Ross Leroy Barker, Applicant-Appellant v. State of Iowa

IN THE COURT OF APPEALS OF IOWA

No. 14-1178
Filed September 10, 2015

ROSS LEROY BARKER,
Applicant-Appellant,

vs.

STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Paul L. Macek,

Judge.

Ross Barker appeals the postconviction court’s grant of the State’s motion

to dismiss his application for postconviction relief. AFFIRMED.

Mark C. Smith, State Appellate Defender, Maria Ruhtenberg, Assistant

Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Katie Fiala, Assistant Attorney

General, Michael J. Walton, County Attorney, and Julie Walton, Assistant County

Attorney, for appellee State.

Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
2

VOGEL, P.J.

Ross Barker appeals the postconviction court’s grant of the State’s motion

to dismiss his application for postconviction relief (PCR). He asserts

postconviction counsel was ineffective for improperly framing his claim as a

challenge to an illegal sentence rather than a challenge to the knowing and

voluntariness of the plea. We conclude that not only is Barker’s claim barred by

the statute of limitations, but his argument is also unsupported by the sentencing

record. Therefore, he cannot establish either a breach of an essential duty or

prejudice. We affirm the order of the postconviction court granting the State’s

motion to dismiss.

Barker was charged with sexual abuse in the third degree. On March 14,

2008, he pleaded guilty to assault with intent to commit sexual abuse, an

aggravated misdemeanor, in violation of Iowa Code section 709.11 (2007). A

sentencing hearing was held on April 10, 2008, at which time the district court

imposed a term of incarceration not to exceed two years. The court also

informed Barker:

This type of crime is also subject to the Iowa legislature’s
special sentencing provision which provides that in addition to the
sentence proposed above, you shall at the—it is hereby ordered
that once that sentence of incarceration or probation should be
released sooner will—ends, you will be subject to be placed on the
correctional continuum for a period of ten years, which means that
you will be under the supervision as if you are on parole for an
additional period of ten years.
You will also be subject to the Sex Offender Registry
requirement, and you will be required to be on the Sex Offender
Registry for a period of ten years. You must within five days from
today’s date or five days of discharge from any sentence register
with the sheriff of the county where you’re residing.
3

Because the written sentencing order did not include the special

sentencing provision, a corrected order was entered on May 12, 2008. It stated:

“The court hereby corrects the above entry to reflect the correct sentencing to

include the mandatory sentence required pursuant to Iowa Code section 903B.2

upon completion of the sentence imposed on 4-10-08. So ordered.”

On April 4, 2014, Barker filed a pro se application for postconviction relief

in which he alleged:

On May 12, 2008 Judge Nancy S. Tabor changed my plea
agreement to reflect a sentence under Iowa Code section 903B.2
which imposed a lifetime sentence on the sex offender registry list,
which is a violation of due process and equal protection of the
law . . . .
Had Applicant known that he would be receiving life on the
sex offender list Applicant would not have pleaded guilty to the
offense and would not have taken the plea but demanded a trial.

Therefore, he claimed, trial counsel was ineffective.

The State moved to dismiss the application, arguing Barker’s claim under

Iowa Code section 822.3 was time-barred, because his application was filed

more than three years after his conviction was final. Postconviction counsel was

appointed, and in the resistance to the State’s motion he argued Barker was

subject to an illegal sentence, which is an issue that could be raised at any time.

On June 20, 2014, the postconviction court granted the State’s motion to dismiss,

finding Barker’s claim did not raise a ground of fact or law that could not have

been asserted within the statutory timeframe and was therefore barred by the

statute of limitations. Barker appeals, arguing postconviction counsel was

ineffective for failing to argue his plea was not knowing and voluntary, and that

his claim was not barred by the statute of limitations.
4

We review ineffective assistance of counsel claims de novo. State v.

Ortiz, 789 N.W.2d 761, 764 (Iowa 2010). To establish an ineffective assistance

claim the defendant must show trial counsel failed to perform an essential duty

and he was prejudiced by this failure. Id.

In Barker’s PCR application, he sought a new trial, claiming his plea was

not knowing and voluntary, as he was not informed he would be on the sexual

abuse registry for his lifetime. His argument before the postconviction court

asserted the court imposed an illegal sentence when it “changed” the order to

impose the special sentence pursuant to Iowa Code section 903B.2. This

section states:

A person convicted of a misdemeanor or a class “D” felony offense
under chapter 709, section 726.2, or section 728.12 shall also be
sentenced, in addition to any other punishment provided by law, to
a special sentence committing the person into the custody of the
director of the Iowa department of corrections for a period of ten
years, with eligibility for parole as provided in chapter 906. The
board of parole shall determine whether the person should be
released on parole or placed in a work release program. The
special sentence imposed under this section shall commence upon
completion of the sentence imposed under any applicable criminal
sentencing provisions for the underlying criminal offense and the
person shall begin the sentence under supervision as if on parole
or work release. The person shall be placed on the corrections
continuum in chapter 901B, and the terms and conditions of the
special sentence, including violations, shall be subject to the same
set of procedures set out in chapters 901B, 905, 906, and 908, and
rules adopted under those chapters for persons on parole or work
release.
5

Iowa Code § 903B.2.1

Barker’s characterization of the special sentence imposed is

misconstrued. Barker is only subject to the special sentence for a period of ten

years, assuming he does not violate any conditions. See Iowa Code § 903B.2.

Moreover, the provisions of the Sex Offender Registry List under Iowa Code

section 692A.106 state:

1. Except as otherwise provided in section 232.54,
692A.103, or 692A.128, or this section, the duration of registration
required under this chapter shall be for a period of ten years. The
registration period shall begin as provided in section 692A.103.
2. A sex offender who has been sentenced to a special
sentence under section 903B.1 or 903B.2 shall be required to
register for a period equal to the term of the special sentence, but in
no case not less than the period specified in subsection 1.
3. If a sex offender is placed on probation, parole, or work
release and the probation, parole, or work release is revoked, the
period of registration shall commence anew upon release from
custody.

Id. § 692A.106(1)–(3) (2015). Because of the plea Barker entered under section

709.11, an aggravated misdemeanor, the district court properly imposed the

special sentence pursuant to section 903B.2. In addition, under section

692A.106, Barker was required to be placed on the Sex Offender Registry for a

period of ten years, not a lifetime as Barker mistakenly asserted in his PCR

application. See id. § 692A.106(2) (2007).

On this record, Barker cannot establish any error occurred. While he

claims he was given a lifetime registry requirement, he has provided no evidence

1
To the extent Barker challenges the imposition of the special sentence under Iowa
Code section 903B.2, he committed a crime in violation of chapter 709, and, therefore,
his being subject to the terms of this section is not an illegal sentence. See Iowa Code
§ 903B.2; see also State v. Wade, 757 N.W.2d 618, 629–30 (Iowa 2008) (finding section
903B.2 constitutional, and further holding it was properly imposed on a defendant who
had committed a serious misdemeanor).
6

of this assertion. Rather, pursuant to the court documents within this record, the

proper sentence was imposed. Thus, Barker cannot prove that, but for counsel’s

failure to properly frame his claim, the postconviction court would have denied

the State’s motion to dismiss. He cannot establish either a breach of an

essential duty or prejudice, and his ineffective-assistance claim fails. See

Ledezma v. State, 626 N.W.2d 134, 142 (Iowa 2001) (noting if the defendant’s

ineffective-assistance claim lacks prejudice, we may decide the claim on that

ground alone); see also State v. Greene, 592 N.W.2d 24, 29 (Iowa 1999)

(holding counsel does not breach an essential duty by failing to pursue a

meritless issue).

AFFIRMED.