from the Iowa District Court for Story County, Timothy J.
defendant appeals the dismissal of his untimely third motion
for new trial; we treat it as a petition for writ of
Laz LePon, Fort Madison, pro se appellant. Thomas J. Miller,
Attorney General, and Benjamin Parrott, Assistant Attorney
General, for appellee.
Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.
LePon appeals the district court dismissal of his third
motion for new trial, filed more than two years after
judgment and sentence were imposed on his conviction for
second-degree murder. In this appeal, LePon raises a number
of claims as to why the district court erred in dismissing
his motion, mostly procedural complaints, and why we should
exercise jurisdiction in this appeal. For the reasons
discussed below, we treat LePon's notice of appeal as a
petition for writ of certiorari, grant the petition, address
the issues raised under the appropriate legal standards, find
the trial court did not act illegally, and annul the writ.
Factual and procedural background.
State charged LePon with first-degree murder for shooting
Devlin Lockman. LePon pleaded not guilty. On November 17,
2015, a jury found LePon guilty of second-degree murder.
LePon filed a motion for judgment of acquittal and his first
motion for new trial, which were denied. On January 4, 2016,
the district court entered judgment and sentenced LePon.
January 14, 2016, LePon appealed his conviction, raising
eight issues through counsel as well as pro se. Our court
affirmed his conviction. See State v. LePon, No.
16-0117, 2017 WL 4049829, at *1 (Iowa Ct. App. Sept. 13,
2017). LePon then filed an application for further review
with the Iowa Supreme Court. On November 20, 2017, while his
application for further review was pending, LePon pro se
filed a second motion for new trial in the district court.
The motion cited Iowa Rule of Civil Procedure 2.24 and
referenced newly-discovered evidence.
November 21, the district court entered an order that it
could not rule on this second motion for new trial because it
lacked jurisdiction over the case as the application for
further review was pending and jurisdiction was with the
appellate court. On December 4, LePon filed a motion to
reconsider or enlarge the order denying his second motion for
new trial. On that same date, the district court entered an
order denying this motion for the same reason it had denied
the motion for new trial.
December 11, LePon then petitioned the Iowa Supreme Court for
certiorari review of the district court's denial of his
second motion for new trial. On January 5, 2018, by order of
one justice, LePon's petition for certiorari was denied.
On January 16, LePon requested review of his certiorari
petition by a three-justice panel.
January 17, the Iowa Supreme Court declined further review of
the Iowa Court of Appeals' opinion affirming LePon's
conviction. Procedendo issued January 17, 2018.
January 26, a three-justice panel confirmed the denial of
LePon's certiorari petition as to his second motion for
February 9, LePon pro se filed a third motion for new trial,
again citing Iowa Rule of Criminal Procedure 2.24 and
mentioning newly-discovered evidence. Since the earlier
appealed issues had all been resolved, the district court had
resumed jurisdiction and set the motion for a hearing on
February 26, 2018. LePon filed two motions for transport (the
first through a "next friend"), each requesting an
order to transport LePon from prison so he could personally
appear at the hearing. The district court denied the first
motion as the "next friend" lacked standing and
implicitly denied the second motion by holding the hearing
with LePon participating by telephone. The State did not file
a written resistance to the motion for new trial but orally
resisted at the hearing.
the hearing, LePon asserted a constitutional right to be
personally present, made an oral motion for the judge to
recuse himself, and asked for an ex parte hearing in support
of his motion for appointment of an investigator. LePon
reasserted these oral requests in his post-hearing brief. He
did not disclose the nature of his claimed new evidence.
March 16, the district court filed a written order that
dismissed LePon's third motion for new trial as untimely
having been filed more than two years after "final
judgment of sentence" and no good cause existing to
ignore the deadline. The court also denied LePon's motion
March 28, LePon filed a motion to reconsider or enlarge.
LePon moved the court to address his right to be present at
the hearing, to decide whether he had notice and an
opportunity to be heard on the issue of the timeliness of the
motion for new trial, to find good cause existed to excuse
the two-year deadline, and again for the judge to recuse
himself. By order on April 23, the district court denied the
motion to reconsider or enlarge.
3, LePon filed his pro se notice of appeal from the denial of
his third motion for new trial. The supreme court transferred
the appeal to our court, which is now before us.
raises nine appeal issues in appellant's brief. The State
initially contends that we lack jurisdiction of this appeal
because LePon is not entitled to appeal from denial or
dismissal of an untimely post-sentencing motion for new
trial. It is an appellate court's "duty to dismiss
or refuse to consider an appeal which the court has no
jurisdiction to entertain." State v. Coughlin,
200 N.W.2d 525, 526 (Iowa 1972). We must address this issue
first. Hedlund v. State, 875 N.W.2d 720, 724 (Iowa
2016) ("We consider challenges to our jurisdiction
before other issues in a case.").
State argues that we are without jurisdiction to hear the
appeal because LePon does not have a right of appeal from the
dismissal of the untimely-filed post-judgment motion for new
trial. "[T]he right of appeal is not an inherent or
constitutional right; it is a purely statutory right that may
be granted or denied by the legislature as it
determines." James v. State, 479 N.W.2d 287,
290 (Iowa 1991); see also Wissenberg v. Bradley, 229
N.W. 205, 209 (Iowa 1929) ("At common law, the right of
appeal was unknown. It is purely a creature of
statute."). "Unless the statute makes provision
therefor, expressly or by plain implication, there is no
right of appeal." Boomhower v. Cerro Gordo Cty. Bd.
of Adjustment, 163 N.W.2d 75, 76 (Iowa 1968); State
v. Olsen, 162 N.W. 781, 782 (Iowa 1917) ("The right
of appeal is purely statutory.").
criminal case, appeal as a matter of right only arises from a
"final judgment of sentence." Iowa Code §
814.6(1)(a) (2018). Our supreme court has discussed what
constitutes a final judgment of sentence.
Pertinent to this case, a criminal defendant has the
"right of appeal" from "[a] final judgment of
sentence." [Iowa Code § 814.6.] A previous version
of the statute provided that "[a]n appeal can only be
taken from the final judgment, and within sixty days
thereafter." Iowa Code § 793.2 (1954). The statute
was thereafter amended to include the clarifying language
"judgment of sentence." Iowa Code §
814.6 (1983) (emphasis added). This language continues today.
See Iowa Code § 814.6(1)(a) (2017).
This is consistent with the general rule that the
"[f]inal judgment in a criminal case means
sentence." "In criminal cases, as well as civil,
the judgment is final for the purpose of appeal 'when it
terminates the litigation between the parties on the
merits' and 'leaves nothing to be done but to enforce
by execution what has been determined.'" In
contrast, "decisions, opinions, findings, or verdicts do
not constitute a judgment or decree."
State v. Propps, 897 N.W.2d 91, 96 (Iowa 2017)
(first and third alterations in original) (citations omitted
from second paragraph). Final judgment in this case occurred
when the district court sentenced LePon on January 4, 2016.
This is evidenced by LePon's direct appeal at that time
and our court's affirmance of his conviction. Based upon
Propps, the order denying LePon's third motion
for new trial is not a "final judgment of
rules of appellate procedure also do not support a right to
appeal here. In Coughlin, the Iowa Supreme Court
interpreted 1971's Iowa Rule of Civil Procedure 331,
which is materially identical to Iowa Rule of Appellate
Procedure 6.103. 200 N.W.2d at 526. Despite the broad
language of the rule, the Coughlin court held there
was no appeal as a matter of right from an order granting a
new trial in a criminal case. See id. at 526-27.
Coughlin remains controlling because the rules are
anticipates this appellate jurisdiction issue. In his appeal
brief, he argues that Iowa Code section 814.6 is
unconstitutional as it violates his right to equal protection
provided in article I, section 6 of the Iowa Constitution and
the Fourteenth Amendment to the United States Constitution.
He contends that the State being permitted to appeal the
grant of a defendant's motion for new trial,
while a defendant is denied the right to
appeal a denial of such a motion violates equal
protection. As our above analysis shows, this is only
true regarding a defendant's post-sentencing motion for
new trial, since a defendant may appeal a pre-sentencing
denial of a motion for new trial within the appeal of his
conviction. See Iowa Code § 814.6(1)(a).
constitutionality of a statute is reviewed de novo. State
v. Mitchell, 757 N.W.2d 431, 434 (Iowa 2008).
"Statutes are presumed to be constitutional, and a
challenger must prove unconstitutionality beyond a reasonable
doubt." Id. (citation omitted). "The
challenger must refute every reasonable basis upon which the
statute could be found constitutional, and if the statute may
be construed in more than one way, we adopt the construction
that does not violate the constitution." Id.
"constitutional promise of equal protection 'is
essentially a direction that all persons similarly situated
should be treated alike.'" Varnum v. Brien,
763 N.W.2d 862, 878 (Iowa 2009) (citation omitted).
"[T]he constitutional pledge of equal protection does
not prohibit laws that impose classifications."
Id. at 882. "Instead, equal protection demands
that laws treat alike all people who are 'similarly
situated with respect to the legitimate purposes of the
law.'" Id. (citation omitted). A
"threshold test" to the equal-protection analysis
under the Iowa Constitution requires a party to show "as
a preliminary matter that they are similarly situated"
to the class of persons enjoying the legal benefit the party
desires. Id.; Nguyen v. State, 878 N.W.2d
744, 758 (Iowa 2016) ("The first step in our equal
protection analysis under the Iowa Constitution is to
determine whether there is a distinction made between
similarly situated individuals.").
statute treats similarly situated persons differently, the
court must then determine what level of review is
required-strict scrutiny, intermediate scrutiny, or rational
basis. See, e.g., Varnum, 763 N.W.2d at
880. A statute is subject to strict-scrutiny analysis-the
State must show the classification is narrowly tailored to a
compelling state interest-when it classifies individuals
"in terms of their ability to exercise a fundamental
right or when it classifies or distinguishes persons by race
or national origin." In re Det. of Williams,
628 N.W.2d 447, 452 (Iowa 2001). Intermediate scrutiny
"has been applied to statutes classifying on the basis
of gender or illegitimacy and requires the party seeking to
uphold the statute to demonstrate the challenged
classification is substantially related to the achievement of
an important governmental objective." Varnum,
763 N.W.2d at 880. All other statutory classifications are
subject to rational-basis review in which case the person
challenging the statute must show the classification
"bears no rational relationship to a legitimate
government interest." Williams, 628 N.W.2d at
452. "A classification is reasonable if it is 'based
upon some apparent difference in situation or circumstances
of the subjects placed within one class or the other which
establishes the necessity or propriety of distinction between
them.'" State v. Dudley, 766 N.W.2d 606,
615 (Iowa 2009) (citation omitted). Under this deferential
standard, the law is valid "unless the relationship
between the classification and the purpose behind it is so
weak the classification must be viewed as arbitrary or
capricious." King v. State, 818 N.W.2d 1, 28
(Iowa 2012) (citation omitted). "A statute is presumed
constitutional and the challenging party has the burden to
'negat[e] every reasonable basis that might support the
disparate treatment.'" State v. Willard,
756 N.W.2d 207, 213 (Iowa 2008) (alteration in original)
(citation omitted). Since the right to appeal is purely
statutory-not a fundamental right-and the law in question
does not treat different genders or races differently, we
apply rational basis review here.
that this issue-which ultimately boils down to whether we
have appellate jurisdiction-was not raised before the trial
court, nor could it have been. Although the role of the court
of appeals is to apply existing law-not change it- we are not
aware of any prior challenges to the constitutionality of
section 814.6 or of any Iowa Supreme Court rulings on it.
Thus, we will not be contradicting any prior opinion by the
supreme court. The issue has been raised, and we are
obligated to consider it.
bases his argument on a comparison of Iowa Code section
814.5, which sets out the State's right to appeal, with
section 814.6, which sets out the defendant's right to
appeal. He argues that the State is given the right to appeal
from the court's granting of a defendant's motion for
new trial, while the defendant is only given the right to
appeal from "a final judgment of sentence." LePon
contends that he and the State must be treated equally in the
right to appeal, thereby requiring us to recognize his notice
of appeal and address the issues he raises on appeal. As we
have noted, this difference in ability to appeal only arises
when the criminal defendant has filed a motion for new trial
after the final judgment of sentence.
support of his argument, LePon cites to Shortridge v.
State, 478 N.W.2d 613 (Iowa 1991), superseded by
statute as stated in James v. State, 541 N.W.2d 864, 868
(Iowa 1995). There, the supreme court relied on earlier
precedent and stated:
It is true that the right of appeal is purely statutory, not
constitutional, and may be granted or denied by the
legislature as it determines. This court has held, however,
that once a right of appeal is provided "[i]t may not be
extended to some and denied to others." When procedures
enacted by the State serve to deny one person the right of
appeal granted to another, equal protection of the law is
Shortridge, 478 N.W.2d at 615 (alteration in
original) (citations omitted). However, in
Shortridge, the court did not undertake a rational
basis analysis where the defendant was obligated to show the
classification bore no rational relationship to a legitimate
the facts in this case, we find that LePon and the State are
not similarly situated. First, as noted, the two statutes
under comparison allow both the State and LePon to appeal
from an adverse judgment. The difference is when the
defendant in LePon's position files a post-sentencing
motion for new trial. If the motion is granted, a defendant
is entitled to a new trial. If the State did not have the
statutory authority to appeal the grant of the new trial, the
State would then be required to muster up the witnesses and
evidence and prepare and proceed to a retrial, and the trial
court required to expend precious judicial resources. If the
motion was erroneously granted, the only way to avoid the
retrial is for the State to obtain a review by the appellate
courts-by being allowed to appeal the post-sentencing motion
for new trial. If the post-sentencing motion for new trial is
denied, the defendant, who has already had a right to appeal,
remains in the same position-convicted and sentenced. Thus,
the State and a defendant in LePon's situation are not
similarly situated, and LePon fails to meet the threshold
question. See Nguyen, 878 N.W.2d at 758 ("This
requirement of equal protection-that the law must treat all
similarly situated people the same-has generated a narrow
threshold test. Under this threshold test, if [a party]
cannot show as a preliminary matter that he or she are
similarly situated, courts do not further consider whether
their different treatment under a statute is permitted under
the equal protection clause." (citation omitted)).
though Iowa Code section 814.6 does not provide LePon an
appeal as a matter of right from the adverse ruling on his
post-sentencing motion for new trial, this does not end our
inquiry. Iowa Code section 814.6(2)(e) provides that
"discretionary review may be available" in some
cases, including "[a]n order raising a question of law
important to the judiciary and the profession." Further,
under Iowa Rule of Appellate Procedure 6.108, we may treat
LePon's notice of appeal as an application for
discretionary review or a petition for writ of
certiorari. See State v.
Clausen-Klutse, No. 10-2128, 2011 WL 3196300, at *1
(Iowa Ct. App. July 27, 2011).
possible options have been discussed in two of our prior
cases. In State v. Perez-Castillo, No. 15-1400, 2017
WL 362596, at *2 (Iowa Ct. App. Jan. 25, 2017), a panel of
our court determined that a defendant who had filed a notice
of appeal from denial of a post-sentencing motion for new
trial where none was authorized was without jurisdiction and
dismissed the appeal. This was done after looking at whether
the notice of appeal should be treated as discretionary
review or as a petition for writ of certiorari under Iowa
Rule of Appellate Procedure 6.108. The court found that
discretionary review did not apply and certiorari was not
appropriate because "Perez-Castillo [did] not allege the
district court exceeded its jurisdiction or acted
illegally." Perez-Castillo, 2017 WL 362596, at
State v. Anderson, No. 14-1767, 2016 WL 3272143, at
*3 (Iowa Ct. App. June 15, 2016), like LePon, the defendant
filed a post-sentencing rule 2.24 motion for new trial based
on new evidence more than two years ...