Lee Andrew Smith v. State of Iowa ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1266
Filed April 14, 2021
LEE ANDREW SMITH,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Bradley J.
Harris, Judge.
Lee Smith appeals the district court’s denial of his fourth application for
postconviction relief. AFFIRMED.
John L. Dirks of Dirks Law Firm, Ames, for appellant.
Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant Attorney
General, for appellee State.
Considered by May, P.J., Ahlers, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
2
MAHAN, Senior Judge.
Lee Smith appeals the district court’s denial of his fourth application for
postconviction relief (PCR), challenging the court’s rejection of his actual-
innocence claim to overcome the statute-of-limitations. We affirm.
I. Background Facts and Proceedings
In 2006, the State charged Lee Smith with various offenses after he
“entered his ex-girlfriend’s home, armed with a knife, and physically and sexually
assaulted her.” Smith v. State (Smith II), No. 09-1518, 2010 WL 4867384, at *1
(Iowa Ct. App. Nov. 24, 2010). The case proceeded to trial, but during the course
of trial, Smith decided to plead guilty. See State v. Smith (Smith I), 753 N.W.2d
562, 563 (Iowa 2008). The district court accepted his plea and entered judgment
and sentence.1 Id.Smith filed his first PCR application in 2006, claiming his trial counsel was
ineffective in (1) coercing him to plead guilty and (2) failing to file a motion in arrest
of judgment attacking the district court’s failure to advise him of section 903B.1’s
special sentence. Smith II, 2010 WL 4867384, at *2. The district court rejected
Smith’s claim that he was coerced into pleading guilty but concluded counsel was
ineffective in failing to inform Smith of the section 903B.1 special sentence and
vacated his plea with regard to the applicable count. On the State’s appeal, this
1 The district court subsequently realized Smith’s sentence did not comply with
Iowa Code section 903B.1 (2005), determined Smith’s plea was therefore
unknowing, and granted him a new trial. See id. On direct appeal, the supreme
court found Smith had waived his right to file a motion in arrest of judgment and
remanded the case for resentencing but acknowledged that Smith could file an
application for postconviction relief (PCR) challenging his guilty plea following
resentencing. See id. at 564–65; Smith II, 2010 WL 4867384, at *2.
3
court determined there was no reasonable probability Smith would not have pled
guilty had he been informed of the section 903B.1 special sentence. Id. at *4–6
(“This record does not support a finding that the section 903B.1 parole term would
have altered Smith’s decision to plead guilty. Smith’s concern at the time was the
years of incarceration he would face.”). The court therefore reversed and
remanded for dismissal of Smith’s PCR application. Id. at *7.
Smith filed his second PCR application in 2012,2 which was dismissed, and
no appeal was filed.
Smith filed his third PCR application in 2016,3 which was dismissed
following a hearing; Smith appealed, but the supreme court dismissed his appeal
as frivolous upon appellate counsel’s motion.
In 2018, Smith filed this PCR application, alleging a “freestanding claim of
actual innocence” under Schmidt v. State, 909 N.W.2d 778 (Iowa 2018). To
support his application, Smith filed two exhibits. “Exhibit 1” is a handwritten
affidavit of the victim, dated April 23, 2006 and filed in the underlying criminal
record, stating:
To whom it may concern[:]
In regards to Lee A Smith’s charges I just wanted to say he
did not break into my house and he did not rape me according to
what they are charging him with.
[Signature]
2 Smith alleged his resentencing with the section 903B.1 special sentence was
illegal because it was not part of his original plea agreement.
3 Smith alleged (1) the sentencing court lacked jurisdiction to resentence him upon
the finding of an illegal sentence due to the fact that no motion to correct an illegal
sentence was filed by any party; (2) his judgment was void because his original
sentence was not an illegal sentence and his resentencing was therefore void;
(3) the district court and supreme court lacked jurisdiction over his motion in arrest
of judgment in the underlying; and (4) his guilty pleas were improperly coerced by
a threat of prosecution for an offense of kidnapping in the first degree.
4
According to Smith, exhibit 1 was “never presente[d] to court at the time of my
trial,” and “was not submitted to court until my resentencing hearing December 18,
2006.”
The second exhibit attached to Smith’s application was an excerpt from the
victim’s deposition prior to trial, in which she was asked about her affidavit and
stated as follows:
Q. . . . I have a copy of a piece of paper that’s been marked
deposition exhibit 1. I am going to show that to you. Do you
recognize the handwriting on that? A. Yeah, I recognize it.
Q. Whose handwriting is it? A. It’s mine.
Q. Did you write that note? A. Yes I did.
Q. How did you come to write that note? A. Lee’s mom asked
me to.
Q. What is Lee’s mom’s name? A. Annie Smith.
Q. When did Lee’s mother talk to you about writing this
statement? A. A few days after the incident.
Q. Do you remember what Annie Smith or how she brought it
up to you or what she told you? A. I don’t remember specifically.
She just asked me if I would. I told her yes, sure.
Q. Did she tell you what to write in the statement? A. I don’t
remember that.
Q. Were these your own words you put in the statement?
A. Yeah they were.
Q. In the statement you say he did not break into your house;
is that correct? A. Yeah it is correct.
Q. Do you feel that’s true? A. No, he didn’t break in. Other
people might see thing differently as far as breaking in. The way I
see it and law sees it is probably two different things. No, he didn’t
break in.
Q. To you, what would breaking in the house mean?
A. Breaking the door down and forcing their way in. If you use a key
that someone had given to you then that’s not breaking in.
Q. So you would consider breaking into your house to be
someone basically going through your door? A. Yes.
Q. Taking it down? A. Yes.
Q. You also wrote in here that he did not rape you; is that
correct? A. Yes.
Q. Why did you write that? A. The reason I wrote that is
because when Lee and I do have sex, oral sex is part of when we
both be in the bedroom together. We do that. He didn’t force that
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on me. I did that. He asked me. I did, maybe just to keep anymore
trouble down, or whatever. I don’t know. He asked me and I did. It’s
not like it’s the first time.
The State filed a motion to dismiss Smith’s application pursuant to Iowa
Code sections 822.3 and 822.8 (2018). Smith filed an amended PCR application
through counsel, raising various claims of ineffective assistance of counsel
stemming from his prior PCR actions and citing the relation-back doctrine under
Allison v. State, 914 N.W.2d 866 (Iowa 2018). His amended application did not
mention his initial actual-innocence claim under Schmidt. The matter proceeded
to a hearing on the State’s motion, during which Smith’s attorney maintained that
Smith’s prior PCR counsel were ineffective and that Allison precluded dismissal of
his claims.4
Following the hearing, the district court entered an order denying Smith’s
application. Despite a lack of argument at the hearing by counsel on Smith’s
actual-innocence claim, the district court addressed and rejected the issue in its
order as follows:
[A]pplicant alleged that based upon the case of Schmidt v.
State, 886 N.W.2d 106 (Iowa 2016) applicant was entitled to post-
conviction relief due to recantation by the victim or pursuant to a free-
standing claim of actual innocence.
Applicant claims that a deposition from the alleged victim in
this matter dated June 28, 2006, and a prior statement by this victim
are inconsistent with the testimony given by the victim at the time of
trial.
....
Applicant next argues that the victim in this matter [M.W.] has
recanted her testimony given at trial. Applicant’s claim is based upon
a deposition given by [M.W.] prior to trial and a statement given by
[M.W.] to an investigator from the Waterloo Public Defender’s Office
prior to trial. Both the deposition testimony and statement given to
the Public Defender’s Office were consistent with the testimony given
4 Smith does not pursue his ineffective-assistance-of-counsel claims on appeal.
6
by [M.W.] at trial. Any inconsistencies contained in the deposition
testimony or statement to the Public Defender’s Office with the trial
testimony could have been used for impeachment purposes if the
trial would have proceeded to allow cross-examination of the
witness. Applicant elected to enter his plea of guilty prior to the
cross-examination of witness [M.W.]
Applicant relies upon the case of Schmidt v. State of Iowa,
909 N.W.2d 778 (Iowa 2019), for the proposition that recantation by
a victim is grounds for a new trial based upon a claim of actual
innocence. Applicant’s claim fails in that applicant has failed to show
that the victim in this matter has recanted from her trial testimony.
Any statement which may have been inconsistent with trial testimony
was available to applicant prior to and at the time of trial. The victim
herein has not recanted her statement and applicant’s claim for new
trial based upon actual innocence must be denied.
....
The court therefore determines that more than three years
have elapsed and that all claims of applicant except those claims
which are grounded in fact or law which could not have been raised
within the applicable time period . . . are time-barred.
....
The court further determines that applicant’s request for new
trial based upon claim of actual innocence should be denied in that
the victim herein has not recanted her testimony and that any
inconsistent statement made by the victim was available to the
applicant at the time he entered his plea in the underlying criminal
case.
Smith appeals.
II. Standard of Review
“We review summary dismissals of postconviction-relief applications for
errors at law.” Dewberry v. State, 941 N.W.2d 1, 4 (Iowa 2019) (quoting Schmidt,
909 N.W.2d at 784 (Iowa 2018)).
III. Actual-Innocence Claim
On appeal, Smith contends the district court erred in rejecting his claim as
time-barred. In Smith’s view, “Schmidt does not require that there be newly-
discovered evidence in order to grant a new trial” and the district court
“circumvented [his] opportunity to be heard on the merits by dismissing the matter
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before addressing the merits.” The State counters that “Schmidt would allow his
claim to proceed only if the evidence underlying it was also newly discovered.”
And the State points out that Schmidt only really changed or clarified the law as to
PCR applicants who plead guilty.
Indeed, “[w]e have found Schmidt does not apply to overcome the statute
of limitations where the evidence put forward to support a claim of actual innocence
was available to the applicant or could have been discovered with due diligence
within the limitations period.” Quinn v. State, 954 N.W.2d 75, 77 (Iowa Ct. App.
2020) (citing cases). But see Schmidt, 909 N.W.2d at 799 (finding the complaining
witness’s “recantation was not available to Schmidt within the three-year period
following the date of his conviction and Schmidt could not have discovered the
recantation earlier than he did in the exercise of due diligence”). Here, Smith’s
claim centers on statements by M.W., as referenced in her 2006 written statement
and deposition. “The evidence presented to support [Smith]’s claim of actual
innocence was unquestionably available to him within the limitations period.” See
Quinn, 954 N.W.2d at 77. Accordingly, Smith’s claims are “time-barred under Iowa
Code section 822.3 and Schmidt does not provide an . . . exception that is
applicable to [him].” Cf. Fischer v. State, No. 18-0450, 2019 WL 1473066, at *2
(Iowa Ct. App. Nov. 30, 2019).
We affirm the denial of Smith’s PCR application.
AFFIRMED.