                     IN THE COURT OF APPEALS OF IOWA

                               No. 4-050 / 13-0773
                               Filed March 26, 2014


CEDRIC BERTRON THEUS,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Woodbury County, Steven J.

Andreasen, Judge.



       An applicant appeals from the district court ruling denying his request for

postconviction relief. AFFIRMED.



       Hannah M. Vellinga of Corbett, Anderson, Corbett, Vellinga & Irvin, L.L.P.,

Sioux City, for appellant.

       Cedric B. Theus, Fort Madison, appellant pro se.

       Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney

General, Patrick Jennings, County Attorney, and Mark Campbell, Assistant

County Attorney, for appellee State.



       Considered by Doyle, P.J., and Bower, J., and Goodhue, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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GOODHUE, S.J.

       Cedric Bertron Theus has appealed from the district court ruling denying

his request for postconviction relief.

   I. Procedural and Factual Background

       Theus was convicted of a number of offenses, including first-degree

murder, in 1996. He was sentenced to life in prison without parole. He appealed

and the conviction was affirmed. Procedendo was issued June 29, 1998. He

filed his fifth request for postconviction relief on April 24, 2012. The State filed a

motion for summary judgment. On September 25, 2012, Theus filed a request to

amend his postconviction-relief application. The amendment contained a totally

new claim. The district court granted the motion for summary judgment as to the

initial application and gave each party an opportunity to respond to the issue

raised in the amendment. The order granting the motion for summary judgment

was supplemented by a subsequent order addressing the issue raised in the

amendment.

       Theus was convicted by jury trial. At trial he admitted shooting the victim,

Terrance Gibson, four times but claimed self-defense. Gibson died as a result of

the shooting. Under the instructions given, the felony-murder rule was one of the

alternative theories upon which Theus could have been found guilty of first-

degree murder. The predicate felony was willful injury. The jury was instructed

that Theus committed willful injury causing serious injury if it found the following:

               1. On or about the 15th day of March 1996, the defendant
       used a pistol to wound Terrance Gibson.
               2. The defendant specifically intended to cause a serious
       injury to Terrance Gibson.
               3. Terrance Gibson sustained a serious injury.
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                4. The defendant was not acting with justification.

      Theus claims the word “sustained” in element three was erroneous and

the instruction should have used the word “caused” instead.           Theus also

contends in his amended petition that he discovered after trial that one of the

State’s witnesses had a juvenile record, and under the Brady rule the State had

the duty to disclose the juvenile record to him but did not do so. See Brady v.

Maryland, 373 U.S. 83, 87 (1963). Theus finally contends there were material

disputes of fact, which foreclosed granting the motion for summary judgment.

The State contends Theus should be denied any relief because of the bar

provided by the three-year statute of limitations contained in Iowa Code section

822.3 (2011).

   II. Standard of Review

      Postconviction relief proceedings, including motions for summary

judgment, are generally reviewed for errors of law. Castro v. State, 795 N.W.2d

789, 792 (Iowa 2011).        When constitutional issues are involved, the review

becomes de novo. Lamasters v. State, 821 N.W.2d 856, 862 (Iowa 2012).

   III. Error Preservation

      Error preservation is generally considered present when the issues to be

reviewed have been raised and ruled on by the district court. Meier v. Senecaut,

641 N.W.2d 532, 537 (Iowa 2002). The district court ruled on the issues raised in

the initial application and allowed the issues raised by Theus’s amendment to be

argued by both parties. The issue raised in the amendment was decided in the

court’s supplemental order. Error has been preserved.
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   IV. Discussion

       Summary judgment is appropriate when there are no material factual

issues in dispute and the conflict concerns only the legal consequences flowing

from the undisputed facts. Thompson v. City of Des Moines, 564 N.W.2d 839,

841 (Iowa 1997). In this case there is no disputed material fact, only a dispute as

to the legal consequences of the undisputed facts. The resolution by a summary

judgment was appropriate.

       The application for postconviction relief was filed more than three years

after the procedendo had issued following the appeal.            Under the relevant

statute, the petition is superficially time-barred.      Iowa Code § 822.3.   Theus

contends the new “ground of fact or law” exception included in the cited section is

applicable.

       Theus’s argument begins and, for all practical purposes ends, with State

v. Schuler, 774 N.W.2d 294 (Iowa 2009).           Theus contends his request for

postconviction relief is timely because the Iowa Supreme Court’s decision in

Schuler expressed a “ground in law or fact” that could not have been raised until

Schuler had been decided. He claims therefore, under the provisions of section

822.3, the three-year statute did not begin running until September 4, 2009,

when Schuler was handed down.

       In Schuler, the jury was instructed that the three necessary elements of

willful injury causing serious injury were as follows:

               1. On or about August 31, 2006, the Defendant punched,
       kicked, and/or grabbed Lucas Spinelli.
               2. The Defendant specifically intended to cause a serious
       injury to Lucas Spinelli.
               3. Lucas Spinelli sustained a serious injury.
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Schuler, 774 N.W.2d at 298. The case was reversed by our supreme court

because there was no requirement of causation in the instruction as given. Id. at

299. The deficiency in the instruction was narrowed to the use of the word

“sustained” as opposed to the word “caused” in the third element. Id. at 298.

        Theus then contends because the instruction in his trial used the word

“sustained” instead of “caused,” he has been convicted of a nonexistent crime in

violation of the Fourteenth Amendment due process clause. See Fiore v. White,

531 U.S. 225, 228-29 (2001). He further contends based on Goosman v. State,

764 N.W.2d 539, 545 (Iowa 2009), and Nguyen v. State, 829 N.W.2d 183, 188

(Iowa 2013), his claim is based on a law that could not have been raised at the

time of his trial.

        Criminal charges are generally, and in this case, specifically based on

statutory law. The court’s instructions are the method of advising a jury of the

applicable law. Schuler did not create any law of the state of Iowa. A rendition of

the Uniform Instructions disseminated by the Iowa Bar Association was used in

Schuler and in Theus’s jury trial, but uniform instructions are used as an aide by

the courts and counsel and are not the law of the state. Schuler stands for the

general proposition that the uniform instruction for willful injury should be used

with care, and perhaps should be modified or clarified. See Schuler, 774 N.W.2d

at 298-99.      Schuler stands for the specific proposition that an inadequate

instruction was given by the court in that particular case. Id. at 299. Reversal

was required because the instruction used did not require a finding of causation.

Id.
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       Causation was, and still is, an element of the crime of willful injury. The

statutory language defining willful injury begins with the words, “Any person who

does an act,” and ends with the words, “causes severe injury to another,” or

“causes bodily injury to another.” Iowa Code § 708.4. The option of serious

injury or bodily injury determines the level of the offense. Id. The law, both

before and after Schuler, remains exactly the same without change or even

clarification. There is no ground of law expressed in Schuler that avoids the

application of the three-year statute of limitation.

       Finally, the instruction used by the trial court in Theus’s underlying trial did

not suffer from the same deficiency present in Schuler. Under the first element in

Theus’s case, the jury had to find “the defendant used a pistol to wound Terrance

Gibson.” A finding as to that element necessarily included a finding of causation.

Causation, as a requirement for conviction, was not omitted in the Theus

instruction. The only purpose of the third element was to determine whether the

wound Theus inflicted with the pistol constituted a “serious injury” or a “bodily

injury,” which is determinative of the level of the crime. The first element of the

Schuler instruction did not require a finding that the defendant had injured or

wounded the victim. See Schuler, 774 N.W.2d at 298. Therefore, the causation

requirement was missing in Schuler.

       Theus also claims he was unaware of the juvenile record that found the

commission of a delinquent act by one of the State’s witnesses. He contends the

State should have disclosed its existence as exculpatory evidence under the

Brady rule, but did not do so. He then contends his late discovery of the juvenile

record constitutes a “ground or fact or law” that could not have been raised within
                                        7


the three-year time limit. The existence of a juvenile record is a matter of public

record and could have been easily discovered by Theus or his counsel. See

Iowa Code § 232.147 (1995).        There is no failure to disclose exculpatory

evidence within the meaning of the Brady rule if the defendant either knew or

should have known of its existence. Cornell v. State, 430 N.W.2d 384, 385 (Iowa

1988). Even if the witness’s juvenile record were to be considered a fact that

could “not have been raised,” there still must be a nexus between the fact and

the challenged conviction.    Harrington v. State, 659 N.W.2d 509, 521 (Iowa

2003). The fact must be one that would have had the potential to qualify as

material evidence that would probably have changed the outcome of the trial. Id.

The order finding the witness guilty of an aggravated misdemeanor could have

been used only for impeachment purposes, if at all. See Iowa R. Evid. 5.404(b),

5.609(a)(1). It is evident from the record and, as the postconviction trial court

noted in its well-written order,s that evidence of Theus’s guilt was overwhelming.

       We affirm the decision of the trial court denying Theus’s application for

postconviction relief.

       AFFIRMED.
