Eric Bonita Peppers v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 20-0966
Filed July 21, 2021

ERIC BONITA PEPPERS,
Plaintiff-Appellant,

vs.

STATE OF IOWA,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Chad Kepros,

Judge.

Eric Peppers appeals the dismissal of his application for postconviction

relief on statute-of-limitations grounds. AFFIRMED.

Webb L. Wassmer of Wassmer Law Office, PLC, Marion, for appellant.

Thomas J. Miller, Attorney General, and Sheryl Soich, Assistant Attorney

General, for appellee.

Considered by Doyle, P.J., and Mullins and May, JJ.
2

MULLINS, Judge.

In June 2000, sentence was imposed upon Eric Peppers’s convictions of

second-degree sexual abuse, domestic abuse assault while displaying a weapon,

and false imprisonment. On direct appeal, Peppers argued, among other things,

his trial counsel was ineffective in failing to file a motion to dismiss for violation of

his speedy-trial rights; we affirmed but preserved the speedy-trial claim for

postconviction relief (PCR). See generally State v. Peppers, No. 00-283, 2001 WL

810740 (Iowa Ct. App. July 18, 2001). Procedendo issued in November 2001.

In April 2002, Peppers filed his first PCR application, repeating his speedy-

trial claim. The claim was not developed, the court found it waived, and Peppers’s

application was dismissed. The issue was also not raised on appeal, and we

affirmed. See generally Peppers v. State, No. 07-0865, 2008 WL 2042504 (Iowa

Ct. App. May 14, 2008). Procedendo issued in July 2008.

Peppers filed his second PCR application in January 2012, in which he

reprised his speedy-trial claim and alleged first PCR counsel was ineffective in

handling the issue. The State moved for dismissal on statute-of-limitations

grounds. The court found the argument was available to each of Peppers’s prior

attorneys within the limitations period and did not amount to a new ground of fact

or law sufficient to toll the statute of limitations. The court dismissed the

application. On appeal, we considered Peppers’s contentions that his “speedy trial

rights were violated and his first [PCR] attorney was ineffective in failing to raise

the claim.” Peppers v. State, No. 12-1197, 2013 WL 6116815, at *1 (Iowa Ct. App.

Nov. 13, 2013). We affirmed, concluding “[t]he fact that Perppers[’s] [PCR] counsel
3

did not pursue the issue was a matter Peppers could have taken up with him at the

time,” “[h]e elected not to do so,” so he could not “revive the speedy trial issue by

belatedly repackaging it as an ineffective-assistance-of-counsel claim.” Id. at *2.

Peppers filed his third application in November 2014, again raising the

speedy-trial argument. The State moved for summary disposition. The court

dismissed the application, concluding Peppers failed to present a ground of fact or

law that would except him from the statute of limitations. We affirmed the dismissal

of his application as untimely. See generally Peppers v. State, No. 16-0715, 2017

WL 1400877 (Iowa Ct. App. Apr. 19, 2017).

Peppers filed the application precipitating this appeal, his fourth, in June

2019, alleging: (1) ineffective assistance of PCR counsel under Allison v. State1

and (2) newly discovered evidence based on victim recantation. As to the former

claim, he argued his first PCR attorney was ineffective in “dropping the ball” on his

speedy-trial claim. In his amended application, he asserted Allison amounts to a

change in the law excepting him from the statute of limitations. In its answer, the

State argued the speedy-trial claim was already subject to final adjudication and

the claim was time-barred. In his resistance to the State’s motion 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
postconviction-relief 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 conclusion of the original action); see also Iowa Code § 822.3
(2019) (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

disposition, Peppers argued Allison’s purported status as a change in the law

entitled him to three years after that decision to raise his claim. The court

dismissed the application, concluding Peppers’s application was not “promptly”

filed within the meaning of Allison and was therefore time-barred.

Peppers appeals.

Appellate review of PCR proceedings is typically for correction of errors at

law, but where claims of ineffective assistance of counsel are forwarded, our

review is de novo. See Diaz v. State, 896 N.W.2d 723, 727 (Iowa 2017).

On appeal, Peppers argues “Allison constituted a change in the law which

restarted [his] three-year statute of limitations.” While the State does not stress

the point, we do not believe error was preserved on this specific argument, as the

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

new ground of law sufficient to restart the statute of limitations upon its issuance,

it only addressed whether Peppers’s situation falls within Allison’s parameters for

promptness. 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))); see also

Top of Iowa Co-op v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (noting

interests protected by error preservation rules allow appellate courts to consider

error preservation sua sponte). The proper procedure to preserve error was to file
5

a motion raising the court’s failure to decide the issue prior to appealing. See

Lamasters, 821 N.W.2d at 863. In an abundance of caution, however, we will

address the merits.

Allison, by its own terms does not support Peppers’s claim. To begin, the

Allison court specifically ruled successive PCR applications are timely if filed

“promptly” after the conclusion of the original PCR action. 914 N.W.2d at 891.

Allison considered whether the statute of limitations “applies where a [PCR]

petitioner files an untimely second application for PCR, alleging counsel for his

timely filed first petition for PCR was ineffective.” Id. at 867–68 (emphasis added).

The court only held a

successive PCR petition alleging [first PCR] counsel was ineffective
in presenting the ineffective-assistance-of-trial-counsel claim, the
timing of the filing of the second PCR petition relates back to the
timing of the filing of the original PCR petition . . . if the successive
PCR petition is filed promptly after the conclusion of the first PCR
action.

Id. at 891 (emphasis added). The court later reiterated the Allison relation-back

doctrine applies “when an applicant alleges in a second PCR proceeding brought

outside the three-year time frame that the attorney in the first PCR proceeding was

ineffective in presenting the same claim was raised in the second proceeding.”

Goode v. State, 920 N.W.2d 520, 525 (Iowa 2018) (emphasis added). Based on

Allison’s own language, we have consistently denied relief when a third or

subsequent application is involved. Moon v. State, No. 19-2037, 2021 WL 610195,

at *4 (Iowa Ct. App. Feb. 17, 2021) (collecting cases), further review denied (Apr.

12, 2021).
6

So does the plain language of Allison save Peppers from the statute of

limitations? We answer that question in the negative. First, this is his fourth

application, not his second. See id. Even if Allison applies to third or subsequent

applications, procedendo on Peppers’s first application issued in 2008, and the

application now before us was not filed until about ten years later. That is not

prompt, nor were his second and third applications, filed in 2012 and 2014,

respectively. 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”).

So we turn to Peppers’s claim that he had three years after the Allison

decision to file a timely PCR application. Again, Allison’s plain language does not

support this claim, as it is only “[u]pon the conclusion of the first action [that] the

three-year statute of limitations commences to run again.” Allison, 914 N.W.2d at

891. Even if the clock did restart when the Allison decision issued, as noted,

Allison does not apply to third or subsequent applications.
7

We affirm the denial of Peppers’s PCR application. 2

AFFIRMED.

2 We note section 822.3 was amended, effective July 1, 2019, after the filing of
Peppers’s application but before judgment thereon 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 (codified at
Iowa Code § 822.3 (Supp. 2019)). 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 we do not need to decide the amendment’s
applicability because Peppers cannot prevail under the current or former statute.
Because we agree Peppers’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, 2021 WL 610195,
at *4 n.6 (“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).