from the Iowa District Court for Polk County, Sarah Crane,
Smith appeals the summary disposition of his application for
C. Abbott of Abbott Law Office, P.C., Waterloo, for
J. Miller, Attorney General, and Benjamin Parrott, Assistant
Attorney General, for appellee State.
Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.
1991, Larry Smith entered an Alford
to indecent contact with a child. He was sentenced to an
indeterminate term of imprisonment not to exceed two years.
He was given credit for time served, and the remainder of the
sentence was suspended.
2018, Smith filed an application for postconviction relief
forwarding generic claims for relief. He supplemented his
application with claims of ineffective assistance of counsel.
At the time, Smith was apparently under an involuntary
commitment in Missouri. Pursuant to Iowa Code section 822.6
(2018), the State moved for summary disposition of
Smith's application as being filed outside the statute of
limitations contained in section 822.3. The State also argued
the court had no jurisdiction to intervene in Smith's
involuntary commitment in a different state. Following the
filing of a plethora of pro se motions and a resistance to
summary disposition, the court entered an order granting the
State's motion. The court concluded Smith's
application was outside the three-year statute of limitations
and no exceptions to the time bar applied.
appeals. He argues "the district court failed to
consider equitable tolling as a factor in determining if his
claim was time barred." We agree with the State that the
equitable-tolling argument has not been preserved for our
review, as the argument was neither raised or-as conceded by
Smith in his argument- decided by the district court.
See, e.g., Meier v. Senecaut, 641 N.W.2d
532, 538 (Iowa 2002) ("It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised
and decided by the district court before we will decide them
on appeal."). In any event, this court has frequently
held that equitable tolling does not apply to section
822.3. And, Smith makes no argument our supreme
court's recent opinion in Allison v. State, 914
N.W.2d 866 (2018), adopted equitable tolling under chapter
822. Compare Polk v. State, No. 18-0309, 2019 WL
3945964, at *2 & n.3 (Iowa Ct. App. Aug. 21, 2019)
(noting Allison may have adopted a
"variant" of the equitable-tolling doctrine),
with Kelly v. State, No. 17-0382, 2018 WL 3650287,
at *4 n.1 (Iowa Ct. App. Aug. 1, 2018) (noting
Allison did not adopt a variant of equitable
tolling). In any event, as noted, the arguments were not
preserved for our review.
therefore affirm the summary disposition of Smith's
application for postconviction relief.
See North Carolina v. Alford,
400 U.S. 25, 37 (1970) ("An individual accused of [a]
crime may voluntarily, knowingly, and understandingly consent
to the imposition of a prison sentence even if he is
unwilling or unable to admit his participation ...