Tony Sihavong v. State of Iowa ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1628
Filed April 14, 2021
TONY SIHAVONG,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeanie Vaudt, Judge.
Tony Sihavong appeals the summary disposition of his application for
postconviction relief. AFFIRMED.
Christopher Kragnes Sr., Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee State.
Considered by Bower, C.J., and Doyle and Mullins, JJ.
2
MULLINS, Judge.
Tony Sihavong was convicted of first-degree murder in 2002. He was
sentenced to serve life in prison without the possibility of parole. On direct appeal,
we rejected his claim of ineffective assistance of trial counsel and affirmed his
conviction. See generally Sihavong v. State, No. 02-1447, 2003 WL 22697627(Iowa Ct. App. Nov. 17, 2003). Procedendo issued in February 2004. Sihavong
filed his first application for postconviction relief (PCR) later that year. That
application was dismissed in March 2007 as frivolous. He filed second, third, and
fourth applications in April 2007, November 2010, and February 2013, all of which
were dismissed. Notably, in his second application, Sihavong only claimed our
supreme court’s decision in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006),
should be applied retroactively. See Sihavong v. State, No. 14-0440, 2016 WL
351286, at *1 (Iowa Ct. App. Jan. 27, 2016).
Sihavong filed the application precipitating this appeal in August 2018. In
his application, he alleged PCR counsel in a prior proceeding was ineffective in
failing to include arguments he made in his pro se application in an amended
application, none of which challenged PCR counsel’s effectiveness in presenting
a claim of ineffective assistance of criminal counsel. He also asserted the
application was not time-barred, citing our supreme court’s decision in Allison v.
State,1 which was filed in late June 2018. The State moved for summary
1 See 914 N.W.2d 866, 891 (Iowa 2018) (holding that where a timely application is
filed within the statute of limitations alleging ineffective assistance of trial counsel,
the filing of a successive application that alleges ineffective assistance of PCR
counsel in presenting the ineffective-assistance-of-trial-counsel claim, the filing of
the second application relates back to the time of the filing of the original
application so long as the successive application is filed promptly after the
3
disposition on statute-of-limitations grounds. The court granted the State’s motion
in September 2019. Sihavong appeals.
On appeal, Sihavong argues Allison amounts to a new ground of law that
excepts him from the three-year statute of limitations. See Iowa Code § 822.3(noting the statute of limitations “does not apply to a ground of . . . law that could
not have been raised within the applicable time period”). While the State does not
stress the point, we question whether error was preserved on this argument, as
the court did not specifically rule upon the question of whether Allison amounts to
a new ground of law sufficient to toll the statute of limitations, it only addressed
whether Sihavong’s situation falls within the parameters of Allison. See Lamasters
v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“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. 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.” (quoting Meier
v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002))). We nevertheless proceed to the
merits. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999). We ordinarily review
summary disposition rulings in PCR proceedings for legal error, but our review is
de novo when claims of ineffective assistance of counsel come into play. Linn v.
State, 929 N.W.2d 717, 729 (Iowa 2019).
conclusion of the original action); see also Iowa Code § 822.3 (2018) (noting
“applications must 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”).
4
We begin with the issue the district court did address. Under former law,
ineffective assistance of PCR counsel could not “serve as an exception to the
three-year statute of limitations” and allow for the filing of a successive application
outside of the limitations period. Dible v. State, 557 N.W.2d 881, 886 (Iowa 1996),
abrogated on other grounds by Harrington v. State, 659 N.W.2d 509, 520 (Iowa
2003). Shortly before Sihavong filed the application precipitating this appeal, the
Allison court ruled successive applications are timely if filed “promptly” after the
conclusion of the original PCR action. 914 N.W.2d at 891. Allison only applies
when a PCR application alleging ineffective assistance of trial counsel is timely
filed and a successive application alleging ineffective assistance of first PCR
counsel is promptly filed after the original action. Id. The application before us
was not filed promptly after the conclusion of the original proceeding, so the time
of filing of the application before us does not relate back. See, e.g., Polk v. State,
No. 18-0309, 2019 WL 3945964, at *2 (Iowa Ct. App. Aug. 21, 2019) (noting a gap
in the neighborhood of six months does not meet the definition of prompt); see also
Johnson v. State, No. 19-1949, 2021 WL 210700, at *2 (Iowa Ct. App. Jan. 21,
2021) (collecting cases on the meaning of “filed promptly”).
Assuming without deciding Allison amounts to a new ground of law sufficient
to toll the statute of limitations, Sihavong’s situation still does not fall within its
parameters. As noted, Allison only applies when a PCR application alleging
ineffective assistance of trial counsel is timely filed and a successive application
alleging ineffective assistance of first PCR counsel in presenting the claim is
promptly filed after the original action. It is unclear whether Sihavong, in his initial
timely application in 2004, raised a claim of ineffective assistance of trial counsel.
5
While he did file a successive application about a month after the issuance of
procedendo following the original proceeding, which could be considered prompt,
he did not raise a claim in his successive application his PCR counsel was
ineffective in presenting a claim trial counsel was ineffective. See Sihavong, 2016
WL 351286, at *1. He also did not forward any such allegation in the application
now before us. So the narrow Allison exception does not apply, even if it amounts
to a new ground of law.2
We affirm the dismissal of Sihavong’s PCR application.
AFFIRMED.
2 We note section 822.3 was amended, effective July 1, 2019, before judgment on
Sihavong’s application was entered, to arguably overrule Allison outright, to
provide: “An allegation of ineffective assistance of counsel in a prior case under
this chapter shall not toll or extend the limitation periods in this section nor shall
such claim relate back to a prior filing to avoid the application of the limitation
periods.” 2019 Iowa Acts ch. 140, § 34. The supreme court has ruled “statutes
controlling appeals are those that were in effect at the time the judgment or order
appealed from was rendered.” State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019)
(citation omitted). The State notes the amendment but does not address its
applicability, taking the position that the issue was not addressed below and is not
preserved. Because we agree Sihavong’s situation does not fall within the
confines of Allison, we need not address the amendment’s applicability. See
Palmer v. State, No. 19-1487, 2021 WL 811161, at *1 n.1 (Iowa Ct. App. Mar. 3,
2021) (noting ruling was filed after effective date of amendment but not addressing
it based on agreement with district court that Allison did not save the application);
Moon v. State, No. 19-2037, 2021 WL 610195, at *4 n.6 (Iowa Ct. App. Feb. 17,
2021) (“This amendment appears to abrogate Allison, although it is not yet clear
what PCR applications the amended legislation applies to.”); Johnson v. State, No.
19-1949, 2021 WL 210700, at *3 (Iowa Ct. App. Jan. 21, 2021) (finding it
unnecessary to address the amendment’s applicability because application was
time-barred under either the prior or new version of the statute).