                   IN THE COURT OF APPEALS OF IOWA

                                   No. 16-1876
                             Filed October 11, 2017


FREDDIE RENIER,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Marlita A. Greve,

Judge.



      Freddie   Renier appeals from      the   denial of   his application     for

postconviction relief. AFFIRMED.




      Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

      Freddie Renier, Fort Madison, pro se appellant.

      Thomas J. Miller, Attorney General, and Bridget A. Chambers, Assistant

Attorney General, for appellee State.




      Considered by Danilson, C.J., and Tabor and McDonald, JJ.
                                            2


DANILSON, Chief Judge.

       Freddie    Renier appeals from           the   denial of    his application     for

postconviction relief (PCR). Having failed to establish sufficient reason or cause

for not previously raising the claims, Renier cannot now challenge the sufficiency

of the evidence supporting his convictions.

       On direct appeal from his convictions for robbery in the first degree and

assault while participating in a felony, Renier contended there was insufficient

evidence to prove he committed a theft or had the intent to commit a theft, an

element of both convictions.        See State v. Renier, No. 10-0993, 2012 WL

3590047, at *1 (Iowa Ct. App. Aug. 22, 2012). In that decision, this court set out

the elements the State was required to prove to establish robbery in the first

degree, the third element being that the “defendant was armed with a dangerous

weapon.” Id. at *2. We observed,

       Renier admitted that he brandished a knife in a threatening manner;
       thus, the third element is not in dispute. Renier also admits to
       stabbing [the victim]. However, he disputes that he had the specific
       intent to commit a theft or that he committed the assault to carry out
       that intention.

Id.

       We also rejected Renier’s claim that there was insufficient evidence he

had the specific intent to commit a theft or that he committed an assault to carry

out that intention. There, we observed:

               Renier admits to brandishing a knife and stabbing [the
       victim]; he merely denies he was participating in the crime of theft
       at the time of the assault.[1] As we conclude sufficient evidence
       supports the jury’s conclusion that Renier had the specific intent to

1
 Renier testified at the PCR trial, “I just don’t understand how they can take all this and
make it into something that it wasn’t when we only had an altercation. We had a fight.”
                                          3


        commit a theft when he dispossessed [the victim] of his necklace,
        we also conclude sufficient evidence supports the jury
        determination that Renier is guilty of assault while participating in
        felony theft in the first degree.

Id. at *3.

        Renier then filed this PCR application. He asserted his convictions for

robbery in the first degree and assault while participating in a felony are not

supported by sufficient evidence that he was armed with a “dangerous weapon.”

He contended the evidence does not establish the pocket knife he used to stab

the other person involved in the altercation was a “dangerous weapon” per se or

that the injury inflicted constituted a “serious injury.” In his pro se brief, Renier

asserts trial counsel was ineffective because he “neglected to effectively

recognize and or argue meritorious issues, and failed to object or file motion to

correct erroneous charges; erroneous charging instruments; erroneous jury

instructions; erroneous arguments, etc., throughout entire trial process.” He also

contended appellate counsel wrongly advised him that he could not file a pro se

brief on appeal.

        We ordinarily review PCR proceedings for correction of errors at

law. Nguyen v. State, 878 N.W.2d 744, 750 (Iowa 2016). However, when an

applicant raises constitutional claims, such as claims of ineffective assistance of

counsel, we apply a de novo review. See id.

        We first note that at the PCR trial, Renier testified that his complaints were

basically a reiteration of the issues raised by his trial counsel in his motion in
                                             4

arrest of judgment and request for new trial.2 In Everett v. State, 789 N.W.2d

151, 156 (Iowa 2010), our supreme court stated,

       We have long held that postconviction relief proceedings “are not
       an alternative means for litigating issues that were or should have
       been properly presented for review on direct appeal.” [Berryhill v.
       State, 603 N.W.2d 243, 245 (Iowa 1999)]; see also Iowa Code
       § 822.2(2) [(2011)] (postconviction relief “is not a substitute for . . .
       any remedy, incident to the proceedings in the trial court, or of
       direct review of the sentence or conviction”). “Thus, we have
       consistently held that any claim not properly raised on direct appeal
       may not be litigated in a postconviction relief action unless sufficient
       reason or cause is shown for not previously raising the claim, and
       actual prejudice resulted from the claim of error.” Berryhill, 603
       N.W.2d at 245.

(Emphasis added.)

       Renier asserts his specific claims were not made and addressed on

appeal, and therefore, they are not barred by the principle of res judicata. 3 But

the specific factors of res judicata are not at issue. Section 822.2 clearly states

that a PCR proceeding is not a substitute for direct review. The claims Renier

makes in this PCR proceeding could have and should have been raised on direct

appeal. Thus, section 822.2 prohibits him from raising them here unless Renier

can establish “sufficient reason or cause” for not raising them previously and

“actual prejudice resulted.” See Berryhill, 603 N.W.2d at 245.

       Ineffective assistance of counsel can provide that reason. See Everett,

789 N.W.2d at 156. “To succeed on an ineffective-assistance-of-counsel claim, a

2
  Renier’s counsel asked: “I think where we’ll start, because you indicated this to me as
we talked about this, you want to reassert all of those errors that were alleged by your
attorney, Harlan Giese, in the motion in arrest of judgment request for new trial, correct?”
Renier responded, “Yes,” and then read his complaints.
3
  While the PCR court noted the principle of res judicata, it also stated, “All of the issues
raised in Renier’s motion in arrest of judgment or for a new trial were essentially
addressed in his insufficient evidence arguments and evidentiary objections [on direct
appeal].” Nonetheless, the court went on to address five specific additional arguments
made, found them to be without merit, and dismissed the PCR petition.
                                           5


defendant must show: ‘(1) counsel failed to perform an essential duty; and (2)

prejudice resulted.’” Id. at 158 (citation omitted).

       Renier raises the issue of ineffective assistance in his pro se brief. 4 But

the PCR court made no findings on such a claim.                See Boyle v. Alum-

Line, Inc., 710 N.W.2d 741, 751 n.4 (Iowa 2006) (“When a district court fails to

rule on an issue properly raised by a party, the party who raised the issue must

file a motion requesting a ruling in order to preserve error for appeal.”); see also

Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012) (stating “the preservation

of error rule ‘requires a party seeking to appeal an issue presented to, but not

considered by, the district court to call to the attention of the district court its

failure to decide the issue.’” (quoting Meier v. Senecaut, 641 N.W.2d 532, 540

(Iowa 2002))).     Because no ruling was sought from the district court, the

ineffectiveness claim is not preserved for our review. See Meier, 641 N.W.2d at

537 (“It is a fundamental doctrine of appellate review that issues must ordinarily

be both raised and decided by the district court before we will decide them on

appeal.”). We therefore affirm.

       AFFIRMED.




4
 Renier did not call trial counsel or appellate counsel to present testimony at the PCR
hearing on why the sufficiency claims he makes now were not made on appeal.
