IN THE COURT OF APPEALS OF IOWA

No. 15-1145

Filed June 15, 2016

CHARLES LEROY ZIPPRICH,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Lee (South) County, John M. 

Wright, Judge.

An applicant appeals from the district court’s summary dismissal of his 

application for postconviction relief. AFFIRMED.

William C. Glass, Keosauqua, for appellant.

Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant 

Attorney General, for appellee State.

Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
2

POTTERFIELD, Judge.

Charles Zipprich appeals from the district court’s dismissal of his 

application for postconviction relief. Zipprich maintains the district court erred 

when it ruled that his application was untimely and summarily dismissed it.

I. Background Facts and Proceedings

In 2000, Zipprich was convicted of four counts of sexual abuse in the 

second degree. The four counts were based on acts with two different victims, 

and both testified at the jury trial. 

Zipprich filed a direct appeal, and a panel of this court affirmed his 

convictions. See State v. Zipprich, No. 00-1847, 2002 WL 571634, at *4 (Iowa 

Ct. App. Mar. 13, 2002). Procedendo issued on May 30, 2002.

In December 2014, Zipprich filed a pro se application for postconviction 

relief. The State answered and asserted the application should be dismissed for 

being time-barred by Iowa Code section 822.3 (2013). Zipprich was appointed

counsel, and he filed an amendment to his application, in which he argued his 

trial counsel was ineffective for failing to move to sever his charges of sexual 

abuse for each alleged victim.1 He maintained his application was not timebarred because a supreme court decision in 2010 “declared that evidence 

involving two alleged victims in one trial is not allowed in Iowa,” and he could not 

have raised that ground of law during the applicable period.

 

1 Zipprich also claimed his direct appeal counsel was ineffective for failing to argue his 

trial counsel was ineffective.
3

The State moved for summary disposition. The district court granted the 

motion to dismiss, concluding the supreme court’s 2010 decision was not 

retroactive and Zipprich’s claims were time-barred. 

Zipprich appeals.

II. Standard of Review

We review postconviction proceedings for errors at law. Castro v. State, 

795 N.W.2d 789, 792 (Iowa 2011). This includes summary dismissals of 

applications for postconviction relief. Id. In determining whether summary 

judgment was appropriate, the moving party has the burden of proving the 

material facts are undisputed. Id. We examine the facts in the light most 

favorable to the applicant. Id. 

III. Discussion

Zipprich maintains that the district court erred when it dismissed his 

application for postconviction relief for being time-barred. He argues that the 

supreme court’s ruling in State v. Cox, 781 N.W.2d 757, 759 (Iowa 2010),

created a constitutional right regarding the exclusion of prior bad acts evidence 

that must be applied retroactively to his situation involving two victims and four 

counts, and that the ruling created an exception to the statute of limitations. 

In Cox, our supreme court considered the constitutionality of Iowa Code 

section 701.11 (2009), which provided, in part, “In a criminal prosecution in which 

a defendant has been charged with sexual abuse, evidence of the defendant’s 

commission of another sexual abuse is admissible and may be considered for its 

bearing on any matter for which the evidence is relevant.” 781 N.W.2d at 761–

62. The court ultimately concluded the statute was unconstitutional under the 
4

Iowa Constitution because it allowed evidence of a defendant’s prior sexual 

abuse with other victims in order to show a general propensity rather than for a 

legitimate issue at trial. Id. The court ruled that evidence of the prior bad acts 

may only be admitted pursuant to Iowa Rule of Evidence 5.404(b), which 

provides evidence of other crimes, wrongs, or acts may be admissible as “proof 

of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence 

of mistake or accident.” Id. at 768.

Even if Zipprich is correct that Cox created a retroactive constitutional right 

that he could not have argued within the three-year statute of limitation, it is 

unclear how the ruling would apply to him. Iowa Code section 701.11 was not 

enacted until 2003, see 2003 Iowa Acts ch. 132, § 1, and Zipprich was convicted 

in 2000. In other words, the alleged failure of Zipprich’s trial counsel to move to 

sever the trial for each of the alleged victims was not related to or affected by the 

code section that was ultimately struck down by our supreme court. If trial 

counsel were ineffective for failing to move to sever the trials, Zipprich could have 

and should have brought that claim within the statute of limitations.2 Zipprich’s 

application, filed twelve years after procedendo issued, is not based on a “ground

of fact or law that could not have been raised within the applicable time period.” 

See Iowa Code § 822.3. As such, Zipprich’s application is time-barred, and we 

affirm the district court’s summary dismissal.

AFFIRMED.

 

2

The State argues that even if Cox revived the statute of limitations, the consequent 

three-year window would have expired in 2013, over a year before this application was 

filed. We agree. See Lawrence v. State, No. 10-1238, 2011 WL 768785, at *2 (Iowa Ct. 

App. Mar. 7, 2011).