                    IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0345
                               Filed April 27, 2016


RANDY DEAN JONES,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,

Judge.



      Randy Jones appeals the district court’s denial of his application for

postconviction relief. AFFIRMED.




      Andrew C. Abbott of Abbott Law Office, P.C., Waterloo, for appellant.

      Thomas J. Miller, Attorney General, and Tyler J. Buller, Assistant Attorney

General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                         2


VAITHESWARAN, Presiding Judge.

       A jury found Randy Jones guilty of first-degree murder. Jones filed a

direct appeal of his judgment and sentence, which was resolved against him.

The appeal became final in 1997. Seventeen years later, Jones filed his fourth

application for postconviction relief. He asserted the trial information and certain

jury instructions were defective. The State moved for summary dismissal of the

application on the ground it was time-barred.       The district court granted the

motion, and this appeal followed.

       The law is clear. A postconviction-relief application “must 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” unless the application

raises “a ground of fact or law that could not have been raised within the

applicable time period.”     See Iowa Code § 822.3 (2013).           Jones’ fourth

application, filed in 2014, concededly fell outside the three-year period.      The

question on appeal is whether the “ground of law” exception to the time-bar

applied to Jones’ claims.

I.     Trial Information

       Jones’ appellate attorney contends his challenge to the trial information

falls within the “ground of law” exception because the challenge implicates the

subject matter jurisdiction of the court, an issue that may be raised at any time.

See DeVoss v. State, 648 N.W.2d 56, 62 (Iowa 2002). However, in a pro se

brief, Jones retracts this argument, stating he “no longer relies on ‘subject matter

jurisdiction’ in this appeal.” In light of his waiver of the issue, we question the

need to reach this argument. Bypassing this concern, we are persuaded by a
                                          3


litany of opinions holding defects in a trial information do not implicate the subject

matter jurisdiction of the court. See, e.g., Fuhrmann v. State, No. 14-1504, 2015

WL 8310020, at *1 (Iowa Ct. App. Dec. 9, 2015) (citing the trial court’s rejection

of an assertion that the trial information was not sufficiently specific to apprise

defendant of the crime); Cannon v. State, No. 13-1661, 2015 WL 5278916, at *1

(Iowa Ct. App. Sept. 10, 2015) (rejecting a challenge to the sufficiency of the trial

information); Frasier v. State, No. 12-1957, 2014 WL 69671, at *2-3 (Iowa Ct.

App. Jan. 9, 2014) (rejecting an assertion that the trial information was so

defective it did not charge an offense). These opinions address the precise

defects Jones raises—the alleged failure of the trial information to include facts

supporting each element of the crime and the alleged failure of the trial

information to charge an offense. We conclude Jones’ challenge to the trial

information does not fall within the “ground of law” exception to the time-bar. See

Gonzalez v. State, No. 11-0684, 2013 WL 263356, at *2 (Iowa Ct. App. Jan. 24,

2013) (concluding Gonzalez knew of defects in the trial information at the time of

the underlying criminal proceeding and could have raised the defects at that

time). The district court did not err in dismissing the claim.

II.    Jury Instructions

       We next address Jones’ challenge to the jury instructions on felony

murder and joint criminal conduct.            He contends the instructions were

inconsistent with subsequent opinions in Schuler v. State, 774 N.W.2d 294, 299

(Iowa 2009) and State v. Smith, 739 N.W.2d 289, 294 (Iowa 2007).

       Jones specifically asserts the felony-murder instruction failed to require

proof that his actions caused the victim’s serious injury, as required in Schuler.
                                            4

See 774 N.W.2d at 299.1 Jones raised this claim in a prior postconviction action,

and we rejected it. See Jones v. State, No. 12-0706, 2013 WL 4506167, at *2-3

(Iowa Ct. App. Aug. 21, 2013). We stated, “An opinion that clarifies the law could

be applied retroactively but, because it is simply a clarification rather than the

announcement of a new rule of law, it could have been anticipated and raised

within the three-year limitations period.” Id. at *3. We continued,

       There is no question that Schuler clarified rather than changed the
       law. Jones conceded this fact. Accordingly, under Nguyen [v.
       State, 829 N.W.2d 185 (Iowa 2013)] and Perez [v. State, 816
       N.W.2d 354 (Iowa 2012)], Schuler was a ground of law that could
       have been raised within the applicable time period. It was not
       raised within three years of procedendo. For that reason, the
       statute of limitations barred Jones’s claim. See Iowa Code § 822.3.

Id. Our reasoning still holds true. Because the “ground of law” exception to the

time-bar is inapplicable to Jones’ Schuler argument, the district court did not err

in dismissing the claim.

       Jones’ challenge under Smith was not preserved for our review.                 See

Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). Although he raised the

issue in the postconviction court, he did not obtain a ruling. However, even if he

had preserved error, we would conclude the argument did not fall within the

“ground of law” exception for the same reason as his Schuler argument.

III.   Challenge to Legality of Sentence

       Jones argues his sentence “is inherently illegal and void due to being in

violation of the ex post facto [clauses] of the United States and Iowa

Constitutions.” Specifically, he contends his sentence for life without parole is


1
  In his pro se brief, Jones raises a challenge to “Instruction No. 38.” This, too, appears
to be a challenge grounded in Schuler.
                                          5


inherently illegal because his conviction for first-degree felony murder “is not

supported by an underlying forcible felony to which his jury found guilt.” This

issue was not raised in the district court. However, challenges to the legality of a

sentence, if they are indeed that, may be raised at any time.            See State v.

Bruegger, 773 N.W.2d 862, 870 (Iowa 2009).

       This is not such a challenge. It is a challenge to the sufficiency of the

evidence supporting the jury’s finding of guilt. See Gonzalez, 2013 WL 263356,

at *3 (noting Gonzalez raised a challenge to the underlying conviction, not a

challenge to the legality of the sentence). Because this claim could have been

raised within the section 822.3 limitations period, it is time-barred.

       We conclude the district court did not err in dismissing Jones’ fourth

postconviction-relief application as time-barred.

       AFFIRMED.
