Roberto Villasenor v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
No. 21-0755
Filed May 25, 2022
ROBERTO VILLASENOR,
Applicant-Appellant,

Vs.

STATE OF IOWA,
Respondent-Appellee.

Appeal from the lowa District Court for Polk County, William P. Kelly, Judge.

Roberto Villasenor appeals the summary dismissal of his application for

postconviction relief. AFFIRMED.

Martha J. Lucey, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Sharon K. Hall, Assistant Attorney

General, for appellee State.

Considered by Schumacher, P.J., Badding, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to lowa Code section 602.9206

(2022).
POTTERFIELD, Senior Judge.

On July 3, 2012, Roberto Villasenor accepted a plea offer and pled guilty to
two counts of lascivious acts with a child and an enhancement under lowa Code
section 901A.2 (2011).' Villasenor agreed to serve consecutive prison terms and
requested immediate sentencing.

Villasenor filed an application for postconviction relief (PCR) on June 11,
2018, and an amended PCR application in January 2020, requesting a new trial
due to newly-discovered evidence and ineffective assistance of counsel.
Villasenor asserted defense counsel failed to share DNA reports with him and
explain to him the consequences of his special sentence prior to his guilty plea.

The State filed a motion for summary disposition, asserting the application
was time-barred. In support, the State provided defense counsel’s affidavit, which
stated she obtained DNA reports through discovery from the Division of Criminal
Investigation and discussed the DNA results with Villasenor. Defense counsel also
stated she hand-delivered to Villasenor a letter on July 2, 2012, “describing the
terms of the plea agreement he had reached with the State. Mr. Villasenor read
the letter and signed it to indicate his understanding of the plea agreement. |
answered all of his questions and he decided to go through with the plea on the
following day.”

The written petition to plead guilty shows Villasenor’s initials acknowledging

the applicability of the special sentence:

1 He was originally charged with three counts of third-degree sexual abuse,
alleging he committed sex acts with a thirteen-year-old. The State agreed to a
reduced charge for two counts and the dismissal of the third.
1. I want to plead guilty and | understand that the crime I am pleading to is a sexual offense.
2. | understand that under lowa law, there are special rules that apply to sexual offenses.
3., lunderstand that the following special rules apply to my guilty plea in this case:

a. This crime is NOT a forcible felony, meaning that the court has authority to grant me
probation or a deferred judgment. Jowa Code Section 702.1 1(2)(c).

. [will be required to register as a Sex Offender for the rest of my life. lowa Code Chapter
692410101 )(an4), 692A4.106(5). I understand that I would be required to register as a sex
offender in any other state (or country) in which I resided that had sex offender registry laws.
These registration requirements are the same, even if] am granted a deferred judgment. Iowa
Code Section 692.4.101(7).

c. Unless I am granted a deferred judgment, I will be subject to a special sentence in addition to

any other sentence imposed by the court. This special sentence will begin after my regular

sentence and would last for the rest of my lifetime during which time, I will be supervised as
if ] was on parole. If] violate parole rules, I could be sentenced to prison. Iowa Code

Section 9038.1.

d. Ll understand that ] COULD be required to submit to electronic monitoring. lowa Code

Chapter 692A.124. i &

e. I will be required to submit a DNA sample to the state (and national)[DNA dabiges owa

Code Sections 81.1 — 81.10.

f. T understand that if were ever sentenced to prison on this charge anil requized Seti ‘SEX
offender treatment that if | failed te cooperate or complete sex offender trédiment, I wiouild
be required to serve 100% of my sentence. lowa Code Chapter 903A.2(1 (a). = ym

. lunderstand that if] were ever sentenced to prison on this charge I COULD. be ¢ saluted for,

and subject to, civil conunitment proceedings upon completing a prison sentengy, lowa Code

Chapter 229A, I =

I understand that this crime is a Sexually Predatory Offense and that if I were ever convicted

of another sexually predatory offense, the punishments for that crime could be much more

serious because of this conviction, Iowa Code Chapter 901A. This is true even if] am

granted a deferred judgment in this case. Iowa Code Chapter 901A. 1(2)

i. The victim of my crime was a minor. | understand that I will be barred under Iowa Law from
going certain places and doing certain things. These are called Exclusion Zones and
Activities. lowa Code Chapter 692.4.113. I could not, for example, go to or work at a school
or child care facility. If I did go to such places, or engage in such activities, I would have
committed a new crime and it would also be a violation of probation or parole. This is true

YW even if] am granted a deferred judgment. lowa Code Section 692A.101(7).

4, [understand each of the special rules set out above. Understanding those rules, | still wish to enter

a guilty plea.

‘ S

ae

Sk - SR

The order adjudicating Villasenor guilty and entering sentence addresses
the special sentence:

Further, defendant is advised that the offense of conviction is
a sexually predatory offense within the meaning of Chapter 901A of
the lowa Code. This conviction will be used to enhance any future
convictions for any sexually predatory offense as described in lowa
Code section 901A.2.

IT IS FURTHER ORDERED that the defendant is sentenced
to a special sentence committing him into the custody of the director
of the lowa Department of Corrections for the rest of his life, with
eligibility for parole as provided in chapter 906. The special sentence
shall commence upon completion of the sentence imposed for the
underlying criminal offense. The defendant shall begin the sentence
under supervision as if on parole pursuant to lowa Code Section
903B.1.

Villasenor resisted the State’s motion to dismiss his PCR application; but,
despite receiving a number of continuances to do so, Villasenor failed to file an
affidavit to support his resistance.

On May 26, 2021, the district court ruled the State met its burden to show
the nonexistence of a material fact; the record indicates Villasenor had notice of
the factual grounds for his PCR application and could have filed his application
within the limitations period. The district court also concluded that even if equitable
estoppel would be recognized in PCR proceedings it did not apply here because
“[c]ourts applying the discovery rule toll the statute of limitations until ‘the plaintiff
knows or should have known facts that put the plaintiff on inquiry notice that a claim
may be present.” Mormann v. lowa Workforce Dev., 913 N.W.2d 554, 566 (lowa
2018). Because “Villasenor provided no evidence to contradict his former
attorney’s affidavit testimony’ the PCR application was time-barred and was
summarily dismissed.

Villasenor appeals, contending he was unable to raise his claims within
three years after his conviction because he did not have possession of the DNA
reports? within the three-year time limit and there is a factual dispute as to whether
he was adequately advised of the conditions of the life-time special sentence that
the court imposed. Villasenor contends equitable tolling should be applied to

excuse the limitation period.

@ Villasenor does not assert the DNA reports exonerate him.
We review summary PCR dispositions for correction of errors at law. Linn
v. State, 929 N.W.2d 717, 729 (lowa 2019). To the extent Villasenor raises a
constitutional claim as a basis for relief, our review is de novo. See id. In deciding
whether summary disposition is proper, we ask whether the State would prevail on
a motion for summary judgment. Schmidt v. State, 909 N.W.2d 778, 784 (lowa
2018). The State, as the moving party, bears the burden of showing that no
genuine issue of material fact exists. /d.

PCR actions “must be filed within three years from the date the conviction
or decision is final or, in the event of an appeal, from the date the writ of
procedendo is issued.” lowa Code § 822.3 (2020). An exception is made for
applications claiming “a ground of fact or law that could not have been raised within
the applicable time period.” /d. Villasenor’s claim of newly-discovered evidence
could invoke the ground-of-fact exception if the alleged ground of fact could not
have been raised earlier. See Wilkins v. State, 522 N.W.2d 822, 824 (lowa 1994)
(noting this exception allows the court to consider “untimely filed applications if
they are based on claims that ‘could not’ have been previously raised because
they were not available” and concluding “Wilkins cannot assert ignorance of the
claim because he should have at least been alerted to trial counsel’s failure to raise
the shirt issue”). Even viewing the record in the light most favorable to Villasenor,
we agree Villasenor has failed to rebut the State’s showing it was entitled to
judgment as a matter of law. We affirm without further opinion. See lowa Ct.
R. 21.26(a), (d), (e).

AFFIRMED.