                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1952
                              Filed August 21, 2019


RONDELL MANDRAY CROPP,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Black Hawk County, Bradley J.

Harris and Andrea J. Dryer (second dismissal), Judges.



       The applicant appeals from the dismissal of his application for

postconviction relief following his 2007 convictions for robbery in the first degree

and willful injury causing serious injury. AFFIRMED.




       C. Aron Vaughn of Kaplan & Frese, LLP, Marshalltown, for appellant.

       Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant

Attorney General, for appellee State.



       Considered by Potterfield, P.J., and Doyle and May, JJ.
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POTTERFIELD, Presiding Judge.

       Rondell Cropp appeals the dismissal of his application for postconviction

relief (PCR) following his 2007 convictions for robbery in the first degree and

willful injury causing serious injury.   He maintains the PCR court improperly

dismissed his application without giving him notice of its intention to do so or

allowing him an opportunity to respond.

I. Background Facts and Proceedings.

       In March 2006, Cropp was arrested and charged with robbery in the first

degree and willful injury causing serious injury. The incident in which Cropp was

alleged to have participated took place in January 2006—about one month

before Cropp’s nineteenth birthday.

       Cropp entered into a plea agreement with the State, which provided that

he would be allowed to plead guilty to robbery in the second degree and willful

injury causing serious injury and serve concurrent jail terms in exchange for his

full cooperation and testimony against all codefendants. The agreement, which

the district court accepted, included a clause that the agreement would become

null and void if Cropp “fail[ed] to satisfactorily complete the” terms of the

agreement.

       During a later deposition of Cropp in connection with pending charges

against a codefendant, the prosecutor announced Cropp had breached the plea

agreement and the State was withdrawing from it.

       The State filed a motion for a status hearing on the plea agreement, and,

after the hearing, the district court granted the State’s motion to vacate the

agreement. In its written ruling, the court found:
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               [Cropp] gave statements to law enforcement on January 23,
       2006, February 28, 2006, and March 2, 2006. Additionally, [Cropp]
       gave a deposition on December 22, 2006. The statements made
       by [Cropp] in the deposition constitute the basis for the State’s
       application to revoke the plea agreement.
               In [Cropp’s] deposition he substantially contradicts
       statements he earlier made in the three interviews with law
       enforcement. Specifically[,] in the deposition [he] stated he and his
       co-defendants had planned to acquire one-quarter pound of
       marijuana from the victim for $2500. In his statements to law
       enforcement investigators he had indicated that he and friends
       intended to acquire one-quarter pound of marijuana for $1100. In
       his deposition [Cropp] also answered questions in such a fashion
       as to, reasonably interpreted, provide protection for Tyler, Seals
       and David Wright. Defense counsel characterizes the differences
       between the deposition testimony and the law enforcement
       investigative report statements as being because of alleged
       t[h]reats made by Seals against [Cropp] at the time of the taking of
       the deposition.
               The court finds the statements contained in the deposition
       are materially at odds with relevant statements in the law
       enforcement investigative statements.          [Cropp’s] substantial
       contradictions place the State at a disadvantage in that [Cropp] has
       now given statements, which if the State were to use him at trial,
       could be used to materially impeach him.

The State reinstated the original charges against Cropp. He waived his right to a

jury trial and had a bench trial on the minutes of evidence.

       Cropp was found guilty as charged.        He was sentenced to a term of

imprisonment not to exceed twenty-five years on the charge of robbery in the first

degree and up to ten years on the willful-injury charge. The robbery sentence

included a 70% mandatory minimum, and the court ordered Cropp to serve the

two sentences consecutively.

       Cropp appealed, claiming his trial counsel was ineffective in failing to

reassert Cropp’s challenge to the State’s withdrawal from the plea agreement

before the trial court and in failing to challenge the State’s remedy for Cropp’s

failure to perform his obligation under the plea agreement. Our supreme court
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transferred the case to us, and a panel of our court affirmed. State v. Cropp, No.

07-2112, 2009 WL 139528, at *3 (Iowa Ct. App. Jan. 22, 2009). Procedendo

issued in April 2009.

       Cropp filed his PCR application in November 2016. The State responded

by filing a motion to dismiss, asserting Cropp’s application was barred by the

three-year statute of limitations in Iowa Code section 822.3 (2016).       Cropp

resisted the motion, and the court set a hearing on it.

       Following the May 2017 hearing, the court dismissed Cropp’s claim that

his codefendant’s receipt of a new trial constituted newly discovered evidence

Cropp complied with the plea agreement’s requirement of truthful testimony and

his claim that trial and appellate counsel provided ineffective assistance. The

court concluded the outcome of the codefendant’s case was “immaterial to the

determination that [Cropp] violated the plea agreement” and did “not constitute

newly discovered evidence which would relieve [Cropp] of the requirement to file

his” PCR action within the three-year statute of limitations. Similarly, the court

recognized that alleging ineffective assistance of counsel did not remove the

claims outside the realm of the section 822.3 time-bar. The court did not dismiss

as untimely both of Cropp’s claims that his sentences were illegal—categorically

and as applied to him—as “the court may correct an illegal sentence at any time.”

       Cropp appealed the decision to our supreme court, which treated the

appeal as interlocutory and denied the request that the court hear the appeal.

       After procedendo issued, Cropp applied to the district court to hire an

expert at state expense to support his sentencing claims.       He indicated the

expert would prepare an opinion and testify regarding Cropp’s “mental state and
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mental health, especially as it relate[d] to his likelihood to reoffend,” and

“concerning the minds of offenders around the age of Mr. Cropp and that the

underlying logical of State v. Lyle, 854 N.W.2d 378 (Iowa 2014) extends to them

as well.” The State resisted.

       Before the court ruled on Cropp’s application for an expert, the State filed

a motion to dismiss Cropp’s remaining two claims.         The State asserted that

Cropp’s illegal-sentences claims—while not time-barred—should be dismissed

as a matter of law because “no authority exists for the ground of relief as the

sentence is not illegal and there is no case law or statutory authority to support

the claim.” Cropp resisted, and the PCR court set a hearing on the motion.

       At the beginning of the October 2017 hearing, Cropp indicated he would

“withdraw that motion for experts so that we can proceed to the motion to

dismiss.” The State and Cropp then each advocated for their position. The court

followed with a written ruling, in which it dismissed Cropp’s remaining two claims

on PCR.

       Cropp appeals.

II. Discussion.

       In his 2016 application, Cropp asserted (1) a claim of newly discovered

evidence based on his codefendant receiving a new trial as a result of a 2014

PCR ruling; (2) ineffective assistance of trial and appellate counsel; (3) that the

sentences imposed against him are categorically illegal because they violate his

right to be free from cruel and unusual punishment; and (4) the sentences

imposed against him are illegal as applied to him. He maintains the court erred

in dismissing all four claims without an evidentiary hearing.
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       A. Statute of Limitations.

       The PCR court dismissed Cropp’s claims that his codefendant’s receipt of

a new trial constituted newly discovered evidence and that he received

ineffective assistance from his trial and appellate attorney based on the claims

being time-barred.    Cropp maintains the PCR court erred in dismissing his

application for PCR without allowing him to first have a trial on the merits.

“Generally, we review a grant of a motion to dismiss a PCR petition for correction

of errors at law.” Allison v. State, 914 N.W.2d 866, 870 (Iowa 2018).

       “Iowa Code section 822.3 generally provides a three-year statute of

limitations on PCR claims.” Id. It provides, in pertinent part:

               A proceeding is commenced by filing an application verified
       by the applicant with the clerk of the district court in which the
       conviction or sentence took place. . . . All other applications 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.

An exception to the statute of limitations exists for “a ground of fact or law that

could not have been raised within the applicable time period.”          Iowa Code

§ 822.3; see also Moon v. State, 911 N.W.2d 137, 143 (Iowa 2018). “The onus

in on the applicant to” establish “the ‘obvious requirement’ that he or she could

not have raised the ground of fact within the limitations period.”      Moon, 911

N.W.2d at 143. Additionally, the applicant “must also show a nexus between the

asserted ground of fact and the challenged conviction.” Harrington v. State, 659

N.W.2d 509, 520 (Iowa 2003).

       Here, the State filed a motion to dismiss Cropp’s PCR claims based on the

statute of limitations. Cropp filed a written resistance, which included argument
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and authority. The motion to dismiss then came on for hearing. At no point did

Cropp assert that his claims of ineffective assistance of trial and appellate

counsel, which involved representation he received in 2009 and before, were

based on a new ground of fact that could not have been raised before the statute

of limitations ran in 2012.          Because Cropp did not meet the “obvious

requirement” of showing his claims of ineffective assistance relied upon a fact

that could not be raised within the applicable time period, the PCR court properly

dismissed his fourth claim.

       The same is not true of Cropp’s claim regarding his codefendant’s receipt

of a new trial in 2014, as the ground of fact Cropp relies upon did not exist in

2012 when the limitations period expired. Since the ground of fact could not be

raised within the required time, the next question is whether the ground of fact

Cropp relies on “is relevant to the challenged conviction.”1 Moon, 911 N.W.2d at

143. In this context, “relevance” means “the ground of fact must be the type that




1
  The PCR court seemed to apply the newly-discovered-evidence test rather than the
new-ground-of-fact test. “We again emphasize the ground-of-fact exception [to the
statute of limitations] pursuant to section 822.3 is not the same as a substantive claim for
postconviction relief based on newly discovered evidence pursuant to section
822.2(1)(d).” Moon, 911 N.W.2d at 143. In determining whether an applicant’s claims
are time-barred, the court has to determine whether the ground of fact could have been
raised during the three-year window and whether the ground of fact is relevant to the
defendant’s conviction. Id. at 144. If a genuine issue of material fact concerning the
statute-of-limitations exists, then the court cannot summarily dismiss the applicant’s
claims based on the claims being time-barred. Id. at 144–45.
        Only if the court proceeds to consider the merits of the applicant’s newly-
discovered-evidence claim must the applicant establish:
        (1) that the evidence was discovered after the verdict; (2) that it could not
        have been discovered earlier in the exercise of due diligence; (3) that the
        evidence is material to the issues in the case and not merely cumulative
        or impeaching; and (4) that the evidence probably would have changed
        the result of the trial.
Id. at 151 (citation omitted).
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has the potential to qualify as material evidence for purposes of a substantive

claim under section 822.2.” Id.

       Here, the fact that Cropp’s codefendant received a new trial in 2014 is not

relevant to either Cropp’s ultimate conviction or the State’s reason for

withdrawing from and vacating the plea agreement.               Cropp claims his

codefendant’s receipt of a new trial shows that the codefendant was not the

shooter during the robbery and that Cropp, who failed to name the codefendant

as the shooter, was telling the truth in his statements and deposition so the State

should not have been allowed to withdraw from the plea agreement. First, the

codefendant received a new trial after his PCR application was granted based on

the determination the jury was not properly instructed on how to deal with aiding

and abetting involving specific intent crimes; that is not the same thing as finding

insufficient evidence to support a jury’s determination the codefendant was the

shooter.   And second, neither the district court, which approved the State’s

withdrawal from the plea agreement, nor our court, which considered the State’s

withdrawal through the lens of ineffective assistance on direct appeal, concluded

that the State’s withdrawal was based on Cropp’s refusal to identify the

codefendant as the shooter.       Rather, the State’s withdrawal was based on

Cropp’s changing statements, which, as time went on, seemed to become more

crafted to give his codefendants cover. The “fact” his codefendant received a

new trial based on an improper jury instruction is not relevant to Cropp’s

conviction.

       Because Cropp could not meet his burden of establishing these two

claims survive the statute of limitations based on the new-ground-of-fact
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exception, the PCR court did not err in dismissing them without a trial on the

merits.

       B. Illegal Sentence.

       As the PCR court recognized, “the time restrictions that apply in ordinary”

PCR actions “do not apply in illegal sentences challenges.” Veal v. State, 779

N.W.2d 63, 65 (Iowa 2010). Still, the PCR court dismissed Cropp’s claims that

the sentence imposed for his first-degree robbery conviction—a term not to

exceed twenty-five years with a 70% mandatory minimum—violated the

prohibition on cruel and unusual punishment both categorically and as applied to

him.

       Cropp maintained that the imposition of a mandatory minimum for those

who have reached the age of eighteen by the time they committed their crimes is

categorically unconstitutional. In other words, he argued the supreme court’s

rationale in Lyle should be extended to apply to those who have only recently

reached majority before committing an offense. At the hearing on the State’s

second motion to dismiss, Cropp conceded that “the weight of the authority is

against” him. He is correct. “The supreme court has made clear that its juvenile

sentencing decisions have ‘no application to sentencing laws affecting adult

offenders.’” Smith v. State, No. 16-1711, 2017 WL 3283311, at *2 (Iowa Ct. App.

Aug. 2, 2017) (quoting Lyle, 854 N.W.2d at 403). Additionally, our court has

repeatedly rejected the argument Cropp raised to the PCR court regarding the

imposition of mandatory minimums for those who reached majority shortly before

committing offenses. See id. (collecting cases). We cannot say the PCR court
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erred in refusing to allow Cropp a hearing on the merits to address this already

well-trodden issue.

       Additionally, Cropp argued that the imposition of a twenty-five-year

sentence with a 70% mandatory minimum was cruel and unusual “as applied to

his unique circumstances.”         He maintained the court should conduct an

individualized assessment of the punishment.

       Defendants are entitled to bring as-applied, or “gross disproportionality,”

challenges to their sentences. State v. Oliver, 812 N.W.2d 636, 651 (Iowa 2012).

Generally, the threshold question is whether the defendant’s sentence leads to

an inference of gross disproportionality to the underlying crime. See id. at 650.

The court “examines the unique combination of the features in [the defendant’s]

case as part of our threshold determination regarding the inference of gross

disproportionality.” Id. at 651.

       In several instances, our court has found that the defendant was not

entitled to an evidentiary hearing because the defendant, when making their

claim the sentence imposed on them was grossly disproportionate, failed to

assert any unique factors that create an inference of gross disproportionality

between the underlying crime and the sentence received. See, e.g. State v.

Titus, No. 15-0486, 2016 WL 2745938, at *2 (Iowa Ct. App. May 11, 2016)

(collecting cases).   Similarly, here, Cropp merely asserted that the sentence

imposed is grossly disproportionate; he did not cite any unique factors that made

the application of the sentence decided upon by the legislature cruel and unusual

as applied to him.     See Ewing v. California, 538 U.S. 11, 28 (2003) (“[T]he

legislature . . . has primary responsibility for making the difficult policy choices
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that underlie any criminal sentencing scheme.              We do not sit as a

‘superlegislature’ to second-guess these policy choices.”); see also State v.

Clayton, No. 13-1650, 2014 WL 7343315, at *1 n.1 (Iowa Ct. App. Dec. 24, 2014)

(“In the interest of judicial efficiency, we cannot find that a mere claim of

disproportionality is sufficient to require an expanded hearing on the matter. At a

minimum, the motion should allege why the sentencing hearing was insufficient

or inadequate to set forth defendant’s individual facts or the legal issue raised.”).

Under these circumstances, we cannot say the PCR court erred in denying

Cropp an evidentiary hearing on this claim.

III. Conclusion.

       Because Cropp could not meet his burden of establishing his PCR claims

survive the statute of limitations based on the new-ground-of-fact exception and

because his illegal-sentence claims did not merit an evidentiary hearing, the PCR

court did not err in dismissing Cropp’s claims without an evidentiary hearing. We

affirm the dismissal of Cropp’s PCR application.

       AFFIRMED.
