February 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Story County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (5 pages)

            Eddie Risdal appeals the order dismissing his application for postconviction relief.  Risdal did not file his application within the three-year statute of limitations as provided in Iowa Code section 822.3 (2017).  He contends the statute-of-limitations bar does not apply because of newly discovered evidence.  OPINION HOLDS: We affirm the decision of the district court. 

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (6 pages)

            Calvin Hoskins appeals the denial of his application for postconviction relief (PCR).  He contends: (1) the district court erred in denying relief on his claim the State committed a Brady violation in conjunction with his prosecution and (2) his PCR counsel was ineffective in not arguing his trial attorney rendered ineffective assistance in not moving to suppress evidence obtained as a result of a warrantless search of his person.  OPINION HOLDS: We conclude Hoskins failed to preserve error on his Brady claim or, alternatively, he failed to meet his burden.  We find the record inadequate to consider the ineffective-assistance claim as to PCR counsel.  We affirm the denial of Hoskins’s PCR application, but preserve his ineffective-assistance claim for a possible successive proceeding. 

            Appeal from the Iowa District Court for Fayette County, John J. Bauercamper, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (9 pages)

            Justin Cole Moore appeals his conviction and sentence for the crime of child endangerment resulting in serious injury, in violation of Iowa Code sections 726.6(1)(a) and 726.6(5) (2016).  Moore asserts he received ineffective assistance of counsel because his counsel failed to object to a jury instruction addressing his out-of-court statements and did not request an instruction defining “reasonable degree of medical certainty.”  Also, Moore argues restitution should be removed from his written sentencing order and the district court failed to assess his ability to pay.  OPINION HOLDS: We find Moore has not established he received ineffective assistance of counsel and his restitution claims are better addressed under the remedies of Iowa Code section 910.7.

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  Dissent by Doyle, J.  (10 pages)

            In this interlocutory appeal, Monkey, Inc., d/b/a Tony’s La Pizzeria (“Tony’s”), challenges the district court’s denial of its motion for summary judgment, arguing there is no genuine issue of material fact that plaintiff Brett Weichers failed to notify the dram shop of his claim within six months as required by Iowa Code section 123.93 (2015) and Weichers failed to produce any evidence that he qualified for any of the exceptions to the notice requirement under that section.  OPINION HOLDS: Upon our review, we conclude Weichers did not comply with the statutory notice provision and the “reasonable diligence” basis for extending the statutory deadline was inapplicable.  We reverse and remand for entry of summary judgment in favor of Tony’s.  DISSENT ASSERTS: I respectfully dissent.  Under the facts presented, I agree with the district court’s conclusion that “a question of fact exists for the jury’s determination relative to the diligence exercised by the plaintiff in discovering the dram shop action against Defendant Tony’s.”  I would affirm the district court’s denial of the motion for summary judgment.

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (6 pages)

            Ronald Valla appeals the denial of his application for postconvicton relief (PCR).  He argues his PCR counsel rendered ineffective assistance to the level of structural error in prosecuting his claim that his plea counsel rendered ineffective assistance in allowing him to plead guilty while suffering from a mental impairment.  OPINION HOLDS: we find no reasonable probability that, but for PCR counsel’s alleged errors, the result of the PCR proceedings would have been different.  We affirm the denial of Valla’s PCR application.

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (11 pages)

            33 Carpenters Construction, Inc. appeals an order granting summary judgment in favor of The Cincinnati Insurance Company on its claim of breach of contract.  Cincinnati cross-appeals the court’s denial to remove the case from the expedited civil action process.  OPINION HOLDS: We find there is no genuine issue of fact that 33 Carpenters acted as a public adjuster without the proper licensure in connection with an assignment it obtained from a homeowner in relation to an insurance claim.  As such, the assignment between 33 Carpenters and the homeowner is unenforceable and Cincinnati is entitled to judgment as a matter of law.  We need not address Cincinnati’s cross-appeal.

            Appeal from the Iowa District Court for Floyd County, Rustin T. Davenport, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J.  (11 pages)

            Andre Johnson appeals his conviction and sentence for first-degree burglary.  He alleges several instances of ineffective assistance, claims the district court erred in denying his motion for new trial, requests resentencing due to alleged defects in the sentencing procedure, and claims his sentence amounts to cruel and unusual punishment.  OPINION HOLDS:  Because the State provided overwhelming evidence of Johnson’s guilt, Johnson cannot establish the necessary resulting prejudice from any instance of ineffective assistance—individually or cumulatively.  The court applied the correct standard and did not abuse its discretion when denying the motion for new trial.  There was no defect in Johnson’s sentencing requiring resentencing, and his sentence was not cruel and unusual.

            Appeal from the Iowa District Court for Cass County, James S. Heckerman, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (9 pages)

            Joshua Mullen appeals the denial of his application for postconviction relief (PCR).  He contends the district court erred in denying him relief on his claims his trial counsel rendered ineffective assistance in (1) failing to withdraw due to a conflict of interest and (2) allowing him to plead guilty.  OPINION HOLDS: We conclude Mullen failed to preserve error on his claim counsel was ineffective in failing to withdraw in light of a conflict of interest.  To the extent he raises a claim of structural error as to PCR counsel, his argument is insufficient to facilitate our review, and we do not consider it.  Mullen may challenge the effectiveness of PCR counsel if he files another PCR application promptly after the issuance of procedendo.  We affirm the denial of relief on Mullen’s plea-related claims.

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  REVERSED AND REMANDED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (15 pages)

            In an action by Standard Water Control Systems, Inc. to enforce a judgment arising from a mechanic’s lien, Michael and Cori Jones appeal the district court’s decision finding they waived their homestead rights.  OPINION HOLDS:  We affirm the district court’s finding Iowa Code section 561.21(3) (2013) does not allow a homestead to be sold to recover attorney fees entered as part of a judgment against a home in an action to foreclose a mechanic’s lien.  We reverse the decision of the district court on the issue of whether the Joneses waived their homestead rights and remand for further proceedings.

            Appeal from the Iowa District Court for Polk County, Dustria A. Relph, Judge.  AFFIRMED.  Heard by Tabor, P.J., Bower, J., and Mahan, S.J.  Opinion by Bower, J.  (12 pages)

            Linda Dorr appeals the decree dissolving her marriage with Fred Dorr, challenging the spousal support award, the division of property, and the district court’s failure to award attorney fees.  OPINION HOLDS: We affirm the district court’s decree.

            Appeal from the Iowa District Court for Des Moines County, Jennifer S. Bailey, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (2 pages)

            Daniel Shaw appeals his judgment and sentence for carrying weapons, claiming his trial attorney was ineffective.  OPINION HOLDS: We affirm Shaw’s judgment and sentence without prejudice to his right to raise his ineffective-assistance-of-counsel claim in a postconviction-relief application.

            Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (8 pages)

            David Pinney appeals his convictions for two counts of possession of a controlled substance and one count of unlawful possession of a prescription drug.  OPINION HOLDS:  The search of Pinney’s person was a lawful search incident to his arrest for an unrelated offense.  His conviction for unlawful possession of a prescription drug does not merge into one of his convictions for possession of a controlled substance.