March 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Carr, S.J.  Opinion by Potterfield, P.J.  (8 pages)

            Javier Benitez Pizarro appeals the district court’s denial of his application for postconviction relief (PCR).  In the underlying case, Benitez Pizarro entered a guilty plea to possession of a controlled substance with intent to deliver.  Here, as he did in front of the PCR court, Benitez Pizarro maintains his trial counsel provided ineffective assistance by failing to (1) effectively plea bargain, (2) inform him of the immigration consequences associated with his plea deal, (3) adequately advocate on Benitez Pizarro’s behalf at sentencing, and (4) prepare Benitez Pizarro for his right of allocution at sentencing.  In the alternative, if we do not find he met his burden of establishing Strickland prejudice, Benitez Pizarro asks that we adopt a new standard for prejudice under the Iowa Constitution and consider his claims under that standard.  OPINION HOLDS: Because Benitez Pizarro has not met his burden to establish that trial counsel breached any essential duties in their representation of him, he cannot establish his claims of ineffective assistance and his new proposed new standard of prejudice is inapposite.  We affirm the denial of his application for PCR.    

            Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Potterfield, JJ.  Opinion by Vogel, C.J.  (7 pages)

            Prince Mellish appeals his conviction and sentence for theft in the third degree.  He argues his counsel was ineffective for allowing him to sign a plea agreement that incorrectly states the law and for failing to correctly explain how his guilty plea would affect his immigration status.  OPINION HOLDS: We find the plea agreement correctly states he has an obligation to understand his immigration status and no prejudice resulted from his counsel’s claimed failure to investigate the divisibility of his theft charge.  Therefore, we affirm.         

            Appeal from the Iowa District Court for Hardin County, Timothy J. Finn, Judge.  AFFIRMED AS MODIFIED AND REMANDED WITH INSTRUCTIONS.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Decided by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (22 pages)

            Colette Friest appeals and Brent Friest cross-appeals various provisions of the district court’s decree dissolving their twenty-one-year marriage.  OPINION HOLDS: We agree with the district court that “[t]his is an extremely complicated case.”  We find the district court’s decree should be affirmed as modified in various respects as set out in this opinion, resulting in an increase of the equalization payment to Collette.  We further find Brent’s personal farm income for purposes of calculating his child-support obligation should be increased, and we remand the issue back to the district court to recalculate Brent’s child-support obligation consistent with this opinion.  The district court shall order a schedule of payments for the increased equalization payment that is fair and equitable to the parties.

            Appeal from the Iowa District Court for Marion County, Martha L. Mertz, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J. (5 pages)

            Asa South appeals the judgment and sentence entered after a jury found him guilty of third-degree sexual abuse.  OPINION HOLDS: The trial court acted within its discretion in denying evidence concerning an allegedly false claim of sexual abuse made by the complaining witness ten years earlier because South failed to show by a preponderance of the evidence that the claim was false.  His trial counsel was not ineffective in failing to object to the model jury instruction concerning his out-of-court statements.

            Appeal from the Iowa District Court for Crawford County, Steven J. Andreasen, Judge.  AFFIRMED AS MODIFIED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (10 pages)

            Tamra Moeller appeals the economic provisions in the parties’ dissolution decree.  OPINION HOLDS: We find the parties’ premarital agreement is not enforceable because Galyn Moeller did not provide accurate information on his financial disclosure form.  The district court made alternative findings concerning the division of the parties’ property if the premarital agreement was found to be unenforceable, and we find this division is equitable.  We also affirm the court’s decision not to award spousal support to Tamra and to order Galyn to pay part of her trial attorney fees.  We do not award any appellate attorney fees.  We affirm the decision of the district court, although we modify it to find the parties’ premarital agreement is not enforceable.

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Tabor, JJ.  Opinion by Vaitheswaran, J.  (5 pages)

            Marquis Brumfield appeals the denial of his application for postconviction relief arguing ineffective assistance of counsel.  OPINION HOLDS: We affirm the postconviction court’s denial of Brumfield’s ineffective-assistance-of-counsel claim and the denial of his postconviction-relief application.

            Appeal from the Iowa District Court for Scott County, John D. Telleen, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Potterfield, P.J. (15 pages)

            Lawrence Walker appeals from his convictions for sexual abuse in the second degree and lascivious acts with a child.  He maintains the district court abused its discretion when it excluded evidence under the rape-shield law.  Additionally, he maintains the court erred in allowing the doctor to testify to hearsay that did not fall within the exception for statements for medical diagnosis and that trial counsel provided ineffective assistance by failing to object when a nurse testified to similar improper hearsay testimony.  OPINION HOLDS: The district court did not abuse its discretion in excluding evidence based on the rape-shield law.  Additionally, the court did not err in admitting Dr. Harre’s testimony about E.W.’s statements pursuant to a hearsay exception.  We affirm Walker’s convictions.  We preserve his claim of ineffective assistance for possible postconviction relief.

            Appeal from the Iowa District Court for Hardin County, Gregg R. Rosenbladt, Judge.  REVERSED AND REMANDED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (7 pages)

            Marcia Roll appeals and Russell Newhall cross-appeals the district court’s taxing half Newhall’s trial and appellate attorney fees against Roll on remand.  OPINION HOLDS: We find the court erred in taxing plaintiff’s appellate attorney fees as costs and made no finding as to the reasonableness of Newhall’s trial attorney fees.  We reverse the decision of the district court and remand for further proceedings.

            Appeal from the Iowa District Court for Poweshiek County, Shawn Showers, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Mahan, S.J.  Opinion by Mahan, S.J.  (10 pages)

            Gary Elliott appeals following convictions for four counts of second-degree sexual abuse, contending the district court erred when it rejected Elliott’s proposed evidence that the minor victim had been sexually abused before.  Alternatively, he argues that his counsel was ineffective for failing to argue the evidence was “constitutionally required” under Iowa Rule of Evidence 5.412 and asks this court to apply a different ineffective-assistance-of-counsel test than contained in existing law.  Elliott also asserts trial counsel should have objected to alleged prosecutorial misconduct during the prosecutor’s rebuttal closing argument.  OPINION HOLDS: Elliott’s new arguments of relevancy and the constitutional claims that were not presented to the district court are not properly preserved for review.  The trial court did not abuse its discretion in excluding the evidence of prior sexual abuse under rule 5.412.  We preserve Elliott’s ineffective-assistance-of-counsel claims for possible postconviction-relief proceedings.

            Appeal from the Iowa District Court for Woodbury County, Steven J. Andreasen, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J. (4 pages)

            Bryce Bishop appeals the judgment and sentence entered after a jury found him guilty of child endangerment resulting in bodily injury.  OPINION HOLDS: The trial court properly applied the weight-of-the-evidence standard in ruling on Bishop’s motion for new trial, and his trial counsel was not ineffective in failing to object to the jury instruction concerning his out-of-court statements.

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (10 pages)

            Keith Davis Jr. appeals his conviction of one count of sexual abuse in the third degree, following a jury trial.  On appeal, he contends his trial counsel was ineffective in failing to: (1) move for a dismissal on speedy-trial-violation grounds and (2) request jury instructions regarding contradictory statements by the complaining witness.  OPINION HOLDS: We find no violation of Davis’s right to a speedy trial and Davis was not prejudiced by counsel’s failure to request a specific instruction on inconsistent statements.  We therefore deny both of Davis’s claims of ineffective assistance of counsel and affirm his conviction.

            Appeal from the Iowa District Court for Calhoun County, William C. Ostlund, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.  Opinion by Vogel, C.J.  (10 pages)

            Corey Trott appeals the denial of his application for postconviction relief (PCR).  He raises multiple ineffective-assistance-of-counsel claims against his trial counsel, appellate counsel, and PCR counsel.  In addition, Trott’s pro se brief raises various other issues.  OPINION HOLDS: We affirm the district court’s denial of PCR and preserve some of Trott’s ineffective-assistance claims for further postconviction proceedings.