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Gregg v. State

Court of Appeals of Iowa

August 16, 2017

BRADLEY GREGG, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.

         Bradley Gregg appeals the denial of his application for postconviction relief.

          Zachary S. Hindman of Mayne, Arneson, Hindman, Hisey & Daane, Sioux City, for appellant.

          Thomas J. Miller, Attorney General, and Linda J. Hines, Assistant Attorney General, for appellee.

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

          DANILSON, CHIEF JUDGE.

         Bradley Gregg appeals the denial of his application for postconviction relief (PCR).[1] Gregg contends the PCR court erred in determining he is not entitled to a new trial on the basis of newly discovered evidence, in finding substantial evidence supports his conviction for utilizing a person under eighteen years of age to traffic a controlled substance, and in upholding the revocation of his probation. We find no error in the denial of Gregg's PCR application and therefore affirm.

         On January 20, 2012, Gregg was convicted following a jury trial for utilizing a person under the age of eighteen to traffic a controlled substance (marijuana), in violation of Iowa Code section 124.406A (2011).[2] The person under the age of eighteen-J.S.-lived with Gregg for a period of time and testified Gregg utilized him to sell marijuana. On February 21, 2012, Gregg was sentenced to a ten-year term of incarceration on his conviction for utilizing a person under the age of eighteen to traffic a controlled substance. The ten-year sentence was suspended and Gregg was placed on probation. Gregg's conviction was upheld on direct appeal. Following issuance of procedendo on July 19, 2013, the district court entered a July 22, 2013 order directing Gregg to sign up for probation within ten days.

         The State filed an application for revocation of probation On August 12, 2013, and an addendum to the revocation application on September 6, 2013. After a hearing, the district court entered an order on November 7, 2013, revoking Gregg's probation and imposing his ten-year sentence.

         Gregg filed the PCR application. After an evidentiary hearing, the PCR court entered an order denying Gregg's PCR application. Gregg now appeals.

         1. Newly Discovered Evidence. Gregg contends he is entitled to a new trial because he presented newly discovered evidence. "A postconviction action based on newly discovered evidence is reviewed for correction of errors at law." More v. State, 880 N.W.2d 487, 498 (Iowa 2016).

         While incarcerated following the revocation of his probation, Gregg met Robert Johnson, a friend of J.S. who spent time with J.S. on five or six occasions during the time Gregg was said to be using J.S. to sell marijuana. Johnson testified when J.S. was picked up from locations other than Gregg's residence he smelled strongly of fresh marijuana, indicating he had a large amount of marijuana on his person he intended to sell. Johnson also testified J.S. did not smell of fresh marijuana when he was picked up from Gregg's house. Gregg argues this testimony shows J.S. did not receive marijuana from and did not sell marijuana for Gregg. Because Gregg learned of Johnson's connection to J.S. after his convictions, he argues Johnson's testimony constitutes newly discovered evidence entitling Gregg to relief under Iowa Code section 822.2(1)(d) (2014).

         In order to establish a new trial is warranted on the basis of newly discovered evidence, the PCR applicant must show:

(1) that the evidence was discovered after the verdict; (2) that it could not have been discovered earlier in the exercise of due diligence; (3) that the evidence is material to the issues in the case and not merely cumulative or impeaching; and (4) that the ...

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