Appeal from the Iowa District Court for Allamakee County, Margaret L. Lingreen, Judge.
The opinion of the court was delivered by: Miller, S.J.
Applicant appeals the district court decision denying his request for post-conviction relief from his conviction for first-degree murder on the ground it was untimely. AFFIRMED.
Considered by Vogel, P.J., Vaitheswaran, J., and Miller, S.J.* *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
I. Background Facts & Proceedings
Gerardo Quiroz Gonzalez was convicted of murder in the first degree, in violation of Iowa Code section 707.2(1) (1999). The State alleged that Gonzalez was angry about losing in a street fight, went to the apartment of Francisco "Lolito" Costillo, and shot him in the head. On October 2, 2000, he was sentenced to life in prison. His conviction was affirmed on appeal. See State v. Gonzalez, No. 00-1689 2002 WL 663591, (Iowa Ct. App. April 24, 2002). Procedendo issued on May 24, 2002.
Gonzalez filed an application for post-conviction relief, claiming he received ineffective assistance of trial counsel, appellate counsel, and post-conviction counsel. His request for post-conviction relief was denied by the district court. That decision was affirmed on appeal. See Gonzalez v. State, No. 06-0621 2007 WL 3376790, (Iowa Ct. App. Nov. 15, 2007). Procedendo in that case issued on January 22, 2008.
Gonzalez filed a second application for post-conviction relief on October 20, 2010, claiming his conviction was unconstitutional because the trial information was insufficient to put him on notice of the charge against him. The State filed a motion to dismiss claiming Gonzalez's application was untimely under section 822.3. Gonzalez filed a resistance, asserting that due to an inadequate trial information he could not be convicted of the charged offense, and that his conviction was thus void. He thereafter filed additional resistances, asserting that because the trial information had been defective the sentence he received was an illegal sentence, one that could be challenged at any time.
The district court granted the State's motion to dismiss, finding more than three years had elapsed from the final order in the case, and Gonzalez had not established that the case came within an exception to the three-year period. The court found the claim brought by Gonzalez did not "qualif[y] as the type of ground of fact or law that could not be raised within the applicable time period for post-conviction relief applications."
Gonzalez then filed a pro se motion asserting that he was claiming an illegal sentence and the statute of limitations in section 822.3 did not apply. The court overruled the motion, finding Gonzalez was not actually challenging an illegal sentence. Gonzalez's counsel then filed a motion to amend or enlarge, also claiming Gonzalez was challenging an illegal sentence. The court overruled this motion as well. Gonzalez now appeals the decision of the district court denying his second application for post-conviction relief.
Generally, our review of a district court ruling dismissing a post-conviction action as time barred by section 822.3 is for the correction of errors at law. Harrington v. State, 659 N.W.2d 509, 519 (Iowa 2003). To the extent Gonzalez raises constitutional claims, however, our review is de novo. See Lado v. State, 804 N.W.2d 248, 250 (Iowa 2011).
III. Timeliness of Application
A. A claim of an illegal sentence is not subject to the statute of limitations found in section 822.3. See Veal v. State, 779 N.W.2d 63, 65 (Iowa 2010). Gonzalez contends his claims are not subject to the three-year time limitation found in section 822.3, and the district court should not have dismissed his application as untimely.
"Iowa Rule of Criminal Procedure 2.24(5)(a), and our cases, 'allow challenges to illegal sentences at any time, but they do not allow challenges to sentences that, because of procedural errors, are illegally imposed.'" Lopez-Penaloza v. State, 804 N.W.2d 537, 541 (Iowa Ct. App. 2011) (citation ...