April 2020 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Henry County, Michael J. Schilling, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (11 pages)

            Graig Stauffer appeals the denial of his petition to modify the visitation provisions of the November 2015 dissolution decree.  Graig asks for an alternating week-to-week visitation schedule and a “right of first refusal” when others were caring for his and Lisa Stauffer’s child, C.S.  He faults the district court for not allowing the thirteen-year-old child to testify and for using a substantial-change-in-circumstances standard rather than the less stringent material-change-in-circumstances standard.  OPINION HOLDS: The district court appropriately declined to interview the child.  And like the district court, we find no change in circumstances, material or otherwise, that opens the door to any change of visitation, including the right-of-first-refusal option.  We affirm the district court order.

            Appeal from the Iowa District Court for Webster County, Kurt L. Wilke, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (13 pages)

            An applicant convicted of a class “A” felony appeals from the dismissal of his third application for postconviction relief.  OPINION HOLDS: The narrow exception outlined in Allison v. State, 914 N.W.2d 866 (Iowa 2018), is inapplicable to Long’s third application for postconviction relief, and therefore the untimeliness of Long’s application is not cured.  Additionally, we reject the conclusory statements in Long’s pro se brief alleging that the judge presiding over his postconviction proceedings was biased, prejudiced, or had knowledge obtained extra judicially.  We affirm the dismissal of the application.

            Appeal from the Iowa District Court for Van Buren County, Joel D. Yates and Shawn R. Showers, Judges.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (4 pages)

            Keith Brewington appeals his conviction for one count of possession of a controlled substance, third or subsequent offense, arguing the State cannot use one of his prior convictions to enhance the current charge to a felony because he did not have, nor did he waive, the assistance of counsel.  OPINION HOLDS: Brewington failed to preserve this claim on appeal and we find the record inadequate to address his ineffectiveness claim.  We preserve his ineffectiveness claim for a possible postconviction-relief action.

            Appeal from the Iowa District Court for Butler County, Peter B. Newell, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (3 pages)

            Tawnia Jorgensen appeals her conviction and sentence of operating while intoxicated following an Alford plea.  She contends her trial counsel was ineffective for multiple reasons.  OPINION HOLDS: Finding Jorgensen’s claims not developed for our review, we preserve her claims.

            Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J. (4 pages)

            Ajamu El-Amin appeals from his guilty plea to two counts of sexual abuse in the third degree, arguing his counsel was ineffective by allowing him to plead guilty to one of the counts without a sufficient factual basis.  OPINION HOLDS: We conclude the record shows a sufficient factual basis to sustain El-Amin’s guilty plea to the second count of third-degree sexual abuse based on an aiding-and-abetting theory.  We affirm El-Amin’s conviction.

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (6 pages)

            Frederic Ware III alleges his counsel provided ineffective assistance by allowing him to plead guilty when the plea colloquy did not sufficiently advise him of his constitutional rights and counsel did not file a motion in arrest of judgment.  He also alleges a post-sentencing Brady violation.  OPINION HOLDS: We find Ware did not establish counsel provided ineffective assistance, and his Brady violation claim was not preserved.

            Appeal from the Iowa District Court for Wapello County, Joel D. Yates, Judge.  AFFIRMED AS MODIFIED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (10 pages)

            In this appeal from the dissolution of a common-law marriage of approximately ten years in length, the wife challenges the division of property ordered by the district court.  OPINION HOLDS: After making adjustments to the parties’ net worths, we find it equitable to require the husband to pay the wife an increased property settlement payment of $29,348.69.  Due to the significant difference in the earning abilities of the parties and the wife’s partial success on appeal, we award the wife $2000.00 of appellate attorney fees.

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (10 pages)

            We filed our opinion in this case on April 15, 2020, but subsequently granted the father’s petition for rehearing.  Our April 15, 2020 decision is therefore vacated and this decision replaces it.  A mother appeals the district court’s order denying her request for physical care of the parties’ child, as well as a right to be offered additional time for visitation when the father is unavailable.  OPINION HOLDS: Upon our de novo review of the record, we agree with the district court’s determination that shared physical care of the parties’ child was in the child’s best interests.  Similarly, we concur with the district court's declination to include a right-of-first-refusal provision in its order, based on the unique facts of the case.  We decline the parties’ requests for appellate attorney fees.  Any costs on appeal are assessed equally to the parties.

            Appeal from the Iowa District Court for Scott County, John D. Telleen and Mary E. Howes, Judges.  CONVICTION AFFIRMED, SENTENCE VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J. (6 pages)

            Fredrick Carter appeals his conviction and sentence for willful injury causing bodily injury.  OPINION HOLDS: The district court did not abuse its discretion in overruling Carter’s objection to testimony he alleges was outside the scope of the minutes of evidence because the minutes sufficiently alerted him to the source and nature of the allegations against him.  Based on the evidence on the victim’s injury, substantial evidence supports a finding that Carter had the specific intent to cause serious injury.  But because the portion of the sentence imposing a law-enforcement-initiative surcharge is illegal, we vacate it and remand for entry of a corrected sentencing order.

            Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.  AFFIRMED. Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Tabor, J., takes no part.  Opinion by May, J.  (3 pages)

            John Drenter appeals from the district court’s entry of appellate attorney fees on remand following an appeal from his dissolution decree.  OPINION HOLDS: The district court did not abuse its discretion in determining the amount of appellate attorney fees.  And the district court was not required to determine whether appellate attorney fees should be awarded on remand because this court already made that determination.

            Appeal from the Iowa District Court for Scott County, Mark R. Fowler, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Tabor, P.J.  (8 pages)

            Chad Miller appeals a district court order affirming the Scott County Board of Review’s classification of his Bettendorf property as residential.  Miller also challenges the valuation.  He contends he primarily uses the property for agricultural purposes and its assessed value should be $700,000 rather than $800,000. OPINION HOLDS: Because Miller failed to show genuine intent to turn a profit on the farming operation, we cannot find he overcame the presumption that the proper classification of his property was residential and not agricultural. Next, because we give weight to the district court’s credibility findings, the county’s witness valuation and comparable properties listings provided substantial evidence to support the district court valuation and classification of the real estate. We affirm.

            Appeal from the Iowa District Court for Woodbury County, Tod J. Deck, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (3 pages)

            Brian Corey appeals his sentence on two drug felonies.  OPINION HOLDS: The sentencing court did not abuse its discretion in sentencing Corey to prison rather than probation.