2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and May and Greer, JJ.  Tabor, J., takes no part.  Opinion by Greer, J.  Special Concurrence by May, J.  (10 pages)

            Francisco De La Rosa Garcia challenges the district court’s dismissal of his application for postconviction relief.  Garcia filed his application over three years after his conviction became final, but argued his application fell under the exception to the statutory time-bar.  OPINION HOLDS: The Iowa Supreme Court holding in Morales Diaz v. State, 896 N.W.2d 723, 732 (Iowa 2017), is not a new ground of law.  For that reason, Garcia’s application does not fall under the exception to the statutory time-bar.  We affirm the denial of Garcia’s PCR application.  SPECIAL CONCURRENCE ASSERTS: I agree the district court properly denied relief.  I write separately to suggest the district court was also correct in concluding Morales Diaz, 896 N.W.2d at 32, created a “new rule” that should not be applied retroactively.

            Appeal from the Iowa District Court for Scott County, Thomas G. Reidel, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Sean O’Toole appeals several provisions of the decree dissolving his marriage to Laura O’Toole.  Sean contends the district court acted inequitably in failing to (1) grant the parents joint physical care of the children and (2) provide more expansive visitation.  OPINION HOLDS: We conclude the district court acted equitably in denying Sean’s request for joint physical care.  We modify the visitation portion of the decree to extend Sean’s weeknight and summer visitation.  We decline Laura’s request to have Sean pay her appellate attorney-fee obligation.

            Appeal from the Iowa District Court for Carroll County, Joseph McCarville, District Associate Judge.  CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (3 pages)

            Joshua Black appeals his conviction and sentence after pleading guilty of domestic abuse assault.  He argues the sentencing procedure was defective and counsel was ineffective.  OPINION HOLDS: We find Black did not knowingly and intentionally waive his right of allocution.  Thus, we must remand for resentencing.  We also find the record is insufficient to address his ineffective-assistance claim.  So we preserve his claims for a future postconviction-relief action.

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber and Robert J. Blink, Judges. AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Bower, J.  (4 pages)

            Hamilton Drane appeals the judgment and sentence imposed upon his September 21, 2018 guilty pleas to being a felon in possession of a firearm and operating a motor vehicle while intoxicated, contending his firearm plea was not knowingly and voluntarily entered and plea counsel was ineffective in failing to file a motion in arrest of judgment.  OPINION HOLDS: The record adequately establishes Drane was a felon in possession of a firearm, as shown by the guilty-plea colloquy and the minutes of testimony.  The colloquy also supports the court’s finding that Drane entered his plea voluntarily.  Because counsel has no duty to file a meritless motion, his ineffectiveness claim fails, and we affirm his convictions.

            Appeal from the Iowa District Court for Worth County, Colleen D. Weiland, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Bower, JJ.  Opinion by Doyle, J.  (9 pages)

            Ryan Tostenson appeals following his conviction for operating while intoxicated, challenging the denial of his motion to suppress evidence obtained during a traffic stop.  OPINION HOLDS: The officer did not have reasonable suspicion to believe that Tostenson violated Iowa Code section 321.266 (2018) by leaving the scene of an accident involving personal property because nothing in that section required him to stay at the scene of the accident.  A violation of Iowa Code section 321.288(1) cannot be justification for the stop because the accident did not occur on a public road or highway.  Finally, the record does not disclose facts on which an officer could reasonably believe Tostenson intentionally damaged a light pole.  Because State has failed to establish a lawful basis for the stop, we reverse the order denying Tostenson’s motion to suppress and remand to the district court for a new trial.

            Appeal from the Iowa District Court for Warren County, James D. Birkenholz, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Mullins and Greer, JJ.  Opinion by Greer, J.  (4 pages)

            A defendant challenges his guilty plea to operating while intoxicated, second offense, and operating without registration.  He argues his counsel was ineffective for failing to ensure that he understood the plea agreement before pleading guilty.  OPINION HOLDS: The record is inadequate to address the defendant’s claim of ineffective assistance of counsel on direct appeal and we preserve his claim for a possible postconviction-relief application. 

            Appeal from the Iowa District Court for Page County, Amy Zacharias, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (4 pages)

            A mother and father separately appeal from adjudicatory and dispositional orders of the juvenile court in a child-in-need-of-assistance proceeding.  OPINION HOLDS: On our de novo review, we find clear and convincing evidence supports the juvenile court’s adjudicatory order and the continuance of removal at the time of disposition.

            Appeal from the Iowa District Court for Scott County, Christine Dalton, District Associate Judge.   AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (15 pages)

            A mother and father separately appeal the juvenile court’s removal, adjudicatory, and dispositional orders in a child-in-need-of-assistance proceeding.  OPINION HOLDS: On our de novo review, we affirm the juvenile court on all issues.

            Appeal from the Iowa District Court for Montgomery County, Amy Zacharias, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (12 pages)

            A father appeals the juvenile court’s termination of his parental rights.  OPINION HOLDS: We conclude termination was appropriate under Iowa law and consistent with the children’s best interests.

            Appeal from the Iowa District Court for Winnebago County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (3 pages)

            A mother appeals the termination of her parental rights to her two children.  OPINION HOLDS: No grounds for reversal have been presented.  We affirm without further opinion pursuant to Iowa Court Rule 21.26(1)(e).

            Appeal from the Iowa District Court for Appanoose County, William S. Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., Greer, J., and Carr, S.J.  Opinion by Carr, S.J.  (4 pages)

            A mother appeals the juvenile court order terminating her parental rights.  OPINION HOLDS: We find there is clear and convincing evidence in the record to support termination of the mother’s parental rights and termination is in the child’s best interests.  We affirm the decision of the juvenile court.

            Appeal from the Iowa District Court for Linn County, Barbara H. Liesveld, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (9 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  OPINION HOLDS: We conclude (1) grounds for termination exist, (2) termination is in the child’s best interest, (3) no exception should lead us to forgo termination, and (4) the State made reasonable efforts toward reunification.