November 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Polk County, Dustria A. Relph, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            A father appeals from the private termination of his parental rights, contending the evidence of abandonment is insufficient.  He also maintains his retained counsel provided ineffective assistance.  OPINION HOLDS: Despite his subjective interest in the child, there is clear and convincing evidence the father did not attempt to maintain any contact with the child from 2010 to 2017.  The father has failed to prove counsel was ineffective.  We therefore affirm the termination of the father’s rights.

            Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.  ROBBERY AND THEFT CONVICTIONS and sentences VACATED AND REMANDED FOR FURTHER PROCEEDINGS.  Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.  Opinion by Doyle, J. (6 pages)

            Daniel Buenneke challenges the factual basis for his pleas to second-degree robbery and first-degree theft, which he entered as part of a plea agreement involving multiple charges.  OPINION HOLDS: Because there is an insufficient factual basis for Buenneke’s robbery and theft pleas, we vacate the district court’s judgment of conviction and sentence on both the robbery and theft charges.  We remand to allow the State an opportunity to establish a factual basis for the guilty plea. 

            Appeal from the Iowa District Court for Webster County, Bethany J. Currie and Kurt L. Wilke, Judges.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (6 pages)

            Nicholas Andrews claims the State breached its plea agreement with him and his attorney was ineffective in not objecting.  OPINION HOLDS: The record is not developed enough for us to decide whether Andrews received ineffective-assistance-of-counsel.  So we affirm his conviction and preserve the ineffective-assistance-of-counsel claim for possible postconviction-relief proceedings. 

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (11 pages)

            The plaintiffs appeal the order granting summary judgment on their negligence claims in favor of the defendant, a group home for persons with intellectual disabilities.  They contend the defendant owed a legal duty to protect third parties from harm posed by a resident who tried to sexually assault a minor.  OPINION HOLDS: Because the relationship between the parties and public policy considerations weigh against finding the defendant had a legal duty to protect third parties from harm posed by one of its residents, we affirm the order granting summary judgment.

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt, District Associate Judge.  AFFIRMED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (9 pages)

            Rudy Colocho was convicted for third-offense operating a vehicle while intoxicated.  During a traffic stop, a police officer accommodated Colocho’s request to urinate before he performed field sobriety tests.  The officer took Colocho to the police station, but after he used the restroom, he still refused sobriety testing.  Instead, Colocho started speaking Spanish and requested an attorney.  The officer rejected the request.  After an interpreter was brought in Colocho still refused sobriety testing.  The officer then arrested Colocho and advised him his Iowa Code section 804.20 (2018) rights.  The officer estimated Colocho had just a little under an hour to make a phone call before the officer invoked implied consent.  Colocho refused to take the DataMaster test.  Colocho now appeals. OPINION HOLDS: We agree with the district court’s additional finding that the officer remedied the situation by later advising Colocho of his rights.  Also, because no excludable evidence emerged between the alleged violation and the officer’s giving of the advisory, we need not apply a fruits analysis.  Also, because Colocho refused the DataMaster test nearly an hour after receiving the advisory, the test refusal was admissible evidence in his stipulated bench trial.  Also, because the stipulated record contained strong evidence Colocho was operating while under the influence, we find any violation of Colocho’s rights under section 804.20 was harmless error.  Colocho is not entitled to new trial.

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Opinion by Potterfield, P.J.  (3 pages)

            Odell Everett Jr. appeals from the summary dismissal of his third application for postconviction relief in which he challenges his 2005 conviction for first-degree robbery.  OPINION HOLDS: We agree with the district court’s conclusions that Everett’s reliance on Schmidt v. State, 909 N.W.2d 778 (Iowa 2018), was “misplaced because there is no allegation of newly discovered evidence upon which any claim of actual innocence could be made,” and that Everett’s “claims have been fully adjudicated and are time barred.”  We find no error and therefore affirm.

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (7 pages)

            Jaevon Holmes appeals his conviction for escape under Iowa Code section 719.4(1) (2017).  He contends the evidence at his bench trial supported only the lesser offense of absence from custody under Iowa Code section 719.4(3).  OPINION HOLDS: Because ample evidence backs the district court’s determination Holmes intentionally and without permission left the work-release facility where he was held after violating parole on his felony convictions, we affirm.

            Appeal from the Iowa District Court for Cherokee County, David A. Lester, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J. (5 pages)

            Eddie DeLong appeals his restitution order, claiming there is not an adequate causal connection between the ordered restitution and his crimes.  OPINION HOLDS: We find substantial evidence supports the district court’s findings and affirm.

            Appeal from the Iowa District Court for Wapello County, Shawn R. Showers, Judge.  REVERSED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Greer, J.  (17 pages)

            Appellants Ottumwa Civil Service Commission, City of Ottumwa, and Ottumwa Police Department appeal from the district court ruling that reversed the suspension and termination of Sergeant Mark Milligan and awarded him back pay.  The appellants argue Sergeant Milligan’s suspension and termination were appropriate and the court erred by refusing to reduce his damages by income he received from other sources.  OPINION HOLDS: We find Sergeant Milligan violated department rules and uphold the suspension and termination.  Given this determination, the damage question is moot. 

            Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.  AFFIRMED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (10 pages)

            Oliver Fenceroy appeals the district court’s granting of summary judgment in favor of defendants Gelita USA, Inc., Tom Haire, and Jeff Tolsma to dismiss his claims of racial harassment, racial discrimination, and intentional infliction of emotional distress.  OPINION HOLDS: We find Fenceroy did not show Gelita had the requisite knowledge to support the harassment claims, did not establish an adverse employment action for his discrimination claim, and the evidence did not support a finding of severe emotional distress.  We affirm.

            Appeal from the Iowa District Court for Wapello County, Crystal S. Cronk, Judge.  AFFIRMED.  Considered by Bower, C.J., and Potterfield and Greer, JJ.  Opinion by Potterfield, J.  (8 pages)

            Benjamin Schreiber seeks to resurrect his third postconviction-relief application (PCR) after the district court granted the State’s motion to dismiss.  Schreiber was convicted of murder in the first degree in violation of Iowa Code sections 707.1 and 707.2 (1996).  On appeal, he alleges the district court made several errors in the course of handling his PCR application, including (1) denying him a meaningful opportunity to respond by failing to provide him adequate notice of the hearing on the State’s motion to dismiss, failing to record the proceedings, and dismissing his application without an evidentiary hearing; (2) requiring him to pay 20% of the filing fee for the PCR application; and (3) denying his application for court-appointed counsel.  OPINION HOLDS: Schreiber was given an opportunity to be heard, and the district court did not err by not recording the proceedings and granting the State’s motion to dismiss his application.  The district court did not err by requiring him to pay 20% of the filing fee or by denying his application for court appointed counsel.  We affirm.

            Appeal from the Iowa District Court for Scott County, Tom Reidel, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (4 pages)

            Stephen Marks was convicted of second-degree robbery and sentenced under Iowa Code section 902.12(5) (2013), which required a seventy percent mandatory minimum.  In 2016, the statute was amended to allow a range of fifty to seventy percent mandatory minimum for second-degree robbery sentences.  See Iowa Code § 902.12(3) (2016).  Marks filed a postconviction-relief application arguing the amended statute should apply retroactively.  OPINION HOLDS: By its plain words, the 2016 amendment only applies prospectively.  Moreover, we are not persuaded by Marks’s due process, equal protection, and cruel-and-unusual-punishment claims.  Therefore, we affirm the denial of Marks’s postconviction-relief application.