2018 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Henry County, Lucy J. Gamon, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (4 pages)

            Jason Kensett appeals the dismissal of his application for postconviction relief.  OPINION HOLDS:  Because Kensett cannot demonstrate his trial counsel’s alleged conflict of interest had an adverse effect on counsel’s performance, he is not entitled to relief.  The district court did not err in dismissing Kensett’s application for postconviction relief.

            Appeal from the Iowa District Court for Pottawattamie County, Susan Christensen, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (3 pages)

            Thomas Kane appeals the district court’s denial of his application for postconviction relief (PCR).  He claims the district court erroneously determined his application is time-barred.  OPINION HOLDS: Kane does not present a new ground of law to overcome the three-year statute of limitations for filing a PCR application.  We therefore affirm the district court without further opinion.

            Appeal from the Iowa District Court for Story County, James A. McGlynn (plea), James C. Ellefson (sentencing), and Adria Kester (nunc pro tunc order), Judges.  CONVICTIONS AFFIRMED; NUNC PRO TUNC ORDER VACATED; AND REMANDED FOR ENTRY OF A CORRECTED SENTENCING ORDER.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (4 pages)

            George Jackson appeals his guilty-plea convictions of three crimes and a post-judgment nunc pro tunc order.  He contends (1) his counsel rendered ineffective assistance in failing to challenge his guilty pleas on voluntariness grounds by way of a motion in arrest of judgment and (2) the court erred in modifying his sentence by way of a nunc pro tunc order to additionally require he complete a batterer’s treatment program.  OPINION HOLDS: Upon our de novo review, we find Jackson’s pleas were entered knowingly and intelligently, and therefore voluntarily; consequently, we find counsel’s failure to file a motion in arrest of judgment was neither a breach of an essential duty or prejudicial.  The original sentence imposed for domestic-abuse assault was illegal, and the nunc pro tunc order had no legal effect on the illegal sentence.  We therefore vacate that portion of the sentence imposed by the nunc pro tunc order and remand for entry of a corrected sentencing order, which adds the requirement that Jackson participate in a batterers’ treatment program as part of his sentence for his conviction of domestic-abuse assault, and otherwise includes all provisions in the original sentencing order.

            Appeal from the Iowa District Court for Scott County, Mark J. Smith, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (4 pages)

            Larry Bell Sr. appeals the denial of his application for postconviction relief.  He contends his trial counsel was ineffective in allowing him to plead guilty despite the State’s contradiction of the release-recommendation terms of the plea agreement.  OPINION HOLDS:  We approve the district court’s findings and ruling on the breach-of-duty prong of Bell’s claim and affirm the denial of his application on that ground pursuant to Iowa Court Rule 21.26(1)(d).  In the alternative, we find Bell has failed to prove any prejudice as a result of any alleged breach of duty by counsel.

            Appeal from the Iowa District Court for Pottawattamie County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (8 pages)

            Jeffery Wheeldon appeals from the denial of his application for postconviction relief (PCR).  He maintains the PCR court should have found his application falls within an exception to the three-year statute of limitations because he was incompetent at the time of his plea and the three years following.  OPINION HOLDS: Substantial evidence supports the PCR court’s finding that Wheeldon was mentally competent at the time he entered his guilty pleas, and Wheeldon has not established he was incompetent for the three years that followed.  Thus, because Wheeldon could have timely raised his claims, his application does not meet an exception to the three-year statute of limitations.  We affirm the dismissal of Wheeldon’s PCR application.

            Appeal from the Iowa District Court for Black Hawk County, Brook K. Jacobsen, District Associate Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Tabor, J.  (3 pages)

            The defendant appeals from a conviction for assault causing bodily injury asserting her trial counsel was ineffective in cross-examining a key witness.  OPINION HOLDS: The record is inadequate to address the defendant’s claims.  We preserve the claim for postconviction-relief proceedings where trial counsel can explain their strategy and the defendant can develop evidence as to prejudice.  We affirm the conviction. 

            Appeal from the Iowa District Court for Black Hawk County, Andrea J. Dryer and David P. Odekirk, Judges.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (6 pages)

            Samella Simone Bailey appeals her conviction of delivering or possessing with the intent to deliver a simulated controlled substance (more than forty grams of simulated cocaine base) as a second offender, contending (1) the district court erred in denying her motion to dismiss and (2) the sentence was illegal.  OPINION HOLDS: Upon our review, we affirm Bailey’s conviction, judgment, and sentence.

            Appeal from the Iowa District Court for Woodbury County, Timothy T. Jarman, District Associate Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, P.J.  (7 pages)

            Sonya Stark appeals her conviction and sentence for the crime of theft in the third degree.  Stark argues the district court applied the wrong standard when ruling on her motion for a new trial.  Also, she argues there was insufficient evidence in the record to support a conviction of theft in the third degree.  OPINION HOLDS: We find the district court did not apply the wrong standard when ruling on the motion for a new trial.  In addition, we find there was sufficient evidence to support a finding of theft in the third degree.

            Appeal from the Iowa District Court for Harrison County, Gregory W. Steensland, Judge.  AFFIRMED AS MODIFIED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (10 pages)

            Chad Barry appeals the district court’s denial of his petition to modify the custodial and physical care provisions of his dissolution decree.  He also challenges the court’s dismissal of his applications for rule to show cause, alleging his former wife, Kathleen, willfully violated the terms of the decree.  Finally, he challenges the court order that he pay certain expenses.  OPINION HOLDS: Because there was no material or substantial change in circumstances warranting modification, the district court did not err in declining the petition for modification.  Chad failed to prove beyond a reasonable doubt that Kathleen willfully violated the terms of their dissolution decree.  The district court properly required Chad to pay certain pre-dissolution debts in accordance with the terms of the decree.  However, the court erred in ordering Chad pay one half of the children’s medical bills when Kathleen did not show she provided him notice of the amounts due within fifteen days of receipt of the amount due as required by the decree.  Chad’s payment obligation is reduced accordingly.

            Appeal from the Iowa District Court for Linn County, Fae E. Hoover-Grinde, Judge.  REVERSED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Daniel Bliek appeals from the district court’s order granting Lori Bliek’s petition to modify the spousal support provision of the parties’ 2013 dissolution decree.  OPINION HOLDS: We conclude Lori failed to establish a substantial change of circumstances not contemplated at the time of the dissolution decree.  Accordingly, we reverse the modification of her spousal support award.  In light of our conclusion, we reverse the award of trial attorney fees and decline Lori’s request for $8303 in appellate attorney fees. 

            Appeal from the Iowa District Court for Boone County, Steven J. Oeth, Judge.  AFFIRMED.  Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (6 pages)

            Clay Thomas Paulson appeals his convictions for possession of a controlled substance, a tax stamp violation, and possession of a prescription drug without a prescription raising claims of insufficient evidence and trial court error in admitting certain hearsay statements.  OPINION HOLDS: We conclude the jury’s findings of guilt on all three crimes were supported by substantial evidence.  We affirm the district court’s evidentiary ruling on the uncontested Iowa Rule of Evidence 5.403 grounds without prejudice to Paulson’s right to raise the hearsay issue in a postconviction relief action. 

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (10 pages)

            Evan Wooten appeals his sentences for attempt to disarm a peace officer of a dangerous weapon and assault on persons engaged in certain occupations.  He requests resentencing alleging: (1) the district court erred in determining attempting to disarm a peace officer of a dangerous weapon is a forcible felony requiring imprisonment, (2) the department of correctional services was not statutorily authorized to include a sentencing recommendation in the presentence investigation report and Wooten’s counsel was ineffective in failing to object to the recommendation’s inclusion, and (3) the sentencing order contained an erroneous provision requiring Wooten to challenge his ability to pay certain restitution rather than requiring the court first make an ability-to-pay determination before imposing restitution.  OPINION HOLDS: Any error relating to the court’s categorization of attempting to disarm a peace officer of a dangerous weapon as a forcible felony was harmless because the sentencing court stated it would impose the same sentence regardless of its determination that attempting to disarm a peace officer of a dangerous weapon amounts to a forcible felony.  We preserve Wooten’s ineffective-assistance claim for further development in future postconviction-relief proceedings.  Finally, we find the sentencing provision requiring Wooten to affirmatively challenge his ability to pay restitution was erroneously included and vacate that portion of the sentencing order.