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Kurtz v. State

Court of Appeals of Iowa

December 5, 2013

DOUGLAS KURTZ, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee

Appeal from the Iowa District Court for Woodbury County, John D. Ackerman, Judge.

Douglas E. Kurtz appeals the district court ruling granting the State's motion for summary judgment on his application for postconviction relief.

Matthew R. Metzgar of Rhinehart Law, P.C., Sioux City, for appellant.

Douglas Kurtz, Rockwell City, appellant pro se.

Thomas J. Miller, Attorney General, Sheryl Soich, Assistant Attorney General, Patrick Jennings, County Attorney, and Mark Campbell, Assistant County Attorney, for appellee.

Considered by Potterfield, P.J., and Mullins and Bower, JJ.

BOWER, J.

Douglas E. Kurtz appeals the district court ruling granting the State's motion for summary judgment on his application for postconviction relief. Kurtz argues his sentence violated the Ex Post Facto Clause of the United States and Iowa Constitutions. He also argues his sentence was illegal. We find Kurtz was sentenced within the timeframe provided by the statute of limitations and there is no ex post facto violation. We also find the illegal sentence claim is moot in regards to the minimum sentence and without merit concerning the mandatory minimum fine. We affirm.

I. Background Facts and Proceedings

Douglas E. Kurtz filed his application for postconviction relief concerning a criminal case that started more than twenty-five years ago. On September 30, 1986, Kurtz was charged with sexual abuse in the second degree.[1] He was convicted by a jury and sentenced to an indeterminate term of twenty-five years. The conviction was affirmed by this court. State v. Kurtz, No. 87-499, 1988 WL 127285 (Iowa Ct. App. June 29, 1988). Kurtz filed his first application for postconviction relief on October 9, 1989. His application was granted, and the case was remanded for a new trial. Kurtz v. State, No. 89-0820, 1990 WL 1558650 (Iowa Ct. App. Aug. 30, 1990).

Kurtz entered into a plea agreement with the State on October 29, 1991. The trial information was amended to include one count of sexual abuse in the third degree and one count of lascivious acts with a child. The charge of sexual abuse in the second degree was dismissed. Kurtz was sentenced to an indeterminate term of ten years on the sexual abuse in the third degree charge to run concurrent with an earlier sentence for possession with intent to deliver marijuana as a habitual offender. He was sentenced to an indeterminate term of five years on the lascivious acts charge, which was to run consecutively to the drug charge.

Kurtz filed this application for postconviction relief on April 12, 2012. He argues the trial court violated the ex post facto clause of the Iowa and United States Constitutions because the statute of limitations had expired on the sexual-abuse-in-the-third-degree and lascivious-acts-with-a-child charges. He also argues his consecutive sentence for the lascivious-acts charge is illegal because the district court failed to impose a mandatory minimum sentence and failed to impose a mandatory fine in the drug case.[2]

II. Standard of Review

Our review on postconviction relief is ordinarily for errors at law. Harrington v. State, 659 N.W.2d 509, 519 (Iowa 2003). When summary judgment has been granted on the application, we review the record to "determine if a genuine issue of fact exists and whether the moving party is entitled to a judgment as a matter of law." Bugley v State, 596 N.W.2d 893, 895 (Iowa 1999). Alleged ...


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