                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1537
                             Filed January 13, 2016

DESHAWN MICHAEL LEE MAPP,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Marlita A. Greve,

Judge.



      Applicant appeals from the order dismissing for non-prosecution his

application for postconviction relief. REVERSED AND REMANDED.



      Mark J. Neary of Neary Law Office, Muscatine, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Mary Triick,

Assistant Attorneys General, for appellee.



      Considered by Danilson, C.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

       In 1997, DeShawn Mapp pleaded guilty to conspiracy to commit murder,

in violation of Iowa Code sections 706.1 and 707.1 (1995), and conspiracy to

commit willful injury, in violation of Iowa Code sections 706.1 and 708.4. See

State v. Mapp, 585 N.W.2d 746, 747 (Iowa 1998).             On direct appeal, the

supreme court affirmed his conviction for conspiracy to commit murder but

reversed the conviction for conspiracy to commit willful injury. See id. at 749.

       In October 2013, Mapp filed a petition for writ of coram nobis, contending

his conviction for conspiracy to commit murder should be changed to involuntary

manslaughter. The rationale for Mapp’s request was Mapp’s codefendant went

to trial on the same facts and was found guilty of only involuntary manslaughter.

The district court treated Mapp’s petition as an application for postconviction

relief filed pursuant to Code chapter 822 and appointed Mapp counsel. On July

9, 2014, the district court set a hearing for dismissal for non-prosecution unless

action was taken by August 15, 2014. No action was taken, and the district court

dismissed the application without prejudice on August 15, 2014.

       Before addressing the merits, we address a jurisdictional question. The

State contends the notice of appeal is fatally defective. Iowa Rule of Appellate

Procedure 6.102(1)(a)(1) provides that a “notice of appeal shall specify the

parties taking the appeal and the decree, judgment, order, or part thereof

appealed from.” Here, the notice of appeal contained a scrivener’s error setting

forth the wrong date of the order from which the appeal was taken. We conclude

this scrivener’s error does not deprive this court of jurisdiction over the appeal.
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“[W]e will liberally construe the notice of appeal to preserve the right of review

and permit a hearing on the merits.” State v. Lindell, No. 11-0822, 2012 WL

2819328, at *3 (Iowa Ct. App. July 11, 2012).         Strict compliance with Rule

6.102(1)(a)(1) is not required. See State v. Birch, 306 N.W.2d 781, 782-83 (Iowa

1981). Rather, “[s]ubstantial compliance . . . is sufficient” so long as: (1) “the

intent of the appellant to appeal from a judgment may be inferred from the text of

the notice” and (2) “the appellee has not been misled by the defect[.]” Id. at 782.

It is clear Mapp intended to appeal from the final judgment entered in this matter.

It is also clear the State has not been misled by the defect; the dismissal order is

the only appealable order in a skinny court file. See Schrader v. Sioux City, 167

N.W.2d 669, 672 (Iowa 1969) (“We have repeatedly held that a notice of appeal

must sufficiently describe the judgment or order appealed from so as to leave no

doubt as to its identity.”). We thus address the merits.

       Mapp contends the dismissal order must be reversed pursuant to Lado v.

State, 804 N.W.2d 248, 253 (Iowa 2011). In Patchette v. State, 374 N.W.2d 397,

399 (Iowa 1985), the court held there is a statutory right to the effective

assistance of postconviction counsel and adopted the Strickland bipartite test

applied to constitutional claims of ineffective assistance of counsel. In Lado, the

court held counsel breached a duty owed the postconviction applicant “in failing

to seek a continuance to prevent dismissal under Iowa Rule of Civil Procedure

1.944 or to make application to the court for the reinstatement of his case after it

was dismissed by operation of the rule.” 804 N.W.2d at 253. The court further

held postconviction counsel’s breach constituted prejudicial structural error
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rendering “the entire postconviction relief proceeding unreliable.” Id. The court

reversed the dismissal order and remanded the matter for further proceedings.

See id.

       The State recognizes Lado is controlling but argues for an exception to the

rule. The State contends prejudice should not be presumed where, as here, it is

evident the application is time-barred pursuant to Code section 822.3.          We

decline to adopt the exception for two reasons. First, this case falls squarely

within the holding of Lado. As a general rule, the task of materially altering

substantive or procedural rights is best left to the Supreme Court of Iowa. See,

e.g., Riniker v. Wilson, 623 N.W.2d 220, 227 (Iowa Ct. App. 2000); Friedley v.

State, No. 11-1782, 2013 WL 988628, at *2 (Iowa Ct. App. Mar. 13, 2013)

(rejecting the State’s request to overrule or limit Lado and remanding

postconviction matter for further proceedings). Second, the exception the State

seeks seems particularly inapplicable where, as here, the postconviction

applicant facially makes some argument the statute of limitations is inapplicable.

See Iowa Code § 822.3 (“However, this limitation does not apply to a ground of

fact or law that could not have been raised within the applicable time period.”).

       “[T]he district court’s dismissal is reversed, and the case is remanded to

the district court for adjudication on the merits.” Lado, 804 N.W.2d at 253.

       REVERSED AND REMANDED.
