Court of Appeals Opinions

            Appeal from the Iowa District Court for Story County, Michael J. Moon, Judge.  REVERSED AND REMANDED.  Heard by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (16 pages)

            Ames 2304, LLC appeals the district court order annulling its writ of certiorari.  It contends the Ames Zoning Board of Adjustment acted illegally in denying it a permit for its proposed remodeling plan by incorrectly applying the law in interpreting the zoning ordinance concerning nonconforming use.  It also contends substantial evidence does not support the Board’s finding that the plan would increase the intensity of the nonconforming use.  OPINION HOLD: The municipal ordinance’s definition of “intensity” does not apply to residential uses.  However, limiting the application of the “increase in intensity” test to just enlargements, expansions, or extensions of nonconforming uses would be contrary to the purposes of the zoning ordinance.  Looking elsewhere in the ordinance for a definition of intensity to apply to residential uses, the only instance we could find ties intensity to the number of dwelling units.  Because the proposed remodel does not increase the number of dwelling units, it would not increase the intensity of the nonconforming use.  In relying on its erroneous interpretation of the zoning ordinance, the Ames Zoning Board of Adjustment acted illegally in denying Ames 2304 a permit for its proposed interior remodel.  We reverse the district court order annulling the writ of certiorari and remand to the district court for entry of an order sustaining the writ.

            Appeal from the Iowa District Court for Dubuque County, Monica L. Wittig, Judge.  AFFIRMED.  Considered by Vogel, P.J., Tabor, J., and Mahan, S.J.  Opinion by Vogel, P.J.  (9 pages)

            Sean Hilliard appeals his conviction for sexual abuse in the second degree.  Through his appellate counsel, he argues his trial counsel was ineffective on several grounds.  In a pro se brief, he also argues his jury was not drawn from a fair cross-section of the community and the evidence is insufficient to support his conviction.  OPINION HOLDS: We find the evidence is sufficient to support his conviction, he did not preserve his jury-composition argument, and we cannot evaluate his ineffective-assistance claims on the record before us.  Therefore, we affirm his conviction and preserve his ineffective-assistance claims for potential postconviction proceedings.

            Appeal from the Iowa District Court for Clayton County, John J. Bauercamper, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Mullins and McDonald, JJ.  Opinion by Mullins, J. (9 pages)

            Appellants appeal a district court decree granting foreclosure of mortgages on farm property in favor of Farmers Savings Bank.  OPINION HOLDS: Having reviewed de novo the issues properly presented on appeal, we affirm the outcome of the district court proceedings. 

            Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (3 pages)

            Alan Nigel Archibald Jr. appeals from his convictions following bench trial for multiple offenses.  On appeal, Archibald argues that the district court erred when it denied his motion for a new trial because the verdict was against the weight of the evidence.  OPINION HOLDS: Because the court did not abuse its discretion in denying Archibald’s motion for a new trial, we affirm.

           Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.  AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (8 pages)

           Patricia Haidar appeals the entry of default judgment in her dissolution proceeding.  OPINION HOLDS: The entry of default judgement was not proper because Patricia's counsel was present for trial and prepared to proceed without Patricia's physical presence, and Patricia's presence was not reasonably necessary to resolve the disputes at issue.  The portion of the judgment dissolving the marriage is affirmed, and the remainder is vacated and remanded to the district court for substantive consideration.

            Appeal from the Iowa District Court for Scott County, Henry W. Latham II, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (15 pages)

            Nancy Hoffman appeals her conviction and sentence following her guilty plea to operating while under the influence (OWI), second offense.  Her appeal was consolidated with her appeal of the revocation of her probation and deferred judgment from a prior conviction.  Hoffman asserts the court erred in accepting her guilty plea, in sentencing her, and in finding a probation violation had occurred.  Hoffman also asserts her trial counsel was ineffective in allowing her to plead guilty to OWI, second offense, without a factual basis and because her plea was not given knowingly, voluntarily, or intelligently.  OPINION HOLDS: Because there was a factual basis for Hoffman’s guilty plea to OWI, second offense, counsel was not ineffective in that regard.  Because Hoffman stipulated she violated the terms of probation, the court did not err in revoking her probation and deferred judgment.  We affirm Hoffman’s conviction, revocation, and sentences.  Because the record is inadequate to address Hoffman’s other ineffective-assistance-of-counsel claims, we preserve those claims for potential postconviction-relief proceedings.

            Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.  AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED IN PART AND REVERSED IN PART ON CROSS-APPEAL; AND REMANDED WITH DIRECTIONS.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J.  (14 pages)

            Seth Aldini appeals and Bianca Brashear cross-appeals from the order modifying their custody and support decree.  OPINION HOLDS: On appeal, we affirm as modified the visitation terms—modifying the weekend, Wednesday night, holiday and child’s birthday visitation terms.  On the cross-appeal, we reverse the denial of retroactive application of the increased child support and affirm on all other issues.  We remand for further proceedings consistent with this opinion.

           Appeal from the Iowa District Court for Jackson County, Mark R. Lawson, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Danilson, C.J. (7 pages)

           Jason Brown appeals from the summary adjudication of his second application for postconviction relief, contending the district court erred in dismissing the claim as time barred.  OPINION HOLDS: Because Brown has not shown he could not have raised the issue earlier or sufficient reason to avoid the three-year bar, we affirm. 

            Appeal from the Iowa District Court for Polk County, Gregory D. Brandt and Cynthia M. Moisan, District Associate Judges.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J.  (5 pages)

            Bryant Kephart challenges his guilty pleas, claiming he received ineffective assistance of counsel because his plea was not knowingly made and lacked a factual basis.  OPINION HOLDS: Because the plea was knowingly made and supported by a factual basis, counsel was not ineffective in allowing Kephart to plead guilty or failing to file a motion in arrest of judgment.

            Appeal from the Iowa District Court for Fayette County, John J. Bauercamper, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (10 pages)

            Robert and Marlene Valley appeal the district court order denying their petition and entering judgment in favor of Douglas and Jan Kiel.  OPINION HOLDS: The Valleys have met their burden of proving their claim to enforce the security interest, and the Kiels fall short of proving by clear and convincing evidence the proof necessary to reform the contract.  We reverse the district court order denying the Valleys’ petition, enter judgment in their favor, and assess costs of the action to the Kiels.  We remand to the district court to determine the amount of attorney fees to award the Valleys.

           Appeal from the Iowa District Court for Keokuk County, Joel D. Yates, Judge.  REVERSED.  Considered by Potterfield, P.J., McDonald, J., and Scott, S.J.  Opinion by McDonald, J.  (5 pages)

           Petitioners appeal from the district court judgment permanently enjoining them from taking certain actions with respect to farm property.  OPINION HOLDS: Respondents failed to prove they would suffer substantial injury or damages in the absence of injunctive relief.  They also failed to show no alternative legal remedy would be adequate.  The district court erred in granting injunctive relief.

            Appeal from the Iowa District Court for Buchanan County, Kellyann M. Lekar And David P. Odekirk, Judges.  SENTENCES VACATED AND REMANDED FOR RESENTENCING.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (9 pages)

            Brian McConnelee appeals his consecutive sentences for convictions of eight counts in three cases, claiming his counsel provided ineffective assistance by failing to object to the prosecutor’s alleged breach of the parties’ plea agreement.  OPINION HOLDS: Defense counsel failed to perform an essential duty by failing to timely object to the prosecutor’s breach of the plea agreement.  We presume McConnelee was prejudiced by defense counsel’s failure.