February 2020 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Johnson County, Christopher L. Bruns, Judge.  SENTENCE VACATED AND REMANDED.  Considered by Vaitheswaran, P.J., May, J., and Scott, S.J.  Opinion by Scott, S.J.  (6 pages)

            Saleh Nasr appeals the sentence imposed upon his criminal conviction, arguing the court abused its discretion by employing a fixed sentencing policy.  OPINION HOLDS: While this is a close case, the court’s words, at a minimum, give the appearance of a fixed sentencing policy.  As a result, we choose to take the cautious route and vacate the sentence and remand for resentencing.

            Appeal from the Iowa District Court for Black Hawk County, Patrick Wegman, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., Schumacher, J., and Blane, S.J.  Opinion by Blane, S.J. (5 pages)

            The defendant contends the court failed to exercise its discretion in imposing a fine alleging the court did not know it had discretion to suspend it.  OPINION HOLDS: The record supports that the court exercised its discretion and decided not to suspend the fine.

            Appeal from the Iowa District Court for Polk County, Sarah Crane, Judge.  AFFIRMED.  Heard by Bower, C.J., Mullins, J., Greer, J., Danilson, S.J., and Potterfield, S.J.  May, Schumacher, and Ahlers, JJ., take no part.  Opinion by Mullins, J.  Concurrence in part and dissent in part by Danilson, S.J. (42 pages)

            The plaintiffs appeal the district court’s dismissal of their lawsuit challenging divisions XIII and XIV of Senate File (SF) 638.  On appeal, the plaintiffs assert specific arguments regarding standing for each group—lawyers, commissioners, and legislators.  In the alternative, they argue we should apply the exception to standing and waive the standing requirement for all of them because the claimed violations of the Iowa constitution, which occurred in the passage of the legislation, are of great public importance.  If we determine they have standing and remand to the district court, the plaintiffs ask that we grant a temporary injunction to stay the implementation of the challenged portions of SF 638 until the district court can rule on the underlying merits of their claims.  OPINION HOLDS: We agree with the district court that the plaintiffs have not established any group has standing.  We conclude the issues raised by the plaintiffs are not of such great public importance as to waive traditional standing requirements.  We need not address the temporary-injunction issue.  We affirm the district court.  PARTIAL DISSENT ASSERTS: I respectfully dissent in part.  I agree with my colleagues in the majority that none of the groups before us—commissioners, lawyers, or legislators—have standing to challenge divisions XIII and XIV of SF 638.  However, I believe the issues raised by these plaintiffs are of great public importance and would apply the exception to standing.  I would reverse the district court’s dismissal of their suit and remand for proceedings on the merits.

            Appeal from the Iowa District Court for Polk County, Romonda Belcher, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  Special Concurrence by Tabor, J.  (17 pages)

            A mother appeals the termination of her parental rights.  OPINION HOLDS: Upon our de novo review of the record, the mother’s constitutional due process rights were not violated when the court denied her request to be physically present at the termination-of-parental-rights hearing.  Similarly, Iowa Code section 622.82 (2019) did not require the court to grant the mother’s request to be present at the hearing, and we find no error or abuse of the court’s discretion in denying the mother’s motion.  Finally, we agree with the juvenile court that the State proved by clear and convincing evidence that termination of the mother’s parental rights was in the child’s best interests and the exceptions to overcome termination of her rights should not be applied based on the facts of the case.  So we affirm the juvenile court’s ruling in all respects.  SPECIAL CONCURRENCE ASSERTS: I write separately to concur in the result but note if the mother’s allegation a representative of the department of corrections declined to transport the mother to the termination hearing in the same county where she was incarcerated, the district court failed to use its discretion under Iowa Code section 622.82 to make the decision, which is within its purview, not the executive branch’s.  The record is inadequate to demonstrate how the determination was made, so I concur in the result.

            Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (4 pages)

            Michael Toom seeks a custody order for joint legal custody and physical care of his child with Sarah Opiol.  OPINION HOLDS: Because we find Iowa does not have jurisdiction to make an initial child-custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act, we affirm.

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (10 pages)

            An adoptive mother and minor child appeal a district court order terminating parental rights.  OPINION HOLDS: The State met its statutory burden under Iowa Code section 232.116(1)(f) (2019).  Termination is in N.G.’s best interests, and the court below did not err in refraining from applying one of the permissive exceptions in Iowa Code section 232.116(3).  We affirm the termination.

            Appeal from the Iowa District Court for Polk County, Rachael E. Seymour, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (6 pages)

            A mother appeals termination of her parental rights to two children.  OPINION HOLDS: Because the record shows clear and convincing evidence the children cannot safely return to the mother’s care, we affirm termination of her rights. 

            Appeal from the Iowa District Court for Polk County, Joseph Seidlin, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED ON BOTH APPEALS.  Heard by Bower, C.J., Mullins, J., Greer, J., Danilson, S.J., and Potterfield, S.J.   May, Schumacher, and Ahlers, JJ., take no part.  Opinion by Mullins, J.  Concurrence in part and dissent in part by Danilson, S.J.  (10 pages)

            On interlocutory appeal, the appellants appeal, and appellee cross-appeals, the district court’s partial grant and partial denial of the appellants’ motion to dismiss.  The appellants argue the court erred in concluding the appellee has standing to sue as a previously unsuccessful judicial applicant before the State Judicial Nominating Commission.  The appellee argues the court erred in failing to conclude he has standing to sue as a member of the Iowa bar, he should alternatively be excepted from the standing requirement because his lawsuit concerns a matter of great public importance, and the court erred in declining to grant a temporary injunction.  OPINION HOLDS: We conclude the appellee lacks standing as a past or future applicant before the Commission.  We therefore reverse the partial denial of the motion to dismiss on the ground that the appellee had standing as a judicial applicant.  We reject the appellee’s claims the court erred in failing to conclude he has standing to sue as a member of the Iowa bar or he should alternatively be excepted from the standing requirement because his lawsuit concerns a matter of great public importance.  We need not address the request for a temporary injunction.  PARTIAL DISSENT ASSERTS: I respectfully dissent in part.  I agree the appellee does not have traditional standing to challenge divisions XIII and XIV of Senate File 638.  I part ways with the majority in respect to the cross-appeal and would find the appellee is entitled to an exception to standing by raising an issue of great public importance.

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (5 pages)

            A mother appeals the termination of her parental rights to her child.  OPINION HOLDS: We affirm the juvenile court’s termination of the mother’s parental rights.

            Appeal from the Iowa District Court for Polk County, Kimberly Ayotte, District Associate Judge.  AFFIRMED.  Considered by Mullins, P.J., Schumacher, J., and Vogel, S.J.  Opinion by Vogel, S.J.  (4 pages)

            The mother of P.K. appeals the termination of her parental rights.  OPINION HOLDS: Because of the mother’s unaddressed substance-abuse and mental-health issues and other concerns contained in the record, we find clear and convincing evidence P.K. cannot be returned to the mother’s care, thus satisfying the grounds for termination under Iowa Code section 232.116(1)(h) (2019). 

            Appeal from the Iowa District Court for Marshall County, James C. Ellefson, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (5 pages)

            A defendant appeals the order of restitution entered in sentencing.  He argues the district court erred in ordering certain items of restitution without first having the amounts before it and determining his reasonable ability to pay said amounts.  OPINION HOLDS: Because no award of reasonable-ability-to-pay items, pursuant to Iowa Code section 910.2 (2017), may be ordered until the amounts are before the court and the court has made a reasonable-ability-to-pay determination, we vacate the restitution part of the sentence and remand for proceedings consistent with the supreme court’s recent decision in State v. Albright, 925 N.W.2d 144, 158 (Iowa 2019). 

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (25 pages)

            Alex Marcelino appeals his conviction for murder in the first degree.  He contends the district court violated his Sixth Amendment right to present a defense when it excluded the no-hearsay testimony of two witnesses.  He challenges the court’s exclusion of certain hearsay statements.  And he argues the court used the wrong standard in denying his motion for new trial.  Marcelino also raises numerous arguments in his supplemental pro se brief.  OPINION HOLDS: On our review of the proceedings, we find the following: Marcelino did not preserve his Sixth Amendment or new trial claims for our review.  The district court did not err in its hearsay rulings.  The offered statements did not meet the trustworthiness requirements for statements against interest or residual hearsay.  Even if the court had erred in excluding the hearsay statements, we conclude it did not prejudice Marcelino’s substantial rights because of the strength of the State’s case identifying him as the shooter and the relative weakness of the offered statements.  To some extent the pro se issues intertwine with counsel’s issues, but we find the remaining pro se issues are not preserved, lack merit, or must be preserved for possible postconviction-relief proceedings.  We affirm.