Court of Appeals Opinions

            Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Greer, J., and Potterfield, S.J.  Opinion by Greer, J. (9 pages)

            Randall Brocksieck appeals the sentence and restitution order imposed following his guilty plea.  Brocksieck raises three claims on appeal: (1) the presentence investigation report improperly included a sentencing recommendation; (2) the district court erred by considering improper factors when imposing the five-year sentence; (3) and the court erred by ordering Brocksieck to pay court-appointed trial and appellate attorney fees.  OPINION HOLDS: The sentencing recommendation in the PSI did not constitute a procedural defect; the district court did not consider any improper factors; and there is not yet a final restitution order regarding attorney fees.  We affirm Brocksieck’s sentence but vacate the portion of the sentencing order referencing attorney fees and remand for entry of a final restitution order.

            Appeal from the Iowa District Court for Crawford County, Julie A. Schumacher, Judge.  AFFIRMED.  Considered by Bower, C.J., and Tabor and Mullins, JJ.  Schumacher, J., takes no part.  Opinion by Mullins, J.  (9 pages)

            Appellants Juliann Nelson and Kristine Norelius appeal the district court ruling on their petition to establish an involuntary guardianship and conservatorship over their mother, Diane Norelius.  They argue the court abused its discretion in (1) declining to appoint them as sole non-resident co-guardians of Diane or to name them as non-resident co-guardians along with Juliann’s daughter as resident co-guardian and instead appointing one of Diane’s friends; (2) its selection of one of the two co-conservators; (3) declining to reopen the record to allow the presentation of evidence that said co-conservator would be unsuitable; (4) giving too much weight to Diane’s preference to name the co-conservator; (5) sealing its final order of appointment; and (6) granting Diane’s attorney’s request for attorney fees and only partially granting the appellants’ attorney’s request for fees.  The appellants request an award of attorney fees.  OPINION HOLDS: We affirm the district court’s appointment of the guardian and assessment of attorney fees.  We determine all of the co-conservator-related issues and the court’s sealing of its final order of appointment to be moot.  We deny the appellants’ request for appellate attorney fees.  We do not consider any arguments raised by the appellants for the first time in their reply brief.  Costs on appeal are assessed against the appellants. 

            Appeal from the Iowa District Court for Dickinson County, Nancy L. Whittenburg, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J. (11 pages)

            Wesley Swanson appeals his convictions of third-degree burglary and second-degree theft, following a jury trial.  OPINION HOLDS: Upon our de novo review of the record, we agree with the district court’s ruling overruling Swanson’s motion to evaluate and determine Swanson’s competency to stand trial, and we find Swanson failed to establish his trial counsel was ineffective.  We also conclude substantial evidence supports Swanson’s challenged convictions and the district court did not abuse its discretion in denying Swanson’s motion for a new trial.  So we affirm Swanson’s challenged convictions in all respects.

            Appeal from the Iowa District Court for Louisa County, Wyatt Peterson, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Tabor, P.J., Greer, J., and Potterfield, S.J.  Opinion by Greer, J. (8 pages)

            Traci Barker appeals the sentence and restitution order entered after her guilty plea to one count of theft in the second degree.  Barker raises three claims on appeal: (1) the presentence investigation report improperly included a sentencing recommendation; (2) the district court erred by considering improper factors when imposing the sentence; (3) and the court erred by ordering Barker to pay restitution for her court-appointed attorney, court costs, and jail fees without considering her reasonable ability to pay.  OPINION HOLDS: We reverse the restitution portion of the sentencing order but otherwise affirm Barker’s sentence.  We remand for entry of a final restitution order considering her reasonable ability to pay court costs and jail fees.

            Appeal from the Iowa District Court for Page County, Susan Christensen, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Mullins, J., and Carr, S.J.  Opinion by Carr, S.J.  (6 pages)

            Charles White appeals the denial of his application for postconviction relief.  OPINION HOLDS: I. White’s trial counsel made a reasonable tactical decision by refraining from impeaching the complaining witness directly with her deposition.  Because White has failed to show counsel performed below the standard of a competent practitioner, we affirm the denial of PCR on this ground.  II. White failed to preserve error on his claim the postconviction court erred by limiting the scope of the proceedings to the claim of ineffective assistance related to witness impeachment.  And the record is inadequate to address White’s claim that his postconviction counsel was ineffective by only litigating that claim.

            Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED.  Considered by Bower, C.J., Doyle, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (6 pages)

            Andrew Van Fleet appeals from an order modifying the physical care provisions of the decree dissolving his marriage to Brenda Van Fleet.  OPINION HOLDS: Upon our de novo review, we agree modification is appropriate under the facts of this case and we affirm.

            Appeal from the Iowa District Court for Muscatine County, Mark D. Cleve, Judge.  AFFIRMED AND REMANDED.  Considered by Viatheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Mullins, J.  (8 pages)

            David Hering appeals a district court order determining the amount of restitution for court costs.  He argues the State’s claim for restitution is untimely, the court erred in its determination of the amount of restitution owed, his restitution obligation is satisfied in full because no supplemental order of restitution was ever entered, the procedures used by the State to withhold money from his prison account violated due process for lack of notice, and the State was required to collect restitution from his involuntary conservatorship.  OPINION HOLDS: We affirm the district court’s determination of the amount owed by Hering, its return of funds flowing from unsecured loans, and its refusal to order a return of the funds flowing from prison wages.  We remand the matter to the district court for completion of the remaining restitution procedures, determination of Hering’s reasonable ability to pay, and entry of a final restitution order. 

            Appeal from the Iowa District Court for Pottawattamie County, Craig M. Dreismeier, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.  Opinion by Vaitheswaran, P.J.  (9 pages)

            J.H. appeals a juvenile court order requiring him to register as a sex offender, contending (A) the juvenile court lacked jurisdiction to require sex offender registration after he turned eighteen and (B) the colloquy preceding the consent decree was insufficient to support a requirement for him to register as a sex offender.  OPINION HOLDS: We affirm the juvenile court order requiring J.H. to register as a sex offender.

            Appeal from the Iowa District Court for Johnson County, Kevin McKeever, Judge.  AFFIRMED AND REMANDED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (9 pages)

            This appeal stems from a breach-of-contract dispute between subcontractor S.M. Hentges & Sons Inc. and general contractor Joseph J. Henderson & Sons Inc.  Hentges sued Henderson seeking about $500,000 for its excavation work on a public improvement project.  Henderson counterclaimed, alleging Hentges failed to perform its work properly or timely.  The jury ruled in favor of Henderson.  Hentges now appeals the district court’s post-verdict determination that it owes costs and attorney fees to Henderson.  OPINION HOLDS: Because the district court properly determined Henderson was the prevailing party, we affirm its rulings.  We remand for the district court to fix a reasonable amount of appellate attorney fees. 

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (4 pages)

            Erwin King appeals from his conviction for second-degree theft.  OPINION HOLDS: The district court properly denied King’s motion for acquittal.  But the record does not establish King’s waiver of counsel was voluntary, knowing, and intelligent.  So we reverse and remand for new trial.

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler and Joel A. Dalrymple, Judges.  CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J. (10 pages)

            Darieo Tillman appeals his conviction for possession of marijuana with intent to deliver.  OPINION HOLDS: We affirm the district court’s decision finding the officer’s actions after stopping the pickup in which Tillman was a passenger were objectively reasonable and denying the motion to suppress.  We determine Tillman’s claim of ineffective assistance of counsel should be preserved for possible postconviction proceedings. We vacate the restitution portion of the sentencing order and remand the case to the district court.

            Appeal from the Iowa District Court for Hancock County, Gregg R. Rosenbladt, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (11 pages)

            A PCR applicant appeals the denial of his application, contending his criminal trial counsel was ineffective in failing to object to jury instructions regarding the dangerous weapon definition and aiding and abetting.  OPINION HOLDS: The applicant’s criminal trial counsel was not ineffective in not objecting to the dangerous weapon instruction, which was a correct statement of the law, and applicant failed to prove prejudice in failing to object to the aiding and abetting instruction.