Filed May 15, 2019
View Opinion No. 18-0998
View Summary for Case No. 18-0998
Appeal from the Iowa District Court for Lee (South) County, John M. Wright and Mary Ann Brown, Judges. SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED. Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ. Opinion by Vaitheswaran, P.J. (4 pages)
Following a guilty plea, Timothy Smeltser appeals his sentence, arguing (1) “the district court erred in ordering [him] to reimburse the State for court costs and correctional fees without first considering his reasonable ability to pay such restitution” and (2) “the sentencing court abused its discretion” in considering facts that were “unsupported by the record.” OPINION HOLDS: We affirm all portions of the sentencing and post-sentencing orders except that portion of the sentencing order imposing correctional fees and court costs. Applying State v. Albright, 925 N.W.2d 144, 161 (Iowa 2019), we vacate those portions of the orders and remand for receipt of the final restitution plan and consideration of Smeltser’s reasonable ability to pay.
Filed May 15, 2019
View Opinion No. 18-1051
View Summary for Case No. 18-1051
Appeal from the Iowa District Court for Polk County, Paul Scott, Judge. REVERSED AND REMANDED. Considered by Doyle, P.J., Mullins, J., and Danilson, S.J. Opinion by Doyle, P.J. Dissent by Mullins, J. (10 pages)
Anita Gumm appeals the denial of her petition for judicial review upholding the Workers’ Compensation Commissioner’s denial of her petition asserting she sustained a cumulative workplace injury. OPINION HOLDS: We disagree with the agency and district court that Gumm was required to establish she sustained a distinct and discreet disability to recover on a cumulative-injury claim under the circumstances presented. Under Floyd v. Quaker Oats, 646 N.W.2d 105, 108 (Iowa 2002), Gumm’s showing of an aggravation of her injury was sufficient to establish a cumulative injury. Accordingly, we reverse the district court’s denial of Gumm’s petition for judicial review and remand to the commissioner. DISSENT ASSERTS: I respectfully dissent because I do not believe the Floyd case authorizes Gumm to pursue a cumulative injury claim after a successful resolution of a claim for an underlying injury.
Filed May 15, 2019
View Opinion No. 18-1137
View Summary for Case No. 18-1137
Appeal from the Iowa District Court for Johnson County, Jason A. Burns, District Associate Judge. AFFIRMED. Considered by Potterfield, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (5 pages)
Tyler Ferguson appeals the district court’s revocation of his probation, contending the court failed to consider the mitigating circumstances surrounding his probation violation. OPINION HOLDS: Because the court properly exercised its discretion in viewing the new driving offense as a sufficient reason to impose judgment, we affirm.
Filed May 15, 2019
View Opinion No. 18-1163
View Summary for Case No. 18-1163
Appeal from the Iowa District Court for Black Hawk County, Patrice Eichman, District Associate Judge. SENTENCE VACATED AND REMANDED FOR RESENTENCING. Considered by Vogel, C.J., Bower, J., and Gamble, S.J. Opinion by Gamble, S.J. (4 pages)
Dean Geary appeals from judgment and sentence entered upon his written plea of guilty to assault causing bodily injury or mental illness. OPINION HOLDS: Geary was adequately advised of the need to file a motion in arrest of judgment. Having filed no motion in arrest of judgment, Geary waived his right to challenge the guilty plea. Because we are unable to determine whether the district court properly exercised its discretion in sentencing Geary, we vacate the sentence and remand for resentencing.
Filed May 15, 2019
View Opinion No. 18-1225
View Summary for Case No. 18-1225
Appeal from the Iowa District Court for Polk County, David May, Judge. AFFIRMED. Considered by Doyle, P.J., and Mullins and Bower, JJ. May, J., takes no part. Opinion by Bower, J. Dissent by Doyle, P.J. (7 pages)
Jeramy Hollingshead appeals from the summary-judgment order dismissing his dramshop claim. OPINION HOLDS: Because Hollingshead failed to substantially comply with Iowa Code section 123.29 (2015) notice requirements by failing to identify the proper licensee, summary judgment was proper. DISSENT ASSERTS: Here, the notice sets out all the pertinent statutory requisites: plaintiff’s intention to bring a dramshop action and references to the date, place and circumstances causing the injury. Although the notice’s reference to “Leonard LLC dba Misfits,” the former operator of the bar, as the insured, is in error, I do not believe it deems the notice to be fatally deficient as to content. I would reverse the district court’s grant of summary judgment.
Filed May 15, 2019
View Opinion No. 18-1241
View Summary for Case No. 18-1241
Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ. Opinion by Vaitheswaran, P.J. (4 pages)
Jennifer Lightfoot appeals the dismissal of her personal-injury action for failure to comply with initial disclosure requirements, claiming the district court abused its discretion. OPINION HOLDS: We conclude the district court did not abuse its discretion in dismissing the petition as a sanction for the plaintiff’s repeated failure to comply with the disclosure requirements of Iowa Rule of Civil Procedure 1.500(1).
Filed May 15, 2019
View Opinion No. 18-1292
View Summary for Case No. 18-1292
Appeal from the Iowa District Court for Scott County, Mark D. Cleve and Henry W. Latham II, Judges. AFFIRMED. Considered by Doyle, P.J., Mullins, J., and Blane, S.J. Opinion by Mullins, J. (11 pages)
Darreon Draine appeals his conviction of willful injury causing serious injury. He claims the district court should have ordered a competency evaluation and abused its discretion in denying his motion in arrest of judgment. OPINION HOLDS: Draine failed to establish probable cause of his incompetency to warrant a competency evaluation. The district court did not abuse its discretion in denying Draine’s motion in arrest of judgment because the plea proceeding showed Draine entered his plea knowingly and intelligently. We affirm Draine’s conviction.
Filed May 15, 2019
View Opinion No. 18-1296
View Summary for Case No. 18-1296
Appeal from the Iowa District Court for Pottawattamie County, Mark J. Eveloff, Judge. SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED. Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ. Opinion by Vaitheswaran, P.J. (3 pages)
Following a guilty plea, Randall Maresch appeals his sentence, arguing the district court erred in “assessing financial obligations to [him] without first making a constitutionally mandated determination of his reasonable ability to pay.” OPINION HOLDS: Applying State v. Albright, 925 N.W.2d 144, 160–62 (Iowa 2019), we vacate that portion of the sentencing order imposing an obligation to immediately pay court costs and court-appointed attorney fees pending the completion of a final restitution order and a subsequent determination of Maresch’s reasonable ability to pay.
Filed May 15, 2019
View Opinion No. 18-1371
View Summary for Case No. 18-1371
Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge. AFFIRMED. Considered by Potterfield, P.J., and Doyle and Tabor, JJ. Opinion by Potterfield, P.J. (4 pages)
Terrence Watson appeals the sentence imposed upon his conviction for failure to comply with the sex-offender registry requirements, second or subsequent offense, in violation of Iowa Code sections 692A.113(1)(f) and 692A.111(1) (2018), enhanced as a habitual offender pursuant to sections 902.8 and 902.9(3). Watson contends the district court failed to consider the minimum essential factors and provide sufficient reasons for the sentence imposed. OPINION HOLDS: The sentence is within statutory limits, and we find no abuse of the court’s sentencing discretion.
Filed May 15, 2019
View Opinion No. 18-1378
View Summary for Case No. 18-1378
Appeal from the Iowa District Court for Buena Vista County, Charles Borth, Judge. AFFIRMED. Considered by Potterfield, P.J., and Tabor and Bower, JJ. Opinion by Tabor, J. (4 pages)
Sefton Akin appeals from his conviction for third-offense public intoxication following a guilty plea. He alleges trial counsel was ineffective for failing to inform him he would be required to submit a DNA sample for the state database. OPINION HOLDS: Because we cannot tell from this record whether counsel breached a duty or Akin suffered prejudice, we affirm his conviction and preserve the claim for potential postconviction-relief proceedings.
Filed May 15, 2019
View Opinion No. 18-1387
View Summary for Case No. 18-1387
Appeal from the Iowa District Court for Polk County, David May, Judge. AFFIRMED AS MODIFIED AND REMANDED. Considered by Potterfield, P.J., Bower, J., and Carr, S.J. May, J., takes no part. Opinion by Carr, S.J. (8 pages)
Heather Taylor and Jordan Paglia appeal the order establishing custody, visitation, and support of their child. OPINION HOLDS: I. Affording the district court’s findings the deference they are due, we agree that Jordan has shown he is better able to minister to the child’s long-term needs. However, we modify the visitation ordered by the court to include provisions for extended visitation during school breaks. II. It was improper to calculate the amount of Heather’s child support obligation at $15,834 based on her 2016 earnings where, by her own admission, Heather’s current annual income is no less than $29,120. We therefore remand to the district court to recalculate Heather’s obligation under the child support guidelines based on the financial circumstances of the parties proven at trial, and this opinion. We deny Jordan’s request for an award of appellate attorney fees.
Filed May 15, 2019
View Opinion No. 18-1402
View Summary for Case No. 18-1402
Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ. Opinion by Doyle, J. Dissent by Potterfield, J. (6 pages)
Terrance Williams appeals the sentence imposed following his conviction for child endangerment. OPINION HOLDS: Because Williams never raised an objection or otherwise notified the court concerning its failure to allow the child’s mother to make a statement before pronouncing sentence, the claim is not preserved for our review. The district court did not consider any unproven charges in sentencing William, and the record shows it exercised its discretion in denying him a deferred judgment. Accordingly, we affirm. DISSENT ASSERTS: I would reverse. The allegation that Williams hit the boy with the belt is neither proven nor admitted, so the district court’s reliance on the unproven fact in sentencing is an abuse of discretion.