                   IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0895
                               Filed May 16, 2018


RONALD DEAN KELLY, JR.,
    Applicant-Appellant,

vs.

STATE OF IOWA,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.



      Ronald Kelly appeals the summary dismissal of his postconviction-relief

application. AFFIRMED.



      Randall L. Jackson of Law Office of Randall L. Jackson, Des Moines, for

appellant.

      Thomas J. Miller, Attorney General, and Genevieve Reinkoester, Assistant

Attorney General, for appellee State.



      Considered by Vaitheswaran, P.J., Potterfield, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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SCOTT, Senior Judge.

       On May 12, 2015, the district court imposed sentence on Ronald Kelly’s

conviction of second-degree robbery. Kelly was sentenced to an indeterminate

term of incarceration not to exceed ten years, with a mandatory minimum of seven

years. In September 2016, Kelly filed an application for postconviction relief

(PCR), arguing equal protection requires his sentence to be reconsidered in light

of the legislature’s recent amendment of Iowa Code section 902.12 (2016).1 The

State moved for summary dismissal, contending the amendment to section 902.12

could only be applied prospectively. Kelly resisted summary dismissal, arguing

the different treatment resulting from the legislative amendment violates equal

protection and the amendment should be applied retroactively. The district court

granted the State’s motion for summary dismissal, concluding the new statute does

not apply retroactively. The court did not address Kelly’s equal-protection claim.

       Kelly appeals. He contends the district court erred in finding no genuine

issue of material fact pertaining to his claim the sentence imposed upon his

underlying conviction was unconstitutional as in violation of his right to equal

protection. He specifically argues that all individuals serving a sentence for the



1
  Compare Iowa Code § 902.12(5) (2016) (“A person serving a sentence for conviction of
the following felonies . . . shall be denied parole or work release unless the person has
served at least seven-tenths of the maximum term of the person’s sentence: . . . . Robbery
in the first or second degree in violation of section 711.2 or 711.3.” (emphasis added)),
with Iowa Code § 902.12(3) (2017) (“A person serving a sentence for conviction for
robbery in the second degree in violation of section 711.3 for a conviction that occurs on
or after July 1, 2016, shall be denied parole or work release until the person has served
between one-half and seven-tenths of the maximum term of the person’s sentence as
determined under section 901.11, subsection 3.” (emphasis added)), and id. § 901.11(3)
(providing sentencing courts discretion in determining “when a person convicted of
robbery in the second degree . . . shall first become eligible for parole or work release
within the parameters specified in section 902.12, subsection 3”).
                                          3


crime of second-degree robbery are similarly situated, but individuals who are

convicted of the crime before July 1, 2016 are treated differently for parole and

work-release purposes than individuals who are convicted on or after July 1, 2016,

and such different treatment violates equal protection.

       We note from the outset our agreement with the State that Kelly failed to

preserve error on the claim he raises on appeal, as the district court never ruled

upon Kelly’s equal-protection claim and Kelly thereafter failed to request a ruling

on the issue. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“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. . . . 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.”).

       In any event, a panel of this court recently considered and rejected an

argument identical to Kelly’s, that “a person convicted of second-degree robbery

prior to July 1, 2016, is similarly situated to any person convicted of second-degree

robbery on or after July 1, 2016,” and equal protection requires such individuals

“to be treated alike under the amendment to section 902.12.” See generally

Clayton v. Dist. Ct., 907 N.W.2d 824, 825–30 (Iowa Ct. App. 2017), further review

denied (Jan. 16, 2018) We agree with Clayton and affirm the summary dismissal

of Kelly’s PCR application without further opinion pursuant to Iowa Court Rule

21.26(1)(c) and (e).

       AFFIRMED.
