IN THE COURT OF APPEALS OF IOWA
No. 2-726 / 01-1697
Filed October 30, 2002
STATE OF IOWA,
Appeal from the Iowa District Court for Dubuque County, Robert J.
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
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
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,
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).
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-
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
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.