                    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.
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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 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.
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       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,3 the

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
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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,5 and 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)).
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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.
