IN THE COURT OF APPEALS OF IOWA
No. 14-0206
Filed March 11, 2015
RICARDO LEE McGLOTHLIN,
Applicant-Appellant,
vs.
STATE OF IOWA,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Davis County, Lucy J. Gamon,
Judge.
Ricardo McGlothlin appeals from the order denying his second application
for postconviction relief. AFFIRMED.
Julie De Vries of De Vries Law Office, P.L.C., Centerville, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik, Assistant Attorney
General, and Rick Lynch, County Attorney, for appellee State.
Considered by Potterfield, P.J., Bower, J., and Eisenhauer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2
EISENHAUER, S.J.
Ricardo McGlothlin appeals from the order denying his second application
for postconviction relief (PCR). He contends the district court erred in
determining his claim did not fall under the exception to the three-year statute of
limitations set forth in Iowa Code section 822.3 (2011). McGlothlin alleges he
was unable to raise his claim trial counsel was ineffective in failing to offer
evidence of the effects bullying had on him until after the limitation period had
passed. We review his claim for correction of errors of law. See Harrington v.
State, 659 N.W.2d 509, 519 (Iowa 2003).
On June 18, 2012, McGlothlin initiated this action, which undisputedly falls
outside the statute of limitations on PCR actions.1 However, McGlothlin argues
his claim falls under the exception to the statute because it “could not have been
raised within the applicable time period.” Iowa Code § 822.3. Specifically, he
argues the bullying defense is new and could not have been raised before our
legislature enacted anti-bullying legislation in 2007. See 2007 Iowa Acts ch. 9,
§ 2. In Iowa Code section 280.28—part of the “Uniform School Requirements”
statute, see Iowa Code § 280.1—the legislature acknowledges “bullying behavior
can seriously disrupt the ability of school employees to maintain a safe and civil
environment, and the ability of students to learn and succeed” and defines
bullying as behavior that may have “a substantially detrimental effect” on mental
1
McGlothin was convicted of second-degree murder in 2002, and his conviction was
affirmed the following year. See State v. McGlothlin, No. 02-1587, 2003 WL 22342203,
at *1 (Iowa Ct. App. Oct. 15, 2003). He filed his first PCR application in 2004. This court
affirmed its denial. See McGlothlin v. State, No. 06-1246, 2007 WL 2376641, at *5 (Iowa
Ct. App. Aug. 22, 2007). McGlothin initiated the present PCR action in 2012, more than
eight years after procedendo issued in the direct appeal of his conviction.
3
health. Id. § 280.28(1), (2)(b)(2). However, it does not create a new defense in
criminal prosecutions and is largely inapplicable to criminal prosecution.2 To
make an exception to the statute of limitations, a change in the law must affect
the validity of the conviction. State v. Edman, 444 N.W.2d 103, 106 (Iowa Ct.
App. 1989). Because section 280.28 is inapplicable to McGlothlin, the statute
cannot provide an exception to his untimely PCR application.
We conclude the issue McGlothlin raises in his second PCR application
could have been raised during the three-year limitation period. McGlothlin
certainly had knowledge of his own history of being bullied and his mental health.
While he may not have realized the connection between the two, assuming there
is one, this information existed and was discoverable before the statute of
limitations expired in January 2007.
The issue is not whether his present claims were previously raised,
it is whether they could have been raised during the three-year time
period. The legal and factual underpinnings of each of [the
applicant]’s claims were in existence during the three-year period
and were available to be addressed in [the applicant]’s appellate
and postconviction proceedings.
Smith v. State, 542 N.W.2d 853, 854 (Iowa Ct. App. 1995). Because the legal
and factual underpinnings of McGlothlin’s claim counsel was ineffective for failing
to raise a bullying defense were in existence and the claim could have been
addressed in his appellate and PCR proceedings, we affirm the order denying
McGlothlin’s second PCR application.
AFFIRMED.
2
The only provision of section 280.28 applicable to criminal matters provides immunity
from criminal prosecution to those who make a good-faith report of a bullying incident.
See Iowa Code § 280.28(5).