2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (13 pages)

            William Roby appeals the denial of his application for postconviction relief.  On appeal, Roby claims his trial counsel provided ineffective assistance in allowing him to plead guilty to kidnapping in the third degree when there was an insufficient factual basis to support the plea.  Roby also claims his counsel provided ineffective assistance by failing to file a motion in arrest of judgment to challenge his guilty plea to the kidnapping charge.  He contends his guilty plea was not voluntarily and intelligently made due to counsel’s ineffective assistance during plea negotiations and during the guilty-plea proceedings.  Roby also raises pro se claims based upon his right of confrontation and a post-trial motion filed after the case was appealed.  OPINION HOLDS: We find a sufficient factual basis supports Roby’s guilty plea to kidnapping in the third degree and his trial counsel did not render ineffective assistance in not challenging his properly entered guilty plea.  We further find Roby’s trial counsel did not render ineffective assistance during plea negotiations or in allowing Roby to plead guilty to the kidnapping charge.  Roby’s guilty plea waived his claim concerning his right of confrontation.  The district court committed no error by not addressing Roby’s post-trial motion.

            Appeal from the Iowa District Court for Polk County, David M. Porter and Karen A. Romano, Judges.  AFFIRMED.  Heard by Vogel, C.J., and Carr and Gamble, S.J.  May, J., takes no part.  Opinion by Vogel, C.J.  (12 pages)

            Ricky Dean Ryan appeals after a jury found him guilty on three drug-related charges.  He challenges the denial of his motion to suppress evidence and the sufficiency of the evidence supporting his convictions.  OPINION HOLDS: A home visit was conducted to carry out a legitimate parole supervision concern, and therefore, Ryan’s motion to suppress was properly overruled.  Because Ryan was not in custody when he made incriminating statements, those statements were admissible, and sufficient evidence supports his convictions.

            Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Vogel, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  Partial Dissent by Vogel, C.J.  (6 pages)

            Julie Pfaltzgraff’s appeals the district court ruling denying her petition for judicial review, which affirmed Iowa Department of Human Services (DHS) decision confirming the existence of Child Care Assistance Program (CCAP) overpayments and the amount.  OPINION HOLDS: For the reasons set forth in Endress v. Iowa Department of Human Services, No. 18-1329, 2019 WL ________, at *___ (Iowa Ct. App. June 19, 2019), also filed today, we reverse the district court’s ruling in part because the notice the DHS provided concerning recoupment of the CCAP payments made during the appeal process was constitutionally deficient.  On this basis, we reverse the district court’s ruling on judicial review, which affirmed the agency decision regarding recoupment of CCAP overpayments and amount.  And because Pfaltzgraff is entitled to an award of her attorney fees under Iowa Code section 625.29 (2017) for the reasons set forth in Endress, we remand to the district court to determine an appropriate award, which should include appellate attorney fees.  Finally, we affirm the portion of the ruling determining that Pfaltzgraff failed to preserve error on her claim that the DHS violated its own rule in denying her second CCAP application.  PARTIAL CONCURRENCE, PARTIAL DISSENT ASSERTS: For the reasons expressed in my dissent in Endress, I dissent in part from the opinion of the majority, which found the notice to Julie Pfaltzgraff was deficient and she is entitled to attorney fees.  I agree with the majority’s conclusion that error was not preserved on the refusal to process her second application. 

            Appeal from the Iowa District Court for Carroll County, Gary L. McMinimee, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by May, J.  (4 pages)

            Jesse Neitzel appeals the dismissal of his postconviction-relief (PCR) action.  Neitzel does not claim error by the PCR court.  Instead, Neitzel claims his PCR counsel was ineffective in allowing the current action to be dismissed.  OPINION HOLDS: We affirm but preserve Neitzel’s ineffective-assistance claims.

            Appeal from the Iowa District Court for Boone County, William C. Ostlund, Judge.  AFFIRMED. Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (19 pages)

            Joshua Powell appeals from the denial of his postconviction-relief application, raising various claims of ineffective assistance of trial and appellate counsel.  OPINION HOLDS: We conclude Powell’s trial attorneys did not breach an essential duty in failing to move for a change of venue.  We also conclude Powell’s trial attorneys did not breach an essential duty in declining to present a diminished responsibility or intoxication defense, as they thoughtfully considered those issues.  Additionally, we find Powell’s trial attorneys were not ineffective in handling the testimony of the medical examiner.  Applying precedent, we further conclude Powell’s trial attorneys breached no essential duty in failing to argue his Fifth Amendment right to counsel was violated, and it follows appellate counsel was not ineffective in failing to raise the issue.  And, because substantial evidence supports a finding of malice aforethought in this case, the failure of Powell’s attorneys to challenge that element could not have been prejudicial.  We find Powell’s trial attorneys did not breach an essential duty in failing to challenge the sufficiency of the trial information, and as such it follows that appellate counsel was not ineffective in failing to raise the issue.  Moreover, we agree with the postconviction court’s conclusion that “[e]ven if the trial court erred in not granting the strike for cause,” Powell did not establish prejudice.  Finally, we conclude counsel did not breach an essential duty in failing to request a hearing on the stun device issue.  Accordingly, affirm the postconviction court’s denial of Powell’s postconviction-relief application.

            Appeal from the Iowa District Court for Franklin County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Heard by Potterfield, P.J., and Doyle and May, JJ.  Opinion by Potterfield, P.J.  (9 pages)

            Jonathan Elphic appeals from his conviction for forgery, a class “D” felony.  Elphic maintains the district court abused its discretion when it allowed the State to reopen the record after the prosecutor indicated the State rested its case and Elphic moved for a judgment of acquittal based on insufficient evidence.  Elphic asserts his conviction should be vacated for insufficient evidence.  OPINION HOLDS:  The district court did not abuse its discretion in allowing the State to call the complaining witness to testify after the State misspoke, stating it rested.  Because the complaining witness’s testimony was properly part of the record, substantial evidence supports the jury’s verdict convicting Elphic of forgery.

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED ON APPEAL; REVERSED AND REMANDED ON CROSS-APPEAL.  Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.  Opinion by Mullins, J.  (13 pages)

            Willie Carroll appeals, and the Iowa Department of Human Services (DHS) cross-appeals, a district court ruling on Carroll’s petition for judicial review partially affirming an agency determination and remanding the matter to the agency.  Carroll argues the district court erred in affirming the denial of four out of five of the skilled-nursing visits she requested to be covered by her managed-care organization because (1) the court failed “to consider whether the requested skilled nursing visits qualify as ‘restorative and maintenance home health agency services’” under Iowa Administrative Code rule 441-78.9, (2) DHS abused its discretion in using arbitrary criteria in denying the request, (3) the court erred in failing to find DHS’s decision’s negative impact on private rights is grossly disproportionate to the public interest, and (4) the factual determinations that skilled-nursing visits were not medically necessary are unsupported by substantial evidence.  On cross-appeal, DHS contends the district court erred in remanding the matter to the agency for the purpose of determining whether one of the five requested skilled-nursing visits was medically necessary.  OPINION HOLDS: Carroll has failed to preserve error on her claims concerning restorative and maintenance care, the criteria used by Amerigroup and DHS in denying the request for prior authorization, and gross disproportionality.  We find the agency determination affirming the denial of all five requested skilled-nursing visits is supported by substantial evidence.  We therefore affirm on appeal.  On cross-appeal, we reverse the district court’s remand of the matter to the agency, and we remand the matter to the district court for the entry of an order affirming the agency determination.

            Appeal from the Iowa District Court for Linn County, Russell G. Keast, District Associate Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Tabor, J. (8 pages)

            Ken Kuhse appeals his conviction for domestic abuse assault causing bodily injury, claiming counsel was ineffective for failing to object to the marshaling instruction, which directed the jury to find him guilty if it found the elements listed without reference to Kuhse’s justification defense.  OPINION HOLDS: Because the State’s burden to disprove Kuhse’s justification defense became an element of the offense after Kuhse produced sufficient evidence on the defense, counsel breached a material duty by failing to object to the marshaling instruction.  And because Kuhse produced sufficient evidence on the defense to raise a fact question for the jury, he was prejudiced by the faulty instruction.  Accordingly, we reverse and remand for a new trial.

            Appeal from the Iowa District Court for Dallas County, Dustria A. Relph, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Bower, J.  (14 pages)

            Plaintiffs appeal the district court decision dismissing their petition for writ of certiorari challenging the decision of the Dallas County Board of Adjustment (Board) finding they were in violation of zoning ordinances and claim against the Napa Valley Owners Association (NVOA) for tortious interference with their property rights.  OPINION HOLDS: We determine the district court erred by dismissing the petition for writ of certiorari based on its finding plaintiffs had not shown they were aggrieved by the Board’s decision.  We reverse on this issue and remand for further proceedings.  We conclude the district court did not err in granting the motion to dismiss filed by the NVOA for failure to state a claim upon which relief may be granted and affirm the court’s ruling on this issue.

            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.