from the Iowa District Court for Black Hawk County, George L.
applicant appeals from the summary dismissal of his
application for postconviction relief.
Tabitha L. Turner of Turner Law Firm, P.L.L.C., Des Moines,
J. Miller, Attorney General, and Bridget A. Chambers,
Assistant Attorney General, for appellee State.
P.J., Mullins, J., and Blane, S.J. [*]
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
Background Facts and Proceedings.
underlying case,  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
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
Id. at *5.
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.
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
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.