Ricky Anthony Brandes v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
No. 20-0084
Filed May 12, 2021
RICKY ANTHONY BRANDES,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Chickasaw County, Joel A.
Dalrymple, Judge.
Ricky Brandes appeals the summary dismissal of his postconviction-relief
application. AFFIRMED.
William P. Baresel of Prichard Law Office, PC, Charles City, for appellant.
Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant
Attorney General, for appellee State.
Considered by Doyle, P.J., Schumacher, J., and Gamble, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
2
GAMBLE, Senior Judge.
Ricky Brandes appeals the summary dismissal of his third application for
postconviction relief (PCR). We affirm.
Following a bench trial, Brandes was convicted of first-degree kidnapping
and sentenced to life in prison in 2006. Brandes appealed, and this court affirmed
his conviction. See State v. Brandes, No. 06-0576, 2007 WL 4553478, at *7 (Iowa
Ct. App. Dec. 28, 2007). Procedendo issued in February 2008. Brandes filed his
first PCR application in 2008. The district court denied his application, and this
court affirmed the denial. Brandes v. State, No. 11-0941, 2012 WL 5598523, at *4
(Iowa Ct. App. Nov. 15, 2012). Brandes filed his second PCR application in 2016.
The district court dismissed Brandes’s second application as untimely. Brandes v.
State, No. 17-0128, 2017 WL 6517176, at *1 (Iowa Ct. App. Dec. 20, 2017). This
court affirmed, determining Brandes could not avoid the three-year statute of
limitations found in Iowa Code section 822.3 (2016). Id. Brandes filed his third
PCR application, the subject of this appeal, in 2018. In his application, Brandes
claimed his fellow perpetrator, Travis Alve, “wants to have a chance to tell the
courts he lied to the courts about [Brandes]. He wants to be heard.” The State
moved for summary dismissal. Following a hearing on the State’s motion wherein
Brandes testified, the district court dismissed Brandes’s application as untimely.
See Iowa Code § 822.6(3) (2018) (authorizing summary dismissal of PCR actions).
Brandes appeals.
We review PCR actions for legal error, including summary dismissals of
PCR applications. Castro v. State, 795 N.W.2d 789, 792 (Iowa 2011).
3
Iowa Code section 822.3 requires that applications “be filed within three
years from the date . . . procedendo is issued.” “However, this limitation does not
apply to a ground of fact or law that could not have been raised within the
applicable time period.” Iowa Code § 822.3. Brandes concedes his third PCR
application was filed beyond the three-year statute of limitations. But he asserts
Alve’s willingness to testify amounts to newly discovered evidence sufficient to
bypass the three-year limitation. Brandes claims he was unaware of Alve’s
willingness to testify in his favor until 2018. At the hearing on the State’s motion
to dismiss, Brandes testified he encountered Alve when they were transferred to
the same prison and Alve told him “he would recant some of the things that he
alleged that [Brandes] did and swore he wouldn’t let [Brandes] do a life sentence.”1
Brandes’s use of the word “recant” implies Alve testified against Brandes at
the criminal trial. He did not. Alve may have made some statements unfavorable
to Brandes during his own plea negotiations, but Alve did not testify at trial.
Further, Brandes’s report of Alve’s proposed new testimony is vague and
uncertain. Brandes testified, “[Alve] said that he would take back that I didn’t bring
her and I didn’t hold her against her will and I didn’t beat her up and things like
that, and that he had it all wrote down on paper and I got that paper somewhere.”
Brandes did not produce Alve’s purported written statement. Brandes failed to
demonstrate how the statements Alve allegedly made to him in prison are different
1 In his third application for PCR, Brandes stated Alve pleaded guilty. It is not clear
from our record whether Alve pleaded to a lesser charge and was subject to a
lesser term of imprisonment or if he pleaded guilty to first-degree kidnapping.
4
from the information that was available to Brandes in his two prior PCR
proceedings.2 All we are left with is Alve’s apparent willingness to testify now.
We do not consider Alve’s willingness to testify as newly discovered
evidence sufficient to bypass the statute of limitations. When addressing
Brandes’s second PCR appeal we stated,
Brandes suggests . . . testimony of a co-defendant[3] would provide
a new ground of fact or law [to bypass the statute of limitations].
Again, we fail to see why this could not have been raised within the
applicable time period. Brandes again fails to make any argument in
support of his contention. We reject this argument.
Brandes, 2017 WL 6517176, at *1. We view Brandes’s current claim to effectively
be his old argument wearing a new hat. And we reject it again for the same
reason—Brandes provides no explanation as to why he was unable to discover
and raise Alve’s willingness to testify within the three-year statute of limitations.
See Iowa Code § 822.3 (providing a new ground of fact may only be used to
bypass the statute of limitations when the new fact could not have been raised
within the three-year limitation). So the district court did not err in dismissing
Brandes’s third PCR application as time-barred.4
AFFIRMED.
2 When ruling on Brandes’s first PCR, the district court determined defense counsel
was not ineffective for failing to secure Alve’s testimony. So we assume that during
the first PCR, Brandes argued Alve would have provided beneficial testimony,
which the court ultimately rejected.
3 Alve was Brandes’s only co-defendant.
4 The State also argues the district court properly dismissed Brandes’s application
pursuant to Iowa Code section 822.8, which requires an applicant to raise all
grounds for relief in their “original, supplemental, or amended application.”
However, it is “unnecessary to address section 822.8, which presumes a timely
filed application.” McCoy v. State, No. 17-1919, 2020 WL 3263924, at *3 (Iowa Ct.
App. June 17, 2020) (Vaitheswaran, J., concurring specially).