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Peppers v. State

Court of Appeals of Iowa

April 19, 2017

ERIC BONITA PEPPERS, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Johnson County, Ian K. Thornhill, Judge. Applicant appeals from the denial of his third application for postconviction relief.

          John J. Bishop, Cedar Rapids, for appellant.

          Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney General, for appellee State.

          Considered by Danilson, C.J., Vaitheswaran, J., and Mahan, S.J. [*]

          MAHAN, Senior Judge.

         Eric Peppers appeals from the denial of his third application for postconviction relief (PCR), contending the district court erred in concluding the application was barred by the three-year time limit of Iowa Code section 822.3 (2017) as Peppers raised no ground of law or fact that could not have been raised within the applicable time frame. Finding no error, we affirm.

         In 1999, Peppers was convicted of second-degree sexual abuse, domestic abuse assault while displaying a dangerous weapon, and false imprisonment. State v. Peppers, No. 00-283, 2001 WL 810740, at *1 (Iowa Ct. App. July 18, 2001). Procedendo issued on his appeal. This court affirmed the convictions and preserved for possible PCR proceedings four asserted grounds, including an ineffective-assistance-of-counsel claim for failure to file a motion to dismiss for violation of his speedy-trial rights.[1] Id. However, a partial dissent was filed with respect to preserving the speedy-trial issue:

The defendant [Pepper] waived speedy trial and previously scheduled trial was then continued to a date about four months later. About one week after waiving speedy trial he secured the appointment of new counsel. Then, after about one more week, he filed a written "motion" requesting speedy trial. His motion does not indicate he served a copy on either the State or his own attorney, and he makes no claim that he did so. Trial commenced 110 days later, as previously rescheduled. The defendant claims his attorney was ineffective in failing to file a motion to dismiss for violation of his right to speedy trial. He bases this claim on an assertion that his attorney "had a duty to fully review the court file, which contained the defendant's motion reasserting his right to a speedy trial, " and therefore should have notified the court that the defendant had reasserted the right and the previously scheduled trial was outside the time for speedy trial. I would reject this assertion and the claim of ineffective assistance which is based upon it.
Assuming without deciding that the defendant, who had requested and received court-appointed counsel, had the right to file the "motion" in question while represented by counsel, counsel had no duty to file a motion to dismiss for violation of defendant's speedy trial rights unless counsel knew or should have known of that "motion." The record provides no basis for finding that counsel knew of defendant's "pro-se" filing, and the defendant makes no claim that counsel in fact did so. Absent any evidence or claim to that effect, there is no reason to preserve for a possible postconviction proceeding any issue of breach of duty based on actual knowledge of the filing.
The State is obligated to serve on defense counsel a copy of its filings, and defense counsel is obviously aware of defense counsel's filings. It is apparently the defendant's position that defense counsel must from time to time review the court file to determine if there are any other filings of which counsel is not aware. The defendant cites no authority in support of his apparent assertion that defense counsel has a duty to periodically review the court file to determine if the defendant has filed something which the defendant has brought to the attention of neither the State nor defendant's own attorney, and I would reject out of hand the claim that such a duty exists. By preserving the defendant's fourth claim of ineffective assistance for a possible postconviction proceeding we implicitly accept the existence of such a duty.

Id., 2001 WL 810740, at *5-6 (Miller, J., dissenting in part). Procedendo issued on November 1, 2001.

         Peppers filed his first PCR application on April 13, 2002, raising several ineffective-assistance claims. We affirmed the dismissal of his PCR application. See Peppers v. State, No. 07-0865, 2008 WL 2042504, at *1 (Iowa Ct. App. May 14, 2008).

         Peppers filed a second PCR application in which he asserted his speedy-trial rights were violated and his first PCR counsel was ineffective in failing to raise the claim. Peppers v. State, No. 12-1197, 2013 WL 6116815, at *1 (Iowa Ct. App. Nov. 20, 2013). The trial court dismissed the claim, and this court affirmed on appeal, observing:

Peppers filed [his first] postconviction relief application raising several issues, including the claimed speedy trial violation. An attorney subsequently appointed to represent him filed a document waiving the speedy trial issue. The attorney mailed a copy of the document to Peppers. Following an evidentiary hearing, the district court filed an ...

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