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Arturo Avina A/K/A v. State of Iowa

April 10, 2013

ARTURO AVINA A/K/A ABEL GOMEZ AVINA, APPLICANT-APPELLANT,
v.
STATE OF IOWA, RESPONDENT-APPELLEE.



Appeal from the Iowa District Court for Tama County, Ian K. Thornhill, Judge.

The opinion of the court was delivered by: Bower, J.

Arturo Avina, also known as Abel Gomez Avina, appeals from a district court order denying his application for post-conviction relief. AFFIRMED.

Heard by Eisenhauer, C.J., and Danilson and Bower, JJ.

Arturo Avina, also known as Abel Gomez Avina, appeals from a district court order denying his application for post-conviction relief. Avina argues his guilty plea was procedurally deficient because of certain constitutional errors which occurred during the plea process, he was not properly informed of the immigration consequences of his plea in violation of Padilla v. Kentucky, and the district court erred in dismissing his application because it was not timely filed. We affirm.

I. Background Facts and Proceedings

On March 7, 1993, the Tama County Sheriff's Department executed a search warrant for an apartment where deputies discovered seven individuals. Cocaine was found on a table in the living room and in a bedroom closet. Avina, one of the seven individuals, was found sleeping on a bed in the living room. All seven individuals were arrested and submitted to urine tests.

Avina made his initial appearance that same day. His application for appointment of counsel was denied. The State filed a trial information charging Avina with possession of cocaine on March 15, 1993. On March 25, 1993, Avina appeared at the courthouse with attorney, Pat White,*fn1 who secured a reduction in bond.

On April 6, 1993, Avina appeared without counsel and entered a guilty plea to the charge contained in the trial information. The circumstances of the court appearance are the basis of this application for post-conviction relief.

During the course of the April 6, 1993 plea proceeding, Avina was provided with an interpreter and requested immediate sentencing, pursuant to a plea bargain. He was not, however, notified by the State that his urine test had come back clean, nor that other co-defendants with clean urine tests had or would have their charges dismissed. Avina was sentenced to a term of fifteen days in the county jail with credit for fifteen days served. At no point during the hearing was Avina represented by counsel, though the presiding judge did offer to appoint counsel. Avina, through his interpreter, rejected the offer.

On August 20, 2010, Avina filed an application for post-conviction relief. Avina alleged in the application that interpretation errors and the absence of counsel prevented his plea from being voluntary and intelligent. He was allowed to orally amend his application to later include a claim pursuant to Padilla v. Kentucky, 130 S. Ct. 1473 (2010). The district court conducted a full evidentiary hearing concerning the events and circumstances of Avina's guilty plea. The district court issued its ruling on October 13, 2011, ruling that each of Avina's claims were barred by the statute of limitations found in Iowa Code section 822.3 (2009). Avina now appeals.

II. Scope and Standard of Review

Our review of the district court's denial on the grounds of statute of limitations is for correction of errors at law. See Clark v. Miller, 503 N.W.2d 422, 424 (Iowa 1993) (reviewing motion to dismiss on statute of limitations grounds for errors at law). "Thus, we will affirm if the trial court's findings of fact are supported by substantial evidence and the law was correctly applied." Harrington v. State, 659 N.W.2d 509, 519 (Iowa 2003).

III. Discussion

Chapter 822 of the Iowa Code provides for and governs post-conviction relief actions. Section 822.3 places a limitation on the commencement of such actions. Most applications for post-conviction relief must be filed within three years. Iowa Code § 822.3.*fn2 Exceptions exist, however, for grounds "of fact or law that could not have been raised within the applicable time period." Id. The statute is to be read and understood as an effort to "conserve judicial resources, promote substantive goals of criminal law, foster rehabilitation, and restore a sense of repose in our criminal justice system." Cornell v. State, 529 N.W.2d 606, 611 (Iowa Ct. App. 1994). Exceptions found within the section act as an escape clause when an applicant had "no opportunity" to assert them within the limitations period. Id. When a party ...


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