Roger Joseph Hoffert, Jr. v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 19-1755
Filed July 21, 2021

ROGER JOSEPH HOFFERT, JR.,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Joel A.

Dalrymple, Judge.

Roger Hoffert appeals an order granting his application for postconviction

relief. AFFIRMED.

Pamela Wingert of Wingert Law Office, Spirit Lake, for appellant.

Thomas J. Miller, Attorney General, and Israel Kodiaga, Assistant Attorney

General, for appellee State.

Considered by May, P.J., and Greer and Schumacher, JJ.
2

MAY, Presiding Judge.

Roger Hoffert appeals an order granting his application for postconviction

relief (PCR). He contends the PCR court should have granted additional relief,

namely, declarations that he was actually innocent and counsel was ineffective.

We affirm.

I. Factual Background

The State charged Hoffert with introducing a controlled substance into a

detention facility, a class “D” felony under Iowa Code section 719.7 (2017). The

trial information alleged that Hoffert did “knowingly introduce a controlled

substance, to-wit: Seroquel, a Schedule IV controlled substance, into, or onto the

grounds of a detention facility or jail, to-wit: the Black Hawk County Jail; contrary

to and in violation of [section] 719.7.” Hoffert pled guilty. The court ordered a

suspended sentence and probation. Later, Hoffert’s probation was revoked, and

he was sent to prison.

Hoffert commenced this PCR action by filing a pro se petition. It alleged

Seroquel is “not a controlled substance” and, therefore, his lawyer should not have

allowed him to plead guilty. In a later amendment, Hoffert claimed actual

innocence.

Following a bench trial, the PCR court entered an order dated September

19, 2019. The court concluded that because “Seroquel (quetiapine) is not a

controlled substance, the basis upon which [Hoffert] entered this plea is flawed,

and the [Hoffert]’s motion for post-conviction relief should be granted.” The court

directed the matter returned to the criminal docket for further proceedings.
3

Neither Hoffert nor the State filed timely post-trial motions. On October 19,

2019, Hoffert filed his notice of appeal. This ended the district court’s jurisdiction

over the PCR case before us now.1

Through the appendix, however, the parties have informed us of

subsequent developments in the original criminal case. Specifically, on December

13, 2019, the State filed a motion to dismiss the case “[i]n the furtherance of

justice.” That same day, the court entered an order dismissing the case without

prejudice.

II. Standard of Review

PCR actions are normally reviewed for errors at law. Castro v. State, 795

N.W.2d 789, 792 (Iowa 2011). But our review of constitutional issues, including

the right to effective assistance of counsel, is de novo. Id.

III. Analysis

On appeal, Hoffert claims the district court should have declared he is

actually innocent and that his trial counsel was ineffective. The State asks us to

dismiss the case on two grounds: (1) the issues presented are moot and (2) Hoffert

failed to preserve error.

We first address Hoffert’s claim that “[w]hile [he] was granted relief, the trial

court erred in failing to declare that he was actually innocent of the offense.” Our

analysis begins and ends with error preservation.

1 The pleadings show that, in May 2020, Hoffert submitted a number of pro se
filings before the PCR court. The district court properly declined to consider them
because the court is “without jurisdiction due to [Hoffert’s] pending appeal.”
4

“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.” Bank of Am., N.A. v. Schulte, 843 N.W.2d 876, 883 (Iowa 2014) (citation

omitted). Here the district court’s order stated that “[a]ctual innocence (raised for

the first time on the record at trial)” was among Hoffert’s “grounds for post-

conviction relief.” So it appears Hoffert adequately raised the issue. But he still

must show the court “decided” the issue. Id. And the court’s order included no

express decision—no findings or conclusions—concerning Hoffert’s claim of

“actual innocence.” Moreover, because the court granted full relief to Hoffert on

other grounds, namely, his flawed guilty plea, we cannot conclude the court silently

but “necessarily” decided the actual-innocence issue. Cf. Lamasters v. State, 821

N.W.2d 856, 864 (Iowa 2012) (“Where the trial court’s ruling, as here, expressly

acknowledges that an issue is before the court and then the ruling necessarily

decides that issue, that is sufficient to preserve error.” (emphasis added)). Indeed,

because the court had already granted relief on other grounds, the district court

may well have seen no reason to decide whether the “actual innocence” doctrine

might also provide grounds for relief. And Hoffert did not press the issue by filing

a motion under Iowa Rule of Civil Procedure 1.904(2) or otherwise. Cf. 33

Carpenters Constr., Inc. v. State Farm Life & Cas. Co., 939 N.W.2d 69, 75 (Iowa

2020) (“We routinely hold that when an issue is raised in a motion but not decided

in the district court ruling, the issue is not preserved for review.”). So we conclude

Hoffert failed to preserve error on his actual innocence claim.

Next, we address Hoffert’s claim that the “court erred in failing to declare

[he] received ineffective assistance of counsel.” The State claims this issue is
5

moot because the district court granted Hoffert’s PCR application and dismissed

the criminal case against him. We agree.

“One familiar principle of judicial restraint is that courts do not decide cases

when the underlying controversy is moot.” Rhiner v. State, 703 N.W.2d 174, 176

(Iowa 2005). “If an appeal no longer presents a justiciable controversy because

the disputed issue has become academic or nonexistent, the appeal is ordinarily

deemed moot.” Crowell v. State Pub. Def., 845 N.W.2d 676, 681 (Iowa 2014).

“The key in assessing whether an appeal is moot is determining whether the

opinion would be of force or effect in the underlying controversy.” State v. Avalos

Valdez, 934 N.W.2d 585, 589 (Iowa 2019) (citation omitted).

Our supreme court has held that, “[u]nder some circumstances, an appeal

in a postconviction relief action becomes moot when the defendant has been

released from imprisonment by the time the appeal reaches appellate review.”

Rhiner, 703 N.W.2d at 177; see State v. Donelson, 302 N.W.2d 125, 136 (Iowa

1981) (“Since the case must be tried again, this issue is moot.”); see also State v.

O’Shea, Nos. 1999-476, 9-733, 98-2170, 2000 WL 63189, at *3 (Iowa Ct. App.

Jan. 26, 2000) (“[W]e decline to decide [appellant’s] claims of ineffective

assistance of counsel which would be moot if a new trial is granted.”). That is

effectively what happened here. The relief requested in Hoffert’s PCR application

was “a new trial” and his “plea be thrown out” or, better yet, the criminal “case

dismissed, if possible.” The district court “granted” Hoffert’s “application for

postconviction relief.” And the criminal case against Hoffert was dismissed. So

Hoffert received the full remedy available to him in this PCR case. See Iowa Code

§ 822.8 (“All grounds for relief available to an applicant under this chapter must be
6

raised in the applicant’s original, supplemental or amended application.”). And so

we believe his appeal is moot.2

Notwithstanding his clear victory before the PCR court, however, Hoffert

maintains he still needs a declaration that trial counsel was ineffective so he can

meet the requirements of section 815.10(6)3 and ultimately bring suit against trial

counsel. See In re B.B., 826 N.W.2d 425, 429 (Iowa 2013) (stating “an appeal is

not moot if a judgment left standing will cause the appellant to suffer continuing

adverse collateral consequences”). But Hoffert has not pointed out—and we have

not found—any place in the record where Hoffert asked the district court for this

declaration. Although Hoffert alleged his counsel was ineffective, he did not ask

the district court for a declaration to that effect. Instead, like most PCR applicants,

Hoffert asked for substantive relief—“a new trial” and his “plea be thrown out” or

the “case dismissed, if possible”—not a declaratory judgment. But our law is clear

that parties “cannot sing a song to us that was not first sung in trial court.” State

v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999). So because Hoffert did not request

declaratory relief before the district court, we decline to consider his request now.

2 Hoffert briefly argues we should apply the public-importance exception to the
mootness doctrine. See Avalos Valdez, 934 N.W.2d at 589 (discussing the public-
importance exception). We conclude his arguments are not sufficiently developed
for our review. See State v. Gibbs, 941 N.W.2d 888, 902 (Iowa 2020) (McDonald,
J., concurring specially) (“The failure to make more than a perfunctory argument
constitutes waiver.”).
3 Section 815.10(6) provides, in part:

An attorney appointed under this section is not liable to a
person represented by the attorney for damages as a result of a
conviction in a criminal case unless the court determines in a
postconviction proceeding or on direct appeal that the person’s
conviction resulted from ineffective assistance of counsel, and the
ineffective assistance of counsel is the proximate cause of the
damage.
7

See id. at 326 (explaining that “simple justice demands rigid adherence” to the

preservation-of-error requirement).

IV. Conclusion

Hoffert failed to preserve his claim of actual innocence. And his ineffective-

assistance-of-counsel claim is moot.

AFFIRMED.