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State v. Lepon

Court of Appeals of Iowa

June 5, 2019

STATE OF IOWA, Plaintiff-Appellee,
LEIGH LAZ LEPON, Defendant-Appellant.

          Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.

         The defendant appeals the dismissal of his untimely third motion for new trial; we treat it as a petition for writ of certiorari.

          Leigh 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. [*]

          Blane, Senior Judge.

         Leigh 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.

         I. Factual and procedural background.

         The 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On January 26, a three-justice panel confirmed the denial of LePon's certiorari petition as to his second motion for new trial.

         On 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.

         During 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.

         On 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 to recuse.

         On 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.

         On May 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.

         II. Discussion.

         LePon 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.").

         III. Appellate jurisdiction.

         The 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.").

         In a 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 sentence."

         The 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 virtually identical.[1]

         LePon anticipates this appellate jurisdiction issue.[2] 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, [3]while a defendant is denied the right to appeal a denial of such a motion violates equal protection.[4] 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).

         The 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. (citation omitted).

         The "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.").

         If the 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.

         We note 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.

         LePon 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.

         In 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 denied.

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 governmental interest.

         Under 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)).

         Even 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.[5] See State v. Clausen-Klutse, No. 10-2128, 2011 WL 3196300, at *1 (Iowa Ct. App. July 27, 2011).

         These 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 *2.

         In 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 ...

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