IN THE COURT OF APPEALS OF IOWA

No. 15-1757

Filed June 7, 2017

VINCENT A. RAMOS,

Applicant-Appellant,

vs.

STATE OF IOWA,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, John G. Linn, 

Judge.

Vincent Ramos appeals from the summary dismissal of his postconviction 

relief application. AFFIRMED. 

Edward W. Bjornstad of Bjornstad Law Office, Spirit Lake, for appellant.

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

General, for appellee State.

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

DANILSON, Chief Judge.

Vincent Ramos appeals from the summary dismissal of his 2015

postconviction-relief (PCR) application challenging his 2003 conviction for firstdegree kidnapping. Ramos asserts the jury instructions given at trial were 

defective because they failed to include language that would comply with State v. 

Rich, 305 N.W.2d 739 (Iowa 1981),

1

and “more importantly the recent case of 

State v. Robinson,” 859 N.W.2d 464, 480 (Iowa 2015). He contends trial and 

appellate counsel were ineffective in failing to challenge the faulty instructions

and the Robinson case restarted the limitation period for filing a PCR application. 

See Iowa Code § 822.3 (2015).2 

“Generally, an appeal from a denial of an application for postconviction 

relief is reviewed for correction of errors at law.” Perez v. State, 816 N.W.2d 354, 

356 (Iowa 2012) (citation omitted). “However, when the applicant asserts claims 

of a constitutional nature, our review is de novo. Thus, we review claims of 

ineffective assistance of counsel de novo.” Ledezma v. State, 626 N.W.2d 134, 

141 (Iowa 2001) (internal citation omitted).

 

1

In Rich, our supreme court stated:

Although no minimum period of confinement or distance of removal is 

required for conviction of kidnapping, the confinement or removal must 

definitely exceed that normally incidental to the commission of sexual 

abuse. Such confinement or removal must be more than slight, 

inconsequential, or an incident inherent in the crime of sexual abuse so 

that it has a significance independent from sexual abuse. Such 

confinement or removal may exist because it substantially increases the 

risk of harm to the victim, significantly lessens the risk of detection, or 

significantly facilitates escape following the consummation of the offense.

305 N.W.2d at 745.

2 Section 822.3 requires a PCR application be filed within three years of issuance of 

procedendo unless there exists a ground of law or fact that could not have been raised 

within the time frame.
3

The PCR court rejected the limitation-period argument and also concluded 

that Robinson offered no relief. Robinson involved the question of whether “the 

State offered sufficient evidence that a jury could find beyond a reasonable doubt 

that the defendant’s confinement of the victim substantially increased the risk of 

harm, significantly lessened the risk of detection, or significantly facilitated 

escape.” 859 N.W.2d at 481. Finding that the evidence of confinement was not 

sufficient to qualify for the Rich “intensifier” language, the court was required to 

determine the proper disposition of the case. Id. at 482. The Robinson court 

concluded:

We cannot determine, however, whether the jury found 

Robinson guilty of sexual abuse in the second degree, which 

requires an additional finding that during the commission of the 

sexual abuse, Robinson used or threatened to use force creating a 

substantial risk of death or serious injury to B.S. Compare Iowa 

Code § 709.3(1) (2011) (sexual abuse in the second degree), with

Iowa Code § 709.4(1) (sexual abuse in the third degree). This 

element is not a prerequisite to a kidnapping in the first-degree 

verdict.

In light of the record, we conclude the State may pursue one 

of two options in this case on remand. The State has the option of 

standing on the jury’s necessary determination that Robinson was

guilty of sexual abuse in the third degree and ask the court to enter 

judgment on that offense and to sentence Robinson accordingly. In 

the alternative, however, the State may on remand elect to retry 

Robinson on sexual abuse in the second degree, an offense which 

the jury verdict in this case was not required to decide.

Id. at 482–83.

Even assuming Ramos could avoid the three-year limitations bar,3the 

PCR court considered the record and—unlike in Robinson—determined no 

 

3

This court has recently rejected a claim that Robinson extends the limitations period. 

See Hampton v. State, No. 15-1802, 2016 WL 2743451, at *1 (Iowa Ct. App. May 11, 

2016), further review denied (July 7, 2016) (“The PCR court correctly held the issue 

existed at the time of [the applicant’s] conviction, could have been raised in his direct 
4

factual insufficiency regarding confinement existed in this case. As stated by the 

PCR court:

Robinson mentions cases of kidnapping and sexual abuse when 

victims were bound or a weapon is used. These are factors which

demonstrate that confinement or removal has significance apart 

from the sexual abuse and the confinement or removal is more than 

incidental to the commission of the sexual abuse. The court of 

appeals in the ruling on [Ramos]’s direct appeal of his conviction[4] 

noted that the jury could have found that Ramos confined the victim 

for a period of time over two days and the victim was beaten and 

sexually abused. At one point, the victim was struck with the stick 

end of a plunger. Ramos threatened the victim with a knife. The 

knife was held to the victim’s throat. The victim was sexually 

abused over the course of several days, and at one point, Ramos 

threatened the victim with a shotgun and put it in the victim’s 

mouth. The victim’s face was covered with a towel so she could

not see at one point. The victim was barricaded in a bedroom with 

furniture placed in front of the door to prevent the victim from 

leaving. Subsequently, the victim was choked and punched. The 

victim’s wrists and ankles were bound with duct tape whenever 

Ramos was not in the vicinity of the victim so that she could not 

escape.

Under the facts, [Ramos]’s claim that his trial counsel was 

ineffective for not objecting to Iowa Uniform Criminal Jury 

Instruction 1000.5 has no merit. Inclusion of the terms

“significantly” or “substantially” would not have changed the result 

at applicant’s trial.

Because a claim of ineffective assistance of counsel must show both that 

counsel failed in an essential duty and prejudice resulted,5and because Ramos 

cannot show prejudice, the ineffectiveness claim necessarily fails. See 

Ledezma, 626 N.W.2d at 143 (stating “the applicant must demonstrate ‘that there 

 

appeal, and is therefore barred under section 822.3.”). We explained, “the Robinson

court notes that this concept ‘underlies’ the test set forth in Rich. In other words, the 

court was not announcing a new rule of law but rather clarifying the existing law, which 

does not provide an exception to the requirements of section 822.3.” Id. (citation 

omitted).

4 See State v. Ramos, No. 03-0827, 2004 WL 2296509, at *1 (Iowa Ct. App. Oct. 14, 

2004).

5 See Lamasters v. State, 821 N.W.2d 856, 866 (Iowa 2012) (“[A]ll postconviction relief 

applicants who seek relief as a consequence of ineffective assistance of counsel must 

establish counsel breached a duty and prejudice resulted.” (citation omitted)).
5

is a reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different’” (citation omitted)); see, e.g., State 

v. Maxwell, 743 N.W.2d 185, 197 (Iowa 2008) (finding that because the 

defendant failed to establish the prejudice prong of an ineffectiveness claim, he 

failed to prove ineffective assistance of counsel). Finding no error, we affirm.

AFFIRMED.