                    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).
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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).
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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.

       AFFIRMED.
