VINCENT A. RAMOS, Applicant-Appellant,
STATE OF IOWA, Respondent-Appellee.
from the Iowa District Court for Des Moines County, John G.
Ramos appeals from the summary dismissal of his
postconviction relief application. AFFIRMED.
W. Bjornstad of Bjornstad Law Office, Spirit Lake, for
J. Miller, Attorney General, and Kyle Hanson, Assistant
Attorney General, for appellee State.
Considered by Danilson, C.J., and Potterfield and Bower, JJ.
DANILSON, Chief Judge.
Ramos appeals from the summary dismissal of his 2015
postconviction-relief (PCR) application challenging his 2003
conviction for first-degree kidnapping. Ramos asserts the
jury instructions given at trial were defective because they
failed to include language that would comply with State
v. Rich, 305 N.W.2d 739 (Iowa 1981),  and "more
importantly the recent case of State v. Robinson,
" 859 N.W.2d 464, 480 (Iowa 2015). He contends trial and
appellate counsel were ineffective in failing to challenge
the faulty instructions and the Robinson case
restarted the limitation period for filing a PCR application.
See Iowa Code § 822.3 (2015).
an appeal from a denial of an application for postconviction
relief is reviewed for correction of errors at law."
Perez v. State, 816 N.W.2d 354, 356 (Iowa 2012)
(citation omitted). "However, when the applicant asserts
claims of a constitutional nature, our review is de novo.
Thus, we review claims of ineffective assistance of counsel
de novo." Ledezma v. State, 626 N.W.2d 134, 141
(Iowa 2001) (internal citation omitted).
court rejected the limitation-period argument and also
concluded that Robinson offered no relief.
Robinson involved the question of whether "the
State offered sufficient evidence that a jury could find
beyond a reasonable doubt that the defendant's
confinement of the victim substantially increased
the risk of harm, significantly lessened the risk of
detection, or significantly facilitated
escape." 859 N.W.2d at 481. Finding that the evidence of
confinement was not sufficient to qualify for the
Rich "intensifier" language, the court was
required to determine the proper disposition of the case.
Id. at 482. The Robinson court
We cannot determine, however, whether the jury found Robinson
guilty of sexual abuse in the second degree, which requires
an additional finding that during the commission of the
sexual abuse, Robinson used or threatened to use force
creating a substantial risk of death or serious injury to
B.S. Compare Iowa Code § 709.3(1) (2011)
(sexual abuse in the second degree), with Iowa Code
§ 709.4(1) (sexual abuse in the third degree). This
element is not a prerequisite to a kidnapping in the
In light of the record, we conclude the State may pursue one
of two options in this case on remand. The State has the
option of standing on the jury's necessary determination
that Robinson was guilty of sexual abuse in the third degree
and ask the court to enter judgment on that offense and to
sentence Robinson accordingly. In the alternative, however,
the State may on remand elect to retry Robinson on sexual
abuse in the second degree, an offense which the jury verdict
in this case was not required to decide.
Id. at 482-83.
assuming Ramos could avoid the three-year limitations bar,
PCR court considered the record and-unlike in
Robinson-determined no factual insufficiency
regarding confinement existed in this case. As stated by the
Robinson mentions cases of kidnapping and sexual
abuse when victims were bound or a weapon is used. These are
factors which demonstrate that confinement or removal has
significance apart from the sexual abuse and the confinement
or removal is more than incidental to the commission of the
sexual abuse. The court of appeals in the ruling on
[Ramos]'s direct appeal of his convictionnoted that the
jury could have found that Ramos confined the victim for a
period of time over two days and the victim was beaten and
sexually abused. At one point, the victim was struck with the
stick end of a plunger. Ramos threatened the victim with a
knife. The knife was held to the victim's throat. The
victim was sexually abused over the course of several days,
and at one point, Ramos threatened the victim with a shotgun
and put it in the victim's mouth. The victim's face
was covered with a towel so she could not see at one point.
The victim was barricaded in a bedroom with furniture placed