                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0927
                              Filed August 27, 2014


STEWART SCHUMAN,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
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      Appeal from the Iowa District Court for Story County, Dale E. Ruigh,

Judge.



      Stuart Schuman appeals from the trial court’s denial of his application for

postconviction relief. AFFIRMED.



      Kimberly Voss-Orr of Law Offices of Kimberly A. Voss-Orr, Ames, for

appellant.

      Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney

General, Stephen Holmes, County Attorney, and Mary Howell Sirna and Timothy

Meals, Assistant County Attorneys, for appellee State.




      Considered by Doyle, P.J., McDonald, 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.

        Stuart Schuman appeals from the trial court’s denial of his application for

postconviction relief.

    I. Background Facts and Proceedings

        Stuart Schuman was originally charged with sexual abuse in the second

degree, a class “B” felony, based on allegations that he had anally raped his five-

year-old nephew. The matter proceeded to a jury trial, but a mistrial was granted

when a witness testified to inadmissible and prejudicial evidence. A second jury

was impaneled, but before the trial proceeded further Schuman agreed to waive

the jury. In exchange, the State reduced the charge from a class “B” felony to

sexual abuse in the third degree, a class “C” felony. Schuman was convicted of

the amended charge and subsequently was sentenced to a ten-year term.

Schuman appealed, but the appeal was unsuccessful and procedendo was

issued on March 12, 2007. The State filed an application to have Schuman civilly

committed as a sexually violent predator in 2011. After a jury trial the State’s

application was granted, and Schuman remains civilly committed.

        Schuman maintains he gave up his right to a jury trial in exchange for a

reduction of a possible sentence from twenty-five years to ten years. He filed the

application for postconviction relief on August 6, 2012, alleging he was never

advised of the possibility of a civil commitment as a sexual predator and that

therefore, he received ineffective assistance of counsel. Schuman asserts that if

he had known of the possibility of a civil commitment, he would not have waived

a trial by jury.
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   II. Standard of Review

         Postconviction relief proceedings are generally reviewed for errors of law,

but applications for postconviction relief that allege ineffective assistance of

counsel raise a constitutional issue and are reviewed de novo. Castro v. State,

795 N.W.2d 789, 792 (Iowa 2011).

   III. Error Preservation

         The ordinary rules of error preservation do not usually apply to claims of

ineffective assistance of counsel. State v. Fountain, 786 N.W.2d 260, 263 (Iowa

2010).

   IV. Discussion

         Iowa Code section 822.3 (2011) provides that all applications for

postconviction relief, except those challenging disciplinary proceedings, “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.” A further

exception exists if the claim contains “a ground of fact or law that could not have

been raised within the applicable time period.” Iowa Code § 822.3. Not only did

the possibility of a civil commitment as a sexual predator exist at the time of

Schuman’s trial and sentencing, but both his counsel and the sentencing court

advised Schuman of the possibility, if not probability, he would be committed as a

sexual predator. No new “ground of fact or law” which would void the three-year

statute of limitations has been alleged. Schuman’s application for postconviction

relief is barred by the three-year statute of limitations.

         Even if Schuman’s application was not barred by the three-year statute of

limitations, it is without merit. For an ineffective-assistance-of-counsel claim in a
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postconviction proceeding to succeed, the applicant must prove by a

preponderance of the evidence that counsel failed to perform an essential duty

and prejudice resulted.    Everett v. State, 789 N.W.2d 151, 158 (Iowa 2010).

Schuman claims counsel failed to inform him of the possibility that he might be

civilly committed as a sexually violent predator. The postconviction relief court

found by a preponderance of the evidence, as do we, that counsel did advise him

that the State would attempt to commit him as a sexually violent predator.

Counsel only questioned whether Schuman’s out-of-state criminal records would

satisfy the required qualifying offenses.

       Finally, trial counsel does not have a duty to advise his client of

consequences which are collateral and not the direct result of a plea or

conviction. Saadiq v. State, 387 N.W.2d 315, 326 (Iowa 1986). A consequence

is direct as opposed to collateral when it is definite, immediate, and largely

automatic.    State v. Carney, 584 N.W.2d 907, 908 (Iowa 1998).             A civil

commitment as a sexually violent predator is not an automatic or direct result of a

conviction or guilty plea to third-degree sexual assault. Iowa Code chapter 229A

sets out a series of conditions or procedures which must take place, finally

resulting in a jury trial independent of the criminal conviction before the civil

commitment can be ordered.

       AFFIRMED.
