June 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Wright County, Paul B. Ahlers and Kim M. Riley, District Associate Judges.  AFFIRMED.  Considered by Vogel, C.J., Bower, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (6 pages)

            Arthur Mollo III appeals from judgment and sentence entered upon his guilty plea to identity theft, contending counsel was ineffective in allowing the plea where there was no factual basis that the victim was a “person” and in failing to object to the court’s consideration of risk assessment tests in sentencing.  He also asserts the court considered an improper factor in sentencing.  OPINION HOLDS: On our review, a factual basis for the plea exists and we find no abuse of the court’s sentencing discretion.  Mollo’s ineffective assistance of counsel claim is preserved for possible postconviction proceedings.

            Appeal from the Iowa District Court for Black Hawk County, Kellyann M. Lekar, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Doyle, P.J., May, J., and Scott, S.J.  Opinion by Scott, S.J.  (10 pages)

            Brandon Proctor appeals his convictions of first-degree theft, eluding, driving while barred, trespass, and criminal mischief.  OPINION HOLDS:  We find the district court did not err in its decision declining to give a jury instruction on operating a vehicle without the owner’s consent as a lesser-included offense of first-degree theft.  We conclude there is substantial evidence in the record to support Proctor’s convictions of first-degree theft and eluding.  We determine there is not substantial admissible evidence in the record to support Proctor’s conviction for fourth-degree criminal mischief.  We find Proctor has not shown he received ineffective assistance on his claim regarding a proposed jury instruction on operating a vehicle without the owner’s consent as a lesser-included offense of first-degree theft.  We find his claim he received ineffective assistance because defense counsel did not file a motion to suppress should be preserved for possible postconviction relief.  We affirm Proctor’s convictions of first-degree theft, eluding, driving while barred, and trespass.  We reverse his conviction of fourth-degree criminal mischief and remand to the district court for a new judgment and sentencing order.

            Appeal from the Iowa District Court for Polk County, Douglas F. Staskal, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

The estate of Kwan Rim seeks further review from a district court decision that upheld the denial of health coverage for a large portion of an extended hospital stay in South Korea.  The estate argues (1) it was erroneous not to apply the strictures of Iowa Code chapter 17A (2016) to the external review process, (2) Rim’s insurer, Wellmark, Inc., had a duty to provide translated medical records to the independent review organization, and (3) the decision of the independent review organization should not have been affirmed.  OPINION HOLDS: Because the independent review organization is not an agency and Rim does not contest any action of the agency, the standards governing review of agency action are inapplicable.  Also, because the medical records were sufficiently intelligible to an English reader to render a coverage decision, we need not determine who should bear the costs of translation, if translation is required.  Finally, we conclude the independent review organization did not err in denying coverage for the bulk of Rim’s hospital stay.  Accordingly, we affirm the district court ruling on judicial review of the IRO’s decision.

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Vogel, C.J. (4 pages)

            Michael Gill appeals his conviction and sentence for robbery in the second degree.  On appeal, he asserts his counsel was ineffective for failing to object to a jury instruct on second-degree robbery that did not include the assault element.  OPINION HOLDS: We find Gill has not established prejudice and, therefore, his ineffective-assistance claim fails. 

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (3 pages)

            Arnold Grice appeals from the denial of his second application for postconviction relief following his 2007 convictions. Grice raises three issues that he raised to the second PCR court: that his first PCR counsel was ineffective in failing to raise the issues his trial counsel was ineffective (1) for not adequately explaining the strength of the evidence against him, which led him to reject a favorable plea agreement, and (2) for not raising a conflict-of-interest issue, and (3) trial counsel was ineffective for failing to further investigate the DNA evidence against him.  OPINION HOLDS: Having considered each of Grice’s claims, we affirm the PCR court’s denial of Grice’s claims without further opinion. 

            Appeal from the Iowa District Court for Polk County, Karen A. Romano, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vogel, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  Dissent by Vogel, C.J.  (19 pages)

            The Department of Human Services (DHS) appeals district court’s ruling on judicial review, which determined the DHS violated Terri Endress’s procedural due process rights and exceeded its statutory authority in promulgating administrative rules concerning recoupment of Child Care Assistance Program (CCAP) overpayments, and the administrative rules concerning recoupment are unconstitutionally vague.  Terri Endress cross-appeals the denial of her request for attorney fees.  OPINION HOLDS: I. The DHS violated Endress’s right to procedural due process by seeking recoupment of CCAP payments without providing adequate notice.  The notice provided to Endress concerning recoupment of the CCAP payments made during the appeal process was constitutionally deficient, and we affirm on this basis.  Accordingly, we need not address the other grounds on which the district court granted Endress’s petition for judicial review or Endress’s argument concerning unjust enrichment.  II. Although Endress appealed the DHS’s assessment of CCAP overpayments, she did not challenge the existence of a CCAP overpayment under the DHS’s rules and the amount of that overpayment.  Rather, the DHS’s promulgation of administrative rules concerning overpayment and the procedural due process it afforded Endress were at issue.  Because the agency did not adjudicate the matter on appeal, its role was not primarily adjudicative.  We reverse the district court’s determination that Endress is not entitled to attorney fees under Iowa Code section 625.29 (2018) and remand to the district court to determine an appropriate award.  DISSENT ASSERTS: I do not believe the notice from DHS to Endress violated her right to procedural due process.  I also believe Endress cannot recover attorney fees because the department’s actions were primarily adjudicative.  Therefore, I respectfully dissent.

            Appeal from the Iowa District Court for Worth County, Rustin T. Davenport, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Tabor, J.  (9 pages)

            Tricia Hannegrefs appeals her conviction for driving while barred, arguing counsel was ineffective for failing to object to jury instruction lacking State’s burden of disproving her compulsion defense.  OPINION HOLDS: Because we conclude competent counsel would have objected to the defective instruction and Hannegrefs suffered prejudice as a result of counsel’s deficiency, we reverse Hannegrefs’s conviction and remand for a new trial.

            Appeal from the Iowa District Court for Fremont County, Mark J. Eveloff, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Doyle, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (15 pages)

            In an interlocutory appeal, Andres Lechuga challenges the district court decision granting summary judgment to O & J Enterprises, LLC (O & J) in his tort action.  OPINION HOLDS: We find there are genuine issues of material fact on the questions of whether O & J had a subcontractor agreement with Garcia Grain Structures, LLC (Garcia Grain), or whether Ezekiel Garcia was O & J’s employee and whether O & J and Garcia or Garcia Grain had a principal-agent relationship.  On these issues we reverse the district court’s decision granting summary judgment to O & J and remand for further proceedings.  We find the district court properly granted summary judgment to O & J on the issue of whether O & J was in a joint venture with Mid-States Millwright & Builders, Inc. and Garcia or Garcia Grain, and we affirm on this issue.

            Appeal from the Iowa District Court for Washington County, Crystal S. Cronk, Judge.  AFFIRMED.  Considered by Vogel, C.J., Vaitheswaran, J., and Blane, S.J.  Opinion by Vaitheswaran, J.  (6 pages)

            DrewAnn Sorensen appeals an order granting Damian Hesseltine physical care of the parties’ minor child and awarding him the associated dependent-tax exemption.  OPINION HOLDS: We affirm the district court’s decree, and we decline to award appellate attorney fees.

            Appeal from the Iowa District Court for Warren County, Kevin A. Parker, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Gregg Quigley appeals his conviction for theft in the third degree.  OPINION HOLDS:  We find Quigley’s claims of ineffective assistance by defense counsel during his guilty plea proceeding should be preserved for possible postconviction proceedings.  We find the court did not abuse its discretion in setting the amount of restitution in the sentencing order.  We affirm Quigley’s conviction.

            Appeal from the Iowa District Court for Hardin County, Paul B. Ahlers, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by May, J.  (4 pages)

            A defendant appeals from his sentence for operating while intoxicated, second offense.  OPINION HOLDS: The district court properly exercised its discretion when sentencing the defendant.  We affirm the defendant’s sentence.

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Mark Scholtes appeals the denial of his application for postconviction relief, raising claims of ineffective assistance of plea and postconviction counsel.  OPINION HOLDS: Because postconviction counsel raised and obtained a ruling on the precise issue Scholtes now raises, he could not have been ineffective.  We also conclude plea counsel was not ineffective in his advice about the possibility of consecutive sentences.  Accordingly, we affirm the postconviction court’s denial of Scholtes’ postconvicton-relief application.