                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0554
                               Filed May 11, 2016


RICHARD JOHN SIEMER JR,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Richard H.

Davidson, Judge.




      Richard Siemer appeals from the dismissal of his second application for

postconviction relief. AFFIRMED.




      Patrick A. Sondag of Sondag Law Office, Council Bluffs, for appellant.

      Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
                                         2


DANILSON, Chief Judge.

       Richard Siemer appeals from the summary dismissal of his second

application for postconviction relief (PCR) in which he asserts his plea counsel

was ineffective.    We affirm the district court’s dismissal finding no merit in

Siemer’s claims.

       In this appeal, Siemer contends his prior PCR application addressed a

different conviction, which he can challenge here because prior PCR counsel

was ineffective. He also contends the summary dismissal of his application was

improper because there was a genuine issue of material fact and, finally, he

argues he was improperly denied a handwriting expert.

       Background facts were set out in our ruling on Siemer’s appeal from his

first PCR action:

               Siemer was facing several charges when he entered a guilty
       plea in July 2011. The original complaint, filed in May 2011,
       charged Siemer with criminal mischief in the third degree for his act
       of throwing an air compressor and air compressor gun at a vehicle,
       causing damage to its front quarter panel and rear taillight. The
       charge was later amended to criminal mischief in the second
       degree. Siemer also faced charges of sexual abuse in the third
       degree and assault with intent to commit sexual abuse. Because
       Siemer had already been convicted of a sex offense, both of the
       latter charges included a sexual predator sentencing enhancement
       pursuant to Iowa Code section 901A.2(3) (2011). Siemer pled
       guilty to all three charges in exchange for the State not pursuing the
       sentencing enhancement.
               After entering his guilty pleas, Siemer proceeded to
       immediate sentencing, thereby waiving his right to file a motion in
       arrest of judgment.       He did not directly appeal any of his
       convictions.
               On April 9, 2013, Siemer filed a PCR application, alleging he
       received ineffective assistance of counsel because there was no
       factual basis for his guilty plea to criminal mischief. The district
       court dismissed the application on December 10, 2012, after a
       hearing.
                                             3

Siemer v. State, No. 12-2248, 2013 WL 6405442, at *1 (Iowa Ct. App. Dec. 5,

2013). There, we concluded: “Because the minutes of evidence show a factual

basis for second-degree criminal mischief, counsel did not breach an essential

duty in failing to advise Siemer to file a motion in arrest of judgment. As a result,

Siemer’s ineffective-assistance-of-counsel claim fails and we affirm the denial of

his PCR application.” Id. at *2.

       In his second PCR application, Siemer asserted plea counsel was

ineffective in failing to challenge the factual basis for his written guilty plea to the

assault-with-intent-to-commit-sexual-abuse charge noted above. He asserts he

did not sign the written plea agreement and that he was not aware there was a

written plea agreement until 2013.1

       The State moved for summary dismissal or summary judgment, arguing

the claim was procedurally barred by Iowa Code section 822.8.2                  The State

asserted, “Siemer is attempting to improve his original plea agreement by

1
  He submitted an affidavit in which he avows:
                Concerning that written guilty plea document, I state as follows: l
        had not seen it until September 2013; l did not sign that document; I did
        not meet with Mr. Reedy [plea counsel] or anyone with the public
        defender office on July 5, 2011, which is the date that document was
        purportedly signed; I did meet in person with Mr. Reedy at the courthouse
        on July 6, 2011, but again that document was not shown to, presented to
        or discussed with me by him and I did not sign such document; and that I
        had no knowledge of any such document being filed with the clerk of
        court on July 7, 2011, until September 2013.
2
  Section 822.8 provides:
                All grounds for relief available to an applicant under this chapter
        must be raised in the applicant's original, supplemental or amended
        application. Any ground finally adjudicated or not raised, or knowingly,
        voluntarily, and intelligently waived in the proceeding 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.
                                             4


attacking the conviction in successive, piecemeal fashion, which is prohibited

under Iowa law.” The State also submitted deposition testimony from Siemer’s

prior PCR case where Siemer stated: “The plea that I signed was the plea for

third-degree sex abuse and assault with intent to commit were the plea that I

signed.    There is nothing stating that I remember or recollect that I signed

anything on a criminal mischief.” He also stated, “I understood that I was—again

was signing a plea on the two sex charges.”3

       In response, Siemer contended that if the claim was barred, prior PCR

counsel’s performance was constitutionally defective. He presented deposition

testimony from Siemer’s first PCR counsel, who stated the prior PCR proceeding

challenged only the plea to criminal mischief, and he was of the opinion that

Siemer had three separate cases and did not require that all his claims be raised

in one PCR proceeding.

       After hearing arguments, the district court determined “at no time during

his prior postconviction proceeding did Mr. Siemer claim any errors relating to

either of the sex abuse charges.” The court concluded Siemer could not attack

the “global plea agreement” in piecemeal PCR actions, and Siemer had not

asserted sufficient reason for not raising the current issues in the original PCR

proceeding. The court then concluded, even if the application was not barred by

section 822.8, “the matter is ripe for summary disposition in any event.”




3
  We note, too, that the trial court stated: “Now, before I can begin to accept your plea, I
know I’ve got written pleas on the sex abuse in the third degree and also assault with
intent to commit sex abuse, but I want to go over those rights with you on the record,
okay?” Siemer did not claim then to be unaware there were written pleas.
                                          5

       We review the denial of PCR for errors at law. Everett v. State, 789

N.W.2d 151, 155 (Iowa 2010). But where, as here, an applicant alleges his

constitutional rights were denied, our review is de novo. Id.

       In order to succeed on his claim, Siemer must establish by a

preponderance of the evidence that his prior PCR counsel failed to perform an

essential duty and prejudice resulted. See State v. Null, 836 N.W.2d 41, 48

(Iowa 2013).

       We agree with the district court that Siemer’s ineffectiveness claim does

not provide sufficient reason for having failed to raise his claims in the earlier

PCR proceeding. All grounds for relief “must be raised in the applicant’s original,

supplemental or amended application.” Iowa Code § 822.8. PCR actions are not

an appeal from the underlying judgment but rather are civil in nature and

supplant the common law of writ of habeas corpus.               See id. § 822.2(2);

McElhaney v. Auger, 238 N.W.2d 797, 799 (Iowa 1976). Because a PCR action

is collateral to the judgment and thus to the criminal case or cases such as here,

Iowa Code chapter 822 contemplates only one postconviction-relief action unless

there is sufficient reason for failing to assert it in the original action. Iowa Code §

822.8; see People v. Anderson, 872 N.E.2d 581, 592 (Ill. App. Ct. 2007) (stating

“all issues actually decided on direct appeal or in the original postconviction

petition are barred by the doctrine of res judicata, and all issues that could have

been raised in the original proceeding, or original postconviction petition, but

were not, are waived”).

       Even if we presume his first PCR counsel erred in not addressing all

claims in one PCR action, Siemer’s bare assertion he may be able to prove that
                                             6


prejudice resulted is insufficient. He does not assert he would not have pled

guilty and would have insisted on going to trial. See State v. Straw, 709 N.W.2d

128, 138 (Iowa 2006).

          The district court took judicial notice of the underlying court files in all the

cases and admitted the prior written pleas, the plea and sentencing transcript,

sentencing order, depositions of Siemer and defense counsel, as well as the

order denying his prior application for postconviction relief. Siemer requested a

writing analyst be employed to examine the signature on his written plea. But he

has already admitted—under oath—to signing pleas consistent with the global

plea agreement.

          We agree with and adopt the following language from the district court’s

ruling:

                   The record as a whole indicates the defendant made a
          knowing and intelligent choice to waive his constitutional rights and
          enter the global plea agreement. Mr. Siemer cannot carry his
          burden by claiming the signature on the written plea of guilty is not
          his when the record established that he pled guilty and has at least
          on two occasions acknowledged his plea on the record and in
          writing. Not only did the written plea of guilty refer to the minutes of
          testimony as a factual basis, but the prosecutor at the sentencing
          hearing referenced the minutes of testimony as serving as the
          factual basis for assault with intent to commit sexual abuse.
                   Further, “[t]he standard for sufficient factual basis is only
          ‘that the facts support the crime, not necessarily that the defendant
          is guilty.’” State v. Rodriguez, 804 N.W.2d 844, 849 (Iowa 2011)
          [(citation omitted)]. The minutes of testimony in AGCR138989 state
          that Siemer held (the victim of that case) against a wall while
          attempting to kiss her against her will; and that he pushed her on a
          bed, held her arms, put his hand over her mouth to muffle her
          screams of “no” while attempting to kiss her on the mouth and
          stomach. Once free from Mr. Siemer, the victim immediately called
          911.
                   ....
                   Mr. Siemer’s most recent application for postconviction relief
          is yet another attempt to improve his plea deal after the fact. As
                                        7


      discussed above, all of his grounds for relief were required to be
      raised in his initial postconviction application. Without a showing of
      sufficient reason for not filing them in the original application, they
      are barred. Brian Munnelly, Mr. Siemer’s attorney in the first
      postconviction relief proceeding was competent in his
      representation of the applicant, and Mr. Siemer has failed to
      establish a claim of ineffective assistance of counsel with respect to
      Mr. Munnelly’s representation in the first postconviction proceeding.
      . . . Based on the entire record before this court in the underlying
      criminal proceedings as well as the prior postconviction relief
      proceeding, the court concludes Siemer’s plea was voluntary in a
      constitutional sense and the minutes of testimony as referenced on
      the record show a factual basis for the assault with intent to commit
      sexual abuse charge in AGCR138989. Further, trial counsel did
      not breach an essential duty in failing to advise Mr. Siemer to file a
      motion in arrest of judgment or file a direct appeal.

No genuine issue of material fact exists, and Siemer’s application was properly

dismissed. We affirm.

      AFFIRMED.
