                    IN THE COURT OF APPEALS OF IOWA

                                   No. 18-1038
                              Filed March 20, 2019


CLARENCE G. BRYANT,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Mahaska County, Shawn Showers,

Judge.



      Clarence Bryant appeals the dismissal of his application for postconviction

relief. AFFIRMED.



      Denise M. Gonyea of McKelvie Law Office, Grinnell, for appellant.

      Thomas J. Miller, Attorney General, and Richard J. Bennett, Assistant

Attorney General, for appellee State.



      Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
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VAITHESWARAN, Judge.

       Clarence Bryant pled guilty to four counts of third-degree sexual abuse in

2003. The district court imposed judgment and sentence. Bryant’s appeal was

subsequently dismissed as frivolous, and procedendo issued the same year.

       Fifteen years later, Bryant filed the second of two postconviction-relief

applications.   He alleged in part that “two facts” showed “he could not have

physically committed the alleged four . . . first degree sexual abuse charges that

he was accused of.” Specifically, he alleged (1) “he was diagnosed with Type II

diabetes in July of 1994 resulting in erectile dysfunction so therefore it would have

been physically impossible for [him] to have committed these four sexual acts” and

(2) “[i]n approximately late July 1994 [he] ruptured two discs in his lower back while

working at his job,” making “it impossible for him to have committed the alleged

abuse charges.”

       The State moved to dismiss the second application on the ground the

statutory three-year limitations period had long since expired. See Iowa Code §

822.3 (2018) (requiring postconviction-relief applications to “be filed within three

years from the date the conviction or decision is final or, in the event of an appeal,

from the date the writ of procedendo is issued” but stating “this limitation does not

apply to a ground of fact or law that could not have been raised within the

applicable time period”). Bryant resisted the State’s motion on the ground the

claim “that his medical ailments precluded the physical element of his crime” was

“a claim of actual innocence” under Schmidt v. State, 909 N.W.2d 778 (Iowa 2018).

Bryant asked the postconviction court to determine that Schmidt was “a ground of
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law that could not have been raised in the three-year limit.” Following a non-

evidentiary hearing, the district court dismissed the application. Bryant appealed.

       Bryant concedes his second postconviction relief application “was due on

or before August 20, 2006, unless” his claim fell within the ground of fact or law

exception. He again asserts his claim is one of “actual innocence,” which “was not

legally viable until the decision in Schmidt v. State was filed in 2018.” He also

asserts “reasonable minds could differ on the question of whether [he] could have

raised the ground of fact earlier.”

       If we were reviewing the merits of an actual-innocence claim, our review

would be de novo. Schmidt, 909 N.W.2d at 795; State v. Gonzalez, 18-0137, 2018

WL 6130305, at *2 (Iowa Ct. App. Nov. 21, 2018).           Because we are simply

reviewing the court’s application of section 822.3, our review is for errors of law.

Schmidt, 909 N.W.2d at 784.

       We begin and end with Schmidt. There, a defendant pled guilty to two

crimes. Id. at 782–83. Years after the three-year limitations period expired, the

defendant filed a postconviction-relief application alleging the victim recanted his

story and the recantation amounted to new evidence. Id. at 783. The Iowa

Supreme Court overruled precedent disallowing “defendants to attack their pleas

based on extrinsic grounds when they claim actual innocence.” Id. at 790. The

court held “convicted defendants can attack their pleas when claiming actual

innocence even if the attack is extrinsic to the pleas.” Id. at 798.

       The court went on to explain why the three-year limitations period set forth

in section 822.3 did not foreclose Schmidt’s actual-innocence claim. Applying the

ground-of-fact exception, the court stated the victim’s recantation “was not
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available to Schmidt within the three-year period following the date of his conviction

and Schmidt could not have discovered the recantation earlier than he did in the

exercise of due diligence.” Id. at 799. Accordingly, the court concluded “section

822.3 [did] not time bar Schmidt’s freestanding claim of actual innocence. Id.

       Bryant’s effort to circumvent the time-bar runs head on into Schmidt’s

ground-of-fact analysis. Unlike the defendant in Schmidt, who discovered new

facts well after the three-year limitations period expired, Bryant knew of his medical

conditions almost a decade before he pled guilty. The conditions, then, were

grounds of fact that could have been raised within the applicable time period, and

Bryant’s belated “actual-innocence” claim is barred by the three-year limitations

period. As the district court stated:

               [Bryant’s] medical condition at the time of his offenses is not
       newly discovered evidence. This is a claim that could have been
       raised on direct appeal or previous PCR case and was not. It is
       barred by the statute of limitations. Applicant’s observation that the
       State did not have DNA evidence is not of legal significance. The
       State is not required to possess physical evidence to prove an
       individual guilty of a crime. If the victim had allegedly recanted, then,
       possibly, a genuine issue of material fact would exist warranting a
       trial on the merits. That is not the reality in this case.

       We turn to Bryant’s assertion that the Schmidt holding was a “ground of law”

unavailable to him within the applicable time period. While his assertion may be

correct in principle, it does not assist him. If Bryant believed his longstanding

medical conditions rendered it impossible for him to commit the sex acts with which

he was charged, he had all the evidence he needed to challenge the factual basis

for the plea at the time of the guilty-plea proceeding.          See Iowa R. Crim.

P. 2.28(2)(b); State v. Sisco, 169 N.W.2d 542, 548 (Iowa 1969) (adopting the
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American Bar Association standards for determining the accuracy of a plea). He

did not need the Schmidt opinion to advance his claim.1

       We affirm the dismissal of Bryant’s second postconviction-relief application.

       AFFIRMED.




1 At the guilty-plea proceeding, which was judicially noticed, the district court informed
Bryant that Iowa Code section 702.17 (2003) defined sex act as:
                Any sexual contact between two or more persons by the penetration
        of the penis into the vagina or anus, contact between the mouth and
        genitalia, and/or by contact between the genitalia of one person and the
        genitalia or anus of another, contact between the finger or hand of a person
        and the anus or genitalia of another person except in the treatment [by] a
        person licensed pursuant to various chapters in the Iowa Code, and finally,
        by use of artificial sexual organs or substitutes therefore in contact with the
        genitalia or anus.
Bryant advised the court that each of the four sex acts involved “touching [the child’s]
genitalia with [his] genitalia.” Bryant does not explain how his medical conditions made it
impossible for him to commit this type of sex act.
