from the Iowa District Court for Muscatine County, Nancy S.
Harkless appeals the district court's dismissal of his
application for postconviction relief.
G. Daufeldt of Daufeldt Law Firm, P.L.C., Conroy, for
J. Miller, Attorney General, and Genevieve Reinkoester,
Assistant Attorney General, for appellee State.
Considered by Danilson, C.J., Doyle, J., and Carr, S.J.
[*] Tabor, J.,
takes no part.
2011, Jay Harkless pled guilty to second-degree
robbery. He did not appeal. In 2016, Harkless filed
an application for postconviction relief (PCR), claiming his
sentence "exceeds the maximum authorized by law"
under "House File 2064 and its newly defined
parameters" of robbery. See 2016 Iowa Acts ch.
1104, § 4 (codified at Iowa Code § 711.3A(1)-(2)
(2017)) (providing for aggravated misdemeanor robbery if the
person perpetrating the robbery commits simple misdemeanor
assault). Harkless' appointed counsel filed a motion for
release of file and transcripts for copying, which the court
State filed a motion to dismiss Harkless' application as
"fatally flawed on its face, " alleging the
statutory amendments contained in House File 2064 were
"expressly not retroactive" and therefore
inapplicable to Harkless' conviction. Harkless'
counsel did not file a resistance. The court entered an order
granting the State's motion to dismiss without oral
The new offense of robbery in the third degree can only be
charged for conduct which occurs on or after July 1, 2016-the
effective date of the legislation. . . .
. . . . . . . . Applicant's sentence was imposed years
before the amendment to the statute was enacted and made
effective. Applicant is not entitled to the benefit of a
statutory amendment that decreases the punishment for an
offense or makes a new offense with a lesser punishment
unless the amended statute is effective at the time of the
counsel filed a motion for new trial, requesting the court
reconsider and vacate its ruling, which the court denied.
appeals the court's dismissal of his PCR application,
claiming his PCR trial counsel committed structural error and
thus rendered ineffective assistance. Structural error exists
(1) counsel is completely denied, actually or constructively,
at a crucial stage of the proceeding; (2) . . . counsel does
not place the prosecution's case against meaningful
adversarial testing; or (3) . . . surrounding circumstances
justify a presumption of ineffectiveness, such as where
counsel has an actual conflict of interest in jointly
representing multiple defendants.
Lado v. State,
804 N.W.2d 248, 252 (Iowa 2011). If
structural error is present, it renders the underlying
proceeding "so unreliable the constitutional or
statutory right to counsel entitles the defendant to a new
proceeding without the need to show the error actually caused
prejudice." Id. Specifically, Harkless claims
PCR counsel "failed to resist the State's motion to
dismiss, failed to request amendment of the PCR application,
and failed to ...