from the Iowa District Court for Muscatine County, Mark D.
Frei appeals the dismissal of his untimely application for
postconviction relief, arguing his guarantee of due process
under both the Iowa and United States Constitutions was
violated because he was never informed of the statutory
postconviction relief limitation period.
M. Phelps, Davenport, for appellant.
J. Miller, Attorney General, and Kyle Hanson, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.
2011, Kenneth Frei pled guilty to five counts of lascivious
acts with a child. Pursuant to the plea agreement, he was
sentenced to five consecutive prison terms not to exceed ten
years on each count. Frei was advised on the record he had a
right to appeal within thirty days. Thereafter, Frei filed a
motion for reconsideration of his sentence, which the court
denied in February 2012. Frei did not file an appeal.
February 2016, Frei filed a pro se application for
postconviction relief (PCR). He asserted he had not been
informed of the thirty-day time period to file an appeal, the
victim's age was miscalculated leading the
"prosecution to coerce a plea deal on false [pretenses],
" two of the counts were for the same act in violation
of double jeopardy, and there was "new evidence."
The State subsequently filed a motion to dismiss Frei's
application as untimely because it was filed past the
deadline imposed by the three-year statute of limitations,
Iowa Code section 822.3 (2016), and Frei's application
made "no specific allegation that it raises a ground of
fact or law which could not have been raised within the
limitations period." Ultimately, the PCR court granted
the State's motion, concluding that by operation of
section 822.3, the State was entitled to dismissal of
Frei's PCR application.
now appeals, arguing the PCR court erred in dismissing his
application because he was never informed by the sentencing
court of the time limits for filing a PCR application. Frei
maintains that not being informed of the statute of
limitations violated his guarantee of due process under both
the Iowa and United States Constitutions. He states error was
preserved as follows: "Timely notice of appeal was
filed. Moreover, the [c]ourt's ruling specifically
dismissed based on its reading of Iowa Code Section 822.3,
therefore error was preserved. Filing of a motion to amend or
enlarge is not necessary for preservation of appeal rights
State takes issue with Frei's claim of error
preservation, noting that filing a "notice of appeal has
nothing to do with error preservation." State v.
Lange, 831 N.W.2d 844, 846-47 (Iowa Ct. App. 2013). The
State also points out Frei never raised his due-process claim
before the PCR court. This court further notes that, under
certain circumstances, a motion to amend or enlarge pursuant
to Iowa Rule of Civil Procedure 1.904(2) is
necessary to preserve error on appeal. See Lamasters v.
State, 821 N.W.2d 856, 862-63 (Iowa 2012) (noting a rule
1.904(2) motion must be filed if the "district court
fails to rule on an issue properly raised by a party" by
"the party who raised the issue").
Frei's due process issue concerning notice of the PCR
statute of limitations was never raised before the PCR court,
it is not preserved for our review. See id.
Nevertheless, in an effort to stave off another potential PCR
proceeding, we proceed to the merits of Frei's appellate
claim. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa
1999) (bypassing an error-preservation problem and proceeding
to the merits of the appeal). Generally, we review the
court's ruling on the State's statute-of-limitations
defense for correction of errors of law. See Nguyen v.
State, 829 N.W.2d 183, 186 (Iowa 2013). However, to the
extent a constitutional issue is raised, our review is de
novo. See Perez v. State, 816 N.W.2d 354, 356 (Iowa
reasons that because he is entitled under the United States
Constitution to "not be deprived of life, liberty or
property, without due process of law" and because that
principle is applicable to the States, "it follows that
[he] was denied due process by the sentencing [c]ourt's
failure to notify him of the time requirements for filing an
application for [PCR]." However, "[m]any of the
constitutional safeguards guaranteed an individual in
criminal trial proceedings are not granted to such an
individual in subsequent postconviction proceedings."
Jones v. State, 479 N.W.2d 265, 269 (Iowa 1991). In
fact, "[s]tates have no obligation to provide this
avenue of relief, " and when they do, the federal
constitution does not dictate "the exact form such
assistance must assume. On the contrary, in this area States
have substantial discretion to develop and implement programs
to aid prisoners seeking to secure postconviction
review." Pennsylvania v. Finley, 481 U.S. 551,
557, 559 (U.S. 1987); see also Montgomery v.
Louisiana, 136 S.Ct. 718, 746 (2016) (Thomas, J.,
dissenting) ("Because the Constitution does not require
postconviction remedies, it certainly does not require
postconviction courts to revisit every potential type of
error."). A PCR applicant's "right to due
process is not parallel to a trial right, but rather must be
analyzed in light of the fact that he has already been found
guilty at a fair trial, and has only a limited interest in
[PCR]." Dist. Attorney's Office v. Osborne,
557 U.S. 52, 69 (2009).
legislature has provided to convicted criminals a statutory
remedy for obtaining PCR, but it chose to limit the time
frame for pursuing that remedy to three years, except where
the applicant asserts "a ground of fact or law that
could not have been raised within the applicable time
period." Iowa Code § 822.3; see also Wilkins v.
State, 522 N.W.2d 822, 824 (Iowa 1994). The Iowa Supreme
Court expressly found the legislature was within its
discretion to determine the proper limitation period, and the
court did not find the three-year limitation period
unreasonable. See Davis v. State, 443 N.W.2d 707,
711 (Iowa 1989). Because PCR is only a statutory right and
there is no statutory requirement that a convicted person be
notified of the limitations period for bringing a PCR claim,
Frei was not entitled to notice under either the federal or
state constitutions. See generally Saadiq v. State,
387 N.W.2d 315, 321 (Iowa 1986) ("In viewing the fair
notice requirement of due process, we apply the legal fiction
that all persons of ordinary intelligence are presumed to
know the law. Thus if a statute has sufficient publication
that it is discoverable by reasonable means and it contains