October 2021 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Lee (South) County, Mary Ann Brown, Judge.  SENTENCE VACATED AND REMANDED FOR RESENTENCING.  Considered by Tabor, P.J., Greer, J., and Potterfield, S.J.  Opinion by Potterfield, S.J.  (5 pages)

            Derek Westwater challenges the sentence imposed after he pled guilty to delivery of methamphetamine, a class “B” felony.  As part of the plea agreement, the State was supposed to recommend Westwater’s sentence be served concurrent to his sentence in another case.  However, the State was silent on the issue whether the sentence should be served concurrently or consecutively.  Westwater appeals, claiming his trial counsel provided ineffective assistance by failing to object when the State breached the plea agreement.  OPINION HOLDS: Westwater has good cause to appeal and, applying State v. Boldon, 954 N.W.2d 62, 69 (Iowa 2021), we consider the merits of his claim the prosecutor breached the plea agreement directly.  We conclude the prosecutor breached the plea agreement, so we remand for resentencing in front of a different judge.

            Certiorari to the Iowa District Court for Polk County, Christopher Kemp, Judge.  WRIT ANNULLED.  Considered by Mullins, P.J., and May and Ahlers, JJ.  Opinion by Ahlers, J.  (4 pages)

            David Evans challenges the denial of his motion for a determination of his reasonable ability to pay restitution.  OPINION HOLDS: We find no error in the district court’s conclusion that a reasonable-ability-to-pay determination is not available for Evans’s restitution orders that are being enforced as civil judgments rather than as criminal restitution.

            Appeal from the Iowa District Court for Polk County, Heather L. Lauber, Judge.  AFFIRMED ON BOTH APPEALS.  Heard by Bower, C.J., and Vaitheswaran and Schumacher, JJ.  Opinion by Schumacher, J.  (13 pages)

            Dennis Marshall appeals the district court’s ruling on judicial review affirming the workers’ compensation commissioner’s denial of his request for penalty benefits.  The City of Maxwell with its insurer, EMCASCO Insurance Company (together “the employer”), cross-appeals on the issues of healing period benefits and its request to present additional evidence during the judicial review proceedings.  OPINION HOLDS: Because the employer did not pay Marshall’s healing period benefits late, he is not entitled to penalty benefits.  There is substantial evidence in the record to support the commissioner’s determination of the time period for Marshall’s receipt of healing period benefits.  The district court did not abuse its discretion in denying the employer’s request to remand the case to the commissioner for the presentation of additional evidence.  We affirm the district court’s decision affirming the commissioner’s rulings on the issues raised in the appeal and the cross-appeal.

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Mullins, P.J., and May and Ahlers, JJ.  Opinion by May, J.  (3 pages)

            David Bradford appeals the district court’s dismissal of his second postconviction-relief action.  OPINION HOLDS: We affirm because his action is time barred.

            Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi Wittig, Judge.  AFFIRMED.  Considered by Bower, C.J., Schumacher, J., and Scott, S.J.  Opinion by Scott, S.J.  (9 pages)

                John Kraus appeals his conviction of second-degree theft as a habitual offender and the sentence imposed.  He argues the court erred in instructing the jury on an aider and abettor theory of liability, the evidence was insufficient to support the conviction, and the court abused its discretion by imposing a prison sentence.  OPINION HOLDS: We find no error in the court’s inclusion of an aiding and abetting instruction, the evidence was sufficient to support the conviction, and no discretionary abuse in sentencing has been shown.  We affirm.

            Appeal from the Iowa District Court for Polk County, Brendan E. Greiner and Cynthia M. Moisan, District Associate Judges.  AFFIRMED.  Heard by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Lauren Schulte appeals her guilty pleas and sentence following convictions for two operating-while-intoxicated offenses, claiming she has good cause to appeal her guilty plea, the plea was unknowing and involuntary, and the court’s acceptance of the guilty plea was plain error.  She also argues the sentencing court abused its discretion in sentencing her to prison and ordering the terms be served consecutively.  OPINION HOLDS: We affirm Schulte’s convictions, judgment and sentence. 

            Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Greer and Badding, JJ.  Opinion by Greer, J.  (4 pages)

            Eric Campbell Jr. appeals his resentences for convictions of first-degree robbery and voluntary manslaughter following resentencing.  He claims that his resentencing counsel was ineffective and that his sentence is illegal.  OPINION HOLDS: Error was not properly preserved for Campbell’s due process complaints as there was no objection at trial.  His ineffective-assistance claims are preserved for postconviction relief but cannot be decided on direct appeal.  Because risk assessment tools are statutorily allowed as “pertinent information,” his sentence is not illegal based on the court’s use of those tools. 

            Appeal from the Iowa District Court for Muscatine County, Stuart P. Werling, Judge.  WRIT ANNULLED.  Heard by Mullins, P.J., and May and Ahlers, JJ.  Opinion by Mullins, J.  (12 pages)

            William Beeman appeals the denial of his motion for a new trial.  OPINION HOLDS: Treating Beeman’s appeal from a denial of his motion for a new trial as a petition for writ of certiorari and granting the writ, we find no illegality or abuse of discretion in the district court’s denial of Beeman’s motion for a new trial, and we annul the writ of certiorari.   

            Appeal from the Iowa District Court for Scott County, Stuart P. Werling, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Tabor, P.J., and Greer and Badding, JJ.  Opinion by Tabor, P.J.  (13 pages)

            McKinnon Q. Pangburn filed a dram shop claim and a premise liability claim against Rookies Sports Bar after he was assaulted in the bar’s parking lot.  Rookies moved for summary judgment on both claims, which the district court granted.  OPINION HOLDS: Pangburn presented a genuine issue of material fact with regard to the dram shop claim.  But he failed to establish premise liability as a matter of law.  So we affirm in part, reverse in part, and remand for trial.

            Appeal from the Iowa District Court for Linn County, Russell G. Keast and Casey D. Jones, District Associate Judges.  AFFIRMED.  Considered by Mullins, P.J., and May and Ahlers, JJ.  Opinion by Mullins, P.J. (9 pages)

            Aubree Bowers appeals her conviction of operating while intoxicated.  She challenges the district court’s denial of her motion to suppress evidence obtained as a result of a traffic stop and the sufficiency of the evidence supporting her conviction.  OPINION HOLDS: We affirm the denial of Bowers’s motion to suppress and find the evidence sufficient to support her conviction.

            Appeal from the Iowa District Court for Polk County, Celene Gogerty and David M. Porter, Judges.  AFFIRMED.  Considered by Tabor, P.J., and Greer and Badding, JJ.  Opinion by Greer, J. (4 pages)

            Dawson appeals from her conviction of third-degree burglary.  She argues that the repository she burgled should have been considered a motor vehicle, lowering her conviction from a class “D” felony to an aggravated misdemeanor.  OPINION HOLDS: The burgled vehicle was not a motor vehicle because it was not self-propelled.  We affirm the lower court’s finding. 

            Appeal from the Iowa District Court for Story County, James C. Ellefson, Judge.  AFFIRMED.  Considered by Tabor, P.J., Greer, J., and Carr, S.J.  Opinion by Tabor, P.J.  (12 pages)

            Mick Nelson appeals the district court’s denial of a retroactive reduction in his child support obligation to Julie Nelson contending the “step-down” provision of the decree is “self-executing.”  He also contests the order that he pay a portion of his youngest child’s uncovered orthodontia expenses.  OPINION HOLDS: We find the order was not “self-executing,” and Mick owes Julie unpaid child support.  He also owes her for his portion of the orthodontia expenses.  We also grant attorney fees to Julie in the amount of $8000.