MILTON McCLANAHAN, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee.

Download as DOC IN THE COURT OF APPEALS OF IOWA No. 2-726 / 01-1697 Filed October 30, 2002 MILTON McCLANAHAN, Applicant-Appellant, vs. STATE OF IOWA, Respondent-Appellee. Appeal from the Iowa District Court for Dubuque County, Robert J. Curnan, Judge. Milton McClanahan appeals the dismissal of his postconviction relief application. REVERSED AND REMANDED. Wallace Taylor, Cedar Rapids, for appellant. Thomas J. Miller, Attorney General, Karen Doland, Assistant Attorney General, Fred Mccaw, County Attorney, and Christine Corken, Assistant County Attorney, for appellee. Considered by Habhab, Harris, and Brown, Senior Judges. *Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001). BROWN, S.J. The postconviction relief applicant, Milton McClanahan, appeals the trial court's summary dismissal of his application. He claims the procedure required by Iowa Code section 822.6 (2001) was not followed, and therefore his application should be reinstated. We conclude the trial court failed to observe the mandate of the statute, and reverse. I. Background Facts and Proceedings. Following a jury trial in which he was convicted of third-degree sexual abuse and second-degree burglary, Milton McClanahan was sentenced to consecutive prison terms. His conviction was affirmed by the court of appeals. State v. McClanahan, No. 98-0894, 1999 WL 1136490 (Iowa Ct. App. Dec. 13, 1999). McClanahan then filed this application for postconviction relief on December 7, 2000 in which he requested counsel be appointed. After reviewing the application, on December 11, 2000 the court appointed counsel at public expense. The order provided appointed counsel was directed to ascertain the validity of any possible grounds of relief and file her assessment with the Court on or before January 31, 2000 [sic]. If it is the opinion of counsel that valid grounds of relief exist, the assessment shall be accompanied by an amended postconviction application or contain a statement that the plaintiff is relying on the original application filed in this matter. The order further provided the court would review the file on March 1, 2001. McClanahan's appointed counsel filed her report on February 1, 2001 in which she addressed each of the three grounds McClanahan had raised in his pro se application. She concluded none of the grounds had merit and summarized "[f]or the reasons stated above, the Petitioners Petition for Post Conviction Relief should be dismissed." She did not discuss whether other grounds were available which might be raised in an amended application. A copy of the report was sent to McClanahan. McClanahan responded with a letter to the court which requested another attorney be appointed for him. He also told the court he had not had any contact with his appointed counsel and felt that she "misinterpreted what I am trying to accomplish in her Post Conviction paperwork she is going to file. This case is going to be reviewed on March 1 2001." On February 20, 2001, the court entered an order acknowledging receipt of McClanahan's letter, directing the clerk to send counsel a copy of that letter and directing counsel to file a written response to the request for new counsel. The order concluded: "The March 1, 2001 review date is accordingly moved to March 7, 2001, at which time the Court will review the file for further appropriate action." Counsel responded to that order and advised the court she had "exchanged written correspondence to Mr. McClanahan, both to him and from him, as well as reviewed voluminous paperwork supplied by Mr. McClanahan." She concluded by stating she had no objection to the court appointing substitute counsel to review the application. Next, McClanahan sent a letter to the court on February 26, 2001 advising the only correspondence he had with counsel was her request for any transcripts he might have, and which he stated he promptly provided her. He then attempted to elaborate on the grounds he was trying to urge in his application. Finally, on March 7, 2001 the court ordered that McClanahan's request for new counsel was overruled, and: Upon review of the post-conviction relief report to the Court, the Court determines that the application for post-conviction relief should be dismissed. The same is so ordered. McClanahan has appealed this order, alleging the court failed to follow the procedures in Iowa Code section 822.6, consequently reversal and reinstatement of his application is required. He contends he was not provided with notice of the court's intention to dismiss the case, thus he was deprived of an opportunity to resist the dismissal. The State urges McClanahan was in fact notified by the court's December 11, 2000 order appointing counsel and directing she assess the validity of the grounds asserted in the application. The State claims the additional exchanges between McClanahan, counsel and the court fulfilled the statutory obligations of section 822.6. II. Standard of Review. Postconviction relief proceedings are law actions which we review for errors at law. Carter v. State, 537 N.W.2d 715, 716 (Iowa 1995). III. Discussion. Iowa Code section 822.6 provides two procedures for terminating postconviction relief actions without trial. Poulin v. State, 525 N.W.2d 815, 816 (Iowa 1994); Hines v. State, 288 N.W.2d 344, 346 (Iowa 1980). There must be at least substantial compliance with the statute to justify summary disposition. See Brewer v. State, 446 N.W.2d 803, 805 (Iowa 1989). The first method contemplates court initiation of the summary termination process. The applicant must then be notified of the court's intention to dismiss the application and its reasons for the dismissal. Poulin, 525 N.W.2d at 816; Iowa Code 822.6. Iowa Code section 822.6 provides: 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, or on default thereof, the court may order the application dismissed or grant leave to file an amended application or direct that the proceedings otherwise continue. Iowa Code 822.6 para. 2 (emphasis added). We disagree with the State's contention that the court's December 11, 2000 order directing counsel to prepare a report assessing the application advised McClanahan that the court contemplated dismissing his application. We do not think a request for an assessment equates with notification of an intent to summarily dismiss, nor does setting a review date convey that meaning. We also note if the court intended to dismiss the case, it did not advise McClanahan of its reasons for doing so, as required by the statute. Further, the court indicated that an amended application might be appropriate, an action inconsistent with summary termination. The court's February 20, 2001 order only directed a response to McClanahan's request for new counsel and set a new review date. Again, we do not think a proposed review by the court conveys an intent to summarily dismiss the application. The second method for summary termination of a postconviction application is prescribed in Iowa Code section 822.6 para. 3. It is initiated by either party requesting summary disposition. This process incorporates the procedural rules for summary judgment and requires they be observed. Poulin, 525 N.W.2d at 816. Even were we to construe counsel's conclusion in her assessment report recommending the application be dismissed as a request for summary disposition under section 822.6 para. 3, it is apparent the court did not set the motion for hearing and provide McClanahan with an opportunity to oppose the motion. The response of the court, after receiving counsel's assessment and prior to the order dismissing the application, was to ask that counsel respond to McClanahan's request for different counsel. In her reply to that request, counsel merely indicated she had no objection to appointing different counsel. Our supreme court has observed [t]he common thread which runs through paragraphs two and three of section 663A.6 [now section 822.6 para. 2 & 3] is that of protecting the applicant from having his application dismissed by the court without an opportunity to resist in some manner, either at hearing before the court or through an opportunity to reply to a court- proposed dismissal. Poulin, 525 N.W.2d at 817 (quoting from Hines, 288 N.W.2d at 346). This is obviously intended to meet the fundamental constitutional due process requirement of notice and opportunity for hearing. See City of Cedar Rapids v Mun. Fire & Police, 526 N.W.2d 284, 291 (Iowa 1995) ("Procedural due process requires, at a minimum, notice and an opportunity to be heard in a proceeding that is 'adequate to safeguard the right for which the constitutional protection is invoked.'"). We conclude McClanahan was not afforded the protection intended by the statute. He did not have a meaningful opportunity to present his position as to whether there were material fact issues which required trial to resolve, or to urge his interpretation of the law involved in his application. This requires that we reverse the trial court, reinstate the application for postconviction relief, and remand the case for further proceedings. We decline the State's invitation to resolve the merits of the dispute. We think the trial court should be afforded an opportunity to further consider the disposition of the case following remand. REVERSED AND REMANDED.