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Richmond v. State

Court of Appeals of Iowa

March 12, 2014

JOHN RICHMOND, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee

Editorial Note:

This decision is published in table format in the North Western Reporter.

Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge. John Richmond appeals from the denial of his application for postconviction relief.

Christopher J. Foster of Foster Law Office, Iowa City, for appellant.

Thomas J. Miller, Attorney General, Martha E. Trout, Assistant Attorney General, Jerry Vander Sanden, County Attorney, and Robert Hruska, Assistant County Attorney, for appellee State.

Considered by Danilson, C.J., and Vaitheswaran and Potterfield, JJ.

OPINION

POTTERFIELD, J.

John Richmond appeals from the denial of his second application for postconviction relief.

Our review on appeal from the denial of postconviction relief is for errors at law. Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010). However, we review constitutional issues de novo. Id.

Richmond was convicted of second-degree sexual abuse in 1997. On direct appeal, he argued that testimony from an Episcopal priest he consulted, Fr. Dick Osling, was improperly allowed at his criminal trial. See State v. Richmond, 590 N.W.2d 33, 34 (Iowa 1999). The Iowa Supreme Court rejected his claim because neither the priest-penitent privilege, see id. at 35 (" Richmond did not consult Fr. Osing in his priestly capacity" ), nor the statutory counselor-client privilege applied. See id . (noting communication with informal unlicensed counselor does not fall within the statutory privilege). His conviction was affirmed. Id.

Richmond filed his first application for postconviction relief (PCR) on March 3, 2000, in which he claimed he was denied effective assistance of trial and appellate counsel in several respects. See Richmond v. State, No. 03-1457, 2004 WL 2169439 (Iowa Ct. App. Sept. 29, 2004).[1] His appeal from the denial of this first PCR application was rejected., [WL] at *3. This court noted,

Richmond's constitutional claims are premised entirely on the notion that the Richmond opinion added a new spirituality dimension to invocation of the priest-penitent privilege. We disagree. Under our reading of the Richmond opinion, the court simply determined that Richmond did not consult Fr. Osing in his professional capacity as a priest and the privilege was therefore inapplicable. Because none of the constitutional protections cited were implicated, no attorney representing Richmond in any capacity at any stage of any related proceeding was duty bound to raise the constitutional issues he now relies upon. Moreover, and for the same reasons, the trial court did not err in rejecting Richmond's claims that the supreme court's decision in Richmond was unconstitutional.

[WL] at *2. We also rejected Richmond's claims that trial counsel was ineffective in failing to object to the jury instructions, and found Richmond had failed to preserve an issue regarding the trial information., [WL] at *3.

Richmond filed this second PCR application on May 15, 2007, in which he contends his first postconviction counsel was ineffective in failing to assert additional constitutional challenges concerning the supreme court's interpretation of the priest-penitent privilege, in failing to challenge the jury instructions, and in failing to challenge ...


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