Richard Allen Heien, Applicant-Appellant v. State of Iowa ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-1006
Filed October 1, 2014
RICHARD ALLEN HEIEN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Plymouth County, James D. Scott,
Judge.
Heien appeals the dismissal of his third application for postconviction
relief. AFFIRMED.
Michael J. Jacobsma of Jacobsma & Clabaugh, P.L.C., Sioux Center, for
appellant.
Thomas J. Miller, Attorney General, Jean C. Pettinger, Assistant Attorney
General, and Darin J. Raymond, County Attorney, for appellee.
Considered by Danilson, C.J., Vogel, J., and Sackett, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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SACKETT, S.J.
Appellant Richard Allen Heien, who was convicted of vehicular homicide
and involuntary manslaughter on April 4, 2006, appeals from the district court’s
dismissal on summary judgment of his third application for postconviction relief
alleging ineffective assistance of counsel. He contends the district court erred in
finding he failed to provide a sufficient reason for not asserting those grounds in
an earlier application, and ruling this application was barred pursuant to Iowa
Code section 822.8 (2013) and his claim was time barred under Iowa Code
section 822.3. We affirm.
STANDARD OF REVIEW. Appellate review of a postconviction
proceedings is generally for errors of law. Bugley v. State, 596 N.W.2d 893, 895
(Iowa 1999), superseded on other grounds by statute, 2004 Iowa Acts ch. 1017,
§ 2, as recognized in State v. Johnson, 784 N.W.2d 192 (Iowa 2010). If the
applicant alleges a denial of his constitutional rights, as Heien does here,
appellate review is de novo. State v. Parker, 747 N.W.2d 196, 203 (Iowa 2008).
BACKGROUND. Heien was convicted of vehicular homicide and
involuntary manslaughter on May 4, 2006, for running over and killing Joan
Wilson, a pedestrian, on a rural Plymouth County road on May 2, 2004. His
conviction was affirmed on appeal on April 11, 2007, and procedendo issued on
June 15, 2007. State v. Heien, No. 06-0883, 2007 WL 1062937, at *1 (Iowa Ct.
App. Apr. 11, 2007). Two prior postconviction proceedings were unsuccessful.
VICTIM’S CONDUCT. Heien contends his prior attorneys were ineffective
for not fully investigating or developing the issue that the victim, who was a
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pedestrian, was on the wrong side of the road or in the path of traffic when she
was hit. He contends the accident reports, state and county records, and news
reports indicate the victim was traveling on the wrong side of the road. He
contends that had this issue been raised, it would have supported an argument
that the victim’s actions played a role in the accident. He argues, citing State v.
Adams, 810 N.W.2d 365 (Iowa 2012), that the State has only proved his driving
killed the victim, not that his criminal act of driving while intoxicated caused the
victim’s death.
TIME LIMITATION. The State agrees with the district court that the claim
is time barred. Iowa Code section 822.3 provides postconviction-relief
applications must ordinarily be filed “within three years from the date the
conviction or decision is final or, in the event of an appeal, from the date the writ
of procedendo is issued,” but the statute contains an exception for grounds of
“fact or law that could not have been raised within the applicable time period.”
Iowa Code § 822.3; see also Smith v. State, 542 N.W.2d 853, 854 (Iowa Ct. App.
1995).
This court decided the direct appeal affirming Heien’s conviction on April
11, 2007, and procedendo issued on June 15 of the same year. This petition
was filed on January 11, 2013, more than five years after the decision on direct
appeal and over two years beyond the limitation period set forth in Iowa Code
section 822.3.
The State contends Heien has not offered a ground of fact or law that
could not have been raised within the applicable time period and claims the
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ineffective-assistance of postconviction counsel does not constitute a ground of
fact that tolls the three-year limitation period.
Heien claims his two postconviction attorneys were ineffective in failing to
investigate where the victim was walking when she was run over. The State
argues and the district court found that the accident reports upon which Heien
relies were dated in 2006, and consequently, the issue of the victim’s walking on
the wrong side of the road raised here could have been raised in the applicable
time period. The court noted and the State points out that Heien relies on the
print date of the reports, which was 2012, rather than the date of the report.
Heien has failed to prove that he only became aware of the facts of the accident
after the date the statutory time for filing a postconviction proceeding had
passed.
CLAIM NOT AVAILABLE EARLIER. Heien next focuses his argument
on that part of Iowa Code section 822.3 that creates an exception for untimely
filed applications if they are based on claims that “could not” have been
previously raised because they were not available.
[T]he exception applies to situations in which there “would be no
opportunity to test the validity of the conviction in relation to [the
ground of fact or law that allegedly could not have been raised
within the time period].” A reasonable interpretation of the statute
compels the conclusion that exceptions to the time bar would be,
for example, newly-discovered evidence or a ground that the
applicant was at least not alerted to in some way.
Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994) (citation omitted).
Heien contends that in Adams, the Iowa Supreme Court for the first time
determined it was the State’s burden under Iowa Code section 707.6A(1) to
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provide more than mere proof the defendant’s driving caused the death of
another person. The court there held a defendant may be found guilty of
homicide by vehicle only if the jury finds beyond a reasonable doubt that his
criminal act of driving under the influence of alcohol caused the victim’s death.
Adams, 810 N.W.2d at 371.
The State argues Adams does not change or overrule prior law but merely
clarified the law, and we are inclined to agree. Adams was not new law; rather, it
was a clarification of the law in that it noted the vehicular homicide statute
“included no clear expression of the legislature’s intent as to whether the State
must prove a direct causal connection between defendant’s intoxicated driving
and the victim’s death to support a conviction.” Id. at 370. Furthermore, a similar
issue was addressed in State v. Wieskamp, 490 N.W.2d 566, 567 (Iowa Ct. App.
1992), where this court required a causal connection between a defendant’s
intoxicated driving and the victim’s death to support a conviction, stating: “We
find as a matter of law that a sober person driving with reasonable care would
have struck and killed the victim.” We reversed the defendant’s conviction of
vehicular homicide. Wieskamp, 490 N.W.2d at 567.
Heien has filed nothing to show that his claims are based on new
evidence or are new legal claims. Heien had opportunities to claim
ineffectiveness of trial counsel on the claims raised here before the time bar
became enforceable against him. He could have raised it on appeal and in his
earlier postconviction actions. On appeal, Heien cannot assert ignorance of the
claim because he should have at least been alerted to trial counsel’s failure to
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raise the issue, and appellate and postconviction counsels’ failure to raise
ineffectiveness claims. See Fuhrmann v. State, 433 N.W.2d 720, 723 (Iowa
1988) (holding that if matters raised in an untimely postconviction application
were not raised due to ineffective assistance of appellate counsel or failure to
preserve error at trial, ineffective assistance could also have been raised within
the time limitation).
AFFIRMED.