                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1017
                             Filed August 17, 2016


LAWRENCE GLADSON,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Paul R. Huscher,

Judge.



      A defendant asserts that his postconviction relief counsel was ineffective

and appeals the dismissal of his application for postconviction relief as being

barred by the statute of limitations. AFFIRMED.




      Jacob Mason of JL Mason Law, P.L.L.C., Ankeny, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee State.




      Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.

       Lawrence Gladson appeals following the district court’s dismissal of his

third application for postconviction relief (PCR).    Gladson contends his PCR

counsel was ineffective for failing to develop a sufficient record at the PCR

hearing when his attorney and the State agreed the court could take judicial

notice of Gladson’s criminal file without directing the court to any particular

section of that file. He further contends that the district court erred in dismissing

his PCR application as being barred by the statute of limitations. We affirm.

       In 1986, Gladson was convicted on three counts of first-degree robbery

and one count of first-degree murder. For the murder, he was sentenced to life

in prison, and for the robbery counts, he received three consecutive twenty-five-

year sentences.     His convictions were affirmed on direct appeal, and prior

postconviction relief actions filed in 1992 and 2008 were denied. The current

PCR application was filed in June 2014. The matter proceeded to a hearing, and

Gladson’s PCR counsel, together with the State, consented to the court taking

judicial notice of the underlying criminal file. No other evidence was submitted,

but counsel for both sides offered legal argument to the court regarding the

application of the three-year statute of limitations for PCR actions. See Iowa

Code § 822.3 (2013). Gladson contended that the cases of State v. Smith, 739

N.W.2d 289 (Iowa 2007), and Nguyen v. State, 829 N.W.2d 183 (Iowa 2013),

together amount to a new ground of law that could not have been raised within

three years of the finality of his convictions. See Iowa Code § 822.3.

       The PCR court denied Gladson’s application, finding the case of Smith

was not a change or a clarification of Iowa law regarding the joint-criminal-
                                            3

conduct theory. The court noted the case of State v. Irvin, 334 N.W.2d 312 (Iowa

App. Ct. 1983), was decided twenty-four years before Smith and two years prior

the crimes at issue in Gladson’s case, and the law announced in Irvin was

identical to the law articulated in Smith. Compare Irvin, 334 N.W.2d at 314–15

(noting for joint criminal conduct to apply “a different crime must have been

committed by another participant in furtherance of the charged offense”), with

Smith, 739 N.W.2d at 294 (noting the “present law . . . for a person to be found

guilty by reason of joint criminal conduct” requires the State to prove “[a] ‘different

crime’ must be committed by another participant in the furtherance of the

defendant’s offense”).      In addition, the PCR court found the Smith court’s

suggestion that future joint-criminal-conduct jury instructions be written to

incorporate the elements set forth in the opinion was not a change in the law

itself.1

           We note Gladson’s PCR action was not filed within three years of Smith,

the case Gladson claims changed the law with respect to the joint-criminal-

conduct jury instruction. See Nguyen, 829 N.W.2d at 186 (noting Nguyen filed

his PCR action within three years of State v. Heemstra, 721 N.W.2d 549 (Iowa

2006), the case that changed the law with respect to the felony-murder rule). In

order to overcome this time bar, Gladson claims the case of Nguyen, 829 N.W.2d

at 188–89, also changed the law. Thus, he—like many other PCR applicants—is
1
  See Chadwick v. State, No. 14-1922, 2016 WL 3281253, at *1 (Iowa Ct. App. June 15,
2016) (“If Smith is a clarification of existing substantive law, it may be applied
retroactively, but it is not a new ground of fact or law, and his claim is time-barred. If
Smith is a change to substantive law, it may be a new ground of fact or law, but we are
not required to apply it retroactively to Chadwick’s case. What Chadwick does not
explain is how Smith can be both a clarification of the law and a ground he could not
have raised within the three-year time bar. See Perez v. State, 816 N.W.2d 354, 361
(Iowa 2012). Given that internal contradiction, he cannot prevail.”).
                                              4

attempting to use Nguyen to leap frog his way past the three-year statute of

limitations in section 822.3. See Smith v. State, ___ N.W.2d ___, ___, 2016 WL

3282209, at *1 (Iowa Ct. App. 2016).              We have repeatedly rejected such

attempts. See id. at *1 n.2. Even assuming without deciding Smith, 739 N.W.2d

at 295, changed the law with respect to the joint-criminal-conduct jury instruction,

Nguyen did not change the law with respect to three-year statute of limitations in

section 822.3. The district court’s dismissal of Gladson’s PCR application based

on the three-year statute of limitations is affirmed.2

       AFFIRMED.




2
  Because we find the PCR application was properly dismissed on statute-of-limitations
grounds, we need not reach Gladson’s other claim on appeal—that his PCR counsel
was ineffective for not making “a specific statement of the judicially noticed items,” other
than agreeing to have the underlying criminal court file judicially noticed, in support of his
PCR application.
