Nickolous Jeffery Earl v. State of Iowa ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0358
Filed April 26, 2023
NICKOLOUS JEFFERY EARL,
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.
A postconviction-relief applicant appeals from a partial summary disposition
ruling for the State. APPEAL DISMISSED.
Martha Lucey, State Appellate Defender, and Maria Ruhtenberg, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant
Attorney General, for appellee State.
Considered by Bower, C.J., and Greer and Badding, JJ.
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BADDING, Judge.
Nickolous Earl appeals from a partial summary disposition ruling for the
State on his application for postconviction relief. We find the ruling was not a final
judgment for the purposes of appeal, and we decline to permit an interlocutory
appeal. As a result, we dismiss Earl’s appeal.
I. Background Facts and Proceedings
In August 2019, Earl entered an Alford plea1 to five counts of lascivious acts
with a child in exchange for the prosecutor’s agreement to recommend suspended
sentences on all counts, with argument on whether those sentences should be
concurrent or consecutive. Yet at the sentencing hearing, the prosecutor
expressed “great concern” with Earl telling the presentence investigator that he
was not guilty because those “statements would get him revoked [on probation]
and sent to prison.” The prosecutor also read a victim impact statement from the
mother of two of the victims that requested the “maximum sentence and more.”
The district court sentenced Earl to consecutive terms of imprisonment not
to exceed five years on each count, for a total indeterminate term of twenty-five
years. None of the sentences were suspended. Earl filed a direct appeal, which
the supreme court dismissed on motion by the State. After procedendo issued,
Earl filed an application for postconviction relief in October 2020 that was later
amended by court-appointed counsel.
1 See North Carolina v. Alford, 400 U.S. 25, 37–38 (1970) (permitting a criminal
defendant to enter a guilty plea without admitting guilt by acknowledging strong
evidence of guilt and agreeing to allow the court to consider such strong evidence
of guilt in accepting the guilty plea).
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The amended application alleged (1) Earl’s trial counsel was ineffective for
failing to (a) object to the prosecutor’s breach of the plea agreement at
sentencing, (b) argue that the plea agreement should be followed at sentencing,
and (c) object to the prosecutor reading the victim impact statement; (2) appellate
counsel was ineffective for “failing to challenge the court’s sentence as an abuse
of discretion”; and (3) Earl was prejudiced “due to prosecutorial misconduct in
violation of the Fifth and Fourteenth Amendments of the United States Constitution
and Iowa Constitution Article I Sections 1, 6, 8, 9 and 10” from the prosecutor’s
breach of the plea agreement in (a) arguing Earl “was denying his guilt in the
offense,” (b) suggesting Earl “would not be successful on probation,” (c) “reading
the victim impact statement aloud in the c[o]urt,” and (d) soliciting a victim impact
statement urging incarceration. For relief, Earl requested “reversal of his
convictions, expungement of the convictions from his criminal record, order for a
new trial, a new sentencing hearing[,] and any other relief as may be just and
appropriate in these circumstances.”
Earl moved for summary disposition in August 2021, arguing the undisputed
facts from the plea and sentencing hearing transcripts showed trial counsel was
ineffective for not objecting to the prosecutor’s breach of the plea agreement. He
did not seek summary disposition of his prosecutorial misconduct or ineffective-
assistance-of-appellate-counsel claims. In response, the State filed its own motion
for summary disposition on the claim that the prosecutor breached the plea
agreement. Earl resisted the State’s motion and asked to hold the prosecutorial
misconduct claim “in abeyance” because a “deposition of the prosecutor and the
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victim, to determine whether the prosecutor solicited a victim impact statement
urging incarceration” was necessary.
A hearing on the motions was held in October 2021, at which the parties
agreed the court could resolve the claim that trial counsel was ineffective for failing
to object to the prosecutor’s alleged breaches of the plea agreement on summary
disposition. They also agreed Earl’s claim that the prosecutor committed
misconduct by soliciting the victim impact statement urging incarceration was not
appropriate for summary disposition. Neither party addressed the ineffective-
assistance-of-appellate-counsel claim.
Following the hearing, but before the court’s ruling was entered, Earl filed a
motion to continue the trial that had been set on his application. The motion
asserted that if his request for summary disposition was granted, the “case will be
mostly resolved.” (Emphasis added.) But, Earl contended, if his summary
disposition motion was “not granted, [he] will need to do discovery on his remaining
claims.” Earl’s motion to continue the trial was granted.
The district court filed its summary disposition ruling in January 2022. The
court adopted the State’s arguments in concluding the prosecutor did not breach
the plea agreement and, as a result, Earl’s trial counsel “was not ineffective for not
objecting to the statements made by the State.” The court accordingly granted the
State’s motion for summary disposition and, in doing so, implicitly denied Earl’s
competing motion. Earl filed a notice of appeal from that ruling.
II. Jurisdiction
Even though neither party raised the issue, before we can reach the merits
of Earl’s appeal, we must first decide whether it was improvidently granted. See
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River Excursions, Inc. v. City of Davenport, 359 N.W.2d 475, 477 (Iowa 1984)
(“Even though neither party has questioned our jurisdiction to hear and decide this
case, we will sua sponte dismiss an appeal that is neither authorized by our rules
nor permitted by court order.”).
“A party may appeal as a matter of right from ‘[a]ll final orders and judgments
of the district court.’” Miller v. Drake Univ., No. 22-0097, 2022 WL 17826920, at *2
(Iowa Ct. App. Dec. 21, 2022) (alteration in original) (quoting Iowa R. App.
P. 6.103(1)). The necessary corollary to this rule “is that parties generally cannot
appeal non-final judgments.” Id. “Ordinarily a summary judgment[2] that is not
dispositive of the entire case is not a final judgment for purposes of appeal.” River
Excursions, 359 N.W.2d at 477; accord Ahls v. Sherwood/Div. of Harsco Corp.,
473 N.W.2d 619, 621 (Iowa 1991) (“A final judgment is one which conclusively
adjudicates all of the rights of the parties . . . .” (emphasis added)).
The ruling here was not dispositive of the entire case. Though the district
court granted the State’s motion for summary disposition, it did not dismiss Earl’s
postconviction-relief application. At the hearing on their motions, the parties
specifically reserved the issue of whether the prosecutor solicited the victim impact
statement urging incarceration for trial, agreeing that it was not appropriate for
summary disposition. Cf. Landowners v. S. Cent. Reg’l Airport Agency, 977
N.W.2d 486, 492 (Iowa 2022) (discussing denial of interlocutory appeal where
summary judgment ruling left other claims pending). As a result, the district court’s
postconviction-relief ruling did not address that issue, and trial was reset after the
2Summary disposition under chapter 822 (2020) is akin to summary judgment.
See Manning v. State, 654 N.W.2d 555, 559 (Iowa 2002).
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court’s ruling was entered. Because the record shows the court intended to act
further on the case, we find its ruling granting the State’s motion for summary
disposition was not final. See River Excursions, Inc., 359 N.W.2d at 477 (“A ruling
is not final when the trial court intends to act further on the case before signifying
its final adjudication of the issues.”).
That does not end our inquiry, however, because our supreme court “has
routinely held that appeals improvidently filed as a matter of right may be treated
as applications for interlocutory appeal.” Buechel v. Five Star Quality Care, Inc.,
745 N.W.2d 732, 735 (Iowa 2008); accord Iowa R. App. P. 6.108. “As a general
rule, however, we sparingly grant interlocutory appeals on this basis. The main
factor in determining whether such an interlocutory appeal should be granted is
whether consideration of the issues would serve the interest of sound and efficient
judicial administration.” Buechel, 745 N.W.2d at 735–36 (cleaned up); accord Iowa
R. App. P. 6.104(2).
After considering that factor, and the others listed in rule 6.104(2), we
conclude the general rule applies, decline to grant interlocutory appeal, and
dismiss the appeal. See Mason City Prod. Credit Ass’n v. Van Duzer, 376 N.W.2d
882, 886 (Iowa 1985) (“[O]ur court has traditionally been parsimonious about
allowing interlocutory appeals.”). This does not mean Earl will be deprived of his
right to appeal the court’s ruling because, under Iowa Rule of Appellate
Procedure 6.103(3), “[e]rror in an interlocutory order is not waived by . . .
proceeding to trial.” See id. at 887 (“Appeal from the final decree will present for
review all rulings inhering in that decision.”); accord Workman v. State, No. 13-
0201, 2014 WL 3511740, at *3 (Iowa Ct. App. July 16, 2014) (noting district court’s
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grant of partial summary disposition was a ruling that inhered in its “final judgment
and is a proper subject for review on appeal from that judgment”).
APPEAL DISMISSED.