2022 Archive | Court of Appeals Court Opinions

            Certiorari to the Iowa District Court for Scott County, Stuart P. Werling, Judge.  WRIT SUSTAINED AND REMANDED.  Considered by May, P.J., Potterfield, S.J., and Mullins, S.J.  Opinion by Potterfield, S.J.  (4 pages)

            In a certiorari action, Keith Bass challenges the district court’s summary denial of his request for a restitution hearing in two separate cases.  OPINION HOLDS: We sustain Bass’s writ of certiorari; on remand, the district court should consider his reasonable ability to pay the court costs in FECR361040 and FECR362818.  Bass is not entitled to appointed counsel for the restitution hearing.   

            Appeal from the Iowa District Court for Polk County, David Nelmark, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (6 pages)

            The State Public Defender (SPD) appeals an order to pay expert witness fees.  OPINION HOLDS: The applicant’s entitlement to one attorney is the only issue properly presented for our review.  The witness was serving as an expert witness, not an additional attorney representing the applicant.  We find no error in the court’s conclusion that the SPD improperly denied the fee claim.

            Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  WRIT ANNULLED.  Heard by Vaitheswaran, P.J., and Greer and Ahlers, JJ.  Opinion by Ahlers, J.  (9 pages)

            Corey Larvick challenges the district court’s denial of his application to modify sex-offender-registration requirements.  OPINION HOLDS:  Larvick should have initiated this proceeding by writ of certiorari, but, nonetheless, we still reach the merits of his argument.  The district court did not abuse its discretion in denying Larvick’s request.

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by May, P.J., Ahlers, J., and Doyle, S.J.  Opinion by Doyle, S.J.  (8 pages)

            Daniel Rossow appeals and Linda Rossow cross-appeals the ruling on Linda’s motion to modify the child custody and visitation provisions of the decree dissolving their marriage.  OPINION HOLDS: Because a substantial and material change in circumstances warrants modifying the physical care provisions of the dissolution decree, we reverse the modification ruling to grant Linda physical care of the parties’ children and remand to the district court to determine an appropriate visitation schedule and Daniel’s child support obligation based on the present financial circumstances of the parties and the child support guidelines.  We decline to award appellate attorney fees.

            Appeal from the Iowa District Court for O’Brien County, Charles Borth, Judge.  AFFIRMED.  Considered by Bower, C.J., and Greer and Badding, JJ.  Opinion by Badding, J.  (9 pages)

            Mohamed Hassan Ali appeals the summary disposition of his application for postconviction relief.  OPINION HOLDS: The district court did not err in determining Ali’s application was time-barred under Iowa Code section 822.3 (2020).  We affirm.

            Appeal from the Iowa District Court for Black Hawk County, William Patrick Wegman, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J.  Dissent by May, J.  (16 pages) 

            Kelvin Scott appeals his convictions for operating while intoxicated, second offense, and driving while barred.  He contends his pleas were unknowing and involuntary.  OPINION HOLDS: Granting discretionary review, we find the district court did not abuse its discretion in denying Scott’s motion in arrest of judgment seeking to withdraw his pleas.  We affirm.  DISSENT ASSERTS: Although the parties have briefed the jurisdictional question, the defendant has provided no viable argument for jurisdiction.  So I believe we should dismiss.  I respectfully dissent.

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  AFFIRMED.  Considered by May, P.J., Ahlers, J., and Mullins, S.J.  Opinion by May, J.  (9 pages)

            Imere Hall appeals the dismissal of his application for postconviction relief.  Hall claims his trial counsel and postconviction counsel were constitutionally ineffective and that the doctrine of cumulative error applies.  OPINION HOLDS: We find his respective counsel acted appropriately and cumulative error does not apply.  So we affirm the postconviction court.

            Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.  AFFIRMED.  Considered by Mullins, P.J., and May and Ahlers, JJ.  Opinion by Ahlers, J.  (7 pages)

            Zach Szuminski appeals the denial of his application for postconviction relief.  OPINION HOLDS: Szuminski failed to prove the prejudice necessary to find his trial counsel ineffective, as he failed to prove he would have insisted on going to trial if he had been correctly informed of the duration of his sex offender registration obligation.

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Vaitheswaran, P.J.  (12 pages)

            Mark Hopper appeals the district court’s dismissal of his petition seeking title to property awarded to the City of Waterloo under Iowa Code section 657A.10A (2019).  OPINION HOLDS: The district court did not err because Hopper was not the real party in interest, he was foreclosed from arguing he was entitled a guardian ad litem, and his petition otherwise constitutes an impermissible collateral attack that was filed more than one year after entry of judgment.

            Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.  AFFIRMED.  Considered by Ahlers, P.J., Mullins, S.J., and Blane, S.J.  Opinion by Blane, S.J.  (13 pages)

            In this mortgage foreclosure action, the borrower/mortgagor and guarantors appeal the district court’s grant of summary judgment in favor NCP East LLC, the mortgagee assignee.  They assert NCP, succeeded in interest by Cadles of West Virginia, LLC, failed to submit proof of undisputed facts as required by Iowa Rule of Civil Procedure 1.981(3) and was not entitled to summary judgment or, in the alternative, the court should have granted a continuance of the hearing on the motion to allow discovery under Iowa Rule of Civil Procedure 1.981(6).  OPINION HOLDS: The district court correctly determined that NCP’s affidavits were based on personal knowledge, that the undisputed facts established that there was no genuine issue of material fact, that NCP was entitled to summary judgment, and Midwest Biologics, LLC’s motion for opportunity to conduct discovery in this mortgage foreclosure action was properly denied.  We affirm.

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Tabor and May, JJ.  Opinion by Tabor, J.  (10 pages)

            A father appeals a protective order against him in favor of his child’s mother.  OPINION HOLDS: The mother did not meet her burden of proof.  We reverse and remand.

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Greer and Ahlers, JJ.  Opinion by Greer, J.  (13 pages)

            Dante Rhodes appeals the denial of his application for postconviction relief (PCR) following his conviction for two counts of delivery of a controlled substance (heroin).  Rhodes re-raises the same claims he raised to the district court, arguing he received ineffective assistance from trial counsel when counsel failed to move (1) for dismissal of the underlying criminal charges because the statute of limitations had lapsed and (2) for suppression of evidence obtained during the execution of a search warrant that was not supported by probable cause.  OPINION HOLDS: Rhodes failed to prove the motions would have been successful, so we cannot find counsel had a duty to pursue them and Rhodes’s claims of ineffective of assistance of counsel fail.  We affirm the district court’s denial of his application for PCR.