                    IN THE COURT OF APPEALS OF IOWA

                                     No. 18-1824
                               Filed November 6, 2019


BENJAMIN E. SCHREIBER,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Wapello County, Crystal S. Cronk,

Judge.



      Benjamin Schreiber seeks to resurrect his third postconviction-relief

application after the district court granted the State’s motion to dismiss.

AFFIRMED.



      Denise M. Gonyea of McKelvie Law Office, Grinnell, for appellant.

      Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney

General, for appellee State.



      Considered     by   Bower,     C.J.,   and   Potterfield   and   Greer,   JJ.
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POTTERFIELD, Judge.

       Benjamin Schreiber seeks to resurrect his third postconviction-relief (PCR)

application after the district court granted the State’s motion to dismiss.

Schreiber was convicted of murder in the first degree in violation of Iowa Code

sections 707.1 and 707.2 (1996). He was sentenced to life in prison without the

possibility of parole. On appeal, he alleges the district court made several errors

in the course of handling his PCR application, including (1) denying him a

meaningful opportunity to respond by failing to provide him adequate notice of

the hearing on the State’s motion to dismiss, failing to record the proceedings,

and dismissing his application without an evidentiary hearing; (2) requiring him to

pay 20% of the filing fee for the PCR application; and (3) denying his application

for court-appointed counsel.1 For the reasons below, we affirm.

       The events forming the basis for Schreiber’s PCR application occurred in

March 2015. Schreiber was hospitalized on March 30 after large kidney stones

caused him to urinate internally, which in turn led to him developing septic

poisoning. According to Schreiber’s pleadings, the septic poisoning caused him

to fall unconscious in his prison cell. He was transported to a local hospital

where he was resuscitated five times by receiving “adrenaline/epinephrine via an

1
  Schreiber also argues the district court failed to address all of the claims in the PCR
application. In the PCR application, Schreiber claimed his due process rights were
violated by hospital staff’s failure to abide by his do-not-rescucitate order on file at the
hospital. The district court did not address this claim in its order granting the State’s
motion to dismiss. “It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will decide them on
appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). And Schreiber did not
ask the district court to address this claim in his motion for reconsideration. Raising this
issue on appeal is not sufficient to preserve error. See Boyle v. Alum-Line, Inc., 710
N.W.2d 741, 751 n.4 (Iowa 2006) (“When a district court fails to rule on an issue properly
raised by a party, the party who raised the issue must file a motion requesting a ruling in
order to preserve error for appeal.”).
                                         3


IV.” After he was resuscitated, medical staff performed surgery to repair organ

damaged caused by the kidney stones and treated Schreiber’s septic poisoning

with antibiotics.

       Schreiber filed this PCR application in April 2018.       In it he claims he

momentarily died at the hospital, thereby fulfilling his “life” sentence under

sections 707.1 and 707.2. Because his sentence has been fulfilled, he argues,

he is imprisoned illegally and should be immediately released.

       The State moved to dismiss, and the district court scheduled a hearing on

the motion. Schreiber did not resist the State’s motion; he maintains he only

became aware of the motion after the district court entered its order granting it.

The district court summarized Schreiber’s claims and concluded no further

proceedings were warranted:

       Petitioner asserts that he “died” on March 30, 2015 and as a result
       of such “death” he has now served the life sentence and should be
       released from custody. The court finds this assertion unpersuasive
       and without merit. Nothing in the record supports petitioner’s
       claims. The petitioner’s filing of these proceedings in itself confirms
       the petitioner’s current status as living.

After receiving the court’s order, Schreiber filed a motion titled “Petitioner’s Pro

Se Motion for Reconsideration Pursuant to I. R. Civ. P. 1.904(2).” This motion

informed the court that Schreiber had never received notice from the State of its

motion to dismiss and insists the court violated his due process rights by granting

the motion. In response, the district court entered an order setting a hearing on

Schreiber’s motion for reconsideration on the pleadings only and directed the

State to file their resistance “with proper notice to opposing party.” Schreiber did
                                          4


not submit any documents for this hearing. The district court denied Schreiber’s

motion, and Schreiber now appeals.

       We review PCR proceedings and summary dismissals of PCR

applications for errors at law. Moon v. State, 911 N.W.2d 137, 142 (Iowa 2018).

       Although it did not specify, the district court apparently dismissed

Schreiber’s PCR application under Iowa Code section 822.6(2), which allows the

court to dismiss an application when it 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 further purpose would be served by any further

proceedings.” Schreiber alleges several errors occurred during this procedure,

which together amount to a violation of his due process rights. First, he argues

he was not given adequate notice of the hearing on the motion to dismiss, which

the district court scheduled after the State moved to dismiss the application.

While Schreiber correctly notes he was entitled to “an opportunity to reply to the

proposed dismissal,” Iowa Code § 822.6(2), the district court fulfilled this

requirement by scheduling a second hearing on the merits of his application after

the court became aware Schreiber had not been properly notified of the first

hearing.

       Second, Schreiber claims the district court erred by not recording the

hearing on the motion to dismiss, which he claims it was required to do under

section 822.7. See Iowa Code § 822.7 (“A record of the proceedings shall be

made and preserved.”). However, the recording requirement of section 822.7

only applies “to evidentiary hearings on the merits of the claim.” Arnold v. State,

540 N.W.2d 243, 246 (Iowa 1995). The hearing on the motion to dismiss was not
                                         5


an evidentiary hearing. As such, the district court did not err by failing to record

it.

       Third, Schreiber argues the district court erred by dismissing the PCR

application without an evidentiary hearing, which he claims was necessary to

develop his claims.      “[W]e approach motions to dismiss with great caution.”

Allison v. State, 914 N.W.2d 866, 892 (Iowa 2018). And we will only grant a

motion to dismiss “when there is no conceivable state of facts that might support

the claim for relief.” Id.

       In essence, Schreiber claims that he “died” and was resuscitated by

medical staff in 2015 against his wishes, thereby completing his sentence. He

asserts he was sentenced to life without parole, “but not to Life plus one day.”

Therefore, he is being held in violation of his rights under the Due Process

Clause and the Fifth and Fourteenth Amendments to the United States

Constitution. We do not find his argument persuasive. He cites no case law that

supports his position, and Iowa Code section 902.1 directs the district court to

commit defendants guilty of class “A” felonies—like Schreiber—“into the custody

of the director of the Iowa department of corrections for the rest of the

defendant’s life.” Iowa Code § 902.1(1) (emphasis added). Because chapter

902 does not define “life,” we give that term its plain meaning. State v. Hearn,

797 N.W.2d 577, 583 (Iowa 2011). “[O]ur primary goal is to give effect to the

intent of the legislature.” State v. Anderson, 782 N.W.2d 155, 158 (Iowa 2010).

       The plain reading of the statute is that a defendant convicted of a class “A”

felony must spend the rest of their natural life in prison, regardless of how long

that period of time ends up being or any events occurring before the defendant’s
                                            6


life ends. We do not believe the legislature intended this provision, which defines

the sentences for the most serious class of felonies under Iowa law2 and

imposes its “harshest penalty,” State v. Oliver, 812 N.W.2d 636, 645 (Iowa 2012),

to set criminal defendants free whenever medical procedures during their

incarceration lead to their resuscitation by medical professionals. See State v.

Louisell, 865 N.W.2d 590, 598 & n.6 (Iowa 2015) (noting “life in prison is the

intended punishment for” class “A” felonies and “[l]esser offenses are notably

punished less severely”). We conclude the correct reading of section 902.1(1)

requires Schreiber to stay in prison for the rest of his natural life, regardless of

whether he was resuscitated against his wishes in 2015.

       As such, the district court did not err in dismissing Schreiber’s PCR

application because “no conceivable state of facts” support Schreiber’s claim.

See Allison, 914 N.W.2d at 892. Schreiber is either alive, in which case he must

remain in prison, or he is dead,3 in which case this appeal is moot. See Maghee

v. State, 773 N.W.2d 228, 234 (Iowa 2009) (“[Defendant]’s death has already

ended his imprisonment and rendered release impossible.”).

       Schreiber next argues the district court required him to pay 20% of the

PCR application filing fee in violation of Iowa Code section 822.2, which allows


2
  Compare Iowa Code § 902.1 (defining the maximum penalties for class “A” felonies)
with id. § 902.9 (defining the maximum penalties for non-class “A” felonies). Class “A”
felonies include murder in the first degree, kidnapping in the first degree, and sexual
abuse in the first degree, among others. See id. §§ 707.2, 710.2, 709.2.
3
  Given Schreiber appears to have signed his name on the PCR application and his
motion for reconsideration—both filed after his “death”—we find this possibility unlikely.
Additionally, we note Schreiber appears to have litigated federal claims related to his
March 2015 hospitalization as well. See Schreiber v. Ludwick, No. 18-2305, 754 Fed.
App’x 501, 501–02 (8th Cir. 2019) (affirming the dismissal of Schreiber’s § 1983 claim
against state penitentiary and hospital staff related to Schreiber’s March 2015
hospitalization).
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an inmate to “institute, without paying a filing fee, a proceeding under” chapter

822 to challenge their conviction or sentence on certain enumerated grounds.

See Iowa Code § 822.2(1) (2018). This provision, he claims, entitles him to file

his PCR application without paying an application fee at all. A panel of our court

has recently considered this same claim and concluded section 822.2(1) “does

not abrogate the applicant’s responsibility to pay the filing fee.” Bryant v. State,

No. 18-1270, 2019 WL 1953518, at *2 (Iowa Ct. App. May 1, 2019). We find

Bryant persuasive and conclude the district court did not violate Iowa law by

requiring Schreiber to pay 20% of the PCR application fee.4

       Finally, Schreiber challenges the district court’s refusal to appoint counsel

to represent him. He argues he was entitled to PCR counsel under both section

822.5 and the Iowa Constitution.        While the right to counsel under the Iowa

Constitution “should be interpreted more expansively than the United States

Supreme Court has construed the right to counsel under the Sixth Amendment[,]”

Allison, 914 N.W.2d at 885, the Iowa Supreme Court has not yet recognized a

right to PCR counsel under the Iowa Constitution. Goode v. State, 920 N.W.2d

520, 524 (Iowa 2018). As such, Schreiber had a right to counsel, if at all, by

operation of section 822.5, which “‘gives the trial court discretion to appoint

postconviction relief counsel’ if an applicant presents a cognizable claim in the

postconviction proceeding.” Id. at 524 n.1 (quoting Dunbar v. State, 515 N.W.2d

12, 14 (Iowa 1994)).      If “a substantial issue of law or fact [m]ay exist, then

4
  Schreiber also argues the fee assessment violates his constitutional rights to due
process and equal protection under the United States Constitution. Because he did not
raise this argument in the district court, we decline to address it for the first time on
appeal. See Meier, 641 N.W.2d at 540 (concluding error is not preserved where “the
record fails to show” the claim was considered by the district court).
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counsel should be at once appointed.” Furgison v. State, 217 N.W.2d 613, 615

(Iowa 1974).    As explained above, there is no such issue of law or fact.

Schreiber is either still alive, in which case he must remain in prison, or he is

actually dead, in which case this appeal is moot. In either case, the district court

did not err by refusing to appoint him counsel.

       AFFIRMED.
