October 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Greer, JJ.  Opinion by Potterfield, J.  (4 pages)

            Alto Thomas appeals his sentence for failing to affix a drug tax stamp.  Thomas argues the sentencing court abused its discretion by improperly relying on a risk assessment tool when it considered the presentence investigation report recommended sentence, which included an assessment of Thomas under risk assessment tools.  Thomas further argues his trial counsel was ineffective for failing to object to the sentencing court’s consideration of the recommended sentence.  OPINION HOLDS: The sentencing court did not abuse its discretion by considering the recommendation.  We preserve Thomas’s ineffective assistance of counsel claim for posconviction-relief proceedings.  We affirm.

            Appeal from the Iowa District Court for Floyd County, James M. Drew, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J. (4 pages)

            Robert Mannetter appeals his conviction of third-degree sexual abuse forwarding claims of prosecutorial error and ineffective assistance of counsel.  OPINION HOLDS: We reject Mannetter’s arguments on appeal and affirm his conviction of third-degree sexual abuse. 

            Appeal from the Iowa District Court for Lee (North) County, John M. Wright, Judges.  SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J.  (7 pages)

            A defendant appeals her sentence following her guilty plea for possession of methamphetamine.  She contends the State breached the plea agreement by giving only a halfhearted recommendation for a suspended sentence and plea counsel was ineffective for not objecting.  OPINION HOLDS:  We find the State injected “material reservations” about the defendant’s prospects for success on probation, and counsel had a duty to object.  Prejudice is presumed in these circumstances.  Accordingly, we vacate the sentence and remand for resentencing. 

            Appeal from the Iowa District Court for Linn County, Nancy A. Baumgartner, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Ricky Williams appeals following his guilty plea to attempting to elude, a drug tax stamp violation, interference with official acts, possession of cocaine, and possession of marijuana.  OPINION HOLDS: We affirm Williams’ plea and sentences.

            Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J. (5 pages)

            Ivie Popplewell appeals his conviction for second-degree theft.  OPINION HOLDS: Because the record before the district court at the time of the plea provides a sufficient basis for finding Popplewell committed theft under Iowa Code section 714.1(4) (2018), his counsel was not ineffective in allowing him to plead guilty. 

            Appeal from the Iowa District Court for Linn County, Patrick R. Grady, Judge.  AFFIRMED.  Considered by Mullins, P.J., and Bower and May, JJ.  Opinion by Mullins, P.J.  (8 pages)

            Brianna Conrad appeals the dismissal of her contempt actions in domestic abuse proceedings.  OPINION HOLDS: We conclude Brianna failed to meet her evidentiary burden for contempt and therefore affirm the dismissal of her contempt actions.

            Appeal from the Iowa District Court for Muscatine County, John D. Telleen, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Greer, JJ.  Opinion by Tabor, J.  (10 pages)

            An injured employee appeals the decision of the district court granting the defendant employer summary judgment on her claim the employer acted with bad faith in denying her workers’ compensation claim.  She also appeals the denial of her motion for partial summary judgment on the first element of the common-law tort of bad faith.  OPINION HOLDS:  Because we conclude the employer had a reasonable basis to deny the claim, we find the employer showed the employee could not prove the first element of her bad-faith claim, and the employer was entitled to summary judgment.  Seeing no error in the district court’s ruling, we affirm. 

            Appeal from the Iowa District Court for Clarke County, Randy V. Hefner, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J. (4 pages)

            Jesse Comly appeals the sentences imposed after he pled guilty to lascivious acts with a child and dissemination and exhibition of obscene material to a minor.  OPINION HOLDS: Because the district court made no determination of Comly’s reasonable ability to pay, we vacate the court’s orders for restitution and remand the matter to the district court for receipt of a final restitution plan and a determination of Comly’s reasonable ability to pay.  We also vacate the $125 law-enforcement-initiative surcharge because it does not apply to the offenses to which Comly pled guilty, and we remand for entry of a corrected sentencing order.     

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II and John Telleen, Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (6 pages)

            Walter Howard Jr. appeals his guilty-plea conviction of third or subsequent domestic abuse assault, arguing his plea was unsupported by a factual basis and counsel was therefore ineffective in allowing him to plead guilty and thereafter failing to file a motion in arrest of judgment.  He also argues counsel was ineffective in failing to object to deficiencies in the plea colloquy in relation to said guilty plea and his guilty plea to a similar crime in another case arising out of a separate occurrence.  OPINION HOLDS: Having found counsel was not ineffective as alleged, we affirm Howard’s conviction and sentences.

            Appeal from the Iowa District Court for Marshall County, Kim M. Riley, District Associate Judge.  CONVICTION AFFIRMED, SENTENCE AFFIRMED IN PART AND VACATED IN PART, AND REMANDED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J. (3 pages)

            Justo Gonzales appealed his conviction, sentence, and Judgment following his guilty plea to Lascivious Acts with a child.  OPINION HOLDS: Because the recommendation of the department of correctional services is “pertinent information” for a court to consider when sentencing a defendant, the district court did not improperly consider the detailed sentencing recommendations of the presentence investigator preparer.  Also, because the sentencing order does not comply with statutory procedures outlined in State v. Albright, 925 N.W.2d 144, 159 (Iowa 2019), we vacate that part of the sentence and remand for the district court to impose restitution consistent with the Albright directives.

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Scott, S.J.  Opinion by Greer, J.  (14 pages)

            The district court enforced a liquidated damages provision based on a violation of a covenant not to compete in a cardiothoracic surgeon’s employment contract.  On appeal, the doctor argues that the covenant not to compete is unenforceable and prejudicial to the public interest and, in any event, the liquidated damages provision constitutes a penalty and is unenforceable.  OPINION HOLDS: We affirm the district court’s ruling enforcing the liquidated damages provision because it was necessary to protect the employer, did not unreasonably restrict the employee, did not violate public policy, and did not constitute an unenforceable penalty.

             Appeal from the Iowa District Court for Polk County, Craig E. Block, Associate Probate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.   Separate writing by Doyle, J. (12 pages)

            Joseph Van Ginkel III and Elizabeth Winterhalter, two of Ellen Van Ginkel’s six children, contested Ellen’s will, asserting: (1) Ellen lacked testamentary capacity to make the November 13, 2013 fourth codicil to her will, and (2) the will was a result of the undue influence of their sibling, Jennie Kronthal.  The district court entered summary judgment dismissing their claims.  Joe and Elizabeth appeal, contending the district court abused its discretion in considering police reports and an untimely-disclosed letter.  They also assert the court erred in concluding they failed to present sufficient evidence to go to a jury on the questions of Ellen’s lack of testamentary capacity or undue influence.  OPINION HOLDS: The plaintiffs waived their motion to strike the letter by appealing before obtaining a ruling.  Finding the evidence was insufficient to go to a jury, summary judgment was proper and we affirm.  SEPARATE WRITING STATES: I concur, but write separately to address two appellate practice points.  Iowa Rule of Appellate Procedure 6.905(4)(c) was violated as there are no descriptors in the table of contents for the 94 exhibits included in the parties’ appendix, nor does the table state the page numbers where each exhibit appears.  I believe rule 6.803(2)(f) prohibits submission of any condensed transcript to the appellate courts. And it should not matter whether the condensed transcript was attached to some filing in district court or included in the appendix as some random exhibit as appears here.