2020 Archive | Court of Appeals Court Opinions

            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.

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Heard by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Greer, J. (22 pages)

            David Levy Jr. appeals from his convictions of murder in the second degree and felon in possession of a firearm.  Levy claims trial counsel provided ineffective assistance by failing to object to 1) multiple portions of the trial being closed to the public, 2) a jury instruction—based on a model instruction—advising the jury it could consider Levy’s out-of-court statements “just as if they had been made at trial,” and 3) prosecutorial error during the State’s rebuttal argument.  In his pro se brief, Levy joins the claims raised by counsel and also appears to argue he should have been convicted of voluntary manslaughter instead of murder in the second degree.  OPINION HOLDS: Because the jury instruction regarding his testimony is a correct statement of law, Levy’s claim of ineffective assistance regarding the failure to object fails.  We cannot decide on direct appeal Levy’s claims of ineffective assistance involving his right to a public trial or his claim of prosecutor error, so we preserve them for possible postconviction-relief proceedings.  We cannot reach the merits of Levy’s pro se claim.  We affirm.

            Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.  AFFIRMED.  Considered by Doyle, P.J., Greer, J., and Potterfield, S.J.  Opinion by Greer, J. (5 pages)

            Daniel Thurman appeals the sentence imposed after his Alford plea to nine offenses.  Thurman argues the district court considered improper sentencing factors when it considered (1) his scores on standardized risk assessment tools and (2) the department of correctional services (DCS) sentencing recommendation in the presentence investigation report (PSI).  OPINION HOLDS: Thurman did not preserve his claims for our review, but these claims fail as a matter of law even under an ineffective-assistance-of-counsel framework.  The Iowa Supreme Court in State v. Headley, 926 N.W.2d 545, 551 (Iowa 2019), concluded that the sentencing court does not abuse its discretion in considering risk assessment tools on their face in the PSI, nor does the court abuse its discretion in considering the DCS sentencing recommendation.  For these reasons, Thurman cannot show his counsel breached an essential duty in failing to object on these grounds at sentencing.  We affirm.

            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 Schumacher, J.  (8 pages)

            A father pleaded guilty to three counts of assault while participating in a felony causing serious injury due to his involvement in the neglect and abuse of three of his children.  He argues on appeal that the sentencing court abused its discretion by preparing remarks before the sentencing hearing and drawing an unsupported analogy to his conduct.  OPINION HOLDS: We reject the defendant’s arguments and affirm the sentence.

            Appeal from the Iowa District Court for Marshall County, Steven J. Oeth, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Mullins and May, JJ.  Opinion by Tabor, P.J.  (9 pages)

            Jerry Oden, Jr. appeals his convictions for conspiring to deliver heroin and possession of marijuana with intent to deliver.  Oden challenges the sufficiency of the State’s evidence that he conspired with another person to deliver the heroin and that he personally possessed the marijuana.  OPINION HOLDS: After reviewing the evidence in the light most favorable to the district court’s findings of fact, and deferring to the court’s credibility findings, we find substantial evidence to support Oden’s convictions. 

            Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (6 pages)

            Richard Randle appeals an order that he pay child support to Allison Brady, the mother of his seventeen-year-old daughter.  He contends (1) Allison did not file a valid new action to establish child support, (2) the district court wrongly imputed his annual income, and (3) the court didn’t consider his claim for reimbursement.  OPINION HOLDS: After our independent assessment of the entire record, we conclude the district court properly addressed Richard’s petition to modify child support and Allison’s counterclaim.

            Appeal from the Iowa District Court for Kossuth County, Ann M. Gales, District Associate Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by May, J.  (4 pages)

            A defendant appeals from his conviction for failing to comply with sex-offender registration requirements.  He claims his trial counsel was ineffective.  OPINION HOLDS: Because the record is not sufficiently developed to reach the merits, we preserve the defendant’s claims for future postconviction-relief proceedings.