August 2018 Archive | Court of Appeals Court Opinions

Appeal from the Iowa District Court for Buchanan County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (7 pages)

           Leon Anderson appeals from his conviction of second-degree burglary, claiming there is insufficient evidence to show he entered an occupied structure without right, license, or privilege to enter.  OPINION HOLDS: Substantial evidence supports the victims were occupants of the apartment and had revoked Anderson’s access to the apartment at the time of his entry.  Therefore, Anderson entered the apartment with no right, license, or privilege to enter, and his conviction for burglary in the second degree is affirmed.

           Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple and Bradley J. Harris, Judges.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (6 pages)

           Eduardo Cano appeals after pleading guilty to assault with intent to commit serious injury, asserting a claim of ineffective assistance for counsel’s failure to advise him of certain immigration consequences of his plea.  OPINION HOLDS: Because we find the record on direct appeal inadequate to resolve Cano’s ineffective-assistance-of-counsel claim, we affirm his conviction, judgment, and sentence, and we preserve his claim for possible postconviction-relief proceedings to allow the record to be developed.

Appeal from the Iowa District Court for Polk County, Robert J. Blink and Scott D. Rosenberg, Judges.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J. (6 pages)

           Oscar Marco Gipson contends the State did not show substantial evidence to support a jury verdict that he committed the offense of going armed with intent.  He argues there was insufficient evidence he intended to shoot another person.  OPINION HOLDS: Ample evidence in the record, along with the reasonable inferences from that evidence, shows Gipson shot into an occupied bar with the intent to shoot his girlfriend, with whom he was having relationship problems.  Gipson confronted and argued with her at a bar and watched her leave and go to another bar.  He then sprayed the bar with bullets from a semiautomatic weapon.  Substantial evidence supports the jury verdict.  Therefore we affirm. 

Appeal from the Iowa District Court for Marshall County, Timothy J. Finn, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J. (7 pages)

            Amy Howell appeals her judgment and sentence following a guilty plea.  OPINION HOLDS: We affirm Howell’s judgment and sentence for ongoing criminal conduct and unauthorized use of a credit card. 

Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.  AFFIRMED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J. (7 pages)

           Michael Salmon, father of K.S., appeals the district court’s award of physical care to the mother, Amanda Luck.  He contends his request for shared care is in K.S.’s best interests.  In the alternative, he asks for additional visitation time.  He also seeks reduction or elimination of his obligation to pay Amanda’s trial attorney fees.  OPINION HOLDS: Reviewing the facts anew, we reach the same conclusions about the physical care and visitation provisions: Michael’s history of violence against Amanda and their contentious relationship make a shared care arrangement untenable and not in K.S.’s best interests.  The attorney fee award is also in the sound discretion of the district court, and we see no reason to disturb it given the income disparity between the parties and the reasonable efforts of counsel.  We also find Amanda is entitled to some reasonable appellate attorney fees and remand to the district court to determine an appropriate award.

           Appeal from the Iowa District Court for Lee (South) County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J. (8 pages)

           A plaintiff appeals the district court judge's denial of a motion for recusal.  OPINION HOLDS: The court did not abuse its discretion in denying the motion for recusal because there was no conflict of interest and plaintiff did not establish resulting prejudice.

           Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  CONVICTIONS AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED FOR ENTRY OF CORRECTED SENTENCING ORDER.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (11 pages)

           Paul Kingery appeals the convictions entered following his Alford pleas to two counts of lascivious acts with a child.  On appeal, he claims his pleas lacked factual bases and the court therefore erred in accepting them.  He also claims his Alford pleas were involuntary and unknowing, and the court failed to comply with Iowa Rule of Criminal Procedure 2.8(2)(b) by failing to advise him of applicable surcharges before accepting his plea.  Finally, Kingery claims the imposition of Iowa Code section 911.2B (2015) surcharges violated the ex post facto clauses of the United States and Iowa Constitutions.  OPINION HOLDS:  Upon our review, we conclude: (1) each charge was supported by a factual basis in the record, (2) Kingery failed to preserve error on his claim that his plea was involuntary and unknowing, and (3) the imposition of a sexual abuse surcharge violated the ex post facto clauses.  We affirm Kingery’s convictions but partially vacate his sentence and remand for entry of a corrected sentencing order. 

Appeal from the Iowa District Court for Polk County, Karen A. Romano and Carla T. Schemmel, Judges.  AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J. (9 pages)

            Joseph Shade appeals his sentence for first-degree robbery.  Shade argues he received ineffective assistance of counsel because his attorney did not argue the sentencing court was required to hold a Miller hearing before sentencing.  He also claims the court erred in imposing a law-enforcement-initiative surcharge.  OPINION HOLDS: Because the court did not sentence Shade to a mandatory-minimum term of incarceration, a Miller hearing was not required, and counsel was not ineffective for failing to request one.  The court erred in imposing the law-enforcement-initiative surcharge because it is not authorized by statute for this offense.

Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J. (5 pages)

           Bruce Martin appeals the order granting summary disposition of his fifth application for postconviction relief (PCR).  OPINION HOLDS: The “newly discovered evidence” claims Martin raised in his fifth PCR application were either litigated in an earlier PCR proceeding or not proven to be newly discovered.  Accordingly, we affirm the order granting the State’s motion for summary disposition of his PCR action.  Because the result of the PCR proceeding would not have changed had PCR counsel performed as Martin suggests, his claim of ineffective assistance of PCR counsel also fails.

           Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Danilson, C.J. (8 pages)

           Scott Sandstrom appeals from the sentence imposed following his guilty pleas, contending he did not voluntarily waive use of the presentence investigation.  He also asserts the court failed to consider letters filed with the court, made an erroneous reference to matters outside the record, and gave inadequate reasons for the sentence imposed.  OPINION HOLDS: Finding no legal errors or abuse of the court’s discretion, we affirm.

           Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Tabor, J., and Scott, S.J.  Opinion by Scott, S.J. (5 pages)

           Tracie Prier appeals the district court decision dismissing her action for failure to timely serve notice on Mary Billhymer.  OPINION HOLDS: Prier did not serve Billhymer with notice of the lawsuit within ninety days after the petition was filed and did not file a motion for an extension of time to serve notice.  We conclude Prier has not shown good cause for the delay in serving Billhymer.  We affirm the district court’s decision dismissing the action.

Appeal from the Iowa District Court for Cedar County, Stuart P. Werling, Judge.  REVERSED AND REMANDED.  Considered by Danilson, C.J., Mullins, J., and Blane, S.J.  Opinion by Blane, S.J. (10 pages)

            Timothy Horn appeals from the district court order modifying a consent protective order.  The protected party is his estranged wife, Wanda.  Tim contends the court applied the wrong standard in modifying the consent order and the evidence did not warrant modification.  Wanda contends the court applied the correct standard but the appeal is moot.  OPINION HOLDS: On our review, we find the district court applied an incorrect legal standard in determining the order should be modified and insufficient evidence supported the modification.  We reverse the modification and reinstate the prior protective order, excluding a now moot provision that ended prior to the appeal.