IN THE COURT OF APPEALS OF IOWA

No. 15-1492

Filed July 27, 2016

CHARLES DEAN WHITE,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Page County, Jeffrey L. Larson, 

Judge.

Charles White appeals from the district court’s grant of summary judgment 

to the State in this postconviction relief proceeding. REVERSED AND 

REMANDED.

Marti D. Nerenstone, Council Bluffs, for appellant.

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

General, for appellee State.

Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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DANILSON, Chief Judge.

Charles White appeals from the district court’s grant of summary judgment 

to the State in this postconviction relief (PCR) proceeding. Because the State did 

not prove material facts are undisputed, we reverse and remand for further 

proceedings. 

On June 5, 2012, following a jury trial, judgment and sentence were 

entered upon White’s conviction for three counts of second-degree sexual abuse 

and one count of lascivious acts with a child based on offenses committed 

against a seven-year-old child. Additional facts are set out in our opinion dealing 

with White’s direct appeal, in which White made two claims of ineffective 

assistance of trial counsel, and also contested the admission of allegedly 

prejudicial evidence. State v. White, No. 12-1256, 2013 WL 4504896, at *1-2 

(Iowa Ct. App. Aug. 21, 2013). The ineffectiveness claims raised on direct 

appeal were that trial counsel failed to object to the undifferentiated sexual abuse

counts in the trial information and marshalling instructions, and failed to object to 

the prosecutor’s closing argument. Id. at *3. We rejected these ineffectiveness 

claims. Id. at *3-5. 

On October 23, 2014, White filed a pro se PCR application, asserting six 

additional claims of ineffective assistance of trial counsel. The State filed a 

motion for summary judgment, asserting (1) the ineffectiveness claims “were 

addressed and disposed of by direct appeal” and (2) the allegations “regarding 

depositions being withheld and sufficiency of the evidence are without merit.” 

White—now represented by counsel—resisted, contending the claims of 

ineffective assistance of trial counsel raised in the PCR application had not been 
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resolved, and the affidavit submitted of White’s trial counsel (stating White had 

access to the transcript of the victim’s deposition) does not negate White’s claim 

that counsel was ineffective in failing to utilize the deposition. PCR counsel 

asserted White should be allowed to depose trial counsel at least to question 

counsel about the failure to use contradictory statements made by the victim. 

The PCR court granted the State’s motion for summary judgment, 

concluding White was barred from raising an ineffectiveness claim in the PCR 

action because he had already alleged counsel was ineffective in other respects 

on direct appeal. White appeals the grant of summary judgment. 

We normally review postconviction proceedings for errors at 

law. Everett v. State, 789 N.W.2d 151, 155 (Iowa 2010). This 

includes summary dismissals of applications for postconviction 

relief. Manning v. State, 654 N.W.2d 555, 560 (Iowa 2002). 

Applications for postconviction relief that allege ineffective 

assistance of counsel, however, raise a constitutional claim. State 

v. Nitcher, 720 N.W.2d 547, 553 (Iowa 2006). We review 

postconviction proceedings that raise constitutional infirmities de 

novo. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001). 

Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011).

“The standards for summary judgment in postconviction relief actions are 

analogous to summary judgment in civil proceedings.” Id. at 793. “Under these 

standards, summary judgment is proper when the record reveals only a conflict 

over the legal consequences of undisputed facts.” Id. “In determining whether 

summary judgment is warranted, the moving party has the burden of proving the 

material facts are undisputed.” Id. at 792. Moreover, the facts are viewed in the 

light most favorable to the nonmoving party. Id.

The PCR court ruled, “Because this issue has already been raised on 

direct appeal, it is barred and cannot be relitigated here.” 
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True, “[o]ur decision on direct appeal is . . . final as to all issues decided 

therein, and is binding upon both the postconviction court and this court in 

subsequent appeals.” Holmes v. State, 775 N.W.2d 733, 735 (Iowa Ct. App.

2009) (emphasis added). But res judicata will bar only ineffectiveness claims 

already litigated on direct appeal. See id.

The ineffectiveness claims raised in the PCR action are not the same 

claims addressed on direct appeal and are thus properly raised in an initial PCR 

action. See Iowa Code § 814.7 (2013) (“An ineffective assistance of counsel 

claim in a criminal case shall be determined by filing an application for 

postconviction relief pursuant to chapter 822, except as otherwise provided in 

this section. The claim need not be raised on direct appeal from the criminal 

proceedings in order to preserve the claim for postconviction relief purposes.”); 

State v. Johnson, 784 N.W.2d 192, 198 (Iowa 2010) (“[W]e hold defendants are 

no longer required to raise ineffective-assistance claims on direct appeal, and 

when they choose to do so, they are not required to make any particular record in 

order to preserve the claim for postconviction relief.”). The State concedes the 

PCR court erred, but argues summary judgment could be granted nonetheless. 

We disagree.

The applicant asserted trial counsel was ineffective in failing to use the 

child’s inconsistent deposition testimony at trial. Trial counsel’s affidavit does not 

address this issue. Rather, trial counsel asserts White had access to the 

deposition. As PCR counsel noted, this “begs the question of was the attorney 

ineffective in not utilizing that deposition.” 
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On appeal, the State acknowledges it is undisputed that a deposition was 

taken of the child prior to trial; that despite containing possible impeachment 

testimony, neither the deposition nor any of these other documents were used at 

trial; and the child was not impeached by use of her deposition on crossexamination. Nonetheless, the State argues that White cannot prevail on his 

ineffectiveness claim because “the use of the deposition at trial could not have 

changed White’s fate in light of the strength of the evidence against him.” 

We believe this conclusion is premature. We do not have the child’s 

deposition in evidence. Nor does criminal trial counsel’s affidavit address the 

contents of the deposition. While further inquiry may establish trial counsel’s 

decisions were a reasonable strategy or there was no prejudice, the State has 

failed to carry its burden to prove there is no genuine issue of fact for trial. 

Because the district court erred in concluding White’s ineffectiveness claims were 

res judicata, and because the State has not met its burden to warrant summary 

judgment, we reverse and remand for further proceedings. 

REVERSED AND REMANDED.