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 first

degree kidnapping. Ramos asserts the jury instructions given at trial were

defective because they faile d to include language that would comply with St a te 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 (201 5). 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.2 d 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, s ignificantly lessens the risk of detection, or significantly facilitates escape following the consummation of the offense. 305 N.W.2d at 745.

2 S ection 822.3 requir es a PCR application be filed within three years of issuance of procedendo unless there exis ts a ground of law or fact that could not have been raised within the time frame.3

Th e PCR court rejected the limitation

- period argument and also concluded

that Robinson offered no relief

. Robi nson involved the question of whether “the

State offered sufficient evidence that a jury could find beyond a reason able 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. ” 8 59 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 dispositi on 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, Rob inson 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 no t a prerequisite to a kidna pp ing 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 off ense which the jury verdict in this case was not required to decide.

Id. at 482

– 83

.

E ven assuming Ramos could avoid the three

- year limitations bar, 3 the

PCR court considered the record and

— unlike in Robinson

— determined no

3 Th is court has recently rejected a claim that Robinson extend s the limitations period

. See Hampton v. State , No. 15

- 1802, 2016 WL 2743451, at *1 (Iowa Ct. App. May 11, 201 6), 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 direct4

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

a ppeals 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. T he knife was held to the victim’ s throat. The victi m 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 U niform Criminal Jury Instruction 1000.5 has no merit. Inclusion of the terms

“ significantly ” or “ substantially ” would not have c hanged the result at a pplicant’ s trial.

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

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

cannot show prejudice, the ineffectiveness claim necessarily fail s

. 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 conce pt ‘ 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 S ee 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 c ounsel)

. F inding no error, we affirm.

AFFIRMED.