Tony Sihavong v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-1628
Filed April 14, 2021

TONY SIHAVONG,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Jeanie Vaudt, Judge.

Tony Sihavong appeals the summary disposition of his application for

postconviction relief. AFFIRMED.

Christopher Kragnes Sr., Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.

Considered by Bower, C.J., and Doyle and Mullins, JJ.
2

MULLINS, Judge.

Tony Sihavong was convicted of first-degree murder in 2002. He was

sentenced to serve life in prison without the possibility of parole. On direct appeal,

we rejected his claim of ineffective assistance of trial counsel and affirmed his

conviction. See generally Sihavong v. State, No. 02-1447, 2003 WL 22697627

(Iowa Ct. App. Nov. 17, 2003). Procedendo issued in February 2004. Sihavong

filed his first application for postconviction relief (PCR) later that year. That

application was dismissed in March 2007 as frivolous. He filed second, third, and

fourth applications in April 2007, November 2010, and February 2013, all of which

were dismissed. Notably, in his second application, Sihavong only claimed our

supreme court’s decision in State v. Heemstra, 721 N.W.2d 549 (Iowa 2006),

should be applied retroactively. See Sihavong v. State, No. 14-0440, 2016 WL

351286, at *1 (Iowa Ct. App. Jan. 27, 2016).

Sihavong filed the application precipitating this appeal in August 2018. In

his application, he alleged PCR counsel in a prior proceeding was ineffective in

failing to include arguments he made in his pro se application in an amended

application, none of which challenged PCR counsel’s effectiveness in presenting

a claim of ineffective assistance of criminal counsel. He also asserted the

application was not time-barred, citing our supreme court’s decision in Allison v.

State,1 which was filed in late June 2018. The State moved for summary

1 See 914 N.W.2d 866, 891 (Iowa 2018) (holding that where a timely application is
filed within the statute of limitations alleging ineffective assistance of trial counsel,
the filing of a successive application that alleges ineffective assistance of PCR
counsel in presenting the ineffective-assistance-of-trial-counsel claim, the filing of
the second application relates back to the time of the filing of the original
application so long as the successive application is filed promptly after the
3

disposition on statute-of-limitations grounds. The court granted the State’s motion

in September 2019. Sihavong appeals.

On appeal, Sihavong argues Allison amounts to a new ground of law that

excepts him from the three-year statute of limitations. See Iowa Code § 822.3

(noting the statute of limitations “does not apply to a ground of . . . law that could

not have been raised within the applicable time period”). While the State does not

stress the point, we question whether error was preserved on this argument, as

the court did not specifically rule upon the question of whether Allison amounts to

a new ground of law sufficient to toll the statute of limitations, it only addressed

whether Sihavong’s situation falls within the parameters of Allison. See Lamasters

v. State, 821 N.W.2d 856, 862 (Iowa 2012) (“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. When a district court fails to

rule on an issue properly raised by a party, the party who raised the issue must file

a motion requesting a ruling in order to preserve error for appeal.” (quoting Meier

v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002))). We nevertheless proceed to the

merits. See State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999). We ordinarily review

summary disposition rulings in PCR proceedings for legal error, but our review is

de novo when claims of ineffective assistance of counsel come into play. Linn v.

State, 929 N.W.2d 717, 729 (Iowa 2019).

conclusion of the original action); see also Iowa Code § 822.3 (2018) (noting
“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”).
4

We begin with the issue the district court did address. Under former law,

ineffective assistance of PCR counsel could not “serve as an exception to the

three-year statute of limitations” and allow for the filing of a successive application

outside of the limitations period. Dible v. State, 557 N.W.2d 881, 886 (Iowa 1996),

abrogated on other grounds by Harrington v. State, 659 N.W.2d 509, 520 (Iowa

2003). Shortly before Sihavong filed the application precipitating this appeal, the

Allison court ruled successive applications are timely if filed “promptly” after the

conclusion of the original PCR action. 914 N.W.2d at 891. Allison only applies

when a PCR application alleging ineffective assistance of trial counsel is timely

filed and a successive application alleging ineffective assistance of first PCR

counsel is promptly filed after the original action. Id. The application before us

was not filed promptly after the conclusion of the original proceeding, so the time

of filing of the application before us does not relate back. See, e.g., Polk v. State,

No. 18-0309, 2019 WL 3945964, at *2 (Iowa Ct. App. Aug. 21, 2019) (noting a gap

in the neighborhood of six months does not meet the definition of prompt); see also

Johnson v. State, No. 19-1949, 2021 WL 210700, at *2 (Iowa Ct. App. Jan. 21,

2021) (collecting cases on the meaning of “filed promptly”).

Assuming without deciding Allison amounts to a new ground of law sufficient

to toll the statute of limitations, Sihavong’s situation still does not fall within its

parameters. As noted, Allison only applies when a PCR application alleging

ineffective assistance of trial counsel is timely filed and a successive application

alleging ineffective assistance of first PCR counsel in presenting the claim is

promptly filed after the original action. It is unclear whether Sihavong, in his initial

timely application in 2004, raised a claim of ineffective assistance of trial counsel.
5

While he did file a successive application about a month after the issuance of

procedendo following the original proceeding, which could be considered prompt,

he did not raise a claim in his successive application his PCR counsel was

ineffective in presenting a claim trial counsel was ineffective. See Sihavong, 2016

WL 351286, at *1. He also did not forward any such allegation in the application

now before us. So the narrow Allison exception does not apply, even if it amounts

to a new ground of law.2

We affirm the dismissal of Sihavong’s PCR application.

AFFIRMED.

2 We note section 822.3 was amended, effective July 1, 2019, before judgment on
Sihavong’s application was entered, to arguably overrule Allison outright, to
provide: “An allegation of ineffective assistance of counsel in a prior case under
this chapter shall not toll or extend the limitation periods in this section nor shall
such claim relate back to a prior filing to avoid the application of the limitation
periods.” 2019 Iowa Acts ch. 140, § 34. The supreme court has ruled “statutes
controlling appeals are those that were in effect at the time the judgment or order
appealed from was rendered.” State v. Macke, 933 N.W.2d 226, 228 (Iowa 2019)
(citation omitted). The State notes the amendment but does not address its
applicability, taking the position that the issue was not addressed below and is not
preserved. Because we agree Sihavong’s situation does not fall within the
confines of Allison, we need not address the amendment’s applicability. See
Palmer v. State, No. 19-1487, 2021 WL 811161, at *1 n.1 (Iowa Ct. App. Mar. 3,
2021) (noting ruling was filed after effective date of amendment but not addressing
it based on agreement with district court that Allison did not save the application);
Moon v. State, No. 19-2037, 2021 WL 610195, at *4 n.6 (Iowa Ct. App. Feb. 17,
2021) (“This amendment appears to abrogate Allison, although it is not yet clear
what PCR applications the amended legislation applies to.”); Johnson v. State, No.
19-1949, 2021 WL 210700, at *3 (Iowa Ct. App. Jan. 21, 2021) (finding it
unnecessary to address the amendment’s applicability because application was
time-barred under either the prior or new version of the statute).