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SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS 

July 19, 2017 

  

Pursuant to Iowa Rule of Appellate Procedure 6.904(2)(6), an unpublished opinion of the Iowa Court  

of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling  

legal authority. 

  

No. 15-1990 

 

AFFIRMED. 

 

ROSE v. STATE 

††††††††††† Appeal from the Iowa District Court for Lee (South) County, John M. Wright, Judge.Heard by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Danilson, C.J.(14 pages)  

  

††††††††††† Donnie Rose appeals the denial of his application for postconviction relief (PCR) contending trial counsel and appellate counsel rendered ineffective assistance.Rose maintains officers unconstitutionally prolonged the traffic stop and searched his vehicle, and trial and appellate counsel were ineffective in failing to previously raise these arguments.OPINION HOLDS: Because we conclude the traffic stop and search of the vehicle were carried out within constitutional parameters, Rose has not established trial or appellate counsel rendered ineffective assistance, and we affirm the PCR court's ruling denying Rose's PCR application. 

  

No. 15-2069 

 

AFFIRMED. 

 

STATE v. MADISON 

††††††††††† Appeal from the Iowa District Court for Monona County, Steven J. Andreasen, Judge.Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.Opinion by Vaitheswaran, P.J.(4 pages)  

  

††††††††††† Johnny Madison appeals his conviction of possession of a controlled substance, marijuana (first offense).He contends his trial counsel was ineffective in failing to object to the inclusion of a jury instruction for actual possession.He also requests that we preserve any additional claims of ineffective assistance of counsel for postconviction relief proceedings.OPINION HOLDS: Because we conclude Madison was not prejudiced, we affirm his conviction, judgment, and sentence.We take no action on his request for preservation of other potential claims. 

  

No. 15-2183 

 

AFFIRMED. 

 

GAILEY v. STATE 

††††††††††† Appeal from the Iowa District Court for Webster County, William C. Ostlund, Judge.Considered by Danilson, C.J., Potterfield, J., and Mahan, S.J.Opinion by Mahan, S.J.Special concurrence by Potterfield, J.(13 pages)  

  

††††††††††† Denis Gailey appeals the district court's denial of his application for postconviction relief following his 2008 convictions for two counts of kidnapping in the first degree, one count of arson in the second degree, and one count of burglary in the first degree.OPINION HOLDS: Upon our review, we affirm the court's order denying Gailey's application for postconviction relief.SPECIAL CONCURRENCE ASSERTS: I write separately because I disagree with the majority's finding that counsel did not beach an essential duty by failing to raise an effective objection to the evidence of sexual abuse of a child.  However, I concur in the result because I agree with the district court judge that the admissible evidence against Gailey was overwhelming to the extent he is unable to show the outcome of his trial would have been different without the sexual abuse evidence. 

  

No. 16-0121 

 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

 

WALNUT CREEK TOWNHOME ASSOC. v. DEPOSITORS INSURANCE CO. 

††††††††††† Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.Heard by Mullins, P.J., and Bower and McDonald, JJ.Opinion by Bower, J.Dissent by McDonald, J.(29 pages)  

  

††††††††††† In August 2012, a hailstorm struck the Walnut Creek Townhome Association, and it submitted an insurance claim to Depositors Insurance, which denied most of the claim.Walnut Creek brought an action against Depositors for breach of contract and to seek a declaratory judgment.Walnut Creek appeals the district court's rejection of an appraisal report after the district court concluded Walnut Creek was not entitled to any relief and requests payment for replacement of "soft metals."OPINION HOLDS: We reverse the judgment as to the appraisal award and breach of contract claim.We remand with directions to enter judgment in favor of Walnut Creek consistent with the appraisal panel's award, excluding the amount predicated that are not covered under the policy.We find Walnut Creek is not entitled to additional payment on a replacement cost basis for the "soft metals" items and affirm on this issue.DISSENT ASSERTS:The appraisal panel exceeded its scope of authority when it determined the cause of loss.The district court was right to refuse to enforce the appraisal award.The entire controversy was then tried to the district court.Our review is for the correction of legal error, and the district court's findings of fact are binding if supported by substantial evidence.I conclude the district court's findings are supported by substantial evidence.I would affirm the judgment of the district court.  

  

No. 16-0136 

 

AFFIRMED. 

 

STONE v. STATE 

††††††††††† Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.Considered by Vogel, P.J., and Doyle and McDonald, JJ.Opinion by McDonald, J.(12 pages)  

  

††††††††††† Dewann Stone appeals the denial of his application for postconviction relief in connection with his conviction for first-degree murder.Stone claims 1) the State failed to disclose exculpatory information; 2) his trial counsel provided ineffective assistance; and 3) his postconviction relief trial counsel provided ineffective assistance.OPINION HOLDS: The State disclosed any exculpatory evidence in a timely manner.Stone's allegations of ineffective trial counsel are either contradicted by the record or relate to legitimate trial strategy.Stone's allegations of ineffective postconviction relief trial counsel are contradicted by the record.Additionally, Stone suffered no prejudice because there was strong evidence supporting his conviction.  

  

No. 16-0265 

 

AFFIRMED. 

 

STATE v. BAUER 

††††††††††† Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge.Considered by Potterfield, P.J., Bower, J., and Mahan, S.J.Opinion by Mahan, S.J.(11 pages)  

  

††††††††††† Michael Bauer appeals his conviction for willful injury resulting in bodily injury, contending the prosecutor's conduct during cross-examination and closing argument violated his rights under the Iowa Constitution and denied him a fair trial.Bauer also claims the district court's conduct denied him a fair trial.OPINION HOLDS: Upon consideration of the issues raised on appeal, we affirm Bauer's conviction for willful injury resulting in bodily injury. 

  

No. 16-0270 

 

AFFIRMED. 

 

PARGO v. STATE 

††††††††††† Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.Considered by Mullins, P.J., and Bower and McDonald, JJ.Opinion by McDonald, J.(3 pages)  

  

††††††††††† Appeal from the denial of an application for postconviction relief.The applicant contends he received ineffective assistance in two respects.OPINION HOLDS: The State filed its trial informations timely, meaning counsel was not ineffective in failing to challenge their timeliness.The applicant's second contention was decided on direct appeal, and we conclude the challenge is without merit.  

  

No. 16-0587 

 

AFFIRMED. 

 

SELLERS v. STATE 

††††††††††† Appeal from the Iowa District Court for Polk County, Lawrence P. McClellan, Judge.Considered by Mullins, P.J., and Bower and McDonald, JJ.Opinion by McDonald, J.(7 pages)  

  

††††††††††† Kevin Sellers appeals the denial of his application for postconviction relief.Sellers argues his trial counsel was ineffective in allowing Sellers to agree to a trial on the minutes in exchange for reduced charges and in failing to discredit a jailhouse informant.OPINION HOLDS: Counsel's advice and failure to discredit the informant were strategic decisions made after counsel investigated the relevant laws and facts.Counsel was not ineffective.  

  

No. 16-0767 

 

AFFIRMED. 

 

STATE v. AVALOS 

††††††††††† Appeal from the Iowa District Court for Johnson County, Jason A. Burns, District Associate Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Potterfield, J.(2 pages)  

  

††††††††††† Luis Avalos appeals from his conviction for operating while under the influence.OPINION HOLDS: Avalos has failed to raise a claim that is preserved for our review, and we affirm without further opinion.  

  

No. 16-0865 

 

AFFIRMED. 

 

IN RE PROPERTY SEIZED FROM FLORA 

††††††††††† Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. Kilnoski, Judge.Considered by Potterfield, P.J., Bower, J., and Blane, S.J.Opinion by Blane, S.J.(8 pages)  

  

††††††††††† Defendant Phillip Anthony Flora appeals the district court's denial of his application for attorney fees pursuant to Iowa Code section 625.29 (2015) following a dismissal of the State's forfeiture action.OPINION HOLDS: Because Flora was not a prevailing party entitled to an attorney-fee award and, alternatively, the award of attorney fees to Flora's attorney would be unjust, the district court was correct in denying Flora's application for fees.  

  

No. 16-0870 

 

AFFIRMED. 

 

STATE v. JOHNSON 

††††††††††† Appeal from the Iowa District Court for Washington County, Annette J. Scieszinski, Judge.Considered by Doyle, P.J., McDonald, J., and Blane, S.J.Opinion by Blane, S.J.(5 pages)  

  

††††††††††† A defendant challenges his sentence following a probation revocation hearing.OPINION HOLDS: The challenge fails.The defendant repeatedly violated several terms of his probation agreement, and we conclude the district court had adequate grounds to revoke his probation.  

  

No. 16-0892 

 

AFFIRMED. 

 

STATE v. ZOBEL 

††††††††††† Appeal from the Iowa District Court for Cerro Gordo County, Karen Kaufman Salic, District Associate Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Danilson, C.J.(10 pages)  

  

††††††††††† Justin Zobel appeals from his convictions and sentences for domestic abuse assault causing bodily injury, domestic abuse assault, third-degree burglary, and possession of marijuana, second offense.Zobel contends the trial court erred in refusing to instruct the jury on the self-defense theory and alleges a number of errors during sentencing.OPINION HOLDS: Because we find the trial court did not err in refusing to instruct the jury on the justification defense and find no abuse of discretion or error by the sentencing court, we affirm. 

  

No. 16-0919 

 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

 

BERTRAM v. HARBERTS 

††††††††††† Appeal from the Iowa District Court for Grundy County, David P. Odekirk, Judge.Considered by Vogel, P.J., Doyle, J., and Blane, S.J.Opinion by Blane, S.J.(13 pages)  

  

††††††††††† David Bertram appeals from the district court's ruling in an action involving claims and counterclaims for breach of contract.Bertram challenges the district court's conclusion he materially breached the written contract into which he and the defendant, James Harberts, d/b/a/ Exclusive Contracting, L.L.C., entered.Additionally, he challenges the district court's ruling regarding damages.OPINION HOLDS: We affirm the district court's ruling that Bertram materially breached the contract when he cancelled it in February 2014.However, we find the district court erred in its determination of damages; we reverse the award and remand for further proceedings.  

  

No. 16-0925 

 

AFFIRMED. 

 

STATE v. CHANDLER 

††††††††††† Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.Opinion by Vaitheswaran, P.J.(6 pages)  

  

††††††††††† Daniel Chandler appeals his convictions on the charges of possession of a controlled substance (third offense) as an habitual offender and interference with official acts inflicting bodily injury following a bench trial on the minutes of evidence.Chandler argues (1) the district court should have granted his motion to suppress, (2) the district court made successive findings of guilt in claimed violation of constitutional double jeopardy provisions, and (3) the district court should have required greater proof of his prior offenses.OPINION HOLDS: We conclude (1) the denial of the motion to suppress was proper, (2) double jeopardy is not implicated, and (3) Chandler waived error on his claim relating to his prior offenses.We therefore affirm his convictions, judgment, and sentences. 

  

No. 16-0950 

 

AFFIRMED. 

 

STATE v. PATTISON 

††††††††††† Appeal from the Iowa District Court for Palo Alto County, David A. Lester, Judge.Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.Opinion by Tabor, J.(9 pages)  

  

††††††††††† The constitutionality of Shawn Pattison's prison sentence depends upon which of two scenarios accurately describes his situation.Pattison paints himself as a drug user, not a drug dealer, who received an indeterminate fifteen-year prison sentence without eligibility for parole for three years for possessing a single rock of methamphetamine.He contends his sentence violates the due process and cruel and unusual punishment clauses of the state constitution.The State poses a different question: Does it offend the Iowa Constitution to punish a three-time felony offender for possessing a small amount of methamphetamine?OPINION HOLDS: Adopting the State's comprehensive formulation of the issue, we find no constitutional violation and affirm Pattison's sentence. 

  

No. 16-0957 

 

AFFIRMED. 

 

STATE v. HALL 

††††††††††† Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.Considered by Doyle, P.J., and Bower and McDonald, JJ.Opinion by Bower, J.(8 pages)  

  

††††††††††† Marcus Hall appeals his convictions for one count of eluding, in violation of Iowa Code section 321.279(3) (2015), and one count of operating while intoxicated, in violation of section 321J.2(2)(a).OPINION HOLDS: We find there was probable cause to stop Hall's vehicle and sufficient evidence to support his convictions. 

  

No. 16-0965 

 

AFFIRMED. 

 

IN RE MARRIAGE OF RATH 

††††††††††† Appeal from the Iowa District Court for Benton County, Ian K. Thornhill, Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Potterfield, J.(5 pages)  

  

††††††††††† Keith Rath appeals from the decree dissolving his marriage to Melinda Rath.While Keith raises a number of issues on appeal, his main contention is that the district court should not have awarded the parties' marital home to Melinda in order for her to sell it.Melinda asks us to affirm the decree as issued by the district court and to award her $5000 in appellate attorney fees.OPINION HOLDS: Insofar as Keith has raised a justiciable issue, we find no reason to modify the dissolution decree ordered by the district court.We decline to award Melinda appellate attorney fees.We affirm.  

  

No. 16-0965 

 

AFFIRMED. 

 

IN RE MARRIAGE OF RATH 

††††††††††† Appeal from the Iowa District Court for Benton County, Ian K. Thornhill, Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Potterfield, J.(5 pages)  

  

††††††††††† Keith Rath appeals from the decree dissolving his marriage to Melinda Rath.While Keith raises a number of issues on appeal, his main contention is that the district court should not have awarded the parties' marital home to Melinda in order for her to sell it.Melinda asks us to affirm the decree as issued by the district court and to award her $5000 in appellate attorney fees.OPINION HOLDS: Insofar as Keith has raised a justiciable issue, we find no reason to modify the dissolution decree ordered by the district court.We decline to award Melinda appellate attorney fees.We affirm.  

  

No. 16-0978 

 

AFFIRMED. 

 

STATE v. STEELE 

††††††††††† Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.Opinion by Tabor, J.(11 pages)  

  

††††††††††† Donald Steele challenges his judgment and sentence following his plea of guilty to possession of marijuana with intent to deliver.Steele contends the district court abused its discretion in denying his request to withdraw his guilty plea because (1) his guilty plea was not knowing, voluntary, and intelligent and (2) the plea lacked a factual basis as to his intent to deliver.OPINION HOLDS: Because the district court properly exercised its discretion in rejecting Steele's request to withdraw his guilty plea, we affirm. 

  

No. 16-1021 

 

AFFIRMED. 

 

STATE v. BROWN 

††††††††††† Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.Considered by Vogel, P.J., and Doyle and McDonald, JJ.Opinion by Doyle, J.(4 pages)  

  

††††††††††† Jonathan Brown appeals his second-degree-murder conviction.OPINION HOLDS: The trial court did not abuse its discretion in admitting evidence of Brown's involvement in uncharged crimes that occurred during the same time-frame as the charged crime where the evidence was relevant to questions of opportunity, identity, and plan.Any error in admitting other evidence was harmless, and counsel's failure to request a limiting instruction regarding the evidence challenged on appeal was not prejudicial.  

  

No. 16-1037 

 

AFFIRMED. 

 

STATE v. ROBINSON 

††††††††††† Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Stephen C. Clarke, and Andrea J. Dryer, Judges.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Bower, J.(7 pages)  

  

††††††††††† Jimmy Robinson appeals his conviction for second degree robbery.OPINION HOLDS: We find Robinson's speedy—trial rights were not violated. 

  

No. 16-1079 

 

REVERSED AND REMANDED FOR NEW TRIAL. 

 

GRIMM v. CHILCOTE 

††††††††††† Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.Heard by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Danilson, C.J.(22 pages)  

  

††††††††††† Jeanne Grimm appeals the jury's verdict in this vehicle-collision suit against driver Carli Chilcote and the owner of the vehicle, Timothy Chilcote.Jeanne contends the $7027 verdict is inadequate, fails to do substantial justice between the parties, and asserts an error in giving a jury instruction not supported substantial evidence resulted in prejudice.OPINION HOLDS: Jury instruction 18 was not supported by the evidence and prejudicially introduced an improper legal theory to the jury.A new trial on the scope and amount of damage caused by the admittedly negligent conduct is required. 

  

No. 16-1150 

 

AFFIRMED. 

 

STATE v. JACKSON 

††††††††††† Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.Opinion by Mullins, J.(7 pages)  

  

††††††††††† David Dwight Jackson appeals some of his convictions, alleging the State submitted insufficient evidence.OPINION HOLDS: We find there was sufficient evidence to support Jackson was in constructive possession of the contraband and, therefore, affirm. 

  

No. 16-1188 

 

AFFIRMED. 

 

LAPOINTE v. STATE 

††††††††††† Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Bower, J.(8 pages)  

  

††††††††††† Christopher LaPointe appeals the district court's denial of his application for postconviction relief.OPINION HOLDS: We find LaPointe was not prejudiced by trial counsel's failure to object during the victim impact statement, the State made sufficient arguments in support of the plea agreement, and LaPointe knowingly and voluntarily waived the use of a presentence investigation during sentencing. 

  

No. 16-1257 

 

AFFIRMED. 

 

WALKER v. STATE 

††††††††††† Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Potterfield, J.(7 pages)  

  

††††††††††† Keith Walker appeals from the district court's denial of his application to reinstate his postconviction-relief (PCR) action.He claims counsel was ineffective for allowing his PCR action to be dismissed for want of prosecution.OPINION HOLDS: The supreme court earlier considered Walker's claim that his first PCR action should be reinstated and denied it, finding no merit in the claim.The law of the case prevents us from reconsidering Walker's claim.We affirm.  

  

No. 16-1303 

 

AFFIRMED. 

 

STATE v. CASTANEDA 

††††††††††† Appeal from the Iowa District Court for Wright County, Christopher C. Foy, Judge.Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.Opinion by Vaitheswaran, P.J.(5 pages)  

  

††††††††††† Marcos Fidel Castaneda appeals from the judgment and sentence entered upon his conviction of attempted murder.He argues (1) the evidence was insufficient to support the intent element of the crime, and (2) the district court erred in allowing a State-procured interpreter to provide interpretive services during the trial.OPINION HOLDS: We conclude the intent element was supported by substantial evidence and Castaneda was not prejudiced by violation of the court rules relating to interpreters.We therefore affirm his conviction. 

  

No. 16-1357 

 

AFFIRMED. 

 

STATE v. ROBINSON 

††††††††††† Appeal from the Iowa District Court for Polk County, Carol L. Coppola, District Associate Judge.Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.Opinion by Vaitheswaran, P.J.(4 pages)  

  

††††††††††† Tariyon Robinson appeals the sentence imposed upon his conviction of escape arguing the district court erred in failing to give him credit for time already served.OPINION HOLDS: Because we conclude Robinson fell within the statutory exception, we affirm his sentence in its entirety. 

  

No. 16-1473 

 

AFFIRMED. 

 

STATE v. LYKE 

††††††††††† Appeal from the Iowa District Court for Dallas County, Gregory A. Hulse, Terry Rickers, and Randy V. Hefner, Judges.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Danilson, C.J.(8 pages)  

  

††††††††††† Jejuan Tyree Lyke Jr. appeals from judgment and sentences entered following his pleas of guilty to intimidation with a dangerous weapon, willful injury, and third-degree kidnapping (with firearm enhancement).Lyke asserts his plea counsel was ineffective for allowing him to plead guilty to kidnapping in the third degree because there was no factual basis for the plea; the district court imposed an illegal sentence by imposing the dangerous-weapon sentencing enhancement under Iowa Code section 902.7 on the charge of intimidation with a dangerous weapon; and his plea counsel was ineffective for failing to object to the State's sentencing recommendation as a breach of the parties' plea agreement.OPINION HOLDS: There is a factual basis to support the kidnapping offense, and therefore, the ineffective-assistance-of-counsel claim fails.Lyke pled guilty to intimidation with a dangerous weapon.This record is inadequate to conclude plea counsel was ineffective or that the State breached the plea agreement.Lyke's claims shall be preserved for a possible postconviction-relief proceeding. 

  

No. 16-1474 

 

AFFIRMED. 

 

IN RE ESTATE OF MOHR 

††††††††††† Appeal from the Iowa District Court for Osceola County, Nancy L. Whittenburg, Judge.Considered by Vogel, P.J., and Doyle and McDonald, JJ.Opinion by Doyle, J.(10 pages)  

  

††††††††††† The biological son of a decedent appeals after the probate court overruled his motion to strike the amended report and inventory filed by the administrator of the decedent's estate removing the son from the list of "heirs at law" on the report.opinion holds: Upon our review, we conclude the probate court did not error or abuse its discretion in overruling the son's motion to strike the amended report because the res judicata claim was not preserved, and, even if it were preserved, the principles of res judicata are inapplicable here.Accordingly, we affirm the probate court's ruling overruling the son's motion to strike the administrator's amendment to the inventory. 

  

No. 16-1535 

 

AFFIRMED. 

 

STATE v. STOJANOV 

††††††††††† Appeal from the Iowa District Court for Palo Alto County, Ann M. Gales, District Associate Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Danilson, C.J.(4 pages)  

  

††††††††††† Marjan Stojanov appeals the denial of his motion to suppress and subsequent conviction for operating while under the influence.He contends he was seized without reasonable suspicion or probable cause.OPINION HOLDS: In light of the deference owed to the district court's specific credibility determination, we conclude Stojanov's initial encounter with Deputy Ring was not a seizure. 

  

No. 16-1545 

 

AFFIRMED. 

 

STATE v. DUNCAN 

††††††††††† Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.Considered by Vogel, P.J., and Doyle and McDonald, JJ.Opinion by Vogel, P.J.(9 pages)  

  

††††††††††† Shawn Duncan claims his guilty pleas were not knowing and voluntary, and his counsel was ineffective.Specifically, Duncan asserts both the district court and his counsel failed to fully inform him of the consequences of withdrawing his motion in arrest of judgment; he also claims his counsel failed to fully inform him about the terms of his plea.OPINION HOLDS: Because we conclude Duncan's guilty pleas were knowing and voluntary, and because we conclude he did not suffer any prejudice from the alleged errors of his counsel, we affirm Duncan's conviction.  

  

No. 16-1582 

 

AFFIRMED. 

 

STATE v. LINNABERRY 

††††††††††† Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Potterfield, J.(4 pages)  

  

††††††††††† Thomas Linnaberry appeals his sentences following his convictions for theft in the third degree and forgery.He claims the district court abused its discretion when it denied his request for probation, which would have enabled him to enter a halfway house and obtain treatment for his addiction to drugs.OPINION HOLDS: Because the sentences imposed fall within the statutory limits and the court considered the relevant factors, we cannot say the district court abused its discretion.We affirm.  

  

No. 16-1599 

 

AFFIRMED. 

 

STATE v. REED 

††††††††††† Appeal from the Iowa District Court for Scott County, Mark J. Smith and Mark D. Cleve, Judges.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Potterfield, J.(8 pages)  

  

††††††††††† The defendant appeals his conviction of count I, possession of a firearm or offensive weapon by felon, in violation of Iowa Code section 724.26(1) (2016), and count II, assault with a dangerous weapon, in violation of Iowa Code section 708.2(3).OPINION HOLDS: The evidence was sufficient to support the court's verdict after a bench trial.  

  

No. 16-1610 

 

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. 

 

THOMPSON v. JTTR ENVIRO, L.L.C. 

††††††††††† Appeal from the Iowa District Court for Plymouth County, Jeffrey L. Poulson, Judge.Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.Opinion by Mullins, J.(15 pages)  

  

††††††††††† JTTR Enviro, L.L.C. appeals from a bench trial verdict in favor of Tommy Thompson arising from a manure easement agreement (MEA), claiming the district court (1) improperly imposed a burden upon it, as the grantee of the MEA; (2) improperly increased the burden placed on JTTR under the MEA; (3) improperly interpreted the MEA to contemplate a corn-on-corn rotation; and (4) awarded excessive damages.OPINION HOLDS: We affirm the district court's ruling except for its award of damages for the 2015 to 2016 crop year.We grant a portion of Thompson's request for appellate attorney fees.We remand for entry of judgment consistent with this opinion.Costs are assessed to JTTR. 

  

No. 16-1611 

 

AFFIRMED. 

 

STATE v. MEEKS 

††††††††††† Appeal from the Iowa District Court for Polk County, Cynthia M. Moisan, District Associate Judge.Considered by Vogel, P.J., and Doyle and McDonald, JJ.Opinion by Doyle, J.(5 pages)  

  

††††††††††† Bryce Meeks appeals his sentence following his guilty plea to driving while barred as a habitual offender.He claims the district court erred in either failing to provide for a verbatim record of his sentencing hearing or failing to state whether or not he waived such a record.He contends this constituted a procedural defect requiring vacation of his sentence and remand for resentencing.OPINION HOLDS: Meeks not only expressly waived his right to a verbatim record to the guilty plea hearing, but also to his sentencing hearing.We find no procedural defect in Meeks's sentencing procedure, nor do we find either error or abuse of discretion on the part of the district court in the sentencing procedure.Consequently, we affirm Meeks's sentence. 

  

No. 16-1618 

 

AFFIRMED. 

 

STATE v. CARNEY 

††††††††††† Appeal from the Iowa District Court for Boone County, Paul G. Crawford, District Associate Judge.Considered by Vogel, P.J., and Doyle and McDonald, JJ.Opinion by Doyle, J.(7 pages)  

  

††††††††††† Daniel Carney appeals the judgment entered following his conviction of operating while intoxicated, third offense.OPINION HOLDS: I. Carney's claim his right to a speedy indictment was violated is foreclosed on by our supreme court's recent holding in State v. Williams, 895 N.W.2d 856, ___, 2017 WL 2291375, at *8 (Iowa 2017).II. Although Iowa Code chapter 321J (2015) does not require an officer to honor a defendant's request to submit to chemical testing after an initial refusal, nothing in the chapter prohibits an officer from doing so or from offering another chemical test.The officer's erroneous statement that failure to consent to blood testing would lead to license revocation did not render Carney's consent to the blood test involuntary, and Carney's attempt to distinguish his case from supreme court precedent is unavailing.  

  

No. 16-1682 

 

WRIT ANNULLED. 

 

STATE v. WALKER 

††††††††††† Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.Opinion by Mullins, J.(3 pages)  

  

††††††††††† Terence Walker challenges by writ of certiorari the denial of his motion to correct an illegal sentence, arguing counsel was ineffective in not ensuring he had the benefit of a hearing on his motion and that denial of his motion without an evidentiary hearing was a denial of due process.OPINION HOLDS: Walker's brief on appeal fails to identify facts that could have or should have been presented or any legal authority in support of the reduction of his conviction or sentence.Accordingly, pursuant to Iowa Court Rule 21.26(1)(a) and (e), we annul the writ. 

  

No. 16-1848 

 

AFFIRMED. 

 

STATE v. HALL 

††††††††††† Appeal from the Iowa District Court for Des Moines County, John M. Wright, Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Danilson, C.J.(5 pages)  

  

††††††††††† Lane Michael Hall appeals the district court's sentence, claiming the court erred in not granting him a new presentence investigation (PSI) and relying on portions of the PSI report he objected to.OPINION HOLDS: We find there was no abuse of discretion or defect in sentencing procedure.The errors in the PSI report were minor and did not warrant an entirely new PSI.Further, the court did not rely on the portions of the PSI report that Hall raised timely objections to. 

  

No. 16-1850 

 

CONVICTION VACATED AND REMANDED. 

 

STATE v. MCKINNEY 

††††††††††† Appeal from the Iowa District Court for Linn County, Thomas L. Koehler, Ian K. Thornhill, and Lars G. Anderson, Judges.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Danilson, C.J.(5 pages)  

  

††††††††††† Dennis McKinney appeals from the judgment and sentence entered following his plea of guilty to extortion, a class "D" felony, in violation of Iowa Code section 711.4 (2016).OPINION HOLDS: We vacate the conviction and sentence and remand for further proceedings on the ground that McKinney's plea was not voluntarily and knowingly entered. 

  

No. 16-1996 

 

AFFIRMED. 

 

IN RE MARRIAGE OF TRIPP 

††††††††††† Appeal from the Iowa District Court for Pottawattamie County, Gregory W. Steensland, Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Potterfield, J.(10 pages)  

  

††††††††††† Craig Tripp appeals, and Patricia Tripp cross-appeals, from the decree dissolving their marriage.Craig maintains the equalization payment he was ordered to pay is inequitable and should be reduced by $100,000.As part of his justification, he maintains the district court over-valued the marital home that was awarded to him.Additionally, Craig claims he should have been awarded the entirety of his pension.On cross-appeal, Patricia challenges the numbers the court used in the formula to determine her portion of Craig's pension.She asks that we otherwise affirm the decree and award her appellate attorney fees.OPINION HOLDS: Because the district court's division of the marital assetsóincluding the equalization payment Craig was ordered to make to Patricia and the division of Craig's pensionówas equitable, we affirm.We decline to award Patricia appellate attorney fees.Costs of this appeal are assessed to Craig.  

  

No. 16-2053 

 

AFFIRMED. 

 

IN RE MARRIAGE OF VIERS 

††††††††††† Appeal from the Iowa District Court for Madison County, Paul R. Huscher, Judge.Considered by Vogel, P.J., and Doyle and McDonald, JJ.Opinion by Doyle, J.(7 pages)  

  

††††††††††† Lita Viers appeals the order modifying the child custody provisions of the decree dissolving her marriage to Bill Viers.OPINION HOLDS: The evidence does not substantiate Lita's allegations that Bill has harmed the child since the dissolution decree was entered.Rather, it is Lita's actions that have been contrary to the child's best interests.We therefore affirm the order modifying the child custody provisions of the decree to grant Bill physical care of the child.The district court did not abuse its discretion in ordering Lita to pay the guardian ad litem's fees.We decline to award Lita appellate attorney fees. 

  

No. 16-2063 

 

AFFIRMED. 

 

HACKMAN v. KOLBET 

††††††††††† Appeal from the Iowa District Court for Chickasaw County, David P. Odekirk, Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Potterfield, J.(6 pages)  

  

††††††††††† The plaintiff appeals the trial court's grant of summary judgment in favor of the defendant authorizing defendant to collect various fees to fulfill an open records request made by the plaintiff.OPINION HOLDS: The fees charged by the defendant were authorized by statute.The trial court did not err in granting summary judgment in favor of the defendant.  

  

No. 16-2067 

 

AFFIRMED. 

 

STATE v. PARSON 

††††††††††† Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Potterfield, J.(5 pages)  

  

††††††††††† The defendant appeals his sentence following his guilty plea to one count of child endangerment causing bodily injury and one count of neglect of a dependent.OPINION HOLDS: The sentencing court did not abuse its discretion in constructing Parson's sentences.  

  

No. 16-2095 

 

AFFIRMED. 

 

RIEDESEL v. FURLONG 

††††††††††† Appeal from the Iowa District Court for Muscatine County, John D. Telleen, Judge.Considered by Vogel, P.J., and Doyle and McDonald, JJ.Opinion by Doyle, J.(6 pages)  

  

††††††††††† Plaintiff Riedesel appeals the district court's grant of the motion to dismiss the decedent's estate from the litigation for failure to timely serve the petition pursuant to Iowa Rule of Civil Procedure 1.302(5).opinion holds: We find no error in the district court's denial of Riedesel's request for a further extension of time under rule 1.302(5) because Riedesel failed to show good cause why he did not reopen and timely serve the estate's personal representative.We affirm the decision of the district court granting the motion to dismiss. 

  

No. 17-0028 

 

AFFIRMED. 

 

STATE v. BUTLER 

††††††††††† Appeal from the Iowa District Court for Scott County, Mark R. Fowler, District Associate Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Danilson, C.J.(3 pages)  

  

††††††††††† Lamont Butler appeals from judgment and sentence entered upon his plea of guilty to failure to comply with sex offender registration, first offense, contending plea counsel was ineffective and the district court did not give adequate reasons for the sentence imposed.OPINION HOLDS: This record is inadequate to address Butler's ineffective-assistance-of-counsel claims, which we preserve for possible postconviction-relief proceedings.The reasons given for the sentence imposed, though succinct, are sufficient. 

  

No. 17-0044 

 

AFFIRMED. 

 

STATE v. DODSON 

††††††††††† Appeal from the Iowa District Court for Scott County, Mark R. Fowler, District Associate Judge.Considered by Vogel, P.J., and Doyle and McDonald, JJ.Opinion by Vogel, P.J.(4 pages)  

  

††††††††††† Adam Dodson appeals his conviction following his guilty plea to domestic abuse assault, in violation of Iowa Code section 708.2A(2)(c) (2016).Dodson claims his counsel was ineffective in failing to file a motion in arrest of judgment challenging Dodson's guilty plea.OPINION HOLDS: Because we conclude Dodson did not show his counsel failed to perform an essential duty, we deny his claim of ineffective assistance of counsel and affirm his conviction.  

  

No. 17-0049 

 

AFFIRMED. 

 

IN RE MARRIAGE OF SPENCER 

††††††††††† Appeal from the Iowa District Court for Marshall County, John J. Haney, Judge.Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.Opinion by Tabor, J.(9 pages)  

  

††††††††††† In this appeal, Cara Spencer lodges two objections to the decree dissolving her marriage to Chris Spencer.First, she asserts joint physical care is not in the best interests of their son.Second, she contends awarding the farm property they purchased during the marriage to Chris was inequitable.OPINION HOLDS: After considering the factors set out by our legislature and prior court decisions, we reach the same result as the district court on both the custody and property issues. 

  

No. 17-0253 

 

AFFIRMED IN PART, VACATED IN PART, AND REMANDED. 

 

STATE v. HOLTON 

††††††††††† Appeal from the Iowa District Court for Cerro Gordo County, Karen Kaufman Salic, District Associate Judge.Considered by Vogel, P.J., and Doyle and McDonald, JJ.Opinion by Doyle, J.(5 pages)  

  

††††††††††† Michael Holton appeals following his guilty plea to domestic abuse assault, third or subsequent offense, asserting the district court erred in imposing restitution and his counsel rendered ineffective assistance.opinion holds: We vacate the restitution portion of the district court's sentencing order and remand for a further hearing on Holton's arguments challenging restitution.We preserve Holton's ineffective-assistance-of-counsel claim for possible postconviction-relief proceedings but affirm the judgment and sentence in all other respects. 

  

No. 17-0528 

 

AFFIRMED ON BOTH APPEALS. 

 

IN RE A.B. 

††††††††††† Appeal from the Iowa District Court for Polk County, Joseph W. Seidlin, District Associate Judge.Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.Opinion by Mullins, J.(11 pages)  

  

††††††††††† A mother and father separately appeal from the juvenile court's order terminating their parental rights to their child.Both argue the State failed to prove the statutory grounds for termination by clear and convincing evidence and an exception to termination exists due to their close bond with their child.The mother additionally argues termination is contrary to the child's best interests and the juvenile court should not have terminated her parental rights because the child is placed with a relative.OPINION HOLDS: Upon our de novo review, we find the State proved the statutory grounds for termination by clear and convincing evidence.We conclude termination is in the best interests of the child and no permissive factors weight against termination in this case.Accordingly, we affirm. 

  

No. 17-0700 

 

AFFIRMED. 

 

IN RE R.L. 

††††††††††† Appeal from the Iowa District Court for Polk County, Susan C. Cox, District Associate Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Danilson, C.J.(6 pages)  

  

††††††††††† A mother and father separately appeal from the termination of their parental rights to their child, R.L.Both parents assert termination is not in R.L.'s best interests and Iowa Code section 232.116(3) (2017) exceptions apply to preclude the need for termination.OPINION HOLDS: Due to the parents' history of substance abuse, and failure to engage in services and to demonstrate an ability to parent R.L., we conclude termination is in R.L.'s best interests and no section 232.116(3) exception applies.We therefore affirm. 

  

No. 17-0818 

 

AFFIRMED. 

 

IN RE L.F. 

††††††††††† Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.Considered by Vogel, P.J., and Doyle and McDonald, JJ.Opinion by Vogel, P.J.(6 pages)  

  

††††††††††† A mother appeals the adjudication of her child as a child in need of assistance.OPINION HOLDS: Because we agree with the juvenile court's conclusion the State proved the statutory grounds for adjudicating L.F. a child in need of assistance, we affirm.  

  

No. 17-0826 

 

AFFIRMED. 

 

IN RE R.J. 

††††††††††† Appeal from the Iowa District Court for Scott County, Cheryl E. Traum, District Associate Judge.Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.Opinion by Vaitheswaran, P.J.(6 pages)  

  

††††††††††† A father appeals a permanency review order transitioning two children from his temporary custody to the custody and care of their mother.OPINION HOLDS: On our de novo review, we agree with the district court that transitioning the children to the mother's care would serve their best interests.We therefore affirm the district court's order. 

  

No. 17-0860 

 

AFFIRMED. 

 

IN RE N.M. 

††††††††††† Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.Considered by Vogel, P.J., and Doyle and McDonald, JJ.Opinion by Doyle, J.(7 pages)  

  

††††††††††† A mother appeals the termination of her parental rights to her children.OPINION HOLDS: The evidence supports terminating the mother's parental rights under Iowa Code section 232.116(1)(h) (2016).Termination is in the children's best interests.We decline to apply any of the statutory exceptions in section 232.116(3) to avoid termination or to grant the mother additional time to prove she can safely parent the children.Accordingly, we affirm the order terminating the mother's parental rights to her children.  

  

No. 17-0920 

 

REVERSED. 

 

IN RE L.H. 

††††††††††† Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.Considered by Danilson, C.J., and Potterfield and Bower, JJ.Opinion by Potterfield, J.(6 pages)  

  

††††††††††† A father appeals from the juvenile court's order adjudicating his child to be a child in need of assistance (CINA).He contends the juvenile court erred in finding the State proved the grounds for adjudicating the child CINA under Iowa Code section 232.2(6)(b) and (c)(2) (2017).OPINION HOLDS: The record does not contain clear and convincing evidence establishing imminent harm.We reverse.  

  

  

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