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Fischer v. State

Court of Appeals of Iowa

April 3, 2019

PERRY ANDREW FISCHER, Applicant-Appellant,
v.
STATE OF IOWA, Respondent-Appellee.

          Appeal from the Iowa District Court for Polk County, David N. May, Judge.

         Applicant appeals the summary dismissal of his postconviction-relief application. AFFIRMED.

          Amanda Demichelis of Demichelis Law Firm PC, Chariton, for appellant.

          Thomas J. Miller, Attorney General, and Thomas E. Bakke, Assistant Attorney General, for appellee State.

          Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.

          VOGEL, CHIEF JUDGE

         Perry Fischer appeals the summary judgment ruling to dismiss his application for postconviction relief (PCR). He argues summary judgment was inappropriate as there were genuine issues of material fact, and he asserts his claims are not time-barred, despite the sixteen-year period between conviction and the application. In addition, Fischer raises ineffective-assistance claims against his trial counsel and PCR counsel. We find his claims are time-barred and reject his ineffective-assistance claims.

         I. Background Facts and Proceedings

         Fischer was convicted of eight counts of third-degree sexual abuse on December 14, 2001, and sentenced to periods not to exceed ten years in prison for each count, to run consecutively, for a total of 80 years. The record indicates he did not file an appeal for this conviction. He filed his application for PCR on September 18, 2017. The State moved for summary judgment on December 12 and argued the application was barred by the statute of limitations. The district court granted summary judgment on February 15, 2018, finding Fischer's claim time-barred and no exception applied. He now appeals.

         II. Standard of Review

         We review postconviction proceedings for errors at law, including summary dismissals of PCR applications. Castro v. State, 795 N.W.2d 789, 793 (Iowa 2011). We will find summary disposition appropriate "if the pleadings, dispositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show . . . there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Moon v. State, 911 N.W.2d 137, 142 (Iowa 2018) (quoting Iowa R. Civ. P. 1.981(3)). "The moving party bears the burden of showing the absence of a genuine issue of material facts." Id. Moreover, "[w]e view the record in the light most favorable to the nonmoving party," and "[w]e draw all legitimate inferences from the record in favor of the nonmoving party." Id. However, "when a PCR petitioner claims ineffective assistance of PCR counsel, our review is de novo." Allison v. State, 914 N.W.2d 866, 870 (Iowa 2018).

         III. Summary Judgment

         Fischer argues the district court erred in granting summary disposition on his PCR application for two reasons. He first claims there was a genuine issue of material fact regarding whether there was a plea hearing or a trial on the minutes. He also argues a recent case from our supreme court changed the interpretation of Iowa Code section 822.3 (2017), and such interpretation defines a new exception that applies to Fischer's situation. See Schmidt v. State, 909 N.W.2d 778 (Iowa 2018). The State argues any claim he has is time-barred and the cited case does not apply to Fischer's claim.

         Iowa Code section 822.3 provides PCR "applications must be filed within three years from the date the conviction or decision is final or, in the event of an appeal, from the date the writ of procedendo is issued." Fischer was convicted in 2001, and he did not appeal. Therefore, Fischer's general three-year ...


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