IN THE COURT OF APPEALS OF IOWA
No. 12-1110 Filed October 29, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
CHARLES BERNARD LANDFAIR, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Richard D.
Stochl (trial and sentencing) and George L. Stigler (motion to correct record),
Judges.
Charles Landfair appeals his conviction for burglary in the first degree.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Charles Landfair, Fort Dodge, pro se appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Adam Kenworthy, Student Legal Intern, Thomas J. Ferguson, County
Attorney, and Brook Jacobsen, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., Tabor, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013). 2
MILLER, S.J.
Charles Landfair was convicted of burglary in the first degree, a class “B”
felony in violation of Iowa Code sections 713.1 and 713.3(1)(c) (2011), and was
sentenced to a prison term of no more than twenty-five years. He appeals.
In a brief filed by counsel, Landfair contends: (1) defense counsel
rendered ineffective assistance by failing to move to have the charges against
him dismissed for a violation of his right to speedy indictment, (2) the district
court was without authority or jurisdiction to address a motion by the State to
correct the record, and (3) the procedure employed by the district court in ruling
on the State’s motion to correct the record violated his right to due process of
law. In a separate pro se brief, Landfair contends, as best we can understand
his brief, that: (1) the State violated his right to a speedy trial, (2) the prosecutor
engaged in misconduct, and (3) defense counsel rendered ineffective assistance
by failing to assert a violation of Landfair’s right to speedy indictment.
We choose to address the issues raised in a different order than set forth
above, taking up first those raised in Landfair’s pro se brief.
I. Pro Se Claims.
A. Speedy Trial.
“Generally, we will only review an issue raised on appeal if it was first
presented to and ruled on by the district court. This general rule includes
constitutional issues.” State v. Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa
2002) (citations omitted). Further, “when a motion is not ruled on in the trial
court, and there is no request or demand for ruling, error has not been
preserved.” State v. Walker, 304 N.W.2d 193, 195 (Iowa 1981). Landfair makes 3
no claim or showing, and nothing in the record presented on appeal suggests,
that his speedy-trial claim was ever passed upon by, or even presented to, the
district court. We conclude he has not preserved error on his speedy trial
contention and do not further address it.1
B. Prosecutorial Misconduct.
A defendant may not obtain relief based on a claim of prosecutorial
misconduct without moving for a mistrial at the time of the alleged misconduct.
State v. Krogmann, 804 N.W.2d 518, 526 (Iowa 2011); see also State v. Duncan,
710 N.W.2d 34, 45 (Iowa 2006) (noting on an issue of prosecutorial misconduct
that “[b]ecause no such objection was made to this testimony, the claimed error
was not preserved”). “When a party fails to alert the district court to its
contentions, that party cannot thereafter rely on those contentions to seek a
reversal on appeal.” State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995).
Landfair makes no claim or showing, and nothing in the record presented on
appeal suggests, that at any appropriate time he sought a mistrial or otherwise
objected to any action or conduct by the prosecutor. We conclude he has not
preserved error on his prosecutorial-misconduct contention and do not further
address it.2
1 We do note that although Landfair asserts he “did not sign a written waiver of his Right To A Speedy Trial,” the record appears to refute this assertion. It contains a written “Waiver of Speedy Trial” purportedly signed by both Landfair and his defense attorney on November 21, 2011, and filed that same date. 2 Although not necessary to our resolution of this issue, we do note that it also may be deemed waived because Landfair neither states any facts relevant to the issue, see Iowa R. App. P. 6.903(2)(f) (requiring an appellant’s brief to include a statement of “the facts relevant to the issues presented for review”), nor complies with any of the requirements of our Iowa Rule of Appellate Procedure 6.903(2)(g) (requiring the appellant’s brief to contain (1) a statement addressing how the issue was preserved for appellate review, (2) a statement addressing the scope and standard of appellate 4
C. Ineffective Assistance.
We find this claim indistinguishable from and adequately addressed by our
disposition of the same issue raised and discussed in the brief filed by Landfair’s
appellate counsel.
II. Issues Raised by Counsel.
A. Motion to Correct Record—District Court Authority or
Jurisdiction.
Landfair was arrested on or about August 28, 2011. There appears to be
conflicting evidence in the record as to when the trial information was filed, some
indicating it was filed September 19, 2011, and some indicating it was filed
October 19, 2011. The first of those two dates is well within the forty-five days of
arrest allowed for indictment by Iowa Rule of Criminal Procedure 2.33(2)(a). The
second is outside the forty-five days allowed, generally permitting a defendant to
have the charge dismissed. See Iowa R. Crim. P. 2.33(2)(a) (“When an adult is
arrested for the commission of a public offense . . . and an indictment is not
found within 45 days, the court must order the prosecution to be
dismissed . . . .”).
The State filed an Iowa Rule of Appellate Procedure 6.807 motion to
correct the record on August 6, 2013. The district court entered an order the
following day, sustaining the motion and finding the trial information had been
filed September 19, 2011. Our supreme court entered an order granting Landfair
the opportunity to file an amended brief. In his amended brief Landfair contends
review, and (3) an argument containing the appellant’s contentions and the reasons for them). 5
the district court had neither authority nor jurisdiction to address the State’s
motion to correct the record.
Iowa Rule of Appellate Procedure 6.807 is part of Division VIII of those
rules, a division that sets forth the rules concerning the “Record on Appeal.” It
provides, in relevant part:
Correction or Modification of the Record If any difference arises as to whether the record truly discloses what occurred in the district court . . . the difference shall be submitted to and settled by that court . . . and the record made to conform to the truth.
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IN THE COURT OF APPEALS OF IOWA
No. 12-1110 Filed October 29, 2014
STATE OF IOWA, Plaintiff-Appellee,
vs.
CHARLES BERNARD LANDFAIR, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Richard D.
Stochl (trial and sentencing) and George L. Stigler (motion to correct record),
Judges.
Charles Landfair appeals his conviction for burglary in the first degree.
AFFIRMED.
Mark C. Smith, State Appellate Defender, and Stephan J. Japuntich,
Assistant Appellate Defender, for appellant.
Charles Landfair, Fort Dodge, pro se appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Adam Kenworthy, Student Legal Intern, Thomas J. Ferguson, County
Attorney, and Brook Jacobsen, Assistant County Attorney, for appellee.
Considered by Vogel, P.J., Tabor, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013). 2
MILLER, S.J.
Charles Landfair was convicted of burglary in the first degree, a class “B”
felony in violation of Iowa Code sections 713.1 and 713.3(1)(c) (2011), and was
sentenced to a prison term of no more than twenty-five years. He appeals.
In a brief filed by counsel, Landfair contends: (1) defense counsel
rendered ineffective assistance by failing to move to have the charges against
him dismissed for a violation of his right to speedy indictment, (2) the district
court was without authority or jurisdiction to address a motion by the State to
correct the record, and (3) the procedure employed by the district court in ruling
on the State’s motion to correct the record violated his right to due process of
law. In a separate pro se brief, Landfair contends, as best we can understand
his brief, that: (1) the State violated his right to a speedy trial, (2) the prosecutor
engaged in misconduct, and (3) defense counsel rendered ineffective assistance
by failing to assert a violation of Landfair’s right to speedy indictment.
We choose to address the issues raised in a different order than set forth
above, taking up first those raised in Landfair’s pro se brief.
I. Pro Se Claims.
A. Speedy Trial.
“Generally, we will only review an issue raised on appeal if it was first
presented to and ruled on by the district court. This general rule includes
constitutional issues.” State v. Hernandez-Lopez, 639 N.W.2d 226, 233 (Iowa
2002) (citations omitted). Further, “when a motion is not ruled on in the trial
court, and there is no request or demand for ruling, error has not been
preserved.” State v. Walker, 304 N.W.2d 193, 195 (Iowa 1981). Landfair makes 3
no claim or showing, and nothing in the record presented on appeal suggests,
that his speedy-trial claim was ever passed upon by, or even presented to, the
district court. We conclude he has not preserved error on his speedy trial
contention and do not further address it.1
B. Prosecutorial Misconduct.
A defendant may not obtain relief based on a claim of prosecutorial
misconduct without moving for a mistrial at the time of the alleged misconduct.
State v. Krogmann, 804 N.W.2d 518, 526 (Iowa 2011); see also State v. Duncan,
710 N.W.2d 34, 45 (Iowa 2006) (noting on an issue of prosecutorial misconduct
that “[b]ecause no such objection was made to this testimony, the claimed error
was not preserved”). “When a party fails to alert the district court to its
contentions, that party cannot thereafter rely on those contentions to seek a
reversal on appeal.” State v. Halliburton, 539 N.W.2d 339, 342 (Iowa 1995).
Landfair makes no claim or showing, and nothing in the record presented on
appeal suggests, that at any appropriate time he sought a mistrial or otherwise
objected to any action or conduct by the prosecutor. We conclude he has not
preserved error on his prosecutorial-misconduct contention and do not further
address it.2
1 We do note that although Landfair asserts he “did not sign a written waiver of his Right To A Speedy Trial,” the record appears to refute this assertion. It contains a written “Waiver of Speedy Trial” purportedly signed by both Landfair and his defense attorney on November 21, 2011, and filed that same date. 2 Although not necessary to our resolution of this issue, we do note that it also may be deemed waived because Landfair neither states any facts relevant to the issue, see Iowa R. App. P. 6.903(2)(f) (requiring an appellant’s brief to include a statement of “the facts relevant to the issues presented for review”), nor complies with any of the requirements of our Iowa Rule of Appellate Procedure 6.903(2)(g) (requiring the appellant’s brief to contain (1) a statement addressing how the issue was preserved for appellate review, (2) a statement addressing the scope and standard of appellate 4
C. Ineffective Assistance.
We find this claim indistinguishable from and adequately addressed by our
disposition of the same issue raised and discussed in the brief filed by Landfair’s
appellate counsel.
II. Issues Raised by Counsel.
A. Motion to Correct Record—District Court Authority or
Jurisdiction.
Landfair was arrested on or about August 28, 2011. There appears to be
conflicting evidence in the record as to when the trial information was filed, some
indicating it was filed September 19, 2011, and some indicating it was filed
October 19, 2011. The first of those two dates is well within the forty-five days of
arrest allowed for indictment by Iowa Rule of Criminal Procedure 2.33(2)(a). The
second is outside the forty-five days allowed, generally permitting a defendant to
have the charge dismissed. See Iowa R. Crim. P. 2.33(2)(a) (“When an adult is
arrested for the commission of a public offense . . . and an indictment is not
found within 45 days, the court must order the prosecution to be
dismissed . . . .”).
The State filed an Iowa Rule of Appellate Procedure 6.807 motion to
correct the record on August 6, 2013. The district court entered an order the
following day, sustaining the motion and finding the trial information had been
filed September 19, 2011. Our supreme court entered an order granting Landfair
the opportunity to file an amended brief. In his amended brief Landfair contends
review, and (3) an argument containing the appellant’s contentions and the reasons for them). 5
the district court had neither authority nor jurisdiction to address the State’s
motion to correct the record.
Iowa Rule of Appellate Procedure 6.807 is part of Division VIII of those
rules, a division that sets forth the rules concerning the “Record on Appeal.” It
provides, in relevant part:
Correction or Modification of the Record If any difference arises as to whether the record truly discloses what occurred in the district court . . . the difference shall be submitted to and settled by that court . . . and the record made to conform to the truth. If anything material to either party is omitted from the record . . . or is misstated therein . . . the district court . . . either before or after the record is transmitted to the supreme court . . . may direct that the omission or misstatement be corrected . . . .
Iowa R. App. P. 6.807.
In this case the record contained conflicting information concerning which
of two dates the trial information had been filed on. The parties were obviously of
different opinions as to which date was correct. The State sought an order from
the district court to resolve the conflict. Landfair asserts the district court had no
authority or jurisdiction to consider and rule on the motion. He argues that the
matter is not “collateral” to the issue of ineffective assistance he had raised on
appeal.
We conclude that rule 6.807 is designed to deal with situations like the
one presented in this case. Although correcting a mistake or conflict in the
record may affect the resolution of an issue a party wishes to pursue on appeal,
the correctness of the record is itself collateral to any other issue. “[T]he
pendency of appellate proceedings does not preclude the trial court from
amending its records to correct errors and mistakes and make it ‘speak the 6
truth.’” Wernet v. Jurgensen, 43 N.W.2d 194, 196 (Iowa 1950) (citing the
predecessor of current rule 6.807). Landfair’s contention that the district court
does not have authority or jurisdiction to resolve conflicts concerning the
correctness of the record presented on appeal is without merit.
B. Motion to Correct Record—Due Process of Law.
Landfair contends the procedure employed by the district court in ruling on
the State’s motion to correct the record violated his right to due process of law
under the United States and Iowa Constitutions. He argues that the reliability of
the court’s findings are suspect due to the remoteness of time. The motion was
filed less than two years after any approval and filing of the trial information. It
involved one very limited issue—whether the filing occurred on September 19,
2011, or on October 19, 2011. Following a reversal on appeal or the granting of
postconviction relief, criminal cases involving numerous and complex contested
facts are at times retried several years after the original proceeding. We
conclude the passage of almost two years before the motion was filed presents
no barrier to the district court considering and ruling on the motion.
Landfair next argued his right to due process of law was violated as he
was not afforded notice and an opportunity to be heard on the State’s motion.
We agreed, vacated the district court’s ruling on the motion, and remanded for
the district court to rule on the motion anew after providing Landfair notice and
opportunity to be heard on the motion.
Landfair also contends the procedure employed by the district court in its
first ruling on the State’s motion to correct the record denied him the right to
confront and cross-examine two affiants who provided affidavits relied on in part 7
by the trial court in its ruling. We vacated that ruling and remanded for new
proceedings on the motion, and this issue is thus now moot.
C. Ineffective Assistance of Counsel.
In the brief filed by counsel before our remand to the district court,
Landfair contends his trial counsel rendered ineffective assistance by failing to
move for dismissal of the charge against him based on (1) violation of his right to
speedy indictment, and (2) the State’s failure to properly serve him with the trial
information. In a supplemental brief filed following the district court’s ruling on
remand, Landfair adds a third claim of ineffective assistance of counsel. He
asserts the attorney who represented him at the remand hearing was not
appointed until the day before the hearing and did not address issues that should
have been addressed.
On remand the district court held an evidentiary hearing. In its resulting
ruling the court found that the trial information had been filed on September 19,
2011. This finding is fully supported by the evidence presented at the hearing
and thus resolves against Landfair the first of his three claims of ineffective
assistance of counsel, unless his third claim has merit. We find the record is not
adequate to address Landfair’s second and third claims of ineffective assistance,
and thus preserve his three claims for a possible postconviction proceeding.
III. Conclusion and Disposition.
We affirm the judgment of the district court. We preserve Landfair’s
claims of ineffective assistance for a possible postconviction proceeding.