2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Black Hawk County, Jeffrey L. Harris, District Associate Judge.  AFFIRMED.  Heard by Vogel, C.J., Vaitheswaran, J., and Danilson, S.J., but decided by Vogel, C.J., Doyle, J., and Danilson, S.J.  Vaitheswaran, J., takes no part.  Opinion by Vogel, C.J.  (9 pages)

            Rashawn Jackson appeals his convictions and sentence after a jury found him guilty of assault and assault causing bodily injury.  He argues (1) his trial attorney failed to provide effective assistance of counsel when she neglected to object to both the district court and the county prosecutor referring to the complaining witness as “the victim,” (2) the racial composition of Jackson’s jury pool violated his constitutional right to an impartial jury, and (3) the district court erred by overruling Jackson’s motion for a directed verdict.  OPINION HOLDS: We conclude trial counsel was not ineffective because Jackson cannot establish prejudice.  Additionally, Jackson did not preserve error on his claim of a systematic exclustion or substantial underrepresentation in the jury pool when he was offered, but failed to use, pertinent records to attempt to establish his claim. Finally, Jackson’s sufficiency claim is moot given the jury’s determination of guilt on a lesser-included offense that did not include the disputed element. 

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Tabor, J., takes no part.  Opinion by McDonald, J.  (12 pages)

            John and Bridget Drenter both appeal the decree dissolving their marriage.  OPINION HOLDS: The district court’s division of assets was inequitable.  The amount and duration of the district court’s award of spousal support was inequitable.  Bridget is granted reasonable attorney fees, the amount of which shall be decided on remand.

            Appeal from the Iowa District Court for Dubuque County, Margaret L. Lingreen, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., Danilson, S.J., and Scott, S.J.  Opinion by Danilson, S.J.  (7 pages)

            Mario McCullum challenges the summary dismissal of his second application for post-conviction relief (PCR), contending counsel was ineffective in properly presenting his claims of ineffective assistance of trial counsel.  OPINION HOLDS: In light of recent case law, as well as the PCR court’s acknowledgement that McCullum’s claim is not the same as previously raised and the caution with which summary dismissals are to be granted, we conclude the district court erred in summarily dismissing McCullum’s PCR application.  We remand for further proceedings.

            Appeal from the Iowa District Court for Black Hawk County, Brook K. Jacobsen, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (6 pages)

            Jeffrey Moeller appeals his conviction for operating while intoxicated, third offense, claiming the court abused its discretion by allowing a State witness to improperly offer an opinion on Moeller’s intoxication and insufficient evidence supported the jury’s verdict.  OPINION HOLDS: We find the court did not abuse its discretion in allowing the witness to testify and substantial evidence supports the jury’s verdict.

            Appeal from the Iowa District Court for Story County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Doyle, P.J.  (5 pages)

            Eddie Risdal appeals the order dismissing his application for postconviction relief.  Risdal did not file his application within the three-year statute of limitations as provided in Iowa Code section 822.3 (2017).  He contends the statute-of-limitations bar does not apply because of newly discovered evidence.  OPINION HOLDS: We affirm the decision of the district court. 

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (6 pages)

            Calvin Hoskins appeals the denial of his application for postconviction relief (PCR).  He contends: (1) the district court erred in denying relief on his claim the State committed a Brady violation in conjunction with his prosecution and (2) his PCR counsel was ineffective in not arguing his trial attorney rendered ineffective assistance in not moving to suppress evidence obtained as a result of a warrantless search of his person.  OPINION HOLDS: We conclude Hoskins failed to preserve error on his Brady claim or, alternatively, he failed to meet his burden.  We find the record inadequate to consider the ineffective-assistance claim as to PCR counsel.  We affirm the denial of Hoskins’s PCR application, but preserve his ineffective-assistance claim for a possible successive proceeding. 

            Appeal from the Iowa District Court for Fayette County, John J. Bauercamper, Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (9 pages)

            Justin Cole Moore appeals his conviction and sentence for the crime of child endangerment resulting in serious injury, in violation of Iowa Code sections 726.6(1)(a) and 726.6(5) (2016).  Moore asserts he received ineffective assistance of counsel because his counsel failed to object to a jury instruction addressing his out-of-court statements and did not request an instruction defining “reasonable degree of medical certainty.”  Also, Moore argues restitution should be removed from his written sentencing order and the district court failed to assess his ability to pay.  OPINION HOLDS: We find Moore has not established he received ineffective assistance of counsel and his restitution claims are better addressed under the remedies of Iowa Code section 910.7.

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  Dissent by Doyle, J.  (10 pages)

            In this interlocutory appeal, Monkey, Inc., d/b/a Tony’s La Pizzeria (“Tony’s”), challenges the district court’s denial of its motion for summary judgment, arguing there is no genuine issue of material fact that plaintiff Brett Weichers failed to notify the dram shop of his claim within six months as required by Iowa Code section 123.93 (2015) and Weichers failed to produce any evidence that he qualified for any of the exceptions to the notice requirement under that section.  OPINION HOLDS: Upon our review, we conclude Weichers did not comply with the statutory notice provision and the “reasonable diligence” basis for extending the statutory deadline was inapplicable.  We reverse and remand for entry of summary judgment in favor of Tony’s.  DISSENT ASSERTS: I respectfully dissent.  Under the facts presented, I agree with the district court’s conclusion that “a question of fact exists for the jury’s determination relative to the diligence exercised by the plaintiff in discovering the dram shop action against Defendant Tony’s.”  I would affirm the district court’s denial of the motion for summary judgment.

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (6 pages)

            Ronald Valla appeals the denial of his application for postconvicton relief (PCR).  He argues his PCR counsel rendered ineffective assistance to the level of structural error in prosecuting his claim that his plea counsel rendered ineffective assistance in allowing him to plead guilty while suffering from a mental impairment.  OPINION HOLDS: we find no reasonable probability that, but for PCR counsel’s alleged errors, the result of the PCR proceedings would have been different.  We affirm the denial of Valla’s PCR application.

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (11 pages)

            33 Carpenters Construction, Inc. appeals an order granting summary judgment in favor of The Cincinnati Insurance Company on its claim of breach of contract.  Cincinnati cross-appeals the court’s denial to remove the case from the expedited civil action process.  OPINION HOLDS: We find there is no genuine issue of fact that 33 Carpenters acted as a public adjuster without the proper licensure in connection with an assignment it obtained from a homeowner in relation to an insurance claim.  As such, the assignment between 33 Carpenters and the homeowner is unenforceable and Cincinnati is entitled to judgment as a matter of law.  We need not address Cincinnati’s cross-appeal.

            Appeal from the Iowa District Court for Floyd County, Rustin T. Davenport, Judge.  AFFIRMED.  Heard by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J.  (11 pages)

            Andre Johnson appeals his conviction and sentence for first-degree burglary.  He alleges several instances of ineffective assistance, claims the district court erred in denying his motion for new trial, requests resentencing due to alleged defects in the sentencing procedure, and claims his sentence amounts to cruel and unusual punishment.  OPINION HOLDS:  Because the State provided overwhelming evidence of Johnson’s guilt, Johnson cannot establish the necessary resulting prejudice from any instance of ineffective assistance—individually or cumulatively.  The court applied the correct standard and did not abuse its discretion when denying the motion for new trial.  There was no defect in Johnson’s sentencing requiring resentencing, and his sentence was not cruel and unusual.

            Appeal from the Iowa District Court for Cass County, James S. Heckerman, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (9 pages)

            Joshua Mullen appeals the denial of his application for postconviction relief (PCR).  He contends the district court erred in denying him relief on his claims his trial counsel rendered ineffective assistance in (1) failing to withdraw due to a conflict of interest and (2) allowing him to plead guilty.  OPINION HOLDS: We conclude Mullen failed to preserve error on his claim counsel was ineffective in failing to withdraw in light of a conflict of interest.  To the extent he raises a claim of structural error as to PCR counsel, his argument is insufficient to facilitate our review, and we do not consider it.  Mullen may challenge the effectiveness of PCR counsel if he files another PCR application promptly after the issuance of procedendo.  We affirm the denial of relief on Mullen’s plea-related claims.