blane, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2017).
                                           2


BLANE, Senior Judge.

       Hubert Todd appeals from the summary dismissal of his application for

postconviction relief (PCR). Todd maintains the PCR court’s summary dismissal

of his application violated his right to due process; similarly, he claims PCR

counsel provided ineffective assistance when he failed to object on due process

grounds to the summary dismissal of Todd’s application. Todd also claims the

court’s decision to dismiss the petition on the basis of res judicata was in error.

I. Background Facts and Proceedings.

       In the underlying case,1 Todd was charged with failure to comply with the

sex offender registry. He entered a guilty plea and was sentenced pursuant to a

plea agreement he reached with the State.

       Todd directly appealed his conviction and sentence, and a panel of our

court decided his appeal in State v. Todd, No. 13-0271, 2015 WL 1546348, at *4

(Iowa Ct. App. Apr. 8, 2015). One of Todd’s arguments on direct appeal was that

his guilty pleas were involuntary. Todd, 2015 WL 1546348, at *2. Our court

noted Todd filed written guilty pleas that waived his right to have the district court

discuss the various rights and waivers found in Iowa Rule of Criminal Procedure

2.8. Id. at *2. Nonetheless, the district court also engaged in an in-court colloquy

with Todd in which he told the court he understood the rights he had and that he

was willingly waiving those rights to plead guilty. Id. at *3. The court found

Todd’s pleas were voluntarily made. Id. Another one of his arguments was that


1
  We note that Todd originally filed this PCR application in five cases. He later agreed
the court could dismiss the applications in all of the cases but the present one, case
AGCR176083. Although his appellate brief lists all five case numbers, the only
underlying case at issue is AGCR176083.
                                         3


his trial counsel provided ineffective assistance because counsel failed “to obtain

the pretrial deposition of a ‘key’ witness, Jeanne Brinker, the sex offender

registrar in Black Hawk County during the relevant period.” Id. at *4. He claimed

that if he had known Brinker’s testimony before he pled guilty, he would have

decided to go to trial rather than pleading guilty. Id. But Brinker’s testimony was

not exculpatory:

                A Black Hawk County sheriff's report indicates Todd did not
        have a verification report for July 2010 until he was arrested in
        August 2010. He did call in to report he would be out of the area
        for a few days in November 2010. He did not report in person to
        the sheriff in January 2011 for the January 2011 verification. As of
        April 29, 2011, he had not reported in person for the April 2011
        verification.
                Brinker testified at Todd’s sentencing hearing. She testified
        Todd was one of the persons she dealt with in maintaining the sex
        offender registry in Black Hawk County and that Todd would
        contact her by telephone on occasion. She testified Todd called on
        February 12, 16, 19, 24, March 15, 19, 30, November 10, 2010,
        and May 12 and June 9, 2011.

Id. Todd’s claim was found to lack merit, with the appellate court stating:

        Todd was charged with failure to make the requisite in person
        appearances to the sheriff’s office. Telephone calls do not satisfy
        the in person requirement, and even if they did, there were no calls
        between November 10, 2010 and May 12, 2011. The calls Todd
        did make could not have possibly covered his January and April
        2011 reporting requirements. Todd’s argument that his trial
        counsel was ineffective for not taking a pretrial deposition of
        Brinker lacks merit.

Id. at *5.

        Todd filed his application for PCR in September 2015, alleging his guilty

plea was involuntary. Todd later filed an application to take depositions of two

witnesses at the State’s expense: Jeanne Brinker and Dawn Long. The State

resisted, and the court set a date to hear the matter.
                                        4


      In December 2015, at the hearing on the issue on whether Todd could

proceed with depositions, the court began by noting that Todd’s application

stated he was forced to plead guilty and that the appellate court had already

decided his pleas were voluntary. Todd’s PCR counsel then told the court:

              The only issue we wished to present was th[at] trial counsel
      failed to investigate and present testimony of witnesses who would
      show that there was—there were mistakes made in the underlying
      case that involved allegations of a person of a similar name, but not
      Mr. Todd that caused his—he pled guilty based upon his attorney
      not investigating those witnesses. Those witnesses being the ones
      named in our request for depositions that’s really our claim.

The State pointed out that Todd had argued on direct appeal that his trial counsel

was ineffective for failing to depose Brinker before she appeared at his

sentencing hearing, and the appellate court had already decided that claim as

well. Todd’s PCR counsel then indicated there may be more to the claim than

Todd originally presented, noting:

             What he believes to be true, and there is some evidence that
      I have received, that’s why I was—I don’t have enough because I
      would like to have Dawn [Long] testify, that the issues of his failing
      to register and comply with that were confused with his nephew’s
      case.

PCR counsel continued: “He believes—there’s some reason to believe even in

the minutes of testimony, I believe there is some reference. One is a document

referring to his nephew, not him.”

      After the State again advised the court that it believed Todd was “making

the same arguments, just a different approach,” PCR counsel stated:

             Your Honor, I may be incorrect, Your Honor, but it’s my
      recollection [Brinker’s] testimony was at sentencing, not at the time
      of the plea and that is why we’re saying the plea was ineffective
      because [Todd] wouldn’t have pled had his attorney done this work
                                           5


       ahead of time and he would have gone to trial. That’s really the
       distinction.

The court then read aloud from the court of appeals opinion and concluded, “That

to my estimation, [PCR counsel], concludes this matter.”

       Todd’s PCR counsel did not indicate Todd’s current claim was different

than what the court of appeals already decided but rather stated he believed that

Brinker was not the only person involved with the reporting office and Long2 may

have other information about the time period. Todd interjected:

              Your Honor, I was reporting. I was reporting. My point is
       they have records now that show that I was reporting. They have
       records in the file right now at the jail. If you call the jail have them
       bring my nephew’s file and my file. You will see that I never failed
       one time to come in here, not once.
              ....
              The charge was [sic] never been filed if they didn’t mix my
       paperwork up in the first place.

The court asked Todd what evidence he had to support his claim, and Todd

stated the evidence “is my trial information,” which neither he nor PCR counsel

had with them.

       The court responded:

              Yeah. I’m going to need that otherwise I am going to
       dismiss this thing. Because they have already decided this case
       against you on appeal, Mr. Todd. You don’t get to come in and say
       that the Court of Appeals was wrong.
              ....
              . . . [I]f you can find something in that—in the minutes of
       evidence in AGCR176083, I will certainly consider it. But otherwise
       I’m going to grant the State’s motion to dismiss all of these cases.[3]


2
  Throughout the hearing, PCR counsel referred to the second person they wished to
depose as Dawn Wilson. We presume Dawn Wilson and Dawn Long—the person
named in the original application to take depositions—are the same person.
3
  The State moved orally for Todd’s application to be dismissed after the court noted it
believed the claim in Todd’s application was barred by res judicata.
                                             6


PCR counsel agreed to file within one week anything “that will justify [Todd’s]

claim that maybe the sheriff’s office . . . confused him with this nephew.”

       We have no record of PCR counsel filing anything after the hearing, but

the court’s written ruling indicates it reviewed some evidence.4 In the ruling, the

court stated:

               These matters were thoroughly dealt with by the Court of
       Appeals in its decision filed on April 8, 2015. The court ruled
       against Mr. Todd on each and every one of the allegations he is
       now raising. His sole supplementation is that allegedly in the
       minutes of evidence the State confused his failure to register with
       the failure to register of his nephew. The items pointed out to [the
       court] by the applicant in the minutes of evidence reflect the only
       statements concerning the nephew is the nephew lived at a certain
       address, the same address that apparently Todd lived at.

The court then dismissed Todd’s application for PCR.

       He appeals.

II. Discussion.

       Todd claims the PCR court violated his constitutional right to Due Process

when it dismissed his application for PCR without “providing notice” or “an

opportunity to prepare.” Todd did not raise a due process objection 5 to the PCR

court at the time of the hearing, so this argument has not been preserved for our

review. See State v. Evans, 671 N.W.2d 720, 724 (Iowa 2003) (“Issues not



4
  In its appellate brief, the State claims that PCR counsel filed a report to the court on
December 5, 2016, attached to the minutes of testimony from Todd’s underlying criminal
case. The docket lists no such filing, and neither the report nor the minutes of testimony
have made it into the record before us.
5
  The statements of his PCR counsel that Todd cites in his appellate brief as preserving
his claim are neither objections nor comments about due process. It takes more to
preserve a claim for appellate review. See State v. Ambrose, 861 N.W.2d 550, 555
(Iowa 2015) (stating error-preservation rules are important because error preservation
affords the district court an opportunity to avoid or correct error as well as providing the
appellate court with an adequate record in reviewing errors purportedly committed).
                                            7


raised before the district court, including constitutional issues, cannot be raised

for the first time on appeal.” (citation omitted)).

       Next, Todd maintains PCR counsel was ineffective for not objecting to the

PCR court’s dismissal of his application after the court brought up the issue of

res judicata at a time and date set only to determine if Todd should be allowed to

take depositions at the State’s expense.6

       Pursuant to the second paragraph of Iowa Code section 822.6 (2015):

              When a court is satisfied, on the basis of the application, the
       answer or motion, and the record, that the applicant is not entitled
       to postconviction relief and no purpose would be served by any
       further proceedings, it may indicate to the parties its intention to
       dismiss the application and its reasons for dismissal. The applicant
       shall be given an opportunity to reply to the proposed dismissal. In
       light of the reply, . . . the court may order the application
       dismissed . . . .

Here, the PCR court followed the procedure contemplated by the rule. Although

it was at a hearing to determine whether Todd would be allowed to take

depositions, nonetheless, the court informed Todd that it intended to dismiss his

petition on the grounds of res judicata unless Todd could reply—either at the

hearing or later with the filing of his evidence—in such a way that convinced the

court Todd’s claims had not already been decided by this court. In light of Todd’s

reply, the court determined the issues were the same, and dismissed the petition.

In such a case, the court may summarily dismiss the application; no hearing on

the merits is required. See Manning v. State, 654 N.W.2d 555, 559 (Iowa 2002)

(“As is apparent from this language, two methods are available for disposition of

6
  Claims made under the ineffective-assistance framework are an exception to error-
reservation rules. State v. Ondayog, 722 N.W.2d 778, 784 (Iowa 2006). Although we
generally review postconviction proceedings for errors at law, we review constitutional
claims of error de novo. See Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001).
                                         8


postconviction relief applications without a trial on the merits. The first method,

found in paragraph two [of section 822.6], allows for such disposition on the

court’s initiative, and entitles the applicant to notice of the court’s intention to

dismiss the application and its reasons for dismissal.”).

       Because the court was within its statutory rights when it informed the

parties it intended to dismiss Todd’s application, PCR counsel’s objection to the

process would have been without merit.         Counsel has no duty to pursue a

meritless objection, so Todd’s claim of ineffective assistance fails. See State v.

Schaer, 757 N.W.2d 630, 637 (Iowa 2008).

       Finally, Todd maintains the PCR court’s determination his PCR claims

were the same as those decided by this court on direct appeal was in error. Iowa

Code section 822.8 provides, in part:

       Any ground finally adjudicated . . . in the proceedings that resulted
       in the conviction or sentence, or in any other proceeding the
       applicant has taken to secure relief, may not be the basis for a
       subsequent application, unless the court finds a ground for relief
       asserted which for sufficient reason was not asserted or was
       inadequately raised in the original, supplemental, or amended
       application.

In his direct appeal, Todd claimed both that his plea was involuntary and that his

counsel was ineffective for failing to adequately depose the registrar.        Both

claims were decided against him by this court. See Todd, 2015 WL 1546348, at

*5. The only difference in his PCR action was Todd’s assertion that he now

wanted to depose both the former registrar, Brinker, and her replacement, Long.

Todd’s PCR counsel stated he hoped to depose Long because she worked for

the sheriff’s office after Brinker retired. But as the PCR court stated, “It doesn’t

matter. The records are what the records are no matter whether Ms. Brinker is
                                           9


still there or not.” Todd’s attempt to differentiate his PCR claim that counsel was

ineffective for failing to depose the registrar as different than his direct appeal

claim that counsel was ineffective for failing to depose the registrar was

unsuccessful; Todd only produced a document that was available to him before

he initially pled guilty.

       Although Todd continues to claim his PCR claim is a “new” claim of

ineffective assistance, the record belies his assertion. The statute is clear—

“[r]elitigation of previously adjudicated issues is barred.” State v. Wetzel, 192

N.W.2d 762, 764 (Iowa 1971). “A postconviction proceeding is not intended as a

vehicle for relitigation, on the same factual basis, of issues previously

adjudicated, and the principle of [r]es judicata bars additional litigation on this

point.” Id. (citation omitted).

       We agree with the district court; Todd’s claim trial counsel was ineffective

for failing to depose the registrar before he pled guilty has already been decided

and is barred from further litigation.

       For all the foregoing reasons, we affirm the district court’s summary

dismissal of Todd’s application for PCR.

       AFFIRMED.
