Full Opinion (html_with_citations)

                    IN THE COURT OF APPEALS OF IOWA

                                      No. 22-0198
                               Filed December 21, 2022


ANTONIO JOSE COOKS,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, Patrick A.

McElyea, Judge.



      The applicant appeals the summary denial of his application for

postconviction relief.   AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED FOR FURTHER PROCEEDINGS.




      Britt Gagne of Gagne Law Office, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant Attorney

General, for appellee State.



      Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
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GREER, Judge.

       Antonio Cooks expected legal representation after he applied for

postconviction relief (PCR) and requested court-appointed counsel. Instead, he

argues his counsel failed him by not amending his PCR application and by not

resisting the State’s motion for summary judgment. Cooks argues the motion was

premature. As it turned out, the district court granted the summary judgment

motion, and Cooks appeals that ruling. We affirm the ruling as to the PCR claims

but remand for consideration of the illegal sentence allegation.

       Because this appeal generates from a summary dismissal of a PCR claim,

we review for errors at law. Ledezma v. State,
626 N.W.2d 134, 141
 (Iowa 2001).

Here, Cooks also raises issues of ineffective assistance of PCR counsel, which

requires a de novo review. See Lado v. State,
804 N.W.2d 248, 250
 (Iowa 2011)

(recognizing an applicant’s right to effective assistance of counsel on PCR is

statutory, not constitutional, but still employing de novo review).         Summary

disposition is proper “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine

issue of material fact and that the moving party is entitled to a judgment as a matter

of law,” essentially applying directed verdict principles. Davis v. State,
520 N.W.2d 319, 321
 (Iowa Ct. App. 1994) (quoting Iowa R. Civ. P. 237(c), now renumbered

Iowa R. Civ. P. 1.981(3)).

       The origin of the PCR claim involves Cooks’s conviction of robbery in the

second degree by a jury. In the underlying criminal trial, Cooks waived his right to

counsel and represented himself with the help of stand-by counsel.              Cooks

appealed his conviction, and a panel of this court affirmed. See State v. Cooks,
                                          3


No. 19-1605,
2020 WL 7383886
, at *1 (Iowa Ct. App. Dec. 16, 2020) (affirming the

conviction after considering sufficiency-of-the-evidence and weight-of-the-

evidence claims, jury instruction error, fair cross-section jury panel concerns, and

a Batson challenge). After the State moved for a summary ruling on the PCR

application, the matter proceeded to a hearing on the State’s motion. But as Cooks

points out, his PCR counsel never amended his pro se filing and did not resist the

State’s motion. Yet, Cooks’s PCR application was seventy-one pages long and

included several exhibits. Relying on the claims raised in the pro se application,

characterized by his counsel as “very well written,” Cooks argued the State’s

motion was premature because no discovery had been done. He also argued

       So we believe that [application] also raises issues of a conviction
       being a violation of the constitution of either the United States or Iowa
       as well as leaving the [c]ourt without jurisdiction to impose a
       sentence. Which is also an indication that there was an unlawful
       imposition of an illegal sentence through the use of the dangerous
       weapon enhancement. So we believe that falls under subsection (c);
       the sentence exceeds the maximum authorized by law.

See
Iowa Code § 822.2
(1)(c) (2021) (including “[t]he sentence exceeds the

maximum authorized by law” as a situation where a PCR could proceed).

       From that hearing record, the district court sorted out the various

allegations—separating those Cooks could not justify failing to raise on direct

appeal with issues properly before the court. See Ledezma,
626 N.W.2d at 141

(“Generally, a claim not raised on direct appeal cannot be raised in a [PCR]

proceeding unless the applicant can demonstrate a sufficient cause or reason for

not properly raising the issue previously.” (citing
Iowa Code § 822.8
)). The district

court listed the claims not properly raised as: theories involving a denial of Cooks’s

motion to suppress, a claim of lack of probable cause for Cooks’s arrest, imposition
                                          4


of an illegal sentence, and lack of access to research materials. But the district

court noted one issue remained. Labeled as an actual innocence claim, the district

court observed that the issues raised under that umbrella were actually a

sufficiency-of-the-evidence theory and that had already been decided in the direct

appeal. Thus, with no viable PCR claim to be decided, the district court dismissed

the PCR proceeding.

       Yet on our review of the direct appeal and this PCR appeal, we do not see

that anyone previously addressed the claim involving the imposition of an illegal

sentence. In the direct appeal Cooks only appealed the conviction. See Cooks,
2020 WL 7383886
, at *2; see also Iowa R. Crim. P. 2.24(5)(a) (“The court may

correct an illegal sentence at any time.”). “A challenge to an illegal sentence

includes claims that the court lacked the power to impose the sentence or that the

sentence itself is somehow inherently legally flawed, including claims that the

sentence is outside the statutory bounds or that the sentence itself is

unconstitutional.” State v. Bruegger,
773 N.W.2d 862, 871
 (Iowa 2009). But here,

we have a limited record and cannot determine what challenge Cooks was

prepared to make related to the imposition of his sentence. Thus, we find that the

case should be remanded to flesh out if there is a viable claim related to the illegal

sentence allegations as that claim does not constitute a PCR action. See Veal v.

State,
779 N.W.2d 63, 65
 (Iowa 2010) (remanding to determine a claim of an illegal

sentence, which is a challenge to the “underlying power of the court to impose a

sentence” and not a PCR action subject to the limitations in Iowa Code

section 822.3).
                                         5


       But, as for the other claims raised at the PCR hearing and through Cooks’s

application, we find those were properly dismissed. Outside of the illegal sentence

claim, Cooks failed to articulate a viable PCR claim and, at the hearing, none was

identified that could withstand the summary disposition.       See Ledezma,
626 N.W.2d at 141
. Cooks offered no genuine issue of material fact to avoid the bar

of section 822.8. See
Iowa Code § 822.8
 (“Any ground . . .not raised . . .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.”).

       Finally,   we   turn   to   Cooks’s   ineffective-assistance-of-PCR-counsel

argument. To prove counsel is ineffective, Cooks must show, by a preponderance

of the evidence, that “(1) trial counsel failed to perform an essential duty, and

(2) prejudice resulted from counsel’s failure.” State v. Dudley,
766 N.W.2d 606, 620
 (Iowa 2009). “We may affirm the district court’s rejection of an ineffective-

assistance-of-counsel claim if either element is lacking.” Anfinson v. State,
758 N.W.2d 496, 499
 (Iowa 2008). Here we find that Cooks did not establish any

prejudice by any action of his PCR counsel. Aside from saying the outcome would

have been different had his PCR counsel amended the application and resisted

the summary motion, Cooks gives us no example of how that would be so. See

Dudley,
766 N.W.2d at 620
 (“The second prong—prejudice—exists ‘when it is

“reasonably probable that the result of the proceeding would have been different.”’”

(citation omitted)). The issues were clearly stated in the pro se application and

because they were old theories already decided, but for the claim of illegal
                                         6


sentence, Cooks cannot show how he would have received a different result.

Without this showing, his claim must fail.

       In sum, we find no PCR claim that survives the summary disposition

standards, as the theories urged by Cooks were either already decided by a panel

of our court or Cooks failed to justify why they were not raised on direct appeal.

Because Cooks raised an illegal sentence argument that has not been addressed,

we reverse the district court’s dismissal of that issue and remand for proceedings

on that remaining issue.

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR

FURTHER PROCEEDINGS.