Mark Bernard Retterath v. State of Iowa

IN THE COURT OF APPEALS OF IOWA
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No. 24-1512
Filed April 15, 2026
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Mark Bernard Retterath,
Applicant–Appellant,
v.
State of Iowa,
Respondent–Appellee.
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Appeal from the Iowa District Court for Mitchell County,
The Honorable Chris Foy, Judge.
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AFFIRMED
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Stuart G. Hoover, East Dubuque, Illinois, attorney for appellant.

Brenna Bird, Attorney General, and Louis S. Sloven, Assistant Attorney
General, attorneys for appellee.
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Considered without oral argument
by Tabor, C.J., and Badding and Langholz, JJ.
Opinion by Tabor, C.J.

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TABOR, Chief Judge.

Mark Retterath challenges the dismissal of his application seeking
relief from his conviction for third-degree sexual abuse. He alleges defense
counsel provided ineffective assistance by not moving to sever that count
from two charges arising from his plot to poison the sexual abuse victim.
Because Retterath did not raise this appellate claim in the district court, it is
unpreserved. So, without reaching the merits, we affirm the denial of relief.

In August 2016, a jury convicted Retterath of sexual abuse, solicitation
to commit murder, and attempted murder. On appeal, we affirmed the sexual
abuse conviction, conditionally affirmed the solicitation conviction, 1 and
reversed the attempted murder conviction. Retterath, 2017 WL 6516729,
at *1.

In March 2020, Retterath applied for postconviction relief from the
sexual abuse conviction, alleging three grounds for relief. He supplemented
his petition two months later, adding three more grounds. Two of those new
grounds alleged his attorney at the criminal trial was ineffective.

Here are the six grounds:
Ground 1. His constitutional right to a fair trial under the Sixth and
Fourteenth Amendments to the United States Constitution and Article
One, Section Ten of the Iowa Constitution was denied when he was
prosecuted for sexual abuse in the third degree at the same time as his

1
We remanded for the district court to perform an in camera review of counseling
records for two prosecution witnesses to determine whether they contained exculpatory
evidence. State v. Retterath, No. 16–1710, 2017 WL 6516729, at *10–12 (Iowa Ct. App.
Dec. 20, 2017). Because Retterath failed to provide those records for the district court’s
review, it affirmed his solicitation-to-commit-murder conviction “by operation of law.”
See State v. Retterath, 974 N.W.2d 93, 102 (Iowa 2022) (finding Retterath had burden to
acquire privileged records for review).

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prosecution for attempted murder, a charge which was later dismissed, and
his prosecution for solicitation to commit murder;

Ground 2. His constitutional right to due process under the Fifth and
Fourteenth Amendments to the United States Constitution and Article
One, Section Nine of the Iowa Constitution was denied when he was
prosecuted for sexual abuse in the third degree at the same time as his
prosecution for attempted murder, a charge which was later dismissed, and
his prosecution for solicitation to commit murder;

Ground 3. His constitutional right to due process under the Fifth and
Fourteenth Amendments to the United States Constitution and Article
One, Section Nine of the Iowa Constitution was denied by the cumulative
effect of the errors committed in his underlying criminal case;

Ground 4. His constitutional right to effective assistance of counsel was
denied because his attorney in the underlying criminal case failed to object
to a general verdict from the jury on his conviction of solicitation to
commit murder;

Ground 5. His constitutional right to effective assistance of counsel was
denied because his attorney in the underlying criminal case failed to
challenge the admission and veracity of trial evidence presented by the
State regarding his ownership of a Luger handgun; and

Ground 6. His constitutional right to due process under the Fifth and
Fourteenth Amendments to the United States Constitution and Article
One, Section Nine of the Iowa Constitution was denied when the State
presented misleading evidence at trial regarding his ownership of a Luger
handgun.

Grounds four and five alleged ineffective assistance of counsel. But not
the claim raised here. And the district court did not rule on a claim of
ineffective assistance concerning defense counsel’s disinclination to move to
sever the charges.

Retterath contends that he preserved error because the district court
“engaged in a generalized discourse on the topic of Ineffective Assistance of
Counsel and the legal principles contained therein.” On the matter of trying

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“all three charges simultaneously,” Retterath notes that the district court
mentioned “counsel’s failure to file a motion to sever.”

To counter, the State explains that when the district court ruled on
those severance-related challenges, “it didn’t make any findings on whether
Retterath’s trial counsel had breached any duty by declining to file a motion
to sever.” We agree with the State. Retterath cannot claim that the court
erred in granting relief on a claim that was not raised or decided. See Ruiz v.
State, 18 N.W.3d 453, 457 (Iowa 2025) (repeating principle “that issues must
ordinarily be both raised and decided by the district court before we will
decide them on appeal” (quoting Lamasters v. State, 821 N.W.2d 856, 862
(Iowa 2012)).

Because we have nothing to review on appeal, we affirm the denial of
postconviction relief.

AFFIRMED.

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