August 2018 Archive | Court of Appeals Court Opinions

           Appeal from the Iowa District Court for Linn County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J. (9 pages)

           Carlston Donald appeals the district court’s denial of his application for postconviction relief.  He argues his appellate counsel was ineffective in failing to (1) challenge the weight of the evidence underlying the conviction and (2) file a proof brief or follow the protocol for frivolous appeals contained in Iowa Rule of Appellate Procedure 6.1005 (2009).  OPINION HOLDS: We conclude appellate counsel was not ineffective in declining to challenge the weight of the evidence and Donald did not preserve error on his claim concerning rule 6.1005.  We affirm the denial of his application for postconviction relief. 

            Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  Special Concurrence by Tabor and Potterfield, JJ.  (13 pages)

            Albert Garcia appeals his convictions for two counts of first-degree murder and two counts of first-degree robbery, contending: (1) a police detective lacked the qualifications to provide expert testimony about cell phone technology; (2) accomplice testimony was not corroborated by sufficient evidence; (3) his trial attorney was ineffective in failing to object to an instruction informing the jury it could consider his out-of-court statements “just as if they had been made at trial”; and (4) his murder convictions and sentences should be vacated under a merger doctrine.  OPINION HOLDS: We affirm Garcia’s judgment and sentences.  SPECIAL CONCURRENCE ASSERTS: I would find counsel failed in an essential duty by not objecting earlier to the officer’s testimony regarding the use of cellular phone tower technology and data.  The State did not establish that the officer had specific knowledge of this technology.  I would also find the district court erred in instructing the jurors they could consider Garcia’s out-of-court statements “just as if they had been made at trial,” consistent with my prior dissenting opinions in State v. Yenger, No. 17-0592, 2018 WL 3060251, at *7 (Iowa Ct. App. June 20, 2018), and State v. Payne, No. 16-1672, 2018 WL 1182624, at *11–12 (Iowa Ct. App. Mar. 7, 2018).  Nonetheless, I join the majority because Garcia cannot show he was prejudiced as a result of these failures. 

           Appeal from the Iowa District Court for Warren County, Patrick W. Greenwood, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J. (10 pages)

           The children of Donald Speck appeal a district court order granting a petition to probate a lost will filed by Donald’s ex-son-in-law under which he was a beneficiary and co-executor and the majority of Donald’s children were disinherited.  The children argue the presumption of revocation was not rebutted by clear, satisfactory, and convincing evidence and assert the court erroneously shifted the burden of proof to them.  OPINION HOLDS:  We find substantial evidence supports the district court’s conclusion the presumption of revocation by the testator of his 2012 will was rebutted.  We affirm the decision of the district court.

            Appeal from the Iowa District Court for Polk County, Glenn E. Pille, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (12 pages)

            Michael Webster appeals the summary dismissal of his application for postconviction relief.  opinion holds: Upon our de novo review, we conclude Webster failed to establish he was similarly situated to persons convicted of second-degree robbery on or after July 1, 2016.  Moreover, Webster did not show a heightened-scrutiny analysis applied to his claim, nor did he establish there was no rational basis for the legislature’s determination not to make the sentencing provision at issue prospective only.  For all these reasons, we affirm the district court’s summary dismissal of Webster’s PCR application.

           Appeal from the Iowa District Court for Wapello County, Shawn R. Showers, Judge.  AFFIRMED.  Considered by Danilson, C.J., Vogel, J., and Scott, S.J.  Opinion by Danilson, C.J. (10 pages)

           Cory West appeals from the jury verdict finding that his mental abnormality has not changed such that he is suitable for discharge from civil commitment as a sexually violent predator (SVP).  OPINION HOLDS: The jury was free to reject West’s expert’s opinion and accept the opinion of the State’s expert.  The record reveals substantial evidence from which the jury could find beyond a reasonable doubt that West remains subject to confinement as a SVP. 

            Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Danilson, C.J. (26 pages)

            Isaiah Buchanan appeals from his convictions for first-degree robbery, being a felon in possession of a firearm, and carrying weapons.  Buchanan asserts the district court erred in instructing the jury that a claim of right is not a defense to theft because he did not raise the defense.  In the alternative, he maintains that if this court concludes the claim-of-right defense was implicated, his trial counsel was ineffective in failing to assert it affirmatively.  Buchanan also contends the court erred in denying Buchanan’s request to have three jurors removed for cause.  Finally, he claims the district court erred in allowing the State to play the recordings of his jailhouse phone calls.  OPINION HOLDS:  We are not convinced Buchanan has suffered any prejudice as a result of the claim-of-right jury instruction.  He cannot establish his trial attorney breached an essential duty in failing to raise a claim-of-right defense; this ineffective-assistance-of-counsel claim thus fails.  With respect to Buchanan’s juror challenge, Buchanan must show that the result was a juror being seated who was not impartial, which Buchanan has not attempted to do.  Finally, we find no prejudicial error in the admission of the recorded jail phone calls.  We therefore affirm his convictions.

            Appeal from the Iowa District Court for Linn County, Paul D. Miller, Judge.  AFFIRMED AS MODIFIED.  Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (7 pages)

            Deborah Balik appeals the economic provisions of the decree dissolving her marriage to David Balik.  She contends (1) the district court inequitably divided their assets; (2) she should have been awarded spousal support; and (3) David should have been ordered to pay her trial attorney fees.  She also seeks an award of appellate attorney fees.  OPINION HOLDS: We affirm the dissolution decree in all respects except we modify the property division portion of the decree to award Deborah an additional $59,216, payable within 180 days after procedendo in this appeal issues.  We further modify the spousal support provision to grant Deborah $500 per month in spousal support until she becomes eligible for Medicare benefits.  We order David to pay $3500 towards Deborah’s appellate attorney fee obligation.

           Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter and Michael J. Shubatt, Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (10 pages)

           Robert Powell Jr. appeals the judgments and sentences entered following his guilty plea.  OPINION HOLDS: Because Powell failed to perform in accordance with the terms of the plea agreement, there is no merit to his claims of ineffective assistance of counsel based on counsel’s failure to argue that the plea agreement was “null and void” or to object to the prosecutor’s refusal to comply with the sentencing recommendation at the sentencing hearing. 

           Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell, Judge.  AFFIRMED.  Heard by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J. (21 pages)

            Lopez-Aguilar appeals his convictions arising out of a traffic accident.  On appeal, he (1) argues the district court abused its discretion when denying his motion for mistrial, (2) challenges the sufficiency of the evidence of his reckless conduct, (3) and makes several claims of ineffective assistance.  OPINION HOLDS: The district court did not abuse its discretion in denying the motion for mistrial.  Sufficient evidence supported a finding of recklessness.  All but one of Lopez-Aguilar’s ineffective-assistance claims fails.  On the remaining claim alleging counsel should have objected to allegedly inconsistent verdicts, we preserve the claim so that a complete record may be developed.

           Appeal from the Iowa District Court for Wapello County, Shawn R. Showers, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J. (9 pages)

            Eric Davila appeals his conviction and sentence for second-degree murder.  OPINION HOLDS: The district court did not abuse its discretion in denying a motion for mistrial based on a violation of a motion in limine because there was no violation.  Davila’s trial counsel was not ineffective for failing to object to a jury instruction because it accurately stated the law.  The district court considered his ability to pay before ordering restitution.

           Appeal from the Iowa District Court for Hamilton County, James A. McGlynn, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mullins, J.  (5 pages)

           Jill Tjernagel appeals the district court’s denial of her motion to dismiss a criminal prosecution following a reversal of her conviction and remand for a new trial, contending the district court had authority and jurisdiction to consider the motion to dismiss and the court therefore erred in declining to entertain the merits of the motion.  The State agrees the court erred in declining to entertain the merits of the motion but argues the error was harmless because Tjernagel’s motion would have failed on the merits.  The State requests that we consider the merits of the dismissal motion for the first time on appeal, affirm the denial of the motion, and remand the case for a new trial.  OPINION HOLDS: We decline to consider the merits of the motion to dismiss for the first time on appeal.  We therefore reverse the district court’s denial of Tjernagel’s motion to dismiss and remand the matter to the district court for consideration of the motion on the merits.  We decline Tjernagel’s request that we instruct the district court to allow a subpoena on the prosecutors from her first trial for the purpose of developing a factual record. 

           Appeal from the Iowa District Court for Jasper County, Bradley McCall, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (4 pages)

           Andreas Benford appeals the denial of his application for postconviction relief.  He argues the district court erred in finding he must pursue his claims through administrative action and he failed to exhaust his administrative remedies.  OPINION HOLDS: The Iowa Board of Parole has discretion to address Benford’s claims, but he did not appeal to the Board.  Therefore, the district court did not err in denying his application because he failed to exhaust his administrative remedies.