                    IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1434
                              Filed March 9, 2016


BOBBY RAY WOODBERRY,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,

Judge.

      Bobby Woodberry appeals the denial of his application for post-conviction

relief. AFFIRMED.




      Tammi M. Blackstone, Des Moines, for appellant.

      Thomas J. Miller, Attorney General, and Kevin Cmelik and Kyle P.

Hanson, Assistant Attorneys General, for appellee.




      Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
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BOWER, Judge.

         Bobby Woodberry appeals the denial of his application for postconviction

relief (PCR), claiming the district court improperly held the hearing on his

application without Woodberry present and the court erred in not allowing

Woodberry to recast his application. We affirm.

         On July 15, 1995, a jury convicted Woodberry of murder in the first degree

and attempt to commit murder. Woodberry appealed these convictions and this

court affirmed.1 Since, Woodberry has filed multiple applications for PCR, which

were denied.       Woodberry filed the present application in October 2013 (his

fourth), claiming the trial information was defective because the State omitted a

statement regarding intent. Due to this deficiency, Woodberry noted the court

lacked subject matter jurisdiction, and his conviction and sentence are void and

must be vacated. The State filed for summary disposition of the application, and

asked for sanctions against Woodberry for filing a frivolous application.

         During the hearing on Woodberry’s application, Woodberry’s counsel

asked for leave to recast the application to include a claim that each of the

previous PCR counsels provided ineffective assistance for failing to raise the

error in the trial information. After the hearing, Woodberry’s counsel failed to file

the recast petition. The district court considered the issue anyway, found the

issue was time barred, and denied Woodberry’s application. The court declined

to sanction Woodberry. Woodberry now appeals.




1
    See State v. Woodberry, No. 95–1349, slip op. at 8 (Iowa Ct. App. Dec. 20, 1996).
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      Woodberry claims the court improperly allowed the PCR hearing to

proceed without him, which resulted in a violation of his due process rights. The

hearing transcript shows Woodberry’s counsel waived Woodberry’s presence at

the hearing. Therefore, Woodberry has failed to preserve error on this issue

since it was not raised at the hearing. See Meier v. Senecaut, 641 N.W.2d 532,

537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues

must ordinarily be both raised and decided by the district court before we will

decide them on appeal.”).

      Woodberry also claims the court erred by ruling on the State’s motion for

summary judgment without allowing Woodberry’s counsel to recast his

application to include ineffective-assistance of prior PCR counsel. Iowa Code

section 822.3 (2013) provides a three-year statute of limitations for the filing of

PCR petitions.    Woodberry’s application was filed thirteen years after the

deadline and, therefore, is untimely. Allowing Woodberry to recast his petition

would not remedy the timeliness issue.         “[A]n applicant for [PCR] cannot

circumvent the effect of the three-year time bar by merely claiming the ineffective

assistance of [PCR] counsel.” Smith v. State, 542 N.W.2d 853, 854 (Iowa Ct.

App. 1995) (citing Wilkins v. State, 522 N.W.2d 822, 823 (Iowa 1994)). Further,

Woodberry’s claim is not one that fits into the exception to this rule by stating a

“ground of fact or law that could not have been raised within the applicable time

period.” Iowa Code § 822.3. The “ground of fact” exception does not extend to

ineffectiveness of [PCR] counsel of any kind—including [PCR] appellate counsel.
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See Dible v. State, 557 N.W.2d 881, 884 (Iowa 1996), abrogated on other

grounds by Harrington v. State, 659 N.W.2d 509 (Iowa 2003).

       We affirm the district court’s dismissal of Woodberry’s application for PCR

without further opinion pursuant to Iowa Court Rule 21.26(1)(a), (c), (d), and (e).

       AFFIRMED.
