                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-2175
                              Filed June 21, 2017


TERRELL LAMON BAILEY,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, John M.

Wright, Judge.



      Applicant appeals from the district court’s denial of his application for

postconviction relief. AFFIRMED.



      Jeffrey L. Powell of The Law Office of Jeffrey L. Powell, P.L.C.,

Washington, for appellant.

      Thomas J. Miller, Attorney General, and Timothy M. Hau, Assistant

Attorney General, for appellee.



      Considered by Danilson, C.J., and Potterfield and Bower, JJ.
                                          2


POTTERFIELD, Judge.

       Terrell Bailey appeals from the district court’s denial of his application for

postconviction relief (PCR).

       Bailey filed his original application for PCR in May 2014; he then amended

the application in July 2014 and again in September 2015. He sought relief after

a jury found him guilty of three counts of delivery of a controlled substance

(marijuana).

       Bailey and the State agreed the matter would be submitted to the district

court on November 15, 2015, on briefs only without a hearing. On October 23,

Bailey filed both his brief in support of his application and an appendix. The

State filed its response soon after with references to the appendix filed by Bailey.

Bailey then filed a reply brief.

       The district court considered five claims of ineffective assistance of trial

and appellate counsel and one claim that the State had “violated the Applicant’s

due process rights through spoiliation [sic] of exculpatory evidence.”       It then

issued a written ruling denying Bailey’s claims on the merits on November 20. In

the ruling, the court referred to the briefs submitted by the parties but stated,

“[N]either party filed the appendix to which both parties refer in their briefs. The

Court has only the briefs to consider when reviewing the Applicant’s Second

Amended Application” for PCR.         Both the State and Bailey agree that this

statement by the district court was in error.

       Next, Bailey filed a notice of appeal. He then filed a motion asking our

supreme court to remand the case “for further proceedings with directions to the
                                           3


District Court to give a full and fair consideration of the appendix.” Our supreme

court denied the motion.

          Bailey filed an appellate brief. He did not make any claims or arguments

regarding the merits of the district court’s ruling on his application. Nor did he

specify in what respect the appendix would have made a substantive difference

in the district court’s ruling. Instead, he used his appellate brief to reiterate his

claim that his case should be remanded to the district court for further

proceedings. Our supreme court transferred the case to us.

          We cannot consider the merits of Bailey’s claims as presented to the

district court in his application for PCR. Although we review constitutional issues

raised in a PCR de novo, Bailey has not raised any arguments or claims

regarding his underlying application. See Berryhill v. State, 603 N.W.2d 243,

244–45 (Iowa 1999); see also Iowa R. App. P. 6.903(2)(g)(3) (requiring the

appellant’s brief to contain an “argument containing the appellant’s contentions

and the reasons for them with citations to authorities relied on” and stating failure

to do so “may be deemed waiver of that issue”). That leaves only the issue of

whether Bailey’s case should be remanded for further consideration by the

district court. Our supreme court has already ruled against Bailey’s first such

request, and we see no reason to treat Bailey’s second request differently. We

affirm.

          AFFIRMED.

          Bower, J., concurs; Danilson, C.J., dissents.
                                         4


DANILSON, Chief Judge. (dissenting)

       I respectfully dissent.   I believe the trial judge essentially entered a

judgment on the pleadings with the aid of the parties’ briefs, without a pending

motion for judgment on the pleadings, and notwithstanding the State’s answer

denying most of the allegations.       The State contends that error was not

preserved because Bailey did not move the district court to expand its ruling by

considering the appendix of evidence pursuant to Iowa Rule of Civil Procedure

1.904(2). However, our supreme court has stated:

       If the court’s ruling indicates that the court considered the issue and
       necessarily ruled on it, even if the court’s reasoning is “incomplete
       or sparse,” the issue has been preserved. See Meier [v. Senecaut,
       641 N.W.2d 532, 540 (2002)]; see also Jensen v. Sattler, 696
       N.W.2d 582, 585 (Iowa 2005) (finding error was preserved even
       though “the summary judgment record is not a model of clarity”).
       Meier distinguishes between the situation where error was
       preserved even though “the record or ruling on appeal contains
       incomplete findings or conclusions,” 641 N.W.2d at 539, and the
       situation where the issue was “not considered by” the district court
       and thus error was not preserved, id. at 540.

Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012). Here, all the issues were

considered and ruled upon but none of the evidence was considered. Although

the supreme court denied a limited remand, such a remand would require

retention of jurisdiction.   I would remand this case back without retaining

jurisdiction and require a different judge to consider the evidence and decide the

issues anew.     Consideration of the parties’ issues without considering the

stipulated evidence is much akin to structural error and undermines the right to a

fair trial. See Lado v. State, 804 N.W.2d 248, 252 (Iowa 2011).
