February 2020 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Black Hawk County, Joel Dalrymple, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Mullins, J.  (6 pages)

            Gary Alexander appeals the denial of his application for postconviction relief (PCR) following his conviction of one count of second-degree sexual abuse and two counts of third-degree sexual abuse.  OPINION HOLDS: Upon the record made below, we have no choice but to affirm the denial of Alexander’s PCR application.

            Appeal from the Iowa District Court for Woodbury County, Todd A. Hensley, District Associate Judge.  CONVICTION AFFIRMED, SENTENCE VACATED, AND REMANDED FOR RESENTENCING.  Heard by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (12 pages)

            Jeffrey Krone appeals his conviction and sentence for possession of a controlled substance—methamphetamine—following the entry of his guilty plea.  OPINION HOLDS: Krone did not move in arrest of judgment to preserve for appellate review the alleged defects in his guilty plea.  Thus, we do not consider the issue.  Because the record is undeveloped, we cannot decide Krone’s claims he received ineffective assistance of counsel.  Finally, we vacate Krone’s sentence and remand the case to the district associate court for resentencing consistent with this opinion.  We affirm in all other respects.

            Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and May, JJ.  Opinion by May, J.  (12 pages)

            Plaintiff purchased heavy-duty trucks manufactured by one defendant and sold by another.  Plaintiff claims the trucks were defective.  Plaintiff claims the district court erred in granting summary judgment as to its claims of breach of warranty and breach of contract.  OPINION HOLDS: The district court properly granted summary judgment in favor of defendants.

            Appeal from the Iowa District Court for Dallas County, Richard B. Clogg, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (14 pages)

            Chung Chris Lo appeals his conviction for first-degree fraudulent practice.  OPINION HOLDS: I. Lo fails to show his trial counsel was ineffective in failing to challenge the fraudulent practice statute as unconstitutionally vague and therefore void.  The term “participating” as used in the statute is of common usage and understandable.  And the statute is not vague as applied to Lo because the State was not required to show that Lo was a provider “participating” in the Medicaid program, only that he aided and abetted a provider participating in the program.  II. Sufficient evidence supports Lo’s conviction because it shows he failed to disclose that he was permanently excluded from participation in the Medicaid program while aiding and abetting his wife and nephew, who owned a company that was a Medicaid provider.  III. Lo cannot show the trial court’s omission of a portion of his requested instruction on “mistake of law” prejudiced him.  IV. The trial court did not abuse its discretion in denying Lo’s motion for mistrial because testimony by a State witness that Lo and his wife were involved in a scheme to defraud Medicaid did not render the jury unable to reach an impartial verdict.

            Appeal from the Iowa District Court for Floyd County, Gregg R. Rosenbladt, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J. (14 pages)

            Douglas Lindaman appeals a jury verdict finding him guilty of assault with intent to commit sexual abuse.  He challenges the selection of the jury, criticizes the court’s allowance of expert testimony, and contests his sentence and the charging instrument.  OPINION HOLDS: On the jury-selection issue, we find Lindaman unable to show prejudice.  We see no other ground for reversal.  We thus affirm his conviction. 

            Appeal from the Iowa District Court for Muscatine County, Stuart P. Werling and Patrick A. McElyea, Judges.  CONVICTIONS AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., Mullins, J., and Gamble, S.J.  Opinion by Gamble, S.J. (9 pages)

            Bryan Bejarano Moreno appeals his following his conviction and sentence for first-degree burglary.  He claims counsel was ineffective and the district court erred in awarding restitution without determining his ability to pay and requiring him to request an ability-to-pay hearing with respect to his appellate attorney fees.  OPINION HOLDS: Counsel was not ineffective.  The district court erred in ordering category-two restitution without making an ability-to-pay determination.  The district court erred in including language in the sentencing order that requires a defendant request an ability-to-pay hearing with respect to appellate attorney fees.

            Appeal from the Iowa District Court for Lee (South) County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (4 pages)

            Courtney Kellum appeals the prison sentence imposed following his guilty pleas to delivery of methamphetamine and willful injury causing bodily injury.  Kellum argues the district court was “unreasonable in ignoring the recommendations of the Department of Corrections and the prosecutor.”  In response, the district court pointed to Kellum’s age and criminal history—thirty-four years old; six thefts; four assaults; three interference with official acts; ten alcohol-related offenses; and one controlled substance offense.  OPINION HOLDS: First, a sentencing court does not abuse its discretion by refusing to grant probation even if recommended by the presentence investigation report and the parties.  Second, the district court decided on incarceration after considering Kellum’s age, criminal history, employment circumstances, family circumstances, the nature of the offenses, and the information contained in the presentence investigation report.  Kellum fails to overcome the presumption the sentencing court properly exercised its discretion.

            Appeal from the Iowa District Court for Black Hawk County, Joel A. Dalrymple, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (8 pages)

            Beneficiary Karen Richter Nutkiewicz seeks to invalidate a court order approving a plan to make property distributions and then terminate a family farm trust.  Karen twice filed motions to reconsider the district court’s order, contending a due process claim she did not receive “any notice whatsoever” of the hearing.  The district court refused to reconsider its ruling.  In addition, Karen’s appellate brief failed to address how she preserved error for appellate review.  OPINION HOLDS: Where an omission does not hinder our consideration of the issue raised, we will decide it on the merits.  Next, on Karen’s due process contention, because we cannot find in the record where she received a ruling on a constitutional claim, we deem that issue waived and, accordingly, give it no further consideration. Finally, because Karen’s attorney of record received notification in compliance with rule 1.442(2), we affirm the district court’s denial of her motions to reconsider.

            Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.  REVERSED AND REMANDED.  Heard by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  Special concurrence by May, J.  Concurrence in part and dissent in part by Greer, J.  (19 pages)

            The defendants appeal an adverse summary judgment ruling in this breach-of-contract action.  OPINION HOLDS: Because GreatAmerica Financial Services Corp. has not proved a breach of contract as a matter of law, we reverse and remand for further proceedings.  In addition, because summary judgment was improperly granted, we vacate the award of attorney fees.  SPECIAL CONCURRENCE ASSERTS: We should reverse for three reasons.  First, the Software Finance Agreement should be enforced as written, and the defendants were not named parties to the Agreement.  Second, the current record does not support reformation.  Third, under the facts of this case, ratification cannot substitute for reformation.  PARTIAL DISSENT ASSERTS: I respectfully dissent in part; I would affirm the district court ruling granting GreatAmerica summary judgment against Personal Touch Medical Management, Inc. (PTMM) but, like the majority, would reverse as to Marisol Aponte. By its actions, PTMM ratified and agreed to be bound to the agreement for such software; ratification of that contract occurred when PTMM accepted the software and paid GreatAmerica for the software over many months.  We have no similar record as to Aponte or that she agreed to be personally liable.

            Appeal from the Iowa District Court for Polk County, Jeffrey Farrell, Judge.  AFFIRMED.  Considered by Tabor, P.J., Schumacher, J., and Danilson, S.J.  Opinion by Danilson, S.J.  (5 pages)

            Patrick Williams appeals his convictions for possession of methamphetamine and driving while barred.  OPINION HOLDS:  We determine Williams’s claim of ineffective assistance of counsel should be preserved for possible postconviction-relief proceedings.  We affirm Williams’s convictions.

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Heard by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (27 pages)

            Richard Wermerskirchen suffered serious injuries when a Chicago, Central & Pacific Railroad Company (CCP) freight train struck the road grader he was operating at a railroad crossing in rural Black Hawk County.  Wermerskirchen sued for negligence.  The district court granted the CCP’s motion for summary judgment on claims of failure to keep a proper lookout and failure to slow or stop the train.  The court decided the Federal Railroad Safety Act of 1970 (FRSA) preempted those common law claims.  The court submitted the case to a jury on Wermerskirchen’s claim that the crew failed to sound an audible warning.  The jury found no negligence.  Wermerskirchen appeals both the summary judgment and trial rulings.  OPINION HOLDS: Deciding whether the crew kept a proper lookout, or failed to slow or stop, and deciding whether the dense fog affected its ability to do so are fact questions for a jury to decide.  Not all state tort claims that touch on the topic of a train’s duty to brake to avoid a collision could be preempted by the federal regulations setting speed limits.  In addition, the district court did not abuse its discretion in excluding the near-miss evidence.  Finally, we find no error in the six jury instructions Wermerskirchen unsuccessfully challenged.

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (8 pages)

            Tiffani Finch appeals from the district court’s judgment and sentencing finding her guilty of operating a motor vehicle without owner’s consent, in violation of Iowa Code sections 714.1 and 714.7 (2018).  She contends she had the owner’s consent to use the vehicle.  OPINION HOLDS: Because the district court correctly decided the owner, the ward in a guardianship and conservatorship, could not legally give another person permission to drive the truck, we reject Finch’s request for a new trial.  We affirm the conviction.