Betty Ann Nall v. State of Iowa ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1424
Filed December 18, 2019
BETTY ANN NALL,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
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Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
Betty Nall appeals from the district court’s dismissal of her application for
postconviction relief following her convictions of theft and forgery. AFFIRMED.
Jesse A. Macro, Jr. of Macro & Kozlowski, LLP, West Des Moines, for
appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee State.
Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, Judge.
Betty Nall was convicted of several counts of forgery and two counts of theft,
one arising in a case that was tried on the minutes of testimony and one arising in
a case that was resolved by guilty plea. On direct appeal, Nall challenged the two
theft convictions, arguing her conduct did not constitute theft by taking under Iowa
Code section 714.1(1) (2013). The Iowa Supreme Court agreed. See State v.
Nall, 894 N.W.2d 514, 524–25 (Iowa 2017). Applying Nall’s requested
interpretation of section 714.1(1), the court found the first theft conviction was not
supported by sufficient evidence and the plea to the second theft conviction lacked
a factual basis. Id. The court remanded for dismissal of both counts. Id. In doing
so, the court elected “to sever the judgment and sentence for each theft conviction”
from the unchallenged forgery convictions “and allow the remaining sentences in
both cases to stand.” Id. at 525. The court categorically stated, “We do not believe
the theft convictions and sentences affected the court’s sentencing decision on the
remaining charges.” Id.Nall sought postconviction relief. She alleged, (1) “[A]s a result of trial
counsel’s . . . ineffectiveness the district court proceeded to sentence [her] based,
in part, upon two separate theft charges which were later vacated for lacking any
factual basis” and (2) “[A]ppellate counsel failed to request the cases be remanded
for resentencing in light of the vacated theft charges, and therefore appellate
counsel was ineffective.” She requested “[p]roper sentencing based upon the
aforementioned vacated charges.”
The State moved for summary judgment and dismissal on the ground that
Nall’s “issues have already been decided on direct appeal.” Following a hearing,
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the district court granted the motion, reasoning, “Both issues Nall raises were
adjudicated by the supreme court on direct appeal.” We discern no error in the
court’s conclusion.
The supreme court answered the question of the effect of the overturned
theft convictions on the sentences for the remaining forgery convictions. Nall’s
issues, while raised under an ineffective-assistance-of-counsel rubric, implicate
the identical sentencing question decided by the supreme court. The question
cannot be re-litigated. Holmes v. State, 775 N.W.2d 733, 735 (Iowa Ct. App. 2009)
(“Holmes cannot now relitigate issues decided adversely to him on direct appeal.”).
We affirm the postconviction court’s grant of the State’s motion for summary
judgment.
AFFIRMED.