2020 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Carroll County, Joseph B. McCarville, District Associate Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J.  (6 pages)

            Valentino Whitaker appeals his conviction and sentence for third-degree theft.  OPINION HOLDS: I. Substantial evidence supports the jury’s finding that Whitaker committed third-degree theft by taking a purse belonging to another.  II. We preserve Whitaker’s claims that he received ineffective assistance from trial counsel for postconviction-relief proceedings.  III. The district court acted within its discretion in ordering Whitaker to pay $5000 in victim restitution.    

            Appeal from the Iowa District Court for Polk County, Carla T. Schemmel and Jeffrey D. Farrell, Judges.  APPEAL DISMISSED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Schumacher, J.  (4 pages)

            A defendant appeals from convictions for the death and serious injury of occupants of his taxicab.  OPINION HOLDS: We dismiss his appeal because of his flight from justice.

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by Bower, C.J.  (3 pages)

            Davonus Smart argues the court abused its discretion by imposing the minimum fine and that his written guilty plea with unidentified written notations on it should be set aside.  OPINION HOLDS: Smart has failed to overcome the presumption of regularity in sentencing, and we therefore affirm.  Smart failed to file a motion in arrest of judgment challenging the written notations on the plea agreement, so we do not reach the merits of his additional complaint.

            Appeal from the Iowa District Court for Lee (North) County, Michael J. Schilling, Judge.  SENTENCES AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Doyle, P.J. (6 pages)

            Gary Manning appeals the sentences imposed after pleading guilty to three counts of third-degree burglary.  OPINION HOLDS: I. The district court did not consider an improper factor in sentencing Manning by noting that his “entire family” was involved in a criminal enterprise.  The presentence investigation report noted that Manning’s wife and two sons were also charged for their involvement in the burglaries, and Manning did not object to that portion of the report.  And nothing in the record suggests the court believed that any other family members were involved.  II. Because the plea agreement is silent regarding victim restitution for the dismissed charges, the district court erred in assessing Manning victim restitution for those charges.

            Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.  APPEAL DISMISSED.  Considered by Bower, C.J., and May and Greer, JJ.  Opinion by May, J.  (4 pages)

            Randy Paper appeals the probate court’s order granting the appellees’ motion to amend pleadings.  OPINION HOLDS: Because the order is not “final,” we lack jurisdiction.  And we decline to grant interlocutory review.  So we dismiss the appeal.

            Appeal from the Iowa District Court for Fremont County, Kathleen Kilnoski, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Schumacher, J.  (15 pages)

            Defendant Trustees of Mule Slough Drainage District (Trustees) appeal the district court’s decision finding it had improperly annexed and reclassified land into the Mule Slough Drainage District (Mule Slough DD).  OPINION HOLDS: We find the district court properly determined the trustees for the Missouri Valley Drainage District (Missouri Valley DD) could appear as plaintiffs in this action.  We affirm the district court decision finding the Mule Slough DD did not properly annex the land in the Missouri Valley DD.  The Mule Slough DD did not follow the statutory procedures to accomplish annexation, and it has not presented sufficient legal arguments to show why the statutory provisions should not be followed.  Furthermore, without annexation, the Mule Slough DD did not have authorization to reclassify the land in question.  We agree with the court’s conclusion that because there were errors in the annexation proceedings, the annexation in whole must be vacated.  We affirm the decision of the district court.

            Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.  CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Mullins, J.  (5 pages)

            Freddie Helai appeals his conviction, following a guilty plea, of lascivious acts with a child and the sentence imposed.  He argues his plea was entered unknowingly and involuntarily because he was misadvised of the potential immigration consequences of his plea and his counsel rendered ineffective assistance in failing to ensure he was accurately advised and by failing to file a motion in arrest of judgment to challenge his plea based on the alleged deficiencies.  He also argues the court relied on improper considerations in imposing sentence.  OPINION HOLDS: We find the record inadequate to determine the ineffective-assistance claim and thus preserve it for postconviction relief.  We agree the court improperly relied upon unproven and irrelevant information in imposing sentence, and we therefore vacate the sentence imposed and remand the matter to the district court for resentencing.

            Appeal from the Iowa District Court for Jasper County, Steven J. Holwerda, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Ahlers, JJ.  Opinion by Bower, C.J.  (4 pages)

            D.C. appeals a dispositional order placing him at the state training school.  OPINION HOLDS: We affirm the juvenile court.

            Appeal from the Iowa District Court for Story County, Dale E. Ruigh, Judge.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Doyle and May, JJ.  Opinion by Vaitheswaran, P.J.  (4 pages)

            Howard 209, L.C. appeals the district court’s order on the parties’ competing motions for summary judgment, contending the district court erred in declining to apply “the ten-year limitations period of Iowa Code section 614.17A” (2018).  OPINION HOLDS: Because the covenant prohibiting Howard 209 from renting its property falls squarely under the twenty-one year limitations period set forth in Iowa Code section 614.24, the district court did not err in concluding 129 State, L.L.C.’s petition was timely and in granting 129 State’s cross-motion for summary judgment. 

            Appeal from the Iowa District Court for Scott County, Mark R. Lawson, Judge.  AFFIRMED AS MODIFIED ON BOTH APPEALS AND REMANDED.  Heard by Vaitheswaran, P.J., Mullins, J., and Gamble, S.J.  Opinion by Mullins, J.  (16 pages)

            Jacob (Jake) Brown appeals, and Abby Brown cross-appeals, the decree dissolving their marriage.  Jake challenges the physical-care, visitation, right-of-first-refusal, and spousal-support provisions of the decree.  Abby challenges the court’s spousal-support award as inadequate and the award of a portion of her pre- and post-retirement death benefits to Jake as inequitable.  OPINION HOLDS: We affirm the district court’s physical-care decision and its visitation schedule.  We modify the decree to provide Jake with a right of first refusal to care for the children in the event Abby is unable to do so for twelve or more hours.  We further modify the decree to award Abby spousal support in the amount of $650.00 per month for three years from the time of the entry of the decree.  Based on the record made before the district court, we cannot say the court failed to do equity as to Abby’s retirement benefits.  Given the modification in spousal support, we remand the matter to the district court for a recalculation of child support.  Costs on appeal are assessed to Jake.

            Appeal from the Iowa District Court for Bremer County, Chris Foy, Judge.  AFFIRMED.  Considered by Doyle, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (9 pages)

            Matthew Poock appeals his conviction for operating while intoxicated, third offense.  He challenges the district court’s denial of his motion to suppress evidence obtained following a police stop.  OPINION HOLDS: The record shows the officer had reasonable suspicion to stop Poock to investigate a citizen’s report of erratic driving. 

            Appeal from the Iowa District Court for Marshall County, James C. Ellefson, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Tabor, P.J., and Mullins and Schumacher, JJ.  Opinion by Mullins, J. (4 pages)

            Gerardo Andrade Zepeda appeals the sentence imposed upon his conviction, following a guilty plea, of conspiracy to commit a forcible felony.  He argues the court’s imposition of surcharges was illegal, the restitution provision of the written sentencing order is inconsistent with the oral pronouncement of sentence and our supreme court’s ruling in State v. Albright, 925 N.W.2d 144 (2019), and the court considered improper factors in imposing sentence.  OPINION HOLDS: We vacate the challenged surcharge and restitution provisions and remand for the entry of a corrected sentencing order concerning said provisions, which shall be followed by appropriate procedures for the ordering of restitution.  Finding the complained-of sentencing considerations were fair game, we affirm the remainder of the sentence imposed.