Bobby Ray Woodberry, Applicant-Appellant v. State of Iowa ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 14-1434
Filed March 9, 2016
BOBBY RAY WOODBERRY,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom,
Judge.
Bobby Woodberry appeals the denial of his application for post-conviction
relief. AFFIRMED.
Tammi M. Blackstone, Des Moines, for appellant.
Thomas J. Miller, Attorney General, and Kevin Cmelik and Kyle P.
Hanson, Assistant Attorneys General, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
2
BOWER, Judge.
Bobby Woodberry appeals the denial of his application for postconviction
relief (PCR), claiming the district court improperly held the hearing on his
application without Woodberry present and the court erred in not allowing
Woodberry to recast his application. We affirm.
On July 15, 1995, a jury convicted Woodberry of murder in the first degree
and attempt to commit murder. Woodberry appealed these convictions and this
court affirmed.1 Since, Woodberry has filed multiple applications for PCR, which
were denied. Woodberry filed the present application in October 2013 (his
fourth), claiming the trial information was defective because the State omitted a
statement regarding intent. Due to this deficiency, Woodberry noted the court
lacked subject matter jurisdiction, and his conviction and sentence are void and
must be vacated. The State filed for summary disposition of the application, and
asked for sanctions against Woodberry for filing a frivolous application.
During the hearing on Woodberry’s application, Woodberry’s counsel
asked for leave to recast the application to include a claim that each of the
previous PCR counsels provided ineffective assistance for failing to raise the
error in the trial information. After the hearing, Woodberry’s counsel failed to file
the recast petition. The district court considered the issue anyway, found the
issue was time barred, and denied Woodberry’s application. The court declined
to sanction Woodberry. Woodberry now appeals.
1
See State v. Woodberry, No. 95–1349, slip op. at 8 (Iowa Ct. App. Dec. 20, 1996).
3
Woodberry claims the court improperly allowed the PCR hearing to
proceed without him, which resulted in a violation of his due process rights. The
hearing transcript shows Woodberry’s counsel waived Woodberry’s presence at
the hearing. Therefore, Woodberry has failed to preserve error on this issue
since it was not raised at the hearing. See Meier v. Senecaut, 641 N.W.2d 532,
537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues
must ordinarily be both raised and decided by the district court before we will
decide them on appeal.”).
Woodberry also claims the court erred by ruling on the State’s motion for
summary judgment without allowing Woodberry’s counsel to recast his
application to include ineffective-assistance of prior PCR counsel. Iowa Code
section 822.3 (2013) provides a three-year statute of limitations for the filing of
PCR petitions. Woodberry’s application was filed thirteen years after the
deadline and, therefore, is untimely. Allowing Woodberry to recast his petition
would not remedy the timeliness issue. “[A]n applicant for [PCR] cannot
circumvent the effect of the three-year time bar by merely claiming the ineffective
assistance of [PCR] counsel.” Smith v. State, 542 N.W.2d 853, 854 (Iowa Ct.
App. 1995) (citing Wilkins v. State, 522 N.W.2d 822, 823 (Iowa 1994)). Further,
Woodberry’s claim is not one that fits into the exception to this rule by stating a
“ground of fact or law that could not have been raised within the applicable time
period.” Iowa Code § 822.3. The “ground of fact” exception does not extend to
ineffectiveness of [PCR] counsel of any kind—including [PCR] appellate counsel.
4
See Dible v. State, 557 N.W.2d 881, 884 (Iowa 1996), abrogated on other
grounds by Harrington v. State, 659 N.W.2d 509 (Iowa 2003).
We affirm the district court’s dismissal of Woodberry’s application for PCR
without further opinion pursuant to Iowa Court Rule 21.26(1)(a), (c), (d), and (e).
AFFIRMED.