                    IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1601
                                Filed July 5, 2018


TROY DANIEL DOWELL,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,

Judge.



      Troy Dowell appeals the district court’s summary dismissal of his application

for postconviction relief. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Theresa R. Wilson, Assistant

Appellate Defender, for appellant.

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

Attorney General, for appellee State.




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

      Troy Dowell appeals the summary dismissal of his application for

postconviction relief (PCR).    He claims the district court erred in summarily

dismissing his application, alleging there are genuine issues of material fact

regarding the effectiveness of counsel in an earlier proceeding that require an

evidentiary hearing. Alternatively, he contends his PCR counsel was ineffective in

failing to amend his PCR application. We affirm.

I.    Background Facts and Proceedings

      We have previously summarized the relevant facts and circumstances of

the underlying offense and early proceedings:

             Dowell, who has three children, was convicted of several
      crimes, including neglect of a dependent. The district court entered
      a sentencing no-contact order restraining Dowell from having any
      contact with his children. The order was to remain in effect until July
      15, 2013. Meanwhile, Dowell and his wife divorced, Dowell’s wife
      was granted sole custody of the children, and she moved to
      Australia.
             A day before the no-contact order was slated to expire, the
      State filed a motion to extend it. See Iowa Code § 664A.8 (2013).
      At a hearing on the motion, the State offered a report prepared by a
      psychologist who met with the children. Dowell’s attorney stated he
      had no objection to the exhibit.
             The district court extended the no-contact order for an
      additional five years after concluding Dowell failed to carry his burden
      “to establish he no longer poses a threat to the victims.”

State v. Dowell, No. 13-1269, 2015 WL 4158758, at *1 (Iowa Ct. App. July 9, 2015).

This court affirmed Dowell’s direct appeal of the extension of the no-contact order.

See id. at *3. The Iowa Supreme Court denied further review.

      Subsequently, Dowell filed a pro-se PCR application in which he claimed

he received ineffective assistance of counsel in relation to the hearing on the

extension of the no-contact order.       He specifically complains counsel was
                                               3


ineffective in allowing the psychological report concerning his children to be

admitted into evidence.1 In support of his PCR application, Dowell referenced and

attached a copy of the dissenting opinion from his direct appeal of the no-contact-

order extension.2

       After Dowell was appointed counsel, the State filed a motion for summary

dismissal arguing the issue of ineffective assistance of counsel at the no-contact-

order-extension hearing claimed by Dowell in his pro-se application was previously

raised and resolved on direct appeal and he was therefore barred from relitigating

the issue. The State also argued Dowell’s claims did not fall within any of the

enumerated provisions of Iowa Code section 822.2(1) (2016), which concerns

claims allowed in PCR proceedings, and the district court therefore lacked

jurisdiction to hear the matter.

       PCR counsel filed a resistance to the motion and requested an extension

of time to obtain case materials and modify or amend the PCR application or

prepare a more comprehensive resistance to the motion for summary dismissal.

Dowell filed a pro-se resistance to the motion for summary dismissal in which he

argued, among other things, that in the ruling on his direct appeal, this court

declined to address the issues he was raising in his PCR application.                       He

additionally raised the issue of ineffective assistance of appellate counsel for

questioning the appointment of counsel in the no-contact-order hearing which he




1
  The report is not in the record before this court, but the transcript of the extension hearing
reveals the report is from a therapist Dowell’s ex-wife took the children to in Australia in
which the therapist opines that renewed contact with Dowell would be traumatic to the
children.
2
  See Dowell, 2015 WL 4158758, at *3–6 (Tabor, J., dissenting).
                                         4


claims resulted in this court declining to address his ineffective-assistance-of-

counsel claim. He contends he is consequently able to raise those issues in his

present application.

       Dowell’s PCR counsel filed an additional resistance arguing the extension

of a no-contact order is a critical stage of a criminal proceeding and therefore

Dowell had the right to effective assistance of counsel and PCR was an

appropriate forum to seek redress. Counsel also repeated Dowell’s argument that

the issue of the right to counsel at the no-contact-order hearing had not been

litigated thus far and appellate counsel was ineffective for conceding the issue.

       The district court held an unreported hearing on the motion to dismiss. The

court filed a written ruling granting the State’s motion for summary dismissal and

finding Dowell’s claims were previously considered during his direct appeal and

rejected by this court. It further ruled that after Dowell’s application for further

review was denied by the supreme court, this court’s decision became a final order,

and therefore Dowell could not relitigate the same issues. The court dismissed

Dowell’s application. Dowell appeals this decision.

II.    Standard of Review

       We review PCR proceedings for correction of errors at law. Everett v. State,

789 N.W.2d 151, 155 (Iowa 2010). This includes summary dismissals of PCR

applications.   Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011).         However,

applications raising an ineffective-assistance-of-counsel claim present a

constitutional challenge, which we review de novo. Id.

III.   Analysis
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       Because the hearing on the motion to dismiss was unreported, the record

before us is limited to the State’s motion, Dowell’s resistances, and the court’s

ruling on the motion. Neither party submitted a statement of the proceedings

pursuant to Iowa Rule of Appellate Procedure 6.806(1).

       We first address the State’s challenge to the application of chapter 822 to

Dowell’s claims. In its motion for summary dismissal, the State argued: “[A]s [PCR]

is purely statutory, there must be a statutory basis to support his claim. This

particular claim does not fall under any of the provisions of Iowa Code [section]

822.2 and therefore the trial court lacks jurisdiction to hear it.” In its appellate brief,

the State argues “a [PCR] proceeding is not available to challenge extension of a

no-contact order under section 664A.8 [(2013)]” and “is not a proper vehicle to

challenge the extension of a no-contact order under Iowa Code section 664A.8.”

The State recites section 822.2 (2016) in support of its position.

       As the Iowa Supreme Court explained in Franklin v. State, there is a

difference between “subject matter jurisdiction” and “authority” to hear a particular

case. 905 N.W.2d 170, 171 (Iowa 2017).

       “Subject matter jurisdiction” refers to the power of a court to deal with
       a class of cases to which a particular case belongs. A constitution
       or a legislative enactment confers subject matter jurisdiction on the
       courts. Although a court may have subject matter jurisdiction, it may
       lack the authority to hear a particular case for one reason or another.

Id. (quoting In re Estate of Falck, 672 N.W.2d 785, 789–90 (Iowa 2003)). “A court

lacks authority to hear a particular case where a party fails to follow the statutory

procedures for invoking the court’s authority.” Schrier v. State, 573 N.W.2d 242,

244–45 (Iowa 1997).        However, “where subject matter jurisdiction exists, an
                                           6

impediment to a court’s authority can be obviated by consent, waiver or estoppel.”

State v. Mandicino, 509 N.W.2d 481, 483 (Iowa 1993).

       The district court here clearly had subject matter jurisdiction over this case

as Iowa Code chapter 822 confers subject matter jurisdiction on the district courts

and governs a court’s authority in PCR proceedings. See Schrier, 573 N.W.2d at

244. Though the State raised a “jurisdiction” issue in its motion for summary

dismissal, the district court’s ruling is based solely on the finding that Dowell’s claim

was previously considered and decided by this court in Dowell’s direct appeal and

thus Dowell was barred from relitigating the matter. The ruling does not mention

the jurisdiction argument raised by the State, let alone rule on the matter.

       In this appeal, Dowell argues that because the State did not obtain a district

court ruling on its jurisdiction or authority claim, it waived any argument relating to

authority of the court to consider its challenge to the applicability of chapter 822 to

Dowell’s claims. However, we may consider alternative grounds for affirming the

district court if the ground was presented to the district court, even though the court

did not include the ground in its ruling. DeVoss v. State, 648 N.W.2d 56, 61–62

(Iowa 2002).

       Although the State did not use the word “authority” in its summary-dismissal

motion before the district court, the State was clearly challenging whether the

district court could grant relief to Dowell under chapter 822.          The State has

advanced the same arguments on appeal. Under these circumstances, we will not

find the State consented to proceeding under chapter 822, waived its challenge to

the court’s authority to grant relief under chapter 822, or that it should be estopped

from making such a claim. Cf. Mandicino, 509 N.W.2d at 483. Consequently, we
                                           7


choose to address the question of whether Dowell’s claims are properly brought

under chapter 822. See generally Cuevas v. State, 415 N.W.2d 630, 632 (Iowa

1987).

         If a defendant is convicted of, receives a deferred judgment for, or
         pleads guilty to a public offense . . . . [t]he court may enter a no-
         contact order or continue the no-contact order already in effect for a
         period of five years from the date the judgment is entered or the
         deferred judgment is granted, regardless of whether the defendant is
         placed on probation.

Iowa Code § 664A.5 (2013). If a no-contact order is issued or continued as part

of the sentencing proceedings for a defendant, the defendant is entitled to

challenge the legality of the no-contact order as part of a challenge to the legality

of the sentence. See State v. Alspach, 554 N.W.2d 882, 883–84 (Iowa 1996); see

also State v. Hall, 740 N.W.2d 200, 202 (Iowa Ct. App. 2007). “The United States

Supreme Court has . . . held that sentencing procedures are a critical stage of the

criminal proceeding and that an indigent defendant has the right to court-appointed

counsel.” Alspach, 554 N.W.2d at 883. There is no question in Iowa that a criminal

defendant appealing the provisions of a no-contact order entered during a

sentencing proceeding is entitled to court-appointed counsel because a

sentencing proceeding is a critical stage of the criminal proceeding. See, e.g.,

State v. Hardin, No. 17-0595, 2017 WL 4050884, at *1 (Iowa Ct. App. Sept. 13,

2017) (“Sentencing is a critical stage of the criminal process at which the defendant

has the right to counsel . . . .”); State v. Harris, No. 16-1139, 2017 WL 1735753, at

*2 (Iowa Ct. App. May 3, 2017) (“The right to counsel applies at critical stages of

the criminal process, including sentencing.”).
                                         8


       This question remains: Is a hearing to extend a previously entered five-year

no-contact order (which was originally entered as part of a sentencing proceeding)

a critical stage of the criminal proceeding? Section 664A.8 expressly allows either

the State or the victim of a public offense to file an application seeking to modify

or extend the no-contact order. In other words, State action is not required. It is

also significant that violations of a no-contact order issued under chapter 664A are

not remedied through any criminal sanctions which flow directly from the original

criminal proceeding’s sentencing order, but instead are limited to separate

summary contempt proceedings or separate convictions for violating a no-contact

order. See Iowa Code § 664A.7.

       We find persuasive the cases that have long held that although a defendant

is entitled to court-appointed counsel at a restitution hearing that is part of an

original sentencing proceeding, there is no right to appointed counsel at a later

action initiated to modify the restitution plan of payment.     E.g., Alspach, 554

N.W.2d at 884. Such an action is civil in nature and not part of the criminal

proceedings. Id. For our purposes here, upon conviction, the entry of a no-contact

order—like in the case of restitution—is a part of sentencing and thus a critical

stage of the criminal proceedings for which a defendant is entitled to court-

appointed counsel.

       In a certiorari proceeding involving a five-year extension of a no-contact

order issued by a magistrate pursuant to Iowa Code section 664A.8, our supreme

court explained: “The extension of the no-contact order was a collateral matter to

[defendant]’s underlying criminal proceeding that stood separately from his

conviction and sentence.” Vance v. Iowa Dist. Ct., 907 N.W.2d 473, 480 (Iowa
                                        9


2018). We also note the court addressed the proof necessary to extend a no-

contact order under section 664A.8: “[I]f the defendant proves by a preponderance

of the evidence that he or she no longer poses a threat to the protected persons,

the court should not extend the no-contact order for an additional five years.” Id.

at 482. Although the Vance case does not involve a right-to-counsel issue or a

PCR proceeding, the supreme court’s opinion leaves no room for treating a section

664A.8 extension of a no-contact order as a critical stage of the earlier criminal

proceeding. Thus, we conclude that a hearing on a motion to modify or extend a

no-contact order under section 664A.8—like a motion to modify a restitution plan

of payment—is civil in nature and therefore unaccompanied by a right to appointed

counsel. Accordingly, Dowell was not entitled to court-appointed counsel at the

hearing on the extension of the no-contact order because the hearing was civil in

nature and was not a sentencing proceeding.

      Iowa Code section 822.2(1) (2016) provides the situations in which Iowa’s

PCR procedure may provide relief. The relief in each instance is from a conviction

or sentence for a public offense. Iowa Code § 822.2(1). None of Dowell’s claims

in the district court or on appeal challenge the underlying conviction. We have

already concluded the hearing about which Dowell complains was not a sentencing

hearing because “[t]he extension of the no-contact order was a collateral matter to

[Dowell’s]’s underlying criminal proceeding that stood separately from his

conviction and sentence.” See Vance, 907 N.W.2d at 480. Viewed in the light

most favorable to Dowell, he was not entitled to court-appointed counsel at the
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hearing on the no-contact-order extension,3 and his PCR claims do not seek relief

from either a conviction or a sentence. As such, no relief is available under Iowa

Code chapter 822.

       Although we have decided this case on different grounds than those upon

which the district court relied, we affirm the summary dismissal of Dowell’s PCR

application.

       AFFIRMED.




3
  See State v. Dudley, 766 N.W.2d 606, 617 (Iowa 2009) (“Without a right to counsel, [a
defendant] also has no commensurate right to effective assistance from that counsel.”
(alteration in original) (citation omitted)).
