                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-1273
                               Filed May 11, 2016


JENSE ALLAN BERGANTZEL,
     Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Timothy

O’Grady, Judge.




      Jense Bergantzel appeals the dismissal of his second application for

postconviction relief. AFFIRMED.




      Susan R. Stockdale, Windsor Heights, for appellant.

      Jense Bergantzel, appellant, pro se.

      Thomas J. Miller, Attorney General, and Louis S. Sloven, Assistant

Attorney General, for appellee State.




      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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DOYLE, Judge.

         Jense Bergantzel appeals the dismissal of his second application for

postconviction relief (PCR). He contends the PCR court erred in concluding his

action was untimely. He also argues his sentence is illegal as being grossly

disproportionate to his crime. We review the denial of a PCR application for the

correction of errors at law. See Castro v. State, 795 N.W.2d 789, 792 (Iowa

2011).

         The State charged Bergantzel with thirty-one counts of second-degree

sexual abuse, twenty-one counts of indecent exposure, and one count of

lascivious acts with a child. After Bergantzel pled guilty to two counts of second-

degree sexual abuse, the remaining charges were dismissed. The trial court

sentenced Bergantzel to a term of not more than twenty-five years in prison on

each conviction and ordered the sentences be served consecutively. This court

affirmed Bergantzel’s direct appeal of his sentences. See State v. Bergantzel,

No. 07-0445, 2007 WL 4324010, at *1 (Iowa Ct. App. Dec. 12, 2007).

         In 2009, Bergantzel timely filed a PCR application, alleging his trial

counsel was ineffective in allowing him to plead guilty due to a lack of

voluntariness and competency. In May 2012, following an evidentiary hearing,

the PCR court entered an order dismissing Bergantzel’s application.              In

addressing the merits of the application, the court concluded Bergantzel’s guilty

plea was knowingly, willingly, and intelligently entered.       The court further

concluded Bergantzel failed to establish his trial counsel was ineffective. Neither

Bergantzel nor his counsel received a copy of that order within the thirty-day time

period in which an appeal could be made. See Iowa R. App. P. 6.101(1)(b) (“A
                                             3


notice of appeal must be filed within [thirty] days after the filing of the final order

or judgment.”). In December 2012, his PCR counsel filed a “motion to extend” in

the district court, requesting an extension of time to appeal. In February 2013,

after a hearing, the district court denied the motion.1            See Iowa R. Civ. P.

1.442(6) (“Lack of notice of the entry by the clerk does not affect the time to

appeal or relieve or authorize the district court to relieve a party for failure to

appeal within the time allowed.”). Bergantzel then filed a notice of appeal from

the dismissal of the PCR application. Because he failed to timely perfect an

appeal, Bergantzel’s appeal was dismissed by the supreme court in August

2013.

        In December 2013, Bergantzel filed his second PCR application pro se.

He alleged his sentence was illegal as being grossly disproportionate to his

crime. His second PCR counsel amended the application to allege Bergantzel’s

first PCR counsel was ineffective in failing to file an Iowa Rule of Civil Procedure


1
  In dismissing the motion, the district court cited Hays v. Hays, 612 N.W.2d 817 (Iowa
Ct. App. 2000), and Iowa Rule of Civil Procedure 1.442(6). In Hays, this court
considered former Iowa Rule of Civil Procedure 106(f), now renumbered as 1.442(6),
and held we had no jurisdiction to consider an appeal filed more than thirty days
following a court’s final judgment “even where, through the negligence of the clerk, the
parties are notified of the entry of an order beyond the time for appeal.” 612 N.W.2d at
818-19. However, we noted that “[a] litigant may avoid the harsh consequences of rule
[1.442(6)] by filing a motion to vacate under rules [1.1012] and [1.1013].” Id. at 819.
Such a petition “must be filed . . . within one year after the entry of the judgment or order
involved.” Iowa R. Civ. P. 1.1013(1). No such petition was filed by Bergantzel’s PCR
counsel.
        As an aside, we observe Iowa Rule of Appellate Procedure 6.101(5) permits the
supreme court to extend the time for filing a notice of appeal if the court determines that
the failure was due to the clerk of the district court’s failure to notify the prospective
appellant of the entry of the appealable final judgment. Its value is somewhat limited,
because a rule 6.101(5) motion must be filed with the clerk of the supreme court no later
than sixty days after the expiration of the original appeal deadline. Since Bergantzel and
his PCR counsel apparently did not become aware of the dismissal until more than sixty
days after the appeal period expired, the rule was not available to provide Bergantzel
relief.
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1.1013(1) petition to vacate the dismissal of the first PCR action. In a July 2015

order dismissing Bergantzel’s second PCR application, the PCR court concluded

the application was untimely and that Bergantzel’s sentence was not illegal.

Bergantzel appeals.

       Iowa Code section 822.3 (2013) requires all PCR applications “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.”          Procedendo

issued following Bergantzel’s direct appeal in 2007. His second PCR application

was filed in December 2013, more than three years past the limitation period set

forth in section 822.3. The second PCR action was clearly untimely.

       The legislature has provided an exception to the statutory limitation period

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

time period.”    Iowa Code § 822.3.       Bergantzel alleges his PCR counsel’s

ineffective assistance in failing to file a rule 1.1013(1) petition to vacate the

dismissal of his first PCR application excepts him from the limitation period. As

the PCR court correctly determined, ineffective assistance of counsel does not

provide an exception to the limitation period set forth in section 822.3.       See

Wilkins v. State, 522 N.W.2d 822, 824 (Iowa 1994).

       In this appeal, Bergantzel argues the PCR court erred in concluding

ineffective assistance of PCR counsel can never provide an exception to the

three-year limitation period set forth in section 822.3.     He notes that a PCR

applicant is statutorily entitled to representation of counsel, which necessarily

implies counsel be effective. See Dunbar v. State, 515 N.W.2d 12, 14 (Iowa

1994). However, in addition to showing the alleged ground could not have been
                                          5


raised earlier, an applicant seeking to raise a PCR claim under the exception to

the limitation period “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). The question is whether the alleged ground of fact is “the type that

has the potential to qualify as material evidence for purposes of a substantive

claim under section 822.2.” Id. at 521. Because the ground of fact alleged by

Bergantzel—his first PCR counsel’s failure to perfect an appeal in that action—

cannot qualify as material evidence that Bergantzel’s conviction is in violation of

the federal or state constitutions, see Iowa Code § 822.2(1) (setting forth the

grounds for which an applicant may assert PCR relief), no nexus exists between

Bergantzel’s claim and his conviction. Therefore, his claim is untimely. As our

supreme court has stated: “If the legislature had intended that ineffective

assistance of counsel serve as an exception to the statute of limitations, it would

have said so.” Dible v. State, 557 N.W.2d 881, 885 (Iowa 1996), abrogated on

other grounds by Harrington, 659 N.W.2d at 521.

       Although Bergantzel’s PCR application was not timely filed, his pro se

claim concerning the legality of his sentences may be raised at any time. See

State v. Lathrop, 781 N.W.2d 288, 293 (Iowa 2010).            Bergantzel has not

advanced any convincing argument to support his claim his sentences are

grossly disproportionate to the crimes for which he was convicted. Accordingly,

we affirm.   See State v. Oliver, 812 N.W.2d 636, 650 (Iowa 2012) (“If the

sentence does not create an inference of gross disproportionality, then ‘no further

analysis is necessary.’” (citation omitted)).

       AFFIRMED.
