from the Iowa District Court for Butler County, Christopher
C. Foy, Judge.
applicant appeals the denial of his second application for
J. Thomas, Mason City, for appellant.
J. Miller, Attorney General, and Martha E. Trout, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
Johnson appeals the denial of his second application for
postconviction relief (PCR).
2009, Johnson was convicted of first-degree kidnapping; he
was sentenced to life in prison. Johnson filed a direct
appeal of his conviction, and a panel of our court affirmed
in State v. Johnson, No. 09-1776, 2010 WL 5050573,
at *4 (Iowa Ct. App. Dec. 8, 2010). Procedendo issued on
February 15, 2011.
an unsuccessful bid in his first application for PCR, Johnson
filed his present application for PCR in October 2015. In
this application, Johnson alleged both his trial and
direct-appeal counsel were ineffective for failing to
challenge the jury instructions as defective because they
defined kidnapping without including the necessary
"intensifiers"-that the confinement in a kidnapping
"substantially" increased the risk of harm,
"significantly" lessened the risk of detection, or
"significantly" facilitated escape. See State
v. Robinson, 859 N.W.2d 464, 476 (Iowa 2015). He also
claimed his trial counsel and direct-appeal counsel were
ineffective for failing to challenge defects in the trial
information, namely that the trial information did not allege
all the elements of kidnapping and did not provide sufficient
factual particulars of the crime to enable Johnson to prepare
response, the State filed a motion to dismiss Johnson's
second application, claiming it was time-barred by the
three-year statute of limitations in Iowa Code section 822.3
(2015) and his claims did not fall within the possible
a short PCR hearing on the record, Johnson's counsel told
the court he would waive the presentation of any oral
argument and would instead submit a written brief; the court
assented. Johnson, who participated in the hearing via
telephone, was asked if there was "anything that [he]
would like to state for the record, " and he declined.
written brief, PCR counsel raised and argued only
Johnson's first claim-that previous counsel had been
ineffective for failing to challenge the jury instructions.
No mention was made of Johnson's argument about the
allegedly inadequate trial information.
court denied Johnson's application. Ruling only on the
issue briefed by PCR counsel, the court determined that
Johnson's claim about the "intensifiers" was
not based on a ground of fact or law that could not have been
raised within three years from the issuance of procedendo
because the 2015 Robinson case only "confirmed
and clarified existing law on what the State must prove to
support a conviction for kidnapping, as previously set out in
the case of State v. Rich, 305 N.W.2d 739, 745 (Iowa
appeal, Johnson maintains the PCR court erred in its
determination that Robinson did not announce a new
rule of law. As we have done before, we reject the claim that
Robinson set forth new law. See, e.g.,
Jackson v. State, No. 17-0153, 2018 WL 739277, at *2
(Iowa Ct. App. Feb. 7, 2018); Brandes v. State, No.
17-0128, 2017 WL 6517176, at *1 (Iowa Ct. App. Dec. 20,
2017); Hampton v. State, No. 15-1802, 2016 WL
2713451, at *1 (Iowa Ct. App. May 11, 2016). Thus, we agree
with the PCR court that Johnson's claim was untimely, as
it could have been raised within the three-year statute of
limitations. See Iowa Code § 822.3 ("All .
. . applications must be filed within three years from the
date . . . the writ of procedendo is issued.").
Johnsons maintains PCR counsel was ineffective for failing to
ensure that Johnson's pro se claim about the inadequacy
of the trial information be litigated and adjudicated by the
PCR court. "To prevail on a claim of ineffective
assistance, the applicant most demonstrate both ineffective
assistance and prejudice." Ledezma v. State,
626 N.W.2d 134, 142 (Iowa 2001). "If the claim lacks
prejudice, it can be ...