2020 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, Judge.  AFFIRMED.  Considered by Tabor, P.J., May, J., and Blane, S.J.  Opinion by Blane, S.J.  (5 pages)

            Dawarn Lamar Moncrief appeals his convictions for possession with intent to deliver methamphetamine, possession of contraband, and failure to possess a tax stamp.  His appeal is based solely on a claim of ineffective assistance of his trial counsel for failing to take pre-trial depositions of the State’s witnesses and failing to sufficiently cross-examine the State’s witnesses at trial.  OPINION HOLDS: We find the record inadequate to address these ineffective-assistance-of-counsel claims on direct appeal.  We preserve them for possible postconviction-relief proceedings and affirm the convictions.

            Appeal from the Iowa District Court for Woodbury County, Todd A. Hensley, District Associate Judge.  REVERSED AND REMANDED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (5 pages)

            Christopher Holton appeals his conviction and sentence for operating while under the influence, third offense.  Holton contends the district court erred in not sentencing him in accordance with the plea agreement or affording him a chance to withdraw his plea.  Holton also claims his counsel provided ineffective assistance.  OPINION HOLDS: We find the court failed to either sentence Holton as provided in the plea agreement or reject the agreement and provide him the opportunity to withdraw from the plea.  We reverse and remand for further proceedings.

            Appeal from the Iowa District Court for Winneshiek County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J.  (9 pages)

            Linda Hovden appeals from a district court order denying her relief related to the purchase of her home.  She appeals the district court’s decisions related to alleged violations of Iowa Code chapter 558A (2017) and trial attorney fees.  Dwaine and Cheryl Lemke (Lemkes) request attorney fees on appeal.  OPINION HOLDS: On our review, we find substantial evidence supported the findings of the district court.  We affirm the dismissal of Hovden’s claims the Lemkes violated chapter 558A.  Because we affirm the district court’s decision on the merits, we also affirm its decision to deny Hovden’s claim for trial attorney fees.  We deny the Lemkes’ request for appellate attorney fees. 

            Appeal from the Iowa District Court for Chickasaw County, Richard D. Stochl, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., Schumacher, J., and Scott, S.J.  Opinion by Scott, S.J.  (5 pages)

                Zackery Rigel appeals the sentencing requirement that he register as a sex offender following resentencing on remand.  OPINION HOLDS: We affirm the re-imposition of the requirement that Rigel register as a sex offender.

            Appeal from the Iowa District Court for Palo Alto County, Nancy L. Whittenburg, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (9 pages)

            James Schmidt appeals from the decree of separate maintenance entered by the district court with regard to his marriage to Beverly Schmidt.  James contends the district court should have (1) dissolved the marriage, (2) characterized certain “financial benefits . . . from his mother” as separate inherited or gifted property; (3) awarded less alimony; and (4) not ordered him to pay attorney and guardian ad litem fees.  OPINION HOLDS: We affirm the decree of separate maintenance entered by the court.

            Appeal from the Iowa District Court for Monroe County, Gregory Milani, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (6 pages)

            Steven Dees appeals the entry of writ of certiorari in favor of the State, which set aside an order granting Dees’s motion for return of seized property.  OPINION HOLDS: Because Dees’s failure to tag a deer within fifteen minutes supports the State’s confiscation of the deer’s cape and antlers, we affirm.

            Appeal from the Iowa District Court for Warren County, Brendan Greiner, District Associate Judge.  SENTENCE VACATED IN PART AND REMANDED FOR DETERMINATION OF RESTITUTION.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J. (7 pages)

            Vadim Shultsev appeals the sentence imposed after he pled guilty to the charge of operating a motor vehicle while barred, in violation of Iowa Code sections 321.560 and 321.561 (2018).  Shultsev argues the court failed to state adequate reasons for the sentence imposed on the record.  He also challenges the restitution ordered by the district court at sentencing.  OPINION HOLDS: Because we find no abuse of discretion by the district court with the sentencing term, we affirm the sentencing decision.  We vacate the restitution order and remand for further proceedings to determine Shultsev’s reasonable ability to pay.

            Appeal from the Iowa District Court for Jones County, Chad Kepros, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (5 pages)

            The appellants appeal the dismissal of their petition requesting Doris Kula’s attorneys-in-fact provide a complete accounting.  OPINION HOLDS: We affirm the district court’s dismissal of the petition.

            Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.  CONVICTIONS AFFIRMED IN PART AND REVERSED IN PART, SENTENCES VACATED, AND REMANDED FOR RESENTENCING.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (17 pages)

            Charles L. Cain Jr. appeals from convictions for conspiracy to deliver methamphetamine while in possession of a firearm, possession of methamphetamine with intent to deliver while possessing a firearm, and failure to possess a drug tax stamp.  He challenges the sufficiency and weight of evidence supporting his convictions and also contends the court abused its discretion in ruling on the admissibility of evidence.  OPINION HOLDS: There is not substantial evidence supporting a conviction for conspiracy, and we reverse that conviction.  The evidence allows an inference that Cain was aware of and had the ability to control the drugs in the immediate vicinity of the passenger seat, and we affirm the conviction for possession with intent to deliver.  The conviction for failing to possess a drug tax stamp is reversed as the weight of the drugs associated with Cain falls below the statutory threshold.  Because we reverse the convictions for conspiracy and failure to affix a drug tax stamp, we vacate the sentences imposed and remand for resentencing.

            Appeal from the Iowa District Court for Story County, Angela L. Doyle, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Doyle, J.  (4 pages)

            Roman Moncivaiz appeals the denial of his application for postconviction relief.  OPINION HOLDS: We agree that Moncivaiz failed to show his trial or appellate counsel were ineffective in representing him.  Nor can he show he was prejudiced by the cumulative effect of any errors.  And we cannot resolve his new claim that postconviction counsel was ineffective on the record before us on appeal.

            Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., Ahlers, J., and Scott, S.J.  Opinion by Ahlers, J.  (6 pages)

            Kevin Brady appeals the district court’s decision not to grant an extraordinary visitation credit when it modified the parties’ custody and support decree.  OPINION HOLDS: The record supports a finding that Kevin has been awarded 130 to 146 days of overnight visitation per year.  Therefore, he is entitled to a fifteen percent extraordinary visitation credit.  The amount of Kevin’s child support obligation is modified accordingly, and all other terms of the district court’s order are affirmed.

            Appeal from the Iowa District Court for Johnson County, Paul D. Miller, Judge.  CONVICTIONS REVERSED IN PART, SENTENCES VACATED, AND REMANDED WITH INSTRUCTIONS.  Considered by Bower, C.J., Schumacher, J., and Vogel, S.J.  Opinion by Bower, C.J. (9 pages)

            Sullivan Pierre Smith-Berry appeals his convictions for sexual assault and three counts of robbery in the first degree, asserting his conduct constituted only one act of robbery—not three—and his trial counsel was ineffective by failing to challenge the sufficiency of the evidence on two additional counts of robbery.  Smith-Berry also argues the district court lacked statutory authority to require him to complete sex-offender assessment and treatment after imposing a sentence of incarceration for his sexual-assault conviction, and he asks to be resentenced on his robbery convictions pursuant to the recently enacted Iowa Code section 902.12(3) and 901.11(3) (2019).  OPINION HOLDS: We reverse two robbery convictions, vacate the sentences, and remand for resentencing.