Joe Tony Vrban v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-0433
Filed November 3, 2021

JOE TONY VRBAN,
Petitioner-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Marion County, Terry Rickers,

Judge.

Joe Vrban appeals the summary disposition of his application for

postconviction relief. AFFIRMED.

Richard Hollis, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.

Considered by Mullins, P.J., and Schumacher and Ahlers, JJ.
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MULLINS, Presiding Judge.

Joe Vrban appeals the summary disposition of his application for

postconviction relief on statute-of-limitations grounds. He argues the district court

should have applied equitable tolling to except him from the statute of limitations

and not adopting said doctrine violates his constitutional rights to due process and

equal protection.

While the State does not contest error preservation, we do. See, e.g., State

v. Bergmann, 633 N.W.2d 328, 332 (Iowa 2001) (“Although the State concedes

that error has been preserved . . . , we disagree.”); Top of Iowa Co-op v. Sime

Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (“In view of the range of interests

protected by our error preservation rules, this court will consider on appeal whether

error was preserved despite the opposing party’s omission in not raising the issue

at trial or on appeal.”). Vrban states he preserved this issue by arguing it at the

hearing on the State’s motion for summary disposition. The portion of the

transcript he cites only discloses a request for the untimely filing to be considered

timely based on “good cause.” No argument for equitable tolling or the

unconstitutionality of its inapplicability under Iowa law was made, nor did the

court’s ruling address the issues. See Meier v. Senecaut, 641 N.W.2d 532, 537

(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.”); see also Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d

393, 413 (noting appellate courts are courts of review, not first view).

In any event, equitable tolling does not apply to the statute of limitations

contained in Iowa Code section 822.3 (2020). Stockdall v. State, No. 20-1339,
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2021 WL 3662314, at *1 (Iowa Ct. App. Aug. 18, 2021) (collecting cases), further

review denied (Oct. 12, 2021). To the extent Vrban argues for a new “good cause”

standard to except him from the statute of limitations based on his status as an

unrepresented applicant, the statute contains no such exception, and the only Iowa

case he cites, which allowed the late filing of a motion to suppress in a criminal

case, was due to a rule that allowed for untimely filings of such motions based on

good cause. See State v. Eldridge, 590 N.W.2d 734, 736–37 (Iowa Ct. App. 1999).

Because section 822.3 does not provide for such an exception, Eldridge is

inapposite. In any event, “the law does not judge by two standards, one for lawyers

and another for lay persons.” Kubik v. Burk, 540 N.W.2d 60, 63 (Iowa Ct. App.

1995).

We affirm the summary disposition of Vrban’s application for postconviction

relief.

AFFIRMED.