IN THE COURT OF APPEALS OF IOWA

No. 15-0733

Filed May 11, 2016

JOHN ROBERT GEORGE,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Iowa County, Patrick R. Grady, 

Judge.

John George appeals the order denying his application for postconviction 

relief. AFFIRMED.

John J. Bishop, Cedar Rapids, for appellant.

Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney 

General, for appellee State.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

John George appeals the order denying him postconviction relief (PCR) 

for his 2012 conviction of driving while suspended. He claims his conviction must 

be vacated in the interest of justice based on a material fact not previously 

presented or heard. See Iowa Code § 822.2(1)(d) (2013). Stated succinctly, 

George argues his conviction should be vacated because the officer who cited 

him for the 2012 offense—after observing a person he believed to be George in 

the driver’s seat of a vehicle—mistakenly identified and cited George for driving 

while barred in 2014. The 2014 charge was dismissed on the State’s motion

after the police department advised the county attorney that the driver of the 

vehicle in question was mistakenly identified as George. George now claims that 

had this subsequent misidentification by the officer, made “under similar 

circumstances to his initial conviction for driving under suspension, been 

available to the magistrate court in making credibility determinations in arriving at 

a verdict, the outcome of his trial would have been a not guilty verdict.”

A claimant who seeks PCR based on newly discovered evidence must 

show:

(1) that the evidence was discovered after the verdict; (2) that it 

could not have been discovered earlier in the exercise of due 

diligence; (3) that the evidence is material to the issues in the case 

and not merely cumulative or impeaching; and (4) that the evidence 

probably would have changed the result of the trial.

Harrington v. State, 659 N.W.2d 509, 516 (Iowa 2003). However, to qualify as 

newly discovered evidence, the evidence must have existed at the time of the 

challenged trial proceeding. See Grissom v. State, 572 N.W.2d 183, 184 (Iowa 

Ct. App. 1997). The officer’s misidentification of the driver in the 2014 incident
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occurred subsequent to the trial on George’s driving-while-suspended offense

and therefore does not qualify as newly discovered evidence. Id. Recognizing 

this, George attempts to invoke an exception to this rule. He asserts this is an 

extraordinary case “when an ‘utter failure of justice will unequivocally result’ if the 

new evidence is not considered or where it is no longer just or equitable to 

enforce the prior judgment.” Id. at 185 (quoting Benson v. Richardson, 537 

N.W.2d 748, 762-63 (Iowa 1995)).

After a hearing, the PCR court concluded,

Here, the new evidence is totally based on events that took 

place after the trial. Further, the evidence is merely impeaching of 

[the officer’s] prior identification of George as the driver of the 

vehicle. Finally, [the officer’s] ability to observe George at the 

library [in 2012] was significantly greater than while passing on the 

road [in 2014] and, thus, knowledge of the subsequent 

misidentification of George is not sufficient to establish that it would 

probably have changed the verdict. Finally, this Court does not find 

that there would be a failure of justice if the Court was to set aside 

the conviction.

We wholeheartedly agree. The PCR court did not err in denying and dismissing 

George’s application. We therefore affirm.

AFFIRMED.