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Todd v. State

Court of Appeals of Iowa

October 25, 2017

HUBERT TODD, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

         Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.

         The applicant appeals from the summary dismissal of his application for postconviction relief. AFFIRMED.

          Tabitha L. Turner of Turner Law Firm, P.L.L.C., Des Moines, for appellant.

          Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant Attorney General, for appellee State.

          Vogel, P.J., Mullins, J., and Blane, S.J. [*]

          BLANE, Senior Judge.

         Hubert Todd appeals from the summary dismissal of his application for postconviction relief (PCR). Todd maintains the PCR court's summary dismissal of his application violated his right to due process; similarly, he claims PCR counsel provided ineffective assistance when he failed to object on due process grounds to the summary dismissal of Todd's application. Todd also claims the court's decision to dismiss the petition on the basis of res judicata was in error.

         I. Background Facts and Proceedings.

         In the underlying case, [1] Todd was charged with failure to comply with the sex offender registry. He entered a guilty plea and was sentenced pursuant to a plea agreement he reached with the State.

         Todd directly appealed his conviction and sentence, and a panel of our court decided his appeal in State v. Todd, No. 13-0271, 2015 WL 1546348, at *4 (Iowa Ct. App. Apr. 8, 2015). One of Todd's arguments on direct appeal was that his guilty pleas were involuntary. Todd, 2015 WL 1546348, at *2. Our court noted Todd filed written guilty pleas that waived his right to have the district court discuss the various rights and waivers found in Iowa Rule of Criminal Procedure 2.8. Id. at *2. Nonetheless, the district court also engaged in an in-court colloquy with Todd in which he told the court he understood the rights he had and that he was willingly waiving those rights to plead guilty. Id. at *3. The court found Todd's pleas were voluntarily made. Id. Another one of his arguments was that his trial counsel provided ineffective assistance because counsel failed "to obtain the pretrial deposition of a 'key' witness, Jeanne Brinker, the sex offender registrar in Black Hawk County during the relevant period." Id. at *4. He claimed that if he had known Brinker's testimony before he pled guilty, he would have decided to go to trial rather than pleading guilty. Id. But Brinker's testimony was not exculpatory:

A Black Hawk County sheriff's report indicates Todd did not have a verification report for July 2010 until he was arrested in August 2010. He did call in to report he would be out of the area for a few days in November 2010. He did not report in person to the sheriff in January 2011 for the January 2011 verification. As of April 29, 2011, he had not reported in person for the April 2011 verification.
Brinker testified at Todd's sentencing hearing. She testified Todd was one of the persons she dealt with in maintaining the sex offender registry in Black Hawk County and that Todd would contact her by telephone on occasion. She testified Todd called on February 12, 16, 19, 24, March 15, 19, 30, November 10, 2010, and May 12 and June 9, 2011.

Id. Todd's claim was found to lack merit, with the appellate court stating:

Todd was charged with failure to make the requisite in person appearances to the sheriff's office. Telephone calls do not satisfy the in person requirement, and even if they did, there were no calls between November 10, 2010 and May 12, 2011. The calls Todd did make could not have possibly covered his January and April 2011 reporting requirements. Todd's argument that his trial counsel was ineffective for not taking a pretrial deposition of Brinker lacks merit.

Id. at *5.

         Todd filed his application for PCR in September 2015, alleging his guilty plea was involuntary. Todd later filed an application to take depositions of two witnesses at the State's expense: Jeanne Brinker and Dawn Long. The State resisted, and the court set a date to hear the matter.

         In December 2015, at the hearing on the issue on whether Todd could proceed with depositions, the court began by noting that Todd's application stated he was forced to plead guilty and that the appellate court had already decided his pleas were voluntary. Todd's PCR counsel then told the court:

The only issue we wished to present was th[at] trial counsel failed to investigate and present testimony of witnesses who would show that there was-there were mistakes made in the underlying case that involved allegations of a person of a similar name, but not Mr. Todd that caused his-he pled guilty based upon his attorney not investigating those witnesses. ...

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