IN THE COURT OF APPEALS OF IOWA

No. 19-0465

Filed September 2, 2020

CHRISTOPHER LEGEAR,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. 

Kilnoski, Judge.

Petitioner appeals the summary dismissal of his third postconviction-relief 

application. AFFIRMED.

Christopher J. Roth of Roth Weinstein, LLC, Omaha, Nebraska, for 

appellant.

Thomas J. Miller, Attorney General, and Kyle Hanson, Assistant Attorney 

General, for appellee State.

Considered by Bower, C.J., Greer, J., and Blane, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 

(2020).
2

BLANE, Senior Judge.

Christopher LeGear was convicted of first-degree murder in 1982. In 2016,

he filed his third application for postconviction relief (PCR). He claimed he has 

been diagnosed as suffering “dissociative amnesia” during the events giving rise 

to his conviction and that his trial counsel’s failure to request a psychiatric reevaluation prior to his criminal trial qualifies as a new ground in fact that could not 

have been raised within the applicable time period, making his application exempt 

from the three-year limitation in Iowa Code section 822.3 (2016).

1

 LeGear next 

claimed that our court’s opinion in Gillam v. State provides a new ground of law 

entitling him to raise the new psychiatric diagnosis as an exception to the threeyear statute of limitation. No. 13-0359, 2014 WL 468022 (Iowa Ct. App. Feb. 5, 

2014). LeGear further claimed his criminal trial attorney’s lack of licensure in Iowa, 

which he claimed only to have recently learned upon examining the court file, also 

entitled him to belatedly raise this issue and warranted a new trial.

The State moved for summary dismissal under Iowa Code section 822.6(3),

arguing that LeGear’s application was beyond the three-year limitation in Iowa 

Code section 822.3 and the exception did not apply. After a hearing and a 

thorough review, the district court found that the matters LeGear raised did not 

amount to a new ground in fact or law that could not have been raised within the 

applicable time period, granted the State’s motion, and dismissed LeGear’s third 

 

1

In 2003, LeGear’s expert witness, Dr. Kimberly C. Hall, had evaluated him and 

diagnosed “traumatic amnesia,” which formed the basis for his second PCR 

application. In 2018, Dr. Hall re-classified her diagnosis as “dissociative amnesia” 

to conform with the designation in DSM-V. 
3

PCR application. LeGear appealed on March 21, 2019.

2

 Upon our review, we 

agree with the well-reasoned decision of the district court and affirm.

I. Standard of review.

Our review of the district court’s ruling on the State’s statute-of-limitations 

defense is for correction of errors of law. Thongvanh v. State, 938 N.W.2d 2, 8 

(Iowa 2020). When reviewing the lower court’s statute-of-limitations ruling for 

correction of errors of law in postconviction relief proceedings, the appellate court 

will affirm if the trial court's findings of fact are supported by substantial evidence 

and the law was correctly applied. Harrington v. State, 659 N.W.2d 509, 519 

(Iowa 2003).

We examine the language of section 822.3 in light of its purpose and 

objectives. It is clear the legislative intent of section 822.3 was to 

conserve judicial resources, promote substantive goals of criminal 

law, foster rehabilitation, and restore a sense of repose in our 

 

2

In this appeal, LeGear is represented by counsel. On November 8, 2019, our 

supreme court entered the following order:

On July 11, 2019, this court struck the appellant’s pro se

supplemental brief as prematurely filed. The court noted that, 

effective July 1, 2019, an applicant seeking postconviction relief who 

is currently represented by counsel shall not file any pro se document 

in any Iowa Court, and the court shall not consider such pro se filings. 

See Iowa Code § 822.3B(1). In the event the appellant filed a timely 

pro se supplemental brief, he was directed to address whether the 

new legislation prohibits the appellate court from considering his pro 

se filings. The appellant addressed the new legislation in his motion. 

The State indicates it will address this issue in its brief.

Upon consideration, the court determines the motion for leave 

to file a pro se supplemental brief shall be submitted with the appeal.

Both LeGear and the State have addressed this issue in their briefs. Our court has 

consistently held that Iowa Code section 822.3B(1), which became effective on 

July 1, 2019, and prohibits filings by pro se appellants who are represented by 

counsel, does not apply to appeals filed before that date. See Harlston v. State,

No. 19-0627, 2020 WL 4200859, at *2 (Iowa Ct. App. July 22, 2020). Since LeGear 

filed his appeal before the effective date of the statute, we grant the motion for 

leave and consider appellant’s pro se brief filed on October 10, 2019, and 

appellant’s pro se supplemental reply brief filed on January 21, 2020.
4

criminal judicial system. We also recognize that statutes of 

limitations are built on practical and pragmatic foundations.

Cornell v. State, 529 N.W.2d 606, 610–11 (Iowa Ct. App. 1994) (citations omitted).

II. Background facts and procedure.

On June 26, 1981, LeGear tossed his sometime girlfriend, Donna Rae 

Kresl, from the sixty-five-foot-high Mormon Bridge into the Missouri River, and she 

drowned. Following trial, a jury convicted LeGear of first-degree murder. He 

appealed, and our supreme court affirmed his direct appeal in 1984. See State v. 

LeGear, 346 N.W.2d 21 (Iowa 1984).3In the opinion, the court summarized the 

facts: 

According to [eyewitness] Larrison, defendant then threw Kresl into 

the river. According to defendant, Kresl fell out of his arms and into 

the river below. When defendant returned to the car, he told Larrison

the victim “was swimming.” Larrison testified defendant also 

commented “she deserved it.” The two men then decided to dispose 

of Kresl’s purse and personal effects. Neither apparently made any

attempt to ascertain whether she had survived or to seek help in case 

she had. Instead they later met and fabricated a cover story that 

defendant subsequently related to the police.

Id. at 22. The supreme court also discussed the defense trial tactics of the case.

Defendant then claims that when he pulled Kresl from Larrison’s car 

his only purpose was to scare her by holding her over the bridge rail.

He asserts he had no intention to kill her, but was powerless to 

prevent her fall. Defendant’s lack of murderous intent was testified 

to by a psychologist and a psychiatrist, both of whom opined 

defendant did not premeditate murder, although he did intend to put 

his victim in the river. The psychiatrist further explained that 

defendant “impulsively dropped” Kresl into the water. . . . 

In rebuttal, the State’s expert testified defendant was capable 

of premeditation and intended to cause Kresl’s death. 

Id. at 23–24. LeGear also raised ineffective-assistance-of-counsel claims. 

 

3 Procedendo issued on April 12, 1984.
5

Finally, defendant alleges ineffective assistance of counsel. He 

claims trial counsel should have sought a continuance because 

defendant’s incarceration left him mentally unable to assist with his 

defense. . . .

Defendant testified extensively and coherently at his trial. He 

was subjected to intense cross-examination during which he 

maintained his story that he intended only to scare the victim. Before

trial he furnished his lawyer with the names of several people to call 

as witnesses. He succeeded in convincing two out of three mental 

health professionals that he had no intent to murder his victim. His 

ability to assist in his own defense was manifested both by his pretrial 

conduct and by his in-court testimony. His motion for a protective

order did not reveal any specific ill effects from his incarceration. On 

this record, we hold counsel was not ineffective in failing to seek a 

continuance of defendant’s trial.

Id. at 25.

After losing his direct appeal, LeGear filed his first application for PCR,

which was denied, and our court affirmed in 1990. See LeGear v. State, No. 88-

406, 1990 WL 171693 (Iowa Ct. App. May 24, 1990). LeGear then filed a habeas 

corpus petition in federal court, which was denied, and the Eight Circuit Court of 

Appeals affirmed it in 1993. See LeGear v. Nix, No. 93-1283, 1993 WL 411474 

(8th Cir. Oct. 15, 1993). Thereafter, LeGear filed his second application for PCR

in 1996, and in 2005 our court affirmed denial of that application as untimely. See

LeGear v. State, No. 04-1125, 2005 WL 1963038 (Iowa Ct. App. Aug. 17, 2005).4

Finally, LeGear filed the present application—his third—on May 12, 2016. 

His application raised three issues. First, LeGear argued that Dr. Hall’s 2018 

diagnosis of “dissociative amnesia” is a new ground of fact entitling him to a new 

 

4 The district court initially dismissed the second application without a hearing. 

LeGear appealed, and this court reversed the dismissal and remanded for further 

proceedings. LeGear, 2005 WL 1963038, at *1. On remand, after a hearing, the 

district court again granted the State’s motion for summary dismissal, finding the 

application was filed beyond the three year limitation in Iowa Code section 822.3

(2003). Id. 
6

trial and also allows him to raise this issue beyond the three-year limitation in Iowa 

Code section 822.3 (2016). Second, that our opinion in Gillam, 2014 WL 468022, 

at *1, established a new ground of law allowing him to raise the psychiatric issue 

(amnesia). And third, that his criminal defense attorney was not licensed in the 

state of Iowa, he did not receive the requisite legal representation, and this requires 

reversal of his conviction. He also contends that he did not have access to court 

documents until recently, which disclosed this licensure problem, again allowing 

him to raise this claim beyond the three-year limitation period.

The State filed a motion to dismiss. The district court granted LeGear’s 

request for expert fees to again retain the services of Dr. Hall, the psychiatrist 

whom he had retained back in 2003 related to his second application. After 

additional discovery and the deposition of Dr. Hall, the State filed an amended 

motion for summary dismissal. Following a hearing, the district court granted the 

State’s motion. This appeal followed. 

III. Discussion.

A. Whether the district court erred in finding that Dr. Hall’s 

diagnosis of “dissociative amnesia” did not constitute a new 

ground of fact?

Iowa Code section 822.3 states:

All other 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 issues. However, this limitation does 

not apply to a ground of fact or law that could not have been raised 

within the applicable time period.

On appeal, LeGear argues the exception—“this limitation does not apply to 

a ground of fact or law that could not have been raised within the applicable time 

period”—applies because the medical condition amnesia that he experienced 
7

during the crime and up to trial, as well as before the limitation period expired, was 

not then properly diagnosed. The basis of LeGear’s argument is that in 2003 he 

was evaluated by his psychiatric expert, Dr. Hall, a forensic psychiatrist. In 2018, 

Dr. Hall again evaluated him and this time assigned a diagnosis of “dissociative 

amnesia.”5 LeGear argued the new diagnosis supports his claims that he did not 

have the requisite intent to commit first-degree murder, he was incompetent to 

stand trial, and his trial counsel was ineffective for failing to request LeGear be reevaluated before trial. LeGear concludes because this diagnosis came about after 

he stood trial and more than three years from the date that procedendo issued, the 

exception to the three-year limitation applies. 

The district court addressed this contention in its ruling.

Initially LeGear claimed he could not remember the details of the

events that led up to Donna Kresl’s death. On March 3, 1982 LeGear

received a psychiatric examination to determine his competency to 

stand trial. The examination consisted of a complete review of 

LeGear’s psychiatric history, psychological testing, a physical exam, 

various tests to review LeGear’s social abilities, and an

electroencephalogram. Based on the examination the physician 

determined that LeGear was competent to stand trial. It was 

determined that LeGear could distinguish right from wrong, and had 

the capacity to form the requisite intent consistent with legal 

accountability. 

Amnesia symptoms were discussed during LeGear’s 

competency evaluation. LeGear shared with the doctors about his 

fragmented memories of the event and claimed he was suffering 

from amnesia. LeGear’s amnesia and his ability to remember were 

specifically reviewed during the competency exam. The doctor

questioned the amnesia because the evidence showed that after 

Donna Kresl’s death, LeGear told the eye-witness that the eyewitness was an accessory of the crime and he “should get his story

 

5

“Dissociative amnesia is a disorder characterized by retrospectively reported 

memory gaps.” Stephanie Leong, MD, Wendi Waits, MD, & Carroll Diebold, MD, 

Dissociative Amnesia and DSM-IV-TR Cluster C Personality Traits, 3 Psychiatry 

(Edgmont) 51-5 (2006), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2990548/.
8

straight.” The doctor still discussed possible causes for the amnesia 

in the report.

LeGear claimed that he first began to recall important details 

of the events immediately before the criminal trial. LeGear claimed 

that the amnesia continued during preparation for trial, which was 

key to trial counsel’s strategy. LeGear claimed he began to

remember the events right before trial and requested another 

competency examination. LeGear testified at his criminal trial 

regarding the reclaimed memories that the death of Donna Kresl 

was an accident. LeGear was convicted of murder in the first degree 

by jury verdict. 

In 2003 LeGear employed an expert, Dr. Hall, to assist with a 

postconviction application. Dr. Hall opined that at the time of Donna 

Kresl’s death, LeGear suffered from the phenomenon of traumatic 

amnesia. In 2003 traumatic amnesia was not a diagnosis or disorder 

found in the DSM-IV-TR. Dr. Hall opined that LeGear went through 

a stressful situation during and as a result of the alleged crime that 

caused the amnesia. Dr. Hall opined that LeGear’s trial counsel 

should have changed strategy and requested a new competency 

examination before trial, once LeGear regained his memories. 

In 2018, Dr. Hall re-evaluated LeGear and the case. Dr. Hall 

found a categorized diagnosis and disorder for LeGear’s symptoms 

in the DSM-V, published in 2016, which did not exist in 2003. Dr. 

Hall noted there was a change in the language between the DSM-V 

and DSM-IV-TR. After the re-evaluation Dr. Hall gave the opinion 

that LeGear suffered from Dissociative Amnesia which predated the 

death of Donna Kresl. According to Dr. Hall the condition was 

triggered when LeGear was threatened by LeGear’s perception of a 

threat that he would be returned to jail. This opinion derives from the 

fact that an eye witness indicated that shortly prior to the crime, 

Donna Kresl threatened to have the police arrest LeGear. This new

diagnosis is in large part the basis for LeGear’s present 

postconviction claims. 

(Citations omitted).

The State urged that the issue of amnesia was known at the time of trial 

and LeGear’s application was not preserved by the exception to the three-year 

limitation. The district court noted that LeGear had the burden to show that the 

issue was discovered after the verdict and could not have been “discovered earlier 

in the exercise of due diligence.” Jones v. State, 479 N.W.2d 265, 274 (Iowa 

1991). Our court has also stated Iowa Code Section 822.3’s ground of fact or law 
9

exception “is to provide relief from the limitation period when an applicant had ‘no 

opportunity’ to assert the claim before the limitation period expired” and “the focus 

of our inquiry has been whether the applicant was or should have been ‘alerted’ to 

the potential claim before the limitation period expired.” Cornell v. State, 529 

N.W.2d 606, 610 (Iowa Ct. App. 1994) (emphasis added) (citation omitted).

Our supreme court has more recently commented in a statute of limitations 

context what it means to be alerted:

Specifically as to imputed knowledge, once a plaintiff learns

information that would alert a reasonable person of the need to 

investigate, the plaintiff “is on inquiry notice of all facts that would 

have been disclosed by a reasonably diligent investigation.” “[T]he 

duty to investigate does not depend on exact knowledge of the 

nature of the problem that caused the injury” because “[i]t is sufficient 

that the person be aware that a problem existed.” 

Skagburg v. Gately, 911 N.W.2d 786, 794 (Iowa 2018) (alterations in original)

(citations omitted).

Applying these legal standards, the district court found that the amnesia 

issue had been raised during the trial.

While the name of the diagnosis may be new, the fact that LeGear

suffered from symptoms of amnesia at the time of his criminal trial is 

not. As Dr. Hall explained, LeGear’s symptoms of amnesia predated 

the criminal trial. Dr. Hall opined that LeGear should have been reevaluated before the criminal trial when LeGear’s memories 

returned. Notably, this recommendation was not new in her 2018 

report. Dr. Hall gave the same opinion in 2003 to assist LeGear with 

his second postconviction application. Therefore the symptoms of 

amnesia were known in 2003 when Dr. Hall diagnosed LeGear with

traumatic or psychogenic amnesia. LeGear and his criminal trial 

counsel were also aware of the symptoms of amnesia before and 

during his criminal trial. Amnesia was discussed in preparation for 

the criminal trial at LeGear’s competency hearing. According to 

LeGear’s current application he also discussed the issue of his 

amnesia with his trial counsel, and he requested another 

psychological examination. Further, LeGear testified at his criminal
10

trial that he could not remember certain details concerning the 

evening of June 26, 1981, including the reason for fighting with 

Donna Kresl before holding her over the bridge railing.

Therefore, LeGear was aware of his symptoms of amnesia as 

early as the criminal trial. He certainly was aware of the amnesia 

symptoms in 2003 when he was diagnosed with traumatic amnesia.

Because the symptoms of amnesia were known to LeGear as early

as the criminal trial, any defenses that derive from the new diagnosis 

of Dissociative Amnesia were also available. The claims are 

therefore barred as untimely because the defenses were available

within the time restraint under § 822.3. There is not a genuine issue 

of material fact, and summary disposition should be granted on this 

issue. 

(Citations omitted).

We also note in his pro se supplemental reply brief, LeGear personally 

concedes “as asserted in ‘Appellee’s Brief,’ the ‘possibility of amnesia arose with 

expert testimony in 1982 . . . .’” We agree with the district court and the State that 

the only thing new in this case was the psychiatric terminology or label.

Upon our review, we are convinced that the district court applied the proper 

law and that the findings are supported by substantial evidence. LeGear failed to 

meet his burden to show that the issue was discovered after the verdict and could 

not have been discovered earlier in the exercise of reasonable diligence.6

 

6

 As the district court found, Dr. Hall was retained while LeGear’s second PCR 

application was pending and was deposed in 2003. At that time, she opined that 

LeGear suffered traumatic amnesia, hysterical amnesia, or psychogenic amnesia. 

Later, she acknowledged that these are all terms for the same mental condition as 

“dissociative amnesia.” Our court has previously held that if an applicant relies on 

a new ground of law exception, the PCR application must be filed within three 

years of when the new ground of law becomes available. See Burkett v. State, 

No. 14-0998, 2015 WL 5278970, at *1–*2 (Iowa Ct. App. Sept.10, 2015). The 

same logic would apply to a new ground of fact—an applicant must file a PCR 

application within three years of when the new ground of fact becomes known. In 

this case, LeGear was obligated to file his third PCR application within three years 

from when Dr. Hall issued her 2003 report. LeGear’s third PCR application filed in 

2016 raising the amnesia claim is clearly beyond the three-year limitation imposed 

on a new ground of fact and was untimely for this reason also.
11

B. Whether the district court erred in finding that the Gillam opinion 

did not constitute a new ground of law for raising the psychiatric 

issue?

Next, LeGear contends that our opinion in Gillam provides him with a new 

ground of law to raise his psychiatric issue in the current application, outside the 

three-year limitation. 2014 WL 468022, at *1–2. LeGear argues that in Gillam the 

appellant’s application for PCR was dismissed because she was aware of her 

mental-health condition prior to the original trial. Id. at *1. LeGear claims, unlike 

Gillam, he was neither aware of his diagnosis nor his condition, which makes his 

situation different.

As the district court pointed out, to avoid the statute of limitations, LeGear 

must show there has been a “change in the law that would [a]ffect the validity of 

the conviction.” Nguyen v. State, 829 N.W.2d 183,188–89 (Iowa 2013) (alteration 

in original).

First, Gillam is distinguishable on its facts. In Gillam, the applicant had been 

convicted of robbery in 2002. 2014 WL 468022, at *1. It was acknowledged that 

at the time of trial she had mental-health issues. Id. at *2. She claimed in her PCR 

proceeding that in 2009 she had received a “new” diagnosis—not one that 

necessarily related back to the time of her crime and conviction. See id. at *2. As 

our court pointed out, Gillam did not establish how this new diagnosis related back 

to her conviction. Id. Here, LeGear does not claim he has some new psychiatric 

disorder that was diagnosed in 2018. Rather, it is that he has an expert witness 

who in 2018 diagnosed and labelled a psychiatric condition based upon LeGear’s 

symptoms and related psychological and psychiatric reports as to his mental 

condition that existed in 1981 and 1982 at the time of the crime and his trial—a 
12

diagnostic label not recognized until recently and more than thirty-seven years 

after the crime and trial.

We also agree with the district court and do not read our unpublished 

opinion in Gillam to create a new ground of law to apply to LeGear. The law is the 

same. Under Gillam, a PCR applicant has the burden to establish the exception 

that a new ground of fact or law was not discoverable and could not be presented 

before expiration of the three-year limitation in Iowa Code section 822.3. Since 

Gillam did not create new law, it does not provide LeGear with an exception to the 

three-year limitation.

C. Whether the district court erred in finding that LeGear’s claim of 

lack of effective legal representation in his criminal trial due to

his criminal trial attorney not being licensed in Iowa was barred 

by the three-year limitation in Iowa Code section 822.3.

We must first address the appropriate standard of review. LeGear asserts 

that since his claim involves a constitutional Sixth Amendment right to counsel 

issue, our review should be de novo. See Goode v. State, 920 N.W.2d 520, 523 

(Iowa 2018). The State contends the review standard here should still be for 

correction of errors at law since the true issue is not the legal representation but 

whether LeGear timely raised the issue. We agree with the State and apply the 

correction-of-errors-at-law standard.

LeGear alleged in his PCR application that his attorney was not competent 

due to not being licensed to practice law in the State of Iowa, did not comply with 

the requirements to appear pro hac vice, and thus was not qualified to represent 

LeGear. LeGear further claimed he had no reason to know his criminal trial 

counsel was not licensed in Iowa until May 2013. The district court found: “In 1984 
13

LeGear obtained counsel and claimed ineffective assistance on his direct appeal

of conviction. LeGear could have discovered any licensing discrepancy within the 

three year time frame. Therefore the claims against the court and counsel are not 

new and are time barred under § 822.3.”

The district court, in its ruling on the State’s motion for summary dismissal,

took judicial notice of Pottawattamie County criminal file FECR081769, LeGear’s 

prosecution for murder. In that file, is a handwritten letter dated June 23, 1996,

LeGear sent to the Pottawattamie Clerk of Court,

7 and as follows:

Clerk of the Court:

I had a criminal trial in Pottawattamie County in June of 1982, 

Criminal No. 18769. I was represented by an Omaha attorney 

named Daniel Ryberg.[

8

]

I need to know if he filed with the Clerk’s office, pursuant to 

Iowa Rules of Court, Rule 116, the written appearance of a resident 

attorney admitted to practice in the State of Iowa upon whom service 

may be had in all matters connected with said cause or matter with 

the same effect as if personally made upon the attorney not admitted 

to practice in Iowa. Mr. Daniel Ryberg started representing me in 

Iowa in Sept.-Oct. of 1981. Does your office have record that he filed 

the necessary written appearance of a resident attorney admitted to 

practice in the state of Iowa? If you have any such record of a written 

appearance please forward a copy of said record.

Your attention to this matter is greatly appreciated. Thank 

you.

This letter belies LeGear’s assertion that he was not on alert until May 2013 

that his criminal trial attorney was not licensed in Iowa. Rather, this letter 

establishes he had such a concern in June 1996 and had started to investigate this 

possibility. LeGear’s claim made in his third application filed in May 2016, some 

twenty years after this letter, does not support the exception in Iowa Code section 

 

7

 Also in the court file is the envelope showing a postmark date of June 24, 1996.

8

 Since Mr. Ryberg was not licensed in Iowa, we presume he was not appointed 

by the court to represent LeGear; rather he was privately retained by LeGear.
14

822.3. The district court did not err in finding LeGear’s claim regarding his 

attorney’s licensure was untimely and subject to dismissal.9

IV. Conclusion.

To the extent that LeGear raised numerous other issues before the trial 

court challenging his conviction, we address only those raised in this appeal, and 

the district court ruling on those other issues remains dispositive. Having 

determined the district court did not err in granting the State’s motion for summary 

dismissal, we affirm.

AFFIRMED.

 

9

 This court has previously held in State v. Chadwick, 586 N.W.2d 391, 393–94

(Iowa Ct. App. 1998), that the failure of defense counsel to be licensed in Iowa 

does not constitute per se lack of counsel or ineffective assistance of counsel.