Charles Hasselmann v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 21-0483
Filed March 30, 2022

CHARLES HASSELMANN,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

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

The applicant appeals summary dismissal of his application for

postconviction relief. REVERSED AND REMANDED.

Christine E. Branstad of Branstad & Olson Law Office, Des Moines, for

appellant.

Thomas J. Miller, Attorney General, and Zachary Miller, Assistant Attorney

General, for appellee State.

Considered by Tabor, P.J., and Greer and Ahlers, JJ.
2

TABOR, Presiding Judge.

The district court dismissed Charles Hasselmann’s second postconviction-

relief (PCR) application, which challenged several theft and forgery offenses. The

court decided Hasselmann did not have a “sufficient reason” under Iowa Code

section 822.8 (2020) for failing to pursue the grounds for relief alleged in his first

PCR application. Hasslemann dismissed that first action before the court decided

his claims. He now attributes that dismissal to bad advice from his first PCR

attorney. Assuming, as we must at this stage, that Hasselmann did receive faulty

guidance in deciding to dismiss his first PCR action, we conclude he should have

a chance to develop a record on that claim of ineffective assistance. Because

dismissal of his second PCR application was premature, we reverse and remand

for a full hearing.

I. Facts and Prior Proceedings

In September 2017, Hasselmann waived his right to a jury and stipulated to

the minutes of testimony. The court found him guilty of three counts of first-degree

theft and four counts of forgery. He received an indeterminate sentence of fifteen

years in prison. Hasselmann filed a direct appeal but dismissed it before it was

decided.

In October 2018, he first applied for PCR, alleging defense attorney Thomas

Crabb provided ineffective assistance of counsel.1 A month later, the court

1Hasselmann’s complaints about Crabb’s performance were imprecise in his pro
se application for PCR. As the State notes, he seemed “to claim his counsel
misadvised him that a trial on the minutes was similar to an Alford plea, he possibly
wanted to take a plea deal he ultimately did not take, and counsel failed to
challenge adequately pre-trial bond.” (Footnote omitted.)
3

appointed attorney Nicholas Einwalter to represent Hasselmann. The PCR trial

was set for July 2019. A month before trial, Einwalter moved to continue asserting,

“[S]ince the filing of this petition, [Hasselmann] has been released on parole and

has not been in communication with this attorney.” Einwalter asked for more time

to discuss the matter with his client and prepare for trial. The court continued the

case until November 2019.

One week before the new trial date, Einwalter again moved to continue.

Counsel reported making “several attempts to locate [Hasselmann] during this

matter by calling the probation office and calling a number provided by

[Hasselmann’s] other PCR counsel.” But Hasselmann “didn’t contact this attorney

at any point in this case. . . . It was only recently that counsel learned that

[Hasselmann] was no longer in the community, having been accused of violating

his parole.” Einwalter had not had contact with Hasselmann in a year and was “not

prepared to prosecute this matter zealously.”

The court denied the continuance, noting the matter was delayed before for

the same reasons urged in the current motion. The court decided Hasselmann’s

failure to remain in contact with his counsel did not constitute good cause. The

same day, the court cancelled the November trial after being advised that

Hasselmann wished to dismiss his application. The court gave Hasselmann one

month to file the dismissal. In December 2019, Hasselmann moved to dismiss the

matter “without prejudice.” The court granted the dismissal.
4

In September 2020, Hasselmann filed his second PCR application, raising

the same allegations of ineffective assistance against attorney Crabb.2 The court

appointed attorney John Audlehelm to represent Hasselmann in the second PCR.

The State moved for summary dismissal contending Iowa Code section 822.8

barred Hasselmann from litigating the identical claims dismissed in his first PCR

action. Through counsel Audlehelm, Hasselman resisted, attributing his dismissal

of the first PCR action to Einwalter’s “incorrect legal advice” that he could refile the

same claims in a second PCR action. The district court granted the State’s motion

to dismiss.

Hasselmann now appeals.

II. Scope and Standards of Review

We review the summary disposition of Hasselmann’s second PCR action

for errors at law. See Schmidt v. State, 909 N.W.2d 778, 784 (Iowa 2018). To

prevail, the State must meet the standards for summary judgment in a civil

proceeding. Id. “A motion to dismiss should only be granted if the allegations in

the petition, taken as true, could not entitle the plaintiff to any relief.” Sanchez v.

State, 692 N.W.2d 812, 816 (Iowa 2005).

We review ineffective-assistance-of-counsel claims de novo. Sothman v.

State, 967 N.W.2d 512, 522 (Iowa 2021). To prevail on his ineffective-assistance

claim, Hasselmann must prove that counsel failed in an essential duty and that

prejudice resulted. Id. On the prejudice prong, Hasselman must show “a

reasonable probability that, but for counsel’s unprofessional errors, the result of

2 Hasselmann’s second PCR application was filed within the three-year statute of
limitations under Iowa Code section 822.3.
5

the proceeding would have been different.” See Strickland v. Washington, 466

U.S. 668, 694 (1984).

III. Analysis

“Grounds must be all-inclusive.” That is the title of Iowa Code section 822.8.

The statute describes that inclusivity as follows:

All grounds for relief available to an applicant under this
chapter must be raised in the applicant’s original, supplemental or
amended application. Any ground finally adjudicated or not raised,
or knowingly, voluntarily, and intelligently waived in the proceeding
that resulted in the conviction or sentence, or in any other proceeding
the applicant has taken to secure relief, may not be the basis for a
subsequent application, unless the court finds a ground for relief
asserted which for sufficient reason was not asserted or was
inadequately raised in the original, supplemental, or amended
application.

Iowa Code § 822.8.

In moving to dismiss based on section 822.8, the State pointed to the district

court’s refusal to continue the first PCR trial. There the court reasoned that

Hasselmann’s failure to contact his attorney to help him prepare was not good

cause for a second continuance. Rather than go forward with the scheduled trial,

Hasselmann opted to dismiss his application. In the second PCR, the State

argued: “The applicant cannot override the prior court’s ruling by dismissing his

application and refiling one with identical claims.”

Resisting the motion to dismiss, second PCR counsel Audlehelm alleged

that first PCR counsel Einwalter mistakenly advised Hasselmann that he could

dismiss the first PCR action and refile a second PCR application raising the same

claims. Audlehelm asserted that he anticipated “ultimately alleging ineffective

assistance of counsel by Einwalter for misstating the law to Hasselmann.” In
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support of the resistance, Hasslemann filed an affidavit recounting Einwalter’s

faulty advice. Hasselman also noted that his motion to dismiss the first PCR

professed to be “without prejudice.”

At a hearing on its motion to dismiss, the State added:

the applicant cannot establish, even under these facts, that there’s a
sufficient reason that he did not pursue these claims in his original
PCR action. He can’t establish ineffective assistance of counsel,
even if we accept his facts as true, because there is no evidence of
any sort of prejudice that resulted from Mr. Einwalter’s advice to him.

In the State’s view, Hasselmann “waived” the claims in the dismissed application.3

Attorney Audlehelm countered that Iowa law contemplated that a second

PCR case may be based on the ineffective assistance of counsel of the first PCR

attorney. He cited Allison v. State, which noted that section 822.8’s requirement

that grounds be all-inclusive “may be avoided if counsel ineffectively fails to

comply.” 914 N.W.2d 866, 888 (Iowa 2018). And he urged that further record

needed to be developed to determine whether attorney Einwalter provided

ineffective assistance of counsel.

The district court adopted the State’s argument on prejudice. The court

decided that the “uncontested evidence” did not show “a reasonable probability

that Mr. Hasselmann would have proceeded to hearing in the first PCR action and

obtained a more favorable result had his PCR counsel not misadvised him.”

3 The State presented no authority here or before the PCR court that voluntarily
dismissing claims in a PCR application constitutes a “waiver” under section 822.8.
All parties have proceeded as though the voluntary dismissal had that preclusive
effect, and so do we, but only because Hasselmann has not challenged that
interpretation at any point.
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On appeal, Hasselmann challenges that decision from two angles. First, he

argues Einwalter’s advice about his ability to refile his PCR action fell below

professional norms and led to the dismissal of his application without an

adjudication on the merits. Second, Hasselmann argues that he did not

“knowingly, voluntarily, and intelligently waive” the issues raised in the first PCR

because he was not aware the “voluntary dismissal” would be “tantamount to

abandoning his claims.”

In response to the first argument, the State contends that it was not enough

for attorney Audlehelm to allege attorney Einwalter’s ineffectiveness in resisting

the State’s motion to dismiss. According to the State, Audlehelm needed to amend

the PCR application to add that allegation. Yet the State then defends the district

court’s decision finding that Hasselmann’s claim that Einwalter was ineffective fails

for lack of Strickland prejudice. In that defense, the State asserts Hasselmann

“failed to allege or show what he would have proven at a trial on his first PCR

application—especially given counsel’s unpreparedness—and how that would

have yielded a different, more favorable result.” As for Hasselmann’s second

argument, the State contends he failed to preserve error because he did not raise

the knowing and voluntary nature of his waiver in the district court.

In reply, Hasselmann disputes the State’s articulation of the prejudice

standard. He argues he did not need to prove he would have prevailed at the PCR

trial. In his view, it is enough to show he would have “received a hearing on his

claims had he received proper legal advice.” At that hearing, according to

appellate counsel, Hasselmann “could have testified” and produced evidence to

support his claims that defense counsel Crabb was ineffective in the criminal case.
8

To address the State’s error preservation challenge, Hasselmann alleges for the

first time in his reply brief that attorney Audlehelm was ineffective in his

representation during the second PCR action.

After wading through these multi-layered arguments, we find it best to revisit

the language of the relevant statute. Here’s how the State describes the inclusivity

provision: “Iowa Code section 822.8 prevents PCR applicants from raising issues

in a second PCR application that they could have raised in their first application

absent ‘sufficient reason.’” But that description oversimplifies the structure of the

statute. Section 822.8 starts by cautioning against piecemeal applications: “All

grounds for relief available to an applicant under this chapter must be raised in the

applicant’s original, supplemental or amended application.” In its second

sentence, the statute sets out three categories that may not be the basis of a

subsequent application: (1) grounds finally adjudicated, (2) ground not raised, or

(3) grounds knowingly, voluntarily, and intelligently waived (as applicable here) in

another proceeding that applicant has taken to secure relief. Iowa Code § 822.8.

The first category is not in play because Hasselmann’s claims were never

adjudicated. The second category is also aimed at a different situation—where a

subsequent application urges grounds that could have been raised in the original

application. The State is not moving to dismiss based on grounds not raised in his

original application. Indeed, in moving to dismiss the second PCR application, the

State emphasized the issues were “already raised in the first PCR case.”

So only the third category could prevent Hasselmann from refiling his

application. Indeed, the county attorney invoked the “waiver” terminology at the

hearing on the State’s motion to dismiss. Attorney Audlehelm responded that
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Hasselmann would meet that “waiver” accusation by “making an ineffective-

assistance-of-counsel claim.” Processing those arguments, the district court

agreed with the State’s analysis that section 822.8 procedurally barred

Hasselmann’s second PCR application because he “waived” those claims by

voluntarily dismissing his first PCR action. See Lamasters v. State, 821 N.W.2d

856, 864 (Iowa 2012) (“If the court’s ruling indicates that the court considered the

issue and necessarily ruled on it, even if the court’s reasoning is ‘incomplete or

sparse,’ the issue has been preserved.” (citation omitted)). Waiver was the fighting

ground. So we can reject the State’s error preservation claim without reaching the

effectiveness of Audlehelm’s representation.

Returning to the statute, the last clause provides an exception to the

procedural bar if the court finds “a ground for relief asserted which for sufficient

reason was not asserted or was inadequately raised in the original, supplemental,

or amended application.” Iowa Code § 822.8. The parties and the district court

assume that this “sufficient reason” exception applies to when an applicant

adequately raised the grounds for relief in the original application but “waived”

those grounds by voluntarily dismissing the application. We disagree. The last

clause does not mention grounds that are knowingly, voluntarily, and intelligently

waived. See Bugley v. State, 596 N.W.2d 893, 897 (Iowa 1999) (holding that

“sufficient reason” exception applies only to the second situation involving grounds

“not raised”), superseded by statute on other grounds as stated in Moon v. State,

911 N.W.2d 137, 142 (Iowa 2018). But even if the “sufficient ground” exception

does not apply here, ineffective assistance of first PCR counsel could prevent

Hasselmann’s waiver of his claims from being knowing, voluntary, and intelligent.
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Which brings us to the prejudice standard. Hasselmann’s claim of

ineffective assistance against attorney Einwalter is “not the basis for relief from

conviction” but a “proffered excuse” for not having pursued his first PCR

application. See Arnold v. State, 540 N.W.2d 243, 246 (Iowa 1995). In that

context, he must show that Einwalter acted “below the range of normal

competency” and that those actions closed the door on an avenue of relief. See

id.; see also Ledezma v. State, 626 N.W.2d 134, 152 (Iowa 2001) (finding appellate

counsel prejudiced client by not bringing claim on direct appeal). Only if

Hasselman can get his foot in that door, can he show he was prejudiced by Crabb’s

performance in the criminal case. As Audlehelm argued,

[I]f it’s a case based on the State being entitled to a dismissal based
on Hasselmann’s waiver of these claims because of his dismissal of
the previous case, then essentially I’d ultimately be making an
ineffective assistance of counsel claim and essentially bootstrapping
all the old claims back into existence, which also is a separate point.

But Audlehelm did not have a chance to litigate that separate point. Without

an evidentiary hearing, the district court decided Hasselmann could not show that

but for Einwalter’s advice on the voluntary dismissal, he would have gone forward

with the scheduled PCR trial and obtained a favorable result. But the record is

inadequate to support that decision. Hasselmann’s affidavit raised an issue of

material fact about Einwalter’s performance. So summary disposition of

Hasselman’s second PCR application was not appropriate. “[W]e conclude the

most prudent thing to do is to send this case back for a hearing.” See Stigler v.

State, No. 05-0998, 2006 WL 1278754, at *4 (Iowa Ct App. May 10, 2006). We

reverse the district court and remand for a full PCR hearing.

REVERSED AND REMANDED.