2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Scott County, Mark R. Fowler, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (9 pages)

            Kent Walker appeals his conviction of assault with intent to commit sexual abuse causing bodily injury.  OPINION HOLDS: The district court’s admission of the 911 phone call recording did not violate Walker’s right to confront his accuser under the Iowa Constitution or the United States Constitution.  The accuser’s statements to police constituted excited utterances, and officers’ testimony regarding those statements did not violate the rule against hearsay.  Walker waived the argument that the testimony of the police officers was prejudicially cumulative by failing to provide supporting authority for that claim.

            Appeal from the Iowa District Court for Marshall County, Kim M. Riley, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  Dissent by Vaitheswaran, J.  (5 pages)

            Kenneth Carmer appeals his guilty plea to domestic abuse assault causing bodily injury, second offense.  OPINION HOLDS: Carmer’s guilty plea was not defective.  A written plea is not required to advise a defendant that the sentence for the offense could be served consecutively to sentences in other cases.  DISSENT ASSERTS: Following the sentencing hearing, the district court ordered Carmer to serve his sentence consecutively to the sentence in FECR092096 and one other sentence.  In my view, the possibility that the pending sentence would be imposed consecutively to Carmer’s other sentences was a direct consequence of the plea and Carmer should have been informed of this consequence.  Because the guilty plea form did not include such a statement, I would set aside the guilty plea and remand the case to the district court. 

            Appeal from the Iowa District Court for Clay County, Charles K. Borth, District Associate Judge.  CONVICTION AFFIRMED.  SENTENCE VACATED IN PART AND REMANDED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vogel, C.J.  (2 pages)

            David Person appeals from his sentence imposed after being convicted of operating while intoxicated, first offense.  He asserts his sentence was illegal because the district court ordered him to pay a $150.00 probation fee while being supervised by the Clay County Sheriff.  OPINION HOLDS: Although the Iowa Code allows for Person to be placed on probation, we find no provision in the code authorizing payment for a probationary fee to a county sheriff.  While assuming without deciding Person’s plea counsel was ineffective in allowing him to enter a plea that included this probation fee, we affirm Person’s conviction, vacate the probation fee to the sheriff, and remand for the district court to correct the illegal sentence.

            Appeal from the Iowa District Court for Story County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Tabor, P.J.  (7 pages)

            A defendant appeals his prison sentence contending the sentencing court failed to exercise its discretion by not considering the options of deferred judgment or deferred sentence.  OPINION HOLDS: Because Keochai was not eligible for a deferred judgment and the court was not required to expressly reject a deferred sentence, we affirm. 

            Appeal from the Iowa District Court for Woodbury County, Steven J. Andreasen, Judge.  AFFIRMED.  Considered by Potterfield, P.J., Doyle, J., and Danilson, S.J.  Opinion by Potterfield, P.J.  (6 pages)

            B.B.P. appeals the district court ruling she is seriously mentally impaired and must undertake further evaluation at a local medical facility.  She does not challenge the court’s substantive findings but maintains the application for her involuntary commitment should have been dismissed, as the commitment hearing took place more than five days after the court issued an order for her immediate custody due to serious mental impairment.  OPINION HOLDS: Because the district court did not err in denying B.B.-P.’s motion to dismiss the application alleging she is seriously mentally impaired, we affirm.

            Appeal from the Iowa District Court for Winneshiek County, Richard D. Stochl, Judge.  AFFIRMED AS MODIFIED.  Considered by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Bower, J.  (11 pages)

            Amber Burington appeals certain provisions of the decree dissolving her marriage to Christopher (Chris) Burington.  OPINION HOLDS:  We affirm the district court’s decision placing the children in the parties’ joint physical care.  We find the court did not improperly value the assets awarded to Chris and no offset needs to be made for the cash values of the parties’ life insurance policies.  The property division should be modified to set aside to Amber $20,000 from the value of her 401(k) account in recognition of her premarital assets.  In order to equalize the parties’ 401(k) accounts, Chris should receive $11,899 from Amber’s 401(k) through a qualified domestic relations order.  We affirm the district court’s decision denying Amber’s request to require Chris to maintain a life insurance policy naming the children as beneficiaries.  We determine each party should pay his or her own appellate attorney fees.

            Appeal from the Iowa District Court for Hamilton County, Paul B. Ahlers, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J. (11 pages)

            A mother appeals the juvenile court’s termination of her parental rights.  She contends the State failed to make reasonable efforts to reunify her with the child and prove the statutory grounds for termination by clear and convincing evidence.  Further, she contends termination is not in the best interests of the child and requests additional time to work toward reunification.  OPINION HOLDS: The mother waived her reasonable-efforts challenge.  We find the State met its burden for termination under Iowa Code section 232.116(1)(h) (2017) and termination is in the child’s best interests.  We conclude an extension of time is not warranted in this case.

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Mullins and McDonald, JJ.  Opinion by McDonald, J.  (7 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS:  Sufficient evidence supports the termination of the mother’s parental rights.  Termination of the mother’s parental rights is in the child’s best interest.  The mother’s bond with the child does not preclude termination of her parental rights.

            Appeal from the Iowa District Court for Wapello County, William Owens, Associate Juvenile Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (8 pages)

            The mother appeals the termination of her parental rights to B.H. and J.R., born in 2008 and 2009, respectively.  The mother maintains there is not clear and convincing evidence the children could not be returned to her care at the time of the termination hearing, termination is not in the children’s best interests, and the district court erred in admitting hearsay evidence.  OPINION HOLDS: The juvenile court’s admission of messages between the mother and her paramour is not improper in juvenile proceedings.  The children cannot be returned to the mother’s care, and termination of her parental rights is in their best interests.  We affirm.

            Appeal from the Iowa District Court for Polk County, Romonda D. Belcher, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and Mullins, JJ.  Opinion by Vogel, C.J.  (6 pages)

            The mother appeals the termination of her parental rights to C.O., born in August 2017.  She argues the State failed to prove by clear and convincing evidence that grounds for termination exist under Iowa Code section 232.116(1)(b), (e), (g), and (h) (2018).  In addition, she asserts termination is not in the best interests of the child and the willingness of a relative to assume legal custody precludes termination under Iowa Code section 232.116(3)(a).  OPINION HOLDS: We conclude the State proved by clear and convincing evidence the grounds for termination of the mother’s parental rights, termination is in the best interests of the child, and nothing in the record precludes termination.

            Appeal from the Iowa District Court for Muscatine County, Gary P. Strausser, District Associate Judge.  AFFIRMED.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by McDonald, J.  (8 pages)

            A father appeals from the termination of his parental rights.  OPINION HOLDS: There are grounds for termination of the father’s parental rights, and we do not find an extension of time to seek reunification is in the children’s best interests or that the parent-child bond weighs against termination here.  Finding no merit in the father’s contentions, we affirm the termination of his parental rights.

            Appeal from the Iowa District Court for O’Brien County, David C. Larson, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Vogel, C.J., and Vaitheswaran and McDonald, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            A mother and father separately appeal following their consent to termination of their parental rights.  OPINION HOLDS: We affirm the termination of the parents’ rights to their two children.